ImmigrationProf Blog

CAP Report analyzes impacts of looming Supreme Court decision DACA

There is growing media coverage of mounting tension as immigrant communities wait for the DACA decision, which will decide whether President Trump's rescission of the DACA program can go forward. A CAP report details the impacts of  the looming Supreme Court decision and analyzes policy pathways that will flow from the court's opinion.

Assuming the court does not itself invalidate DACA protections or bar the administration from continuing to accept and process renewals, the report notes that there are still a number of questions regarding how the Trump administration and U.S. Citizenship and Immigration Services (USCIS) will react to a decision that permits them to end DACA:

• Will USCIS adjudicate all renewal applications currently pending? As of March 31, 48,390 DACA recipients had pending renewal applications.
• Will USCIS open a window for individuals with near-term expirations to apply to renew their DACA while Congress debates permanent protections, similar to what it did in September 2017?

The report concludes: "Except in the most extreme scenario, the Trump administration will still have the power to issue automatic extensions for DACA recipients whose protections are set to expire over the course of the next year." This continuing ability represents a form of prosecutorial discretion that preceded DACA. 

MHC

The Parallels Between Second-Amendment Sanctuary Cities and Immigration Sanctuary Cities

Second Thoughts is a blog from the Center for Firearms Law at Duke University. Now why on earth am I pointing immprofs to Second Amendment posts? The answer lies in sanctuary movements, which, apparently, are not just for immigration anymore. Gun enthusiasts are getting in on the sanctuary action.

Check out Immprof Deep Gulasekaram's contribution: Local Immigration Non-enforcement and Local Gun Deregulation. He explains how "[t]he primary difference between immigrant and firearms sanctuaries is the particularities of the superior level of government. In the immigration context, sanctuary city ordinances were created almost universally to resist federal efforts, whereas the second amendment sanctuary movement is predicated on resistance to state regulation."

Immprof Rick Su is another contributor. His piece The Two Sides of Sanctuary discusses how "immigration and Second Amendment sanctuaries may simply be two sides of the same local government coin."

I, for one, had never heard of Second Amendment sanctuaries. This despite living in Oklahoma where, hand to God, a local political ad includes the below image of the politician pulling her own gun out of her own glove compartment while talking about fighting for Second Amendment rights.

All those writing and teaching about sanctuary -- pretty much all you immprofs out there -- will find this series of articles super enlightening.

-KitJ

The New Passport Poor by Atossa Araxia Abrahamian

Atossa Araxia Abrahamian's essay in the The New York Review of Books provides a thoughtful analysis on the value of a passport and the different roles in plays in different societies. In places like the US, passports enable travel and mobility. In more strict regimes, they limit movement.  Case in point: a German can visit 177 countries visa-free; an American, 173; an Afghan, just twenty-four.

Passports, in other words, were invented not to let us roam freely, but to keep us in place—and in check. They represent the borders and boundaries countries draw around themselves, and the lines they draw around people, too.

The article traces history and evolving thought in the development of passports. It reminds me of John Toroey's The Invention of hte Passport: Surveillance, Citizenship and State (Cambridge 2000, 2018) and the socio-legal works detailing the importance of the driver's licenses and municipal identification cards or matrículas consulares as a substitute identity document in America (see e.g. Els de Graauw and Monica Varsanyi).

Trump Warns Sanctuary Jurisdictions May Not Get Funding to Fight Coronavirus

President Trump says he'd "want certain things" from states before giving them coronavirus-related funding (including bail out funds) from the feds. What does he want? "Sanctuary city adjustments." (See 1:04-1:22 in the first clip below).

Here's another, similar, statement from a different briefing today:

I'll take this opportune moment to plug a short piece of mine: The Mythology of Sanctuary Cities. It's a brief piece that tackles common myths about sanctuary cities, some of which Trump perpetuates in both of the clips above (sanctuary cities are lawless; sanctuary cities are not entitled to federal tax dollars).

-KitJ

Spring 2020 AILA Law Journal issue online

The Spring 2020 AILA Law Journal is online. A write-up with a summary of individual pieces by Danielle Pollen is here.

In briefer form: the Spring 2020 edition includes five articles by a diverse group of immigration practitioners and scholars, including: a piece arguing against Chevron deference in asylum and withholding of removal cases, an article on vicarious trauma and ethical obligations for attorneys representing immigrant clients, an overview of the tax consequences of expatriating from the United States, a critique of the president’s call for a border wall, and a compilation of survey data illustrating how immigration attorneys rate some of the most popular immigration case management systems.

The submission deadline for the Fall 2020 edition is June 1; submission details here.

MHC

The Intersection of Immigration & Patent Law

Prawf (but not immprof) Saurabh Vishnubhakat (TAMU) has a fascinating piece over at the Yale Journal on Regulation entitled Immigration, Patents, and Judicial Review of Agency Action.

Saurabh notes the connections between the recently-decided SCOTUS case of Guerrero-Lasprilla v. Barr (the SCOTUS case about 8 USC § 1252(a)(2)(D)) and Thryv v. Click-to-Call Technologies, a patent law case still pending before the Court.

What, you may ask, could possibly connect an immigration case and a patent case?

Both turn on "an emerging debate within the Court over the continuing vitality of administrative law’s presumption in favor of judicial review over agency actions," Saurabh notes. And that debate, which is really about separation of powers, "may now have opened up a new line of argument in the reviewability of immigration disputes, patent disputes, and beyond."

-KitJ

New Study on Assimilation Rates of Immigrants

Leah Boustan (Princeton--Economics) and Ran Abramitzky (Stanford--Economics) have a new study out: Do Immigrants Assimilate More Slowly Today Than in the Past?

Short answer: no.

Here's the abstract for their paper, published in the American Economic Review:

Using millions of historical census records and modern birth certificates, we document that immigrants assimilated into US society at similar rates in the past and present. We measure cultural assimilation as immigrants giving their children less foreign names after spending more time in the United States, and show that immigrants erase about one-half of the naming gap with natives after 20 years both historically and today. Immigrants from poorer countries choose more foreign names upon first arrival in both periods but are among the fastest to shift toward native-sounding names. We find substantial cultural assimilation for immigrants of all education levels.

I'm fascinating by the breath of the study and it's focus on naming. The two talked about their work on NPR today. It was a terrific listen.

-KitJ

Decolonizing Indigenous Migration by Kristen Carpenter and Angela Riley

The University of Colorado's Citizenship and Equality Colloquium hosted Professor Kristen Carpenter, CU Law Professor on February 12.

Professor Carpenter presented a co-authored paper (with Angela Riley) titled “Decolonizing Indigenous Migration” that shifts the paradigm on border enforcement against indigeneous persons migrating across the US-Mexico and US-Canada border. She describes language translation problems that lead to curtailed process and tragic deaths for native speakers in detention in a system prepared only for Spanish. She describes the closing gates for Tohono Oodham tribal members whose reservations in Arizona are being split by the wall and surveilled by militarized ICE presence. The solutions cannot be found in immigration law alone, given its embedded settler-colonial assumptions about land ownership and rights. Instead, she turns to a human rights framework and the 2018 Global Compact on Migration for new ideas on how to better acknowledge the claims of indigenous people.

CU Geography Professor Joe Bryan provided commentary drawing on his research and experiences working in Oaxaca, Mexico and many parts of Central America. 

Speaker Bios:

Kristen Carpenter is the Council Tree Professor of Law and Director of the American Indian Law Program at the University of Colorado Law School. Professor Carpenter also serves on the United Nations Expert Mechanism on the Rights of Indigenous Peoples as its member from North America. She was a founding member of the campus-wide Center for Native American and Indigenous Studies at CU-Boulder. In 2016 she was the Oneida Indian Nation Visiting Professor of Law at Harvard Law School.

Joe Bryan is a Professor in the Geography Department at CU. His work focuses on the politics of indigeneity in the Americas, with particular attention to questions of land, territory, and rights. His current project focuses on the contemporary politics of indigeneity in Oaxaca, Mexico. It involves a critical engagement with the concept of territory that works through research on community radio projects across Oaxaca.  This work is broadly informed by his longer involvement with indigenous rights, as both an advocate and a researcher, in Ecuador, Chile, Honduras, Nicaragua, and the western United States. Much of that work further engages with the diversity of mapping practices used to advocate for recognition of indigenous land rights

MHC

Counterintuitive results on Climate change and US-Mexico Migration

The University of Colorado's Citizenship and Equality Colloquium hosted its first speaker in the Spring 2020 Series.

Professor Fernando Riosmena, CU Associate Professor in Geography and Director of the IBS Population Center, presented a published paper on Climate Change and US-Mexico Migration. The paper presented an empirical analysis of the popular proposition that climate change induces forced migration from the global south. It finds that -with very few exceptions- the vast majority of climate migrants will likely move to other domestic locations, in keeping with most scholarly accounts and counter to media and activist portrayals.  Using rural Mexico as a case study, the paper additionally specifies the conditions of vulnerability that sometimes do lead to increased migration in the face of climate variability.

Professor Riosmena was joined by Professor Phaeda Pezzullo of the CU College of Media, Communication, and Information for a discussion of the implications of these findings for immigration policy and law. They noted the divergent scholarly and popular perceptions and the ways that the legal frame of climate migration or climate refugee could be deployed most effectively among climate activists and immigration activists seeking to inform policy.

Speaker Bios:

Fernando Riosmena is an Associate Professor at the Population Program and the Geography Department at the University of Colorado at Boulder, and Associate Director of the University of Colorado Population Center. His research aims at improving understanding of the theories, drivers, empirical measurement, and analytical strategies to analyze spatial mobility, with a particular focus on the social, economic, policy, and environmental factors likely influencing international migration between Mexico and the United States. In addition, Riosmena also does research assessing the patterns and explanations of the chronic health status Latin American immigrants arrive with, how this health status changes over time, and how and why it differs between immigrants and their U.S.-born descendants.

Phaedra C. Pezzullo (PhD, University of North Carolina at Chapel Hill; BS and BA, University of Massachusetts Amherst) is an Associate Professor at the University of Colorado Boulder in the College of Media, Communication & Information. Her first book, Toxic Tourism: Rhetorics of Travel, Pollution, and Environmental Justice (University of Alabama Press, 2007), won four awards. She also has coauthored the award-winning Environmental Communication and the Public Sphere (Sage, 2016, 2018) and coedited Environmental Justice and Environmentalism: The Social Justice Challenge to the Environmental Movement (MIT Press, 2007). She is coeditor of the new University of California Press book series: Environmental Communication, Power, and Culture. Committed to public engagement, Pezzullo has a multi-decade record of environmental justice advocacy, including: supporting Warren County, North Carolina’s clean up effort of the first landfill called “environmental racism”; helping write the Principles of Working Together at the Second National People of Color Environmental Leadership Summit; and currently is helping the Sierra Club design Affinity Groups. She is a founding co-director of the CU Boulder Just Transition Collaborative and a co-director of Inside the Greenhouse.

The speaker series is sponsored by the CU Immigration and Citizenship Law Program. A full list of the Citizenship and Equality Colloquium speakers for Spring 2020 is posted here.

MHC

Top 10 Immigration Stories of 2019

2019 had many big immigration stories.  The big news at the ImmigrationProf blog was the addition of a new superstar blogger.  Welcome Professor Ming Hsu Chen to the ImmigrationProf Blog!

If one is looking simply at changes to U.S. immigration law and policy, the biggest immigration news story of 2019 (like 2017 and 2018) unquestionably was President Donald Trump.  He probably has been the biggest immigration news story since his inauguration in January 2017.  For better or worse, no modern U.S. President has made immigration the priority that Trump has day in and day out.  President Trump is a virtually endless source of immigration comments, insults, tweets, and policy initiatives.   Law professors are indebted to the President for providing fodder for law review articles for many years to come. 

In addition to President Trump, here are my Top 10 Immigration News Stories from 2019, followed with some awards. 

 

 

1.  Immigration in the Supreme Court

A wide array of immigration cases continue to make their way to the Supreme Court.  The biggest immigration case of the 2019 Term will decide the future of President Obama's Deferred Action for Childhood Arrivals (DACA) policy.  In November, the Court heard oral arguments in three consolidated DACA cases in which the lower courts enjoined the Trump administration’s attempted rescission of DACA.  See the Argument Recap in DACA Cases.   A ruling in the case is expected at the end of the Term in June.  I predict a 5-4 vote.  Expect fireworks whatever the outcome.  Stay tuned!

The high Court has before it a full array of immigration issues, including the availability of damages for cross-border shootings, judicial review of a variety of immigration decisions, federal versus state power over immigration, the legality of expedited removal, and more.  For an overview of the Supreme Court's 2019 Term immigration docket, see Immigration in the Supreme Court, 2019 Term: DACA, Judicial Review, Federalism, Etc.

In a blockbuster decision at the end of the last Term in June, the Supreme Court by a 5-4 vote held that the Department of Commerce had provided unconvincing reasoning for adding a question on U.S. citizenship to the 2020 Census.  The Trump administration had made the addition of a citizenship question a high priority.   Joining the liberal justices, Chief Justice John Roberts wrote for the majority.  For an explanation of why he sided with the liberals, see Department of Commerce v. New York: Why the Supreme Court asked for an explanation of the 2020 census citizenship question.  Many Court watchers were surprised by the outcome of the Census case.  To add to the surprises, the Trump administration announced a few weeks after the decision that it was throwing in the towel on the citizenship question; consequently, the 2020 Census will not have a citizenship question.

 

President Donald Trump, Department of Homeland Security Secretary Kirstjen Nielsen, and Vice President Michael Pence.  Photo courtesy of Ron Sachs-Pool/Getty Images

 

Chad Wolf

2.  Turnover in DHS Leadership

2019 saw a game of musical chairs in the office of the Secretary of the Department of Homeland Security.  In April, Kirstjen Nielsen, rumored to be on the outs with President Trump, stepped down.  See Former Department of Homeland Secretary Kirstjen Nielsen Explains Resignation.  Next, the Acting DHS Secretary, Kevin McAleenan, resigned.  See Breaking News: Acting DHS Secretary McAleenan Resigns. He was replaced by another Acting Secretary, Chad Wolf, who at least for now remains in the position.

 

3.  William Barr Replaces Jeff Sessions as Attorney General

Who is the smiling man in the picture above?  He is the current Attorney General of the United States,  Judging from the picture, the current administration makes him happy.

In February, William Barr was sworn in as Attorney General.  He replaced Jeff Sessions, who had made enforcement of the U.S. immigration laws a high priority.  President Trump had reportedly lost confidence in Sessions.  Barr previously served as Attorney General under President George W. Bush.

The Attorney General, of course, heads the Department of Justice, which houses the Executive Office of Immigration Review (the home of the immigration courts and Board of Immigration Appeals (BIA)). 

Like Attorney General Sessions, Barr has intervened in cases before the BIA to narrow relief for removal.  See, e.g., L-E-A-, 27 I. & N. Dec. 581 (AG July 29, 2019) (narrowing "membership in a particular social group" for purposes of asylum).  Put simply, do not expect any slowing down of immigration enforcement under Attorney General Barr.  

 

Judge Dolly Gee

4.  Flores Settlement

The Flores settlement, agreed to by the U.S. government under President Clinton in 1997, governs the detention of migrant children and generally bars minors from lengthy and indefinite immigrant detention. The settlement made the news regularly in 2019. A short and sweet summary of the Flores settlement can be found at The Conversation: A Short Explanation of the Flores Settlement and Its Possible Demise. 

 

Throughout 2019, President Trump continued his effort to abrogate the Flores settlement. He has sought to detain migrant children, and all other migrants, indefinitely while their cases move forward in the immigration courts.  Judge Dolly Gee, who is monitoring the Flores settlement, rejected the latest effort to end the settlement.  See Federal Court Rejects Trump Administration's Effort to End Flores Settlement; Ninth Circuit Rejects Trump Administration's Latest Challenge to Flores Settlement, Holds that Soap, Toothbrushes, and Toothpaste Cannot Be Denied Migrants.

 

The bottom line:  The Flores settlement remains in place and no doubt will be in the news in 2020 as the Trump administration continues to utilize detention in its immigration enforcement efforts. 

5.  Public Charge and Other Trump Immigration Policy Initiatives

The Trump administration continued to press forward with new immigration enforcement efforts.  There are literally too many to list all of the Trump immigration initiatives.  But here are a few.

The Trump administration proposed a new, stricter approach to the public charge exclusion under the immigration laws.  The proposed rule has been criticized for making it too tough on immigrants of low- and moderate-incomes to come, or stay in, the United States.  The Ninth Circuit -- and later the Fourth Circuit -- stayed a nationwide injunction barring implementation of the proposed rule.  See Ninth Circuit Stays Injunction of Trump Public Charge Rule; The Nationwide Injunction in the Public Charge Case; Breaking news: public charge rule enjoined.

The Trump administration's  Remain  in Mexico policy, a novel approach that makes asylum-seekers wait in Mexico for their claims to be decided, remains in place and is controversial as ever.  

This year, the administration entered into agreements with El Salvador, Guatemala, and Honduras in an attempt to  better manage the flow of asylum seekers to the United States and deny relief to migrants who failed to seek asylum in countries on their way to the United States.  See DHS FACT SHEET: DHS AGREEMENTS WITH GUATEMALA, HONDURAS, AND EL SALVADOR.

 

Photo courtesy of Clarion Ledger

Departing from the practice during the Obama administration, the Trump administration has used immigration raids as an immigration enforcement tool.  During the summer, the President threatened to direct Immigration & Customes Enforcement to conduct mass immigration raids in cities across the country.  The threat struck fear in communities from coast to coast.  In August, the Trump administration on the first day of school conducted immigration raids at food processing plants in Mississippi.  Many children came home from school unable to find their parents.  See ICE Raids in Mississippi, 680 Arrested.

 

In November, news reports made the rounds that senior White House aide Stephen Miller had promoted white supremacist, anti-immigrant articles in emails to Breitbart.  Miller has been said to be the architect of the Trump administration's immigration policies. 

In April, there were rumors that President Trump was considering the possibility of completely closing the US/Mexico border.  Business interests raised concerns.  Such a measure would dramatically affect trade as well as migration between the two neighboring nations.  In the end, the President never followed through on the threat to close the border.  See Trump backs off threat to close the U.S.-Mexico border.

The state of California continues to resist the Trump administration's immigration enforcement efforts.  In April, the U.S. Court of Appeals for the Ninth Circuit rejected most of the administration's challenges to California's sanctuary laws, which sought to distance the state from federal immigration enforcement.  President Trump and others in his administration continue to rail against the public safety risks caused by sanctuary cities.  See Ninth Circuit Rejects Bulk of Trump Administration's Challenge to California "Sanctuary" Laws.

 

6.  Immigration Court Backlog Hits One Million

In September 2019, the backlog of cases in the U.S. immigration courts' surpassed one million.  The enormous backlog affects every noncitizen with a hearing in the immigration courts, their attorneys, and the immigration judges.  The Trump administration's aggressive enforcement efforts contributed to the rapid growth of the backlog.   Noncitizens seeking relief from removal can expect long -- years in some insttances -- waits for a hearing. 

 

7.  President Trump Lowers Refugee Admissions

It has been said that  the world is experiencing a global refugee crisis.  Still, President Trump again decreased the number of refugee admissions.  See Presidential Determination on Refugee Admissions for Fiscal Year 2020; Trump administration sets lowest cap on refugee admissions in four decades. Again.  On November 1, President Trump released the Presidential Determination on Refugee Admissions for Fiscal Year 2020.  It provides for "[t]he admission of up to 18,000 refugees to the United States during Fiscal Year 2020 . . . ."  (emphasis added).  Criticism followed the announcement.  In 2016, President Obama had capped refugee admissions at 85,000.

 

Marie Yovanovitch

Fiona Hill

8.  Immigrants and Impeachment

As the nation well knows, Congress has been considering the impeachment of President Trump.   Over the last few months, Democrats and Republicans have regularly and literally been screaming at each other about impeachment.  In stark contrast, several key immigrant witnesses in the impeachment hearings kept their heads for the good of the nation.

 

In hearings on the impeachment  in November, immigrants played a vital role.   Ambassador Marie Yovanovitch is the child of immigrants who fled the Soviet Union and later the Nazi occupation of Europe. Born in Canada, she grew up in Connecticut and became a naturalized U.S. citizen.  Born in Ukraine when it was part of the USSR, Lt. Colonel Alexander Vindman and his family fled to the United States. He joined the U.S. Army, earning numerous commendations including a Purple Heart for wounds suffered in combat in Iraq. Vindman is the Director for European Affairs on the National Security Council (NSC).  Fiona Hill, who until recently served in a senior position on the NSC, opened her testimony by describing herself as “American by choice.” Born in a hardscrabble coal mining town in Northern England, Hill came to the United States, attended Harvard, and became a citizen.  All of the immigrant witnesses left enduring competent impressions and important testimony.

 

 

9.  The Retirement of Professor Michael Olivas

One of the leading immigration scholars of his generation, Michael Olivas of the University of Houston Law Center, has retired from law teaching.   Here is a Guest Post: Celebrating Michael Olivas's Retirement. 

At the January 2019 annual meeting, the Association of American Law Schools honored Olivas with a lifetime achievement award.  See Immigration Law Values Program, Michael Olivas Honored. 

In 2010, Olivas was the ImmigrationProf blog's Outstanding Immigration Professor of the Year.   A mentor to countless law professors, myself included, Olivas is an esteemed immigration scholar (as well as a renouwned scholar in higher education, civil rights, and other areas) . For a review of his body of work, see Law Professor and Accidental Historian:  The Scholarship of Michael A. Olivas (Ediberto Roman ed., 2017).

Be on the lookout next June for Olivas' latest book on the DREAM Act and DACA.

 

 

Photo courtesy of the Los Angeles Times

10.  25th Anniversary of Proposition 187

Contrary to popular belief, California, which produced two Republic Presidents in the twentieth centiry (Richard Nixon and Ronald Reagan), was not always a sanctuary state and liberal haven.  Far from it.  In 1994, California voters passed the anti-immigrant milestone known as Proposition 187, which would have barred undocumented children from the public schools and stripped undocumented immigrants of virtually all non-emergency public benefits.  A federal court enjoined most of the initiative from going into effect.  Nonetheless, Proposition 187 prodded Congress in 1996 to pass two major pieces of tough immigration reform and and to eliminate immigrant eligibility for major public benefits program in welfare reform.

Times have changed and, in response to the Trump administration's immigration initiatives, California has declared itself to be a sanctuary state.  By spurring naturalization and increasing Latinx voter turnout, Proposition 187 contributed to the political transformation of the state and the ascendancy to dominance of the Democratic Party.  For analysis of Proposition 187 and its legacy, see

UC Davis Law Review Symposium: The 25th Anniversary of Proposition 187: Challenges and Opportunities for Immigrant Integration and Political Identity in California  Be on the lookout for the symposium issue from this conference, which will be available in spring 2020.

DACA, Proposition 187, and the legacy of the Trump immigration enforcement revolution

25 Years After The Passage of California's Proposition 187: The Beginning of the Political Transformation of California

 

Honorable Mention

There are many other big immigration stories in 2019.  Here are a few worthy of note:

1.  An Immigrant "Invasion": Words Used by Members of Congress as well as the President and the El Paso Shooter (August):  A sniper, who in an online rant had railed about the "Hispanic invasion," targeted -- and killed -- Latinx people at a shopping center in El Paso. 

 

2.  News from the US/Mexico Border: JURY ACQUITS NO MORE DEATHS VOLUNTEER OF FELONY HARBORING CHARGES (November):  The Trump administration loses a criminal prosecution of a humanitarian worker seeking to save migrant lives.  One can only wonder whether there were better types of cases for the U.S. government to prosecute.

 

 

3.  Death on the Border: NPR report: When Migrants Die, Many Bodies Remain Unidentified:  This is not really a news story.  In fact, deaths have been a fact of life for decades along the US/Mexico border.  I include it here lest we forget that migrantse regularly are dying while trying to make it to the United States.  This is a tragic impact of the nation's immigration enforcement policies that seems to not have penetrated the nation's consciousness.

 

4. Inaugural Issue of AILA Law Journal (Apr. 28):  The new American Immigration Lawyers Association Journal focuses on cutting edge immigration law issues.

 

 

 5.  Fox Apologizes for Graphic: "Trump Cuts U.S. Aid to 3 Mexican Countries" (Apr. 4):  No this is not a late April Fool's Day joke.  You can't make this stuff up.  The show "Fox & Friends" reported news of President Trump's plans to reduce millions of dollars in aid to three Central American countries for not doing enough to stem the stream of migrants to the United States.  As one commentator talked about the president “going full-court press on Mexico” and the co-host spoke of “cutting payments, aid payments, to El Salvador, Guatemala and Honduras,” a caption read "Trump Cuts U.S. Aid to 3 Mexican countries.”  This, of course, is a sad reflection on the state of education in the United States.

 

Immigration Article of the Year

The Interior Structure of Immigration Enforcement by Eisha Jain, 167 University of Pennsylvania Law Review 1463 (2019).  This article is a deep dive into immigration enforcement, going well beyond removals. It calls for restructuring immigration enforcement to consider the full impact of enforcement in light of the impacts of the immigrants present in the United States.

 

K-Sue Park

Honorable Mention: Self-Deportation Nation by K-Sue Park, 132 Harvard Law Review 1878 (2019).  Besides writing an incredible article, Professor Park should be praised for convincing the editors of the venerable Harvard Law Review to publish an immigration article.  The article analyzes the long history of self deportation policies in the United States.

 

Shoba Sivaprasad Wadhia

Honorable Mention: Immigration Litigation in the Time of Trump by Shoba Sivaprasad Wadhia.  How did Shoba keep up with all the challenges to Trump’s immigration policies?

 

Book of the Year

Ghosts of Gold Mountain: On the Chinese Immigrants Who Built the Transcontinental Railroad by Gordon H. Chang (2019).  A groundbreaking history of the Chinese workers who built the Transcontinental Railroad, helping to forge modern America only to disappear into the shadows of history. I loved reading this book while vacationing in the Sierras, not far from where the Chinese workers once toiled on the railroad.  

 

 

Honorable Mention: America for Americans: A History of Xenophobia in the United States by Erika Lee (2019).  The time is perfect for reading a book on the history of xenophobia in the United States.  Will a supplement and pocket part be necessary?

 

Honorable Mention: Migrating to Prison: America’s Obsession with Locking Up Immigrants by César Cuauhtémoc García Hernández (2019).  After the events of the last few years, the entire nation should be considering the morality and policy-sense of mass immigrant detention.  Cesar Garcia's book offers critical analysis on "America's Obsession" with immigrant detention.

 

 

 

 

Immigrant Sportsman of the Year

José de Jesús Rodríguez Martínez, a professional golfer, currently plays on the PGA Tour.  He grew up in poverty in Irapuato, Mexico. At age 12, he dropped out of school and began caddying full-time at Club de Golf Santa Margarita. At age 15, Rodríguez crossed the Rio Grande and entered the United States. He worked in the United States for a decade, mostly as part of the maintenance crew at a country club in Fayetteville, Arkansas. Rodriguez then became a pro golfer.  See ‘The most unbelievable story in golf’: A treacherous border crossing was just the beginning of José de Jesús Rodríguez’s journey to the PGA Tour.  The Golf Channel is working on a documentary about Jose Rodriguez.

 

Photo of the Year

I could not resist ending the year without recognizing this photograph:

 

The photo was posted on March 3, 2019 in the post A Sign of the Times: Arkansas church sign -- ‘heaven has strict immigration laws, hell has open borders'.  

In April, the photo that showed the world the cruelty of the Trump administration's family separation policy, was honored with the World Photo of the Year Award.  See "Crying Girl on the Border" Wins World Photo of the Year Award.  This photo helped fuel the public outcry against family separation and led to the policy's demise.

 

John Moore/Getty Images/World Press Photo

 

Film Landmark

 

 

2019 marked the 35th anniversary of the classic refugee film El Norte.  The film tells the powerful story of a young Guatemalan brother and ister who fled the war-torn nation and journeyed to the United States.  It is a true classic.  Sadly, El Norte remains topical today as Central Americans continue to come to the United States seeking asylum from violence in their homelands.

KJ

 

 

 

 

Judicial Business: Statistics and Reports

There is a plethora of interesting statistical data available from the U.S. courts website. I'll admit that I was ignorant of this fabulous data set until recently. I learned about this resource from reading the footnotes from Ingrid Eagly's forthcoming paper The Movement to Decriminalize Border Crossing.

Data from this website was incredibly useful to me today. I covered the topic of crimmigration. While I teach a standalone crimmigration course, I include in my podium immigration course brief (one-class) coverage of 1325/1326/1324 and employment issues.

For example, the website includes this excellent chart about what crimes defendants are charged with in federal court:

As you can see, immigration crimes have been popular for a good five years, but they are now the most commonly charged crimes. As the website details:

The biggest numeric growth was in filings for defendants charged with immigration offenses, which increased by 7,478 (up 37 percent) to 27,916 filings and accounted for 32 percent of total criminal filings, making this the largest category of defendants prosecuted in the district courts. Defendants charged with improper reentry by an alien climbed 40 percent to 23,250, and those charged with improper entry by an alien rose 48 percent to 254. Immigration filings in the five southwestern border districts increased 39 percent to 21,781 and equaled 78 percent of national immigration defendant filings (up from 77 percent in 2017). Filings grew 66 percent in the Southern District of California, 65 percent in the Western District of Texas, 27 percent in the District of Arizona, 24 percent in the District of New Mexico, and 17 percent in the Southern District of Texas.

I also found this table instructive and used it in class, clipping it in this manner:

There's a lot to unpack here. For example, you can see that immigration offenses account for a smidge over 32% of criminal cases, that over 97% of defendants are convicted, and that of those convicted, over 99% plea guilty.

Perhaps you'll find this data useful for your next article or your next class.

-KitJ

YLJ announces winners of student essay competition on immigration

Congratulations to Zak New (my co-author and recent graduate from Colorado Law School) and Elizabeth Montana (Uinversity of Miami) on winning the Yale Law Journal's student essay competition. Their essays will appear in a special issue focused on emerging issues in immigration law in the Yale Law Journal Forum in early 2020.

The two winning Essays are:

Elizabeth Montano, The Rise and Fall of Administrative Closure in Immigration Courts

Elizabeth Montano’s Essay focuses on the laws surrounding immigration judges’ use of administrative closure, a case-management tool used to let individuals pursue more promising forms of relief. Elizabeth earned her J.D. summa cum laude from the University of Miami School of Law in May 2019. While at Miami Law, she served as the Editor-in-Chief of the University of Miami Law Review. In addition, she was a clinical student and a student fellow in the Immigration Clinic. Her clinical work earned her the 2018 CLEA Outstanding Clinical Student Award. Elizabeth was also one of ten recipients across the United States of the 2019 Law 360 Distinguished Legal Writing Award. Currently, Elizabeth works as an Associate Attorney at Kurzban, Kurzban, Tetzeli & Pratt, P.A., where she focuses on immigration-related litigation and deportation defense. She received her B.A. cum laude in Interpersonal and Organizational Communications from the University of Central Florida. Here are the abstracts:

Zachary R. New, Ending Citizenship for Service in Forever War

Zachary R. New’s Essay analyzes the recent policies that are causing a decline in U.S. citizenship for service, a tradition dating back to the Revolutionary War in which noncitizens earn their citizenship after serving in the U.S. military. Zachary earned his J.D. from the University of Colorado School of Law in 2019. While at Colorado Law, Zachary was a founding member and President of the Immigration Law and Policy Society. He spent a year volunteering for the Rocky Mountain Immigrant Advocacy Network. Through the Rocky Mountain Immigrant Advocacy Network, he traveled weekly to assist foreign nationals detained in Denver’s local ICE detention facility. His studies have focused primarily on immigration and naturalization. He has put those studies into practice, assisting foreign nationals with affirmative applications in corporate and family immigration, defending foreign nationals before the Executive Office for Immigration Review, and challenging agency decisions in federal court. Zachary now works at the Denver office of Joseph & Hall, P.C., where he focuses on corporate immigration and federal litigation.

MHC

Immigration Article of the Day: Is the Rescission of Deferred Action for Childhood Arrivals (DACA) Justified by the Results of Cost-Benefit Analysis by Carolina Arlota

Is the Rescission of Deferred Action for Childhood Arrivals (DACA) Justified by the Results of Cost-Benefit Analysis by Carolina Arlota, 29 Berkeley La Raza L.J. 93 (2019).

Abstract

On September 5, 2017, Attorney General Jeff Sessions announced the rescission of the Deferred Action for Childhood Arrivals program (“DACA”). The program was created in 2012 and it has been evaluated as an overall success. Members of both political parties and business leaders have criticized its rescission. In light of this controversy, what are the benefits and costs associated with the rescission of DACA? This article argues that the Trump Administration’s rescission of DACA is not justified based on three different accounts of a cost-benefit analysis. First, it evaluates the manner in which the Trump Administration’s decision was made, targeting how it was implemented (namely, its procedural terms), and how it increased litigation, uncertainty, and the lack of uniformity within immigration law generally. Second, it assesses the costs and benefits of the policy decision, focusing on the substantive effects of the rescission. Third, it examines the rescission using the normative approach of cost-benefit analysis, arguing that this method should not discount moral considerations.

The research presented in this article is timely because it targets a currently controversial topic that is subject to intense media coverage and litigation. Moreover, this article may influence such litigation because it provides novel arguments against the rescission of DACA. For example, the principles of administrative law applied to immigration may require agencies to consider costs. This remains to be examined by the courts. Similarly, the framework of this research may provide additional arguments based on its findings. From a theoretical perspective, this paper fills a void in the literature, as studies on the cost-benefit analysis of the DACA rescission have not yet been published. In addition, the framework chosen for this research contributes to cost- benefit analysis literature addressing a contemporary example of public policy that was enacted without the normative use of economics and that disregarded the cost- benefit analysis as a methodological tool for maximizing overall well-being. Thisarticle also advances a trending topic concerning cost-benefit analysis, namely, the incorporation of moral dimensions into cost-benefit analysis, including rights-based considerations.

This article is organized as follows: Part II presents an overview of the policy changes from the enactment of DACA to its rescission. Part III discusses the reasons that the rescission of DACA is not justified by the results of a cost-benefit analysis, focusing on its procedural terms (i.e., the manner in which the rescission was decided and implemented). Part IV assesses the costs and benefits of the rescission based on its substantive terms, including its quantitative and qualitative effects. In Part V, the results of the normative approach to the cost-benefit analysis reveal the moral considerations involved in the rescission. Part VI concludes that the rescission of DACA is not justified by the results of the cost-benefit analysis developed in this article.

-KitJ

Throwback Thursday: Stella Burch Elias

Talking about changes to the UK citizenship test has me thinking back on this great article from oh-so-long-ago: Stella Burch Elias, Testing Citizenship, 96 B.U. L. REV. 2093, 2136 (2017).

Here's the abstract:

In the last fifteen years, in the United States and elsewhere, there have been profound and remarkably rapid changes to long-established naturalization laws and regulations. In particular, aspiring citizens are now asked to pass increasingly rigorous language and knowledge tests to demonstrate that they can truly “belong” to the cultural mainstream in their new country. The political rhetoric accompanying these changes has focused heavily on concerns about national security and economic vitality in the context of the global recession. As U.S. scholars, lawmakers, and advocates consider how best to respond to renewed calls to overhaul American nationality laws, the recent experiences of other Western nations can shed light on the range of options that are potentially available. This Article therefore explores recent developments in the statutory and regulatory naturalization requirements in seven countries—the United States, Canada, the United Kingdom, the Netherlands, Germany, France, and Australia. This Article identifies potential options for reform to American nationality laws that are informed by recent developments here in the United States, as well as by the experiences of other mature democracies.

I found this article helpful in my work on Universities as Vehicles for Immigrant Integration, which talked about how American universities have the potential to serve as a “force multiplier” for the goals of immigrant integration that Professor Ming Hsu Chen identifies in her forthcoming book Pursuing Citizenship in the Enforcement Era. (Yes, I know, that's a reference inside a reference inside a reference.)

Stella's piece is an excellent comparative study that will get you thinking about what it takes to be an adopted citizen of a country.

-KitJ

Bringing Immigration into Civil Procedure (and Civ Pro into Immigration)

Professor Sinnar

I am one of those lucky immprofs who also gets to teach Civil Procedure. Woot. Woot. (That's an unironic woot for those unsure, a burst of genuine enthusiasm).

It's the start of the semester and I'm teaching my students about how to initiate a federal law suit -- with a complaint. And we're reading the complaint biggies from SCOTUS including those two modern (at least post-my-law-school-graduation) pleading Goliaths: Twombly and Iqbal.

I'm scanning around the internet, looking for a photo of Iqbal when I stumble upon an article by Professor Shirin Sinnar (Stanford): The Lost Story of Iqbal, 105 Georgetown Law Journal 379 (2017).

Readers, let me tell you, this article is the bomb.

Sinnar uncovers the story of the man behind the lawsuit. A man summarily described by SCOTUS as "a citizen of Pakistan and a Muslim" who, following 9/11, "was arrested in the United States on criminal charges and detained by federal officials."

Sinnar interviews Iqbal both in Pakistan and over Skype from the United States. She details his immigrant story, his detention story, and his post-deportation story. Each is utterly compelling.

For those immprofs who don't teach Civ Pro... don't tune this post out. Know that all of your students will have read Iqbal. So the case (and Sinnar's details that aren't apparent on the face of the case) can be a reference point when you're discussing issues of detention (criminal and civil) as well as national security/terrorism.

If nothing else, the piece has that photo I was searching for.

-KitJ

Immigration Article of the Day: Impeding or Accelerating Assimilation? Immigration Enforcement and Its Impact on Naturalization Patterns

Catalina Amuedo-Dorantes and Mary J. Lopez

Mary J. Lopez and Catalina Amuedo-Dorantes have published a new working paper with the Center for Growth and Opportuity at Utah State University. It's titled Impeding or Accelerating Assimilation? Immigration Enforcement and Its Impact on Naturalization Patterns.

Here is their abstract:

Naturalization bestows economic benefits to immigrants, their families, and communities through greater access to employment opportunities, higher earnings, and homeownership. It is the cornerstone of immigrant assimilation in the United States. Yet fewer than 720,000 of the estimated 8.5 million legal permanent residents eligible to naturalize do so on a yearly basis. Using data from the 2008–2016 American Community Survey, we analyze how the expansion of interior immigration enforcement affects naturalization patterns. We find that the intensification of interior enforcement curtails naturalization and, among those choosing to naturalize, delays it. Understanding how immigration policy influences naturalization decisions is important given its crucial role in migrant assimilation and its documented benefits.

Beyond the abstract, these key findings from the paper are worth highlighting:

• More intense immigration enforcement lowers the likelihood of naturalization by twelve percentage points.
• Among those who choose to naturalize, increased immigration enforcement delays the timing of naturalization by three months.
• These effects impact all migrants who could become citizens, including legal permanent residents.

-KitJ

Immigration Article of the Day: Introduction to the Symposium on Sanctuary Cities: A Brief Review of the Legal Landscape by Andrew F. Moore

Introduction to the Symposium on Sanctuary Cities: A Brief Review of the Legal Landscape by Andrew F. Moore, University of Detroit Mercy Law Review, Vol. 96, 2018

Abstract

This Introduction to the 2018 University of Detroit Mercy Law Review Symposium tries to set the stage by addressing three basic issues surrounding sanctuary cities: the extent to which the federal government can compel state and local assistance in immigration enforcement; the extent to which state and localities can choose to participate in immigration enforcement; and the extent to which states and local government can completely refuse to cooperate with such enforcement. These three topics involve important federalism questions that are currently working their way through the courts following President Trump's Executive Order to punish sanctuary jurisdictions.

In addition, this Introduction also discusses separation of powers problems that arise in the fight over sanctuary jurisdictions. With legislative gridlock over immigration policy, increasingly the courts have been used as a method for protecting or discouraging the adoption of sanctuary policies. One way to discourage sanctuary policies has been to allow private causes of action against localities that fail to adequately support immigration enforcement. These efforts raise important questions about the appropriate role of the courts in policy making that are encompassed in doctrines such as sovereign immunity and the public duty doctrine.

KJ

Immigration Article of the Day: Defending Refugees: A Case for Protective Procedural Safeguards in the Persecutor Bar Analysis by Charles Ellison

Defending Refugees: A Case for Protective Procedural Safeguards in the Persecutor Bar Analysis by Charles Ellison, Georgetown Immigration Law Review, Vol. 33, p. 213, 2019

Abstract

For refugees and asylum seekers, application of the so-called persecutor bar is tantamount to a death sentence. However, the Board of Immigration Appeals -- without any real deliberation--has arrived at an interpretation of a generic-relief, burdenshifting regulation to allow for application of the persecutor bar based upon very little evidence. Even mere membership in a group with a poor human rights record has been held sufficient to switch the burden of proof and apply the bar. While the recent holding of Matter of Negusie, 27 I&N Dec. 347 (June 28, 2018) can be read and understood largely as a victory for refugees on the question of the duress defense to the bar, that decision is under review by the AG. Additionally, more work is needed to solidify capacious procedural safeguards in the application of the bar ab initio before adjudicators even reach questions of duress. Safeguards are crucial because the current procedures allow adjudicators to apply the bar merely where there is possible assistance in persecution. Given the dearth of past scholarly attention devoted to procedural application of the persecutor bar, this article aims to contribute to this nascent, timely, and largely-untouched discussion. I argue here that it is only where the record contains a preponderance of the evidence to allow an adjudicator to find actual assistance in persecution -- and the applicant is given fair notice and opportunity to respond--that the statute, case law, and international law allow the persecutor bar to be applied.

KJ

Immigration Article of the Day: Nationality Bans by Tally Kritzman Amir and Jaya Ramji-Nogales

Nationality Bans by Tally Kritzman Amir and Jaya Ramji-Nogales, University of Illinois Law Review, Vol. 2019, No. 2, 2019

Abstract

This Article conducts a comparative analysis between the nationality bans that exist in both Israel and the United States. In exploring the similarities and differences between these two countries’ nationality bans, this Article critically evaluates the publicly projected rationales for the bans and argues that these bans promote blanket discrimination rather than effectuating their stated justifications. Furthermore, the comparison between these two nations’ approaches to nationality bans allows this Article to expose the damaging effects these types of bans can have beyond those directly involved in the immigration system while examining the potential threat of these temporary measures being prolonged.

KJ

Immigration Article of the Day: Private Prisons, Private Governance: Essay on Developments in Private-Sector Resistance to Privatized Immigration Detention by Danielle C. Jefferis

Private Prisons, Private Governance: Essay on Developments in Private-Sector Resistance to Privatized Immigration Detention by Danielle C. Jefferis, Northwestern Journal of Law and Social Policy, Forthcoming

Abstract

Two diametrically opposed events impacting America’s for-profit prison industry occurred within two weeks of each other early this year: On March 19, 2019, the U.S. Supreme Court announced its opinion in Nielsen v. Preap. In the case, a majority of the justices upheld a broad interpretation of the federal government’s immigration detention authority with respect to certain noncitizens in removal proceedings. In effect, the Court’s decision expanded the category of people subject to mandatory immigration-related confinement, a system of incarceration that currently confines more than 50,000 people per day in mostly private prisons and continues to expand, in part due to the increasingly broad authority under which federal immigration-enforcement authorities confine people. The decision marked a victory for the private-prison industry.

Less than two weeks before the Preap decision was announced, the industry experienced a significant loss, however. In an unprecedented move, JPMorgan Chase, one of the nation’s largest banks, announced it would no longer finance or invest in private prison corporations. Wells Fargo soon followed. Chase and Wells Fargo’s divestment from the private-prison industry represented a loss of millions of dollars of capital for the corporations managing and profiting from privatized immigration detention, and sends a compelling — and unusual — signal from Wall Street that a company’s conduct, not just its bottom line, matters. Stocks of the two largest private-prison companies took a drastic hit in the aftermath of the banks’ announcements.

For advocates of decarceration and more humane immigration-enforcement protocols, Chase’s divestment from the private-industry is one development in a series of examples of people and organizations disavowing an expectation of public governance and, instead, relying on private governance institutions to impose accountability and push for change. When the government fails to govern, people and groups may turn to private governance institutions to try to change the status quo. Private governance institutions, which may take limitless forms, are the means by which individuals, organizations, and communities aim to address the needs public governance failed to address. In other words, “private governance institutions provide governance without government.” Of the recent examples of private governance action in the field of private prisons, this Essay examines two: shareholder actions and divestment activities.

KJ