Monday, April 15, 2019
Reuters report that increasing numbers of prospective immigrants – especially Mexicans – are being denied visas based on determinations by the U.S. State Department that they might become “public charges,” according to official data and interviews with attorneys, immigrants and their family members. The refusals, capping an often complex and lengthy application process, can keep people separated from American spouses and children.
One reason for the rise in visa denials is changes last year in the State Department’s foreign affairs manual that gave diplomats wider discretion in deciding visa denials on public-charge grounds. The changes occurred in January 2018 as the Department of Homeland Security was preparing a controversial proposal to restrict immigration on public-charge grounds. The regulation, officially proposed in October, received more than 200,000 public comments.
Mihir Zaveri for the New York Times reports that, late last week, the U.S. Court of Appeals for the Ninth Circuit granted a stay of the injunction that will allow the Trump administration to temporarily continue to force migrants seeking asylum in the United States to wait in Mexico while their cases are decided. A federal district court had blocked the administration’s protocol.
The appeals court will consider next week whether to extend that stay — and allow the Trump administration policy to remain in effect for longer.
The Trump administration in December announced the Migration Protection Protocols, arguing that it would help stop people from using the asylum process to enter the country and remain here unlawfully. Judge Richard Seeborg of the United States District Court for the Northern District of California issued an injunction against the protocols, saying that the president did not have the power to enforce them and that they violated immigration laws.
World-renowned cellist Yo-Yo Ma brought his Bach Project to the sister cities of Laredo, Texas, and Nuevo Laredo, Mexico, on Saturday. Laredo’s “Day of Action” featured performances in both cities to celebrate the relationship between the two communities. Ma played the opening notes of J.S. Bach's "Suite No. 1 for Unaccompanied Cello" in a park near the Juarez-Lincoln International Bridge, one of the crossings that connect the U.S. and Mexican cities.
"As you all know, as you did and do and will do, in culture, we build bridges, not walls," Ma said. After his performance, he gestured to the bridge. "I’ve lived my life at the borders. Between cultures. Between disciplines. Between musics. Between generations."
Citizenship Gaps by D. Carolina Núñez , 54 Tulsa Law Review 301 (2019) (reviewing Kunal M. Parker, Marking Foreigners (2016), Carrie Hyde, Civic Longing (2017) & Richard Sobel, Citizenship as Foundation of Rights (2016))
The concept of citizenship is undeniably powerful. The terms “citizenship” and “citizen” evoke notions of belonging, participation, equality, civic duty, democracy, and virtually any other term associated with a well-functioning polity. In fact, the term “citizenship” often serves as a shorthand reference to an abstract sense of civic virtue and the right to exercise that civic virtue to shape the polity. Citizenship, as popularly imagined, is a fundamental element of our democracy.
These noble ideals, however, do not necessarily map onto any legal definition of citizenship, nor do they accurately depict the experience of many U.S. citizens who find themselves without equal access to the tools of civic engagement. Indeed, the gaps between citizenship as we imagine it, citizenship as legally constructed, and citizenship as we experience it are wide. Perhaps more concerning are the gaps between diverse groups’ conceptions of citizenship, both in their imaginations and experiences of citizenship. The gaps between how insider groups and outsider groups imagine citizenship and experience citizenship highlight the vast inequality of citizenship that has historically existed and continues to exist in the United States.
Carrie Hyde, Richard Sobel, and Kunal Parker help expose and illuminate these gaps in their individual examinations of U.S. citizenship. When read together, these three authors’ works highlight our society’s and government’s repeated and disappointing failure to live up to the citizenship of our current and historical imagination. The authors, however, offer hope by illustrating the resiliency of our imagined citizenship, its potential positive influence on U.S. law, and the prospect of a narrowing gap in the way different groups experience citizenship.
Sunday, April 14, 2019
From Immigration Impact:
The biased and narrow portrayal of immigrants and people of color in Hollywood is not a new phenomenon. However, some are beginning to turn the tide. As a 2017 study points out, 50 percent of Latino immigrants on television are portrayed as criminals. 33 percent of Black immigrants are portrayed as criminals or incarcerated. The same is true for 25 percent of Muslim immigrant television characters.
The limited positive roles for immigrants and people of color across film and television perpetuate harmful stereotypes that further distance people from one another–and audiences are growing weary of it.
Recently, Director Jordan Peele announced that he will only cast people of color as the leads in his future films. Some argue that Peele’s decision is creating a racial divide in Hollywood and beyond. Those critics are missing the point.
His intentional choice to tell stories through the eyes of people of color—many of whom are immigrants—allows Hollywood’s old storylines to expand into something new. He is opening doors for immigrants of color to showcase previously untold stories—and viewers are responding at the box office. Read more..
John Moore’s photograph, “Crying Girl on the Border,” is powerful. The Getty Images photographer was awarded the prestigious World Press Photo of the Year award for the image, the Associated Press reports.
As AP reports) the award-winning photograph showed a Honduran toddler crying as a U.S. Border Patrol officer pats down the child’s mother in Texas. Getty Images photographer John Moore’s winning image shows 2-year-old Yanela Sanchez and her mother, Sandra Sanchez, after they were taken into custody in June 2018. In my estimation, the photo heled build public outrage that culminated in the Trump administration ending its policy of separating migrant parents and children.
Time magazine published the photo on a cover of an issue.
Immigration Article of the Day: Deconstructing'“Sanctuary Cities': The Legality of Federal Grant Conditions That Require State and Local Cooperation on Immigration Enforcement by Peter Margulies
Deconstructing'“Sanctuary Cities': The Legality of Federal Grant Conditions That Require State and Local Cooperation on Immigration Enforcement by Peter Margulies, Washington and Lee Law Review, Vol. 75, No. 3, 2018
The term “sanctuary city” has generated more heat than light. The Trump administration has branded certain cities as citadels of lawlessness because those cities have resisted federal attempts to condition receipt of law enforcement funds on cooperation with the full range of immigration enforcement efforts. Pushing back against these federal conditions, cities and other subfederal entities have argued that the untrammeled cooperation that the Trump administration seeks would hinder local law enforcement and promote racial profiling.
Neither side acknowledges that the dispute is relatively narrow in scope, since federal and subfederal entities cooperate both tacitly and actively on many immigration-related fronts, from the data entered during routine local police stops to transfers of custody for persons convicted of serious crimes. That reality does not fit the straw figures that dominate the sanctuary city landscape in political debates. However, it informs attempts to resolve the underlying legal issues.
This Article assesses the legality of Trump administration conditions on both constitutional and statutory grounds. The Article argues for the constitutionality of 8 U.S.C. § 1373, which bars subfederal officials and entities from restricting communication of “immigration status” information. The Article thus rejects the reasoning in some recent court decisions and scholarly commentary that § 1373 violates the Spending Clause or constitutes “commandeering” of state power.
But the Article argues that courts should read § 1373 narrowly, as merely preserving the option of targeted operational coordination between the federal government and subfederal entities. That narrow view is consistent with the “backdrop” of federalism that the Supreme Court has invoked in its interpretation of statutes. Moreover, this narrow reading also dovetails with the preference for local innovation underlying the federal spending programs that the Trump administration has tried to condition on broad cooperation with immigration enforcement.
Saturday, April 13, 2019
From: Huffington Post:
An infuriated Houston police chief blew up Friday on Twitter after an 11-year-old girl was ordered to be deported without her family.
Chief Art Acevedo vented about the lack of human decency and “Nazis” enforcing laws following a story Thursday in the Houston Chronicle about the ordered deportation to El Salvador of Laura Maradiaga. Somehow the girl’s name was left off of court records when the family arrived for a hearing in Houston as part of their quest for asylum, according to her mother, Dora Alvarado.
“I feel bad because I don’t want to be separated from my family,” Laura said in Spanish at a news conference Thursday aired onHouston’s KHOU-TV. “I don’t want to be taken away from my mom.”
“This is heart-wrenching,” wrote Acevedo. “1,000 points of light? Family values? American values? Judeo-Christian values? If you’re a person of faith, speak out.” Read more.
Immigration Article of the Day: DACA, Government Lawyers, and the Public Interest by Sameer M. Ashar and Stephen Lee
This article examines why the U.S. Department of Homeland Security moved away from a prosecutorial-discretion model to the Deferred Action for Childhood Arrivals program (DACA) to screen immigrants out of the removal pipeline. This Article adds an empirical dimension to the extant conversation on that shift. Drawing from seventeen interviews with political appointees within the executive branch during the Obama administration, as well as documents obtained under the Freedom of Information Act, this Article makes two points. First, our findings tend to confirm a “centralization” thesis. Our interview subjects — political appointees within the Obama White House and DHS — tended to confirm that DACA was intended at least in part to neutralize the influence wielded by frontline ICE officers, who tended to embrace an aggressive approach to enforcement. Second, this Article draws attention to an element of the DACA story that has thus far appeared intermittently or as an afterthought: the role of lawyers in the enforcement and administration of our nation’s immigration laws. Our data shows that political appointees embraced competing notions of government lawyering as they attempted to find relief for immigrants through regulatory channels. In trying to provide them with relief before DACA, the executive relied on a vision of lawyering commonly associated with the prosecution of criminal laws. This contrasts with the vision of lawyering at the heart of DACA. The period preceding and leading into DACA provides a useful opportunity to advance the discussion of the ethical basis for government lawyering, particularly in light of the successive attacks within the literature
In 2018, the United States government deported approximately 250,000 immigrants. What happens to them when they go back to their country of origin? Sarah Schweinsberg at WORLD Radio followed the journey of deportee Daniel Ruiz, who helps other deportees rebuild their lives in Tijuana, Mexico. “Back in their countries of origin, many face extortion by gangs, as well as lack of social or work connections, not to mention separation from family still in the United States,” said Nick Eicher, host of The World and Everything In It” program on World Radio. Ruiz is on a mission to lend a helping hand.
Friday, April 12, 2019
I found myself browsing YouTube for a good song to pair with discussion of sanctuary cities. Lo and behold, I found two unusual choices.
First, check out Johnny Guitar's I Wanna Live In A Sanctuary City.
That's the one I've settled on to play. Sure, the sound quality could be better. But the lyrics are charming. How can you not like a line like this: "Donald Trump continues his pedantic rants, he's gonna take away the city's million dollar grants."
The quality of this second video is much better. You would expect that as it's from the Theater for the New City Street Theater Company.
It's a solid choice and I just might play it in the future. But there's an odd rant about the EPA and climate change in the middle. It doesn't stay quite as on point as Johnny Guitar.
Photo Illustration by Sara Wadford, Shutterstock
Lorelei Laird for the ABA Journal analyzes the concerns with the independence of the immigration courts under President Trump's leadership. She writes that "Immigration courts have always been susceptible to politics; presidents have, for example, rearranged dockets to suit their political needs. But the [National Association of Immigration Judges] and others are concerned that the Trump administration has moved from reprioritizing cases to deliberately trying to affect case outcomes. Changes that have caused concern include unilateral changes to case law . . . ; pressure on judges to rule faster; and even allegations that the [Department of Justice] is considering political affiliation in hiring new immigration judges." “It’s all part of what our association has referred to as ‘the deportation machine,’ ” says Jeremy McKinney, treasurer of the American Immigration Lawyers Association. “In other words, transforming a court that is supposed to be an independent and neutral trier of law and fact into an arm of law enforcement.”
Read the story for details.
Could one imagine using the release of immigrants for political payback?
Rachael Bade and Nick Miroff for the Washington Post report that White House officials have tried to pressure U.S. immigration authorities to release detainees onto the streets of “sanctuary cities” to retaliate against President Trump’s political adversaries. The Post based the report on interviews with Department of Homeland Security officials and email messages:
"Trump administration officials have proposed transporting detained immigrants to sanctuary cities at least twice in the past six months — once in November, as a migrant caravan approached the U.S. southern border, and again in February, amid a standoff with Democrats over funding for Trump’s border wall.
House Speaker Nancy Pelosi’s district in San Francisco was among those the White House wanted to target, according to DHS officials. The administration also considered releasing detainees in other Democratic strongholds."
CNN reports that the plan was designed to retaliate against opponents of funding for the President's border wall and was the brainchild of White House senior advisor Stephen Miller. Different DHS officials dispute whether the proposal made it to the desk of then-Department of Homeland Security Secretary Kirstjen Nielsen.
Immigration Article of the Day: The Board of Immigration Appeals' Quiet Expansion of the Meaning of Moral Turpitude by Jennifer Lee Koh
The multiple entanglements of immigration and criminal law — known as “crimmigration” — include the reality that certain criminal convictions can lead to deportation, detention, and disqualification from immigration relief. “Crimes involving moral turpitude” (CIMTs) comprise one of the many categories of crimes that can elicit adverse immigration consequences, affecting thousands of people each year. But the precise meaning of moral turpitude has long been elusive. Courts have stated that CIMTs must involve an amorphously defined “culpable mental state” and “reprehensible conduct,” and looked to the Board of Immigration Appeals (BIA) to define the scope of moral turpitude. However, a series of BIA decisions over the last two years suggests that the Board has expanded the definition of moral turpitude in ways that defy common sense and undermine the prevailing methodology for assessing the immigration consequences of crime.
Part I of this Essay provides a brief overview of the controversies associated with the use of the categorical approach in the CIMT context. Part II explains how the generic definition of moral turpitude fits into the categorical approach. Part III argues that since 2016, the BIA has remained facially faithful to the categorical approach, and yet its decisions on CIMTs ultimately suggest a more sinister departure from the prevailing legal framework. In stretching the meaning of moral turpitude, the Board has made broad, lightly-supported announcements about the nature of socially reprehensible behavior, replaced the categorical approach’s “minimum conduct” requirement with an unwritten “maximum conduct” test, and relied on the existence of mere criminalization as evidence of moral turpitude. Part IV focuses on how the federal courts may ultimately respond to the BIA’s expansion of CIMTs in various ways. Retroactivity analysis presents one possible, albeit limited, judicial intervention. Courts may refuse to extend Chevron deference to the Board’s definitions of moral turpitude, particularly under step two of the Chevron analysis. Courts can apply arbitrary and capricious review to vacate specific BIA decisions. The judiciary also has an opportunity to take constitutional challenges to the CIMT definition itself more seriously, particularly void for vagueness challenges in light of the Supreme Court’s decision in Sessions v. Dimaya.
Thursday, April 11, 2019
Yale Law School has named Muneer Iftikhar Ahmad as the Sol Goldman Clinical Professor of Law. He focuses his teaching, scholarship, and practice on the intersections of immigration, race, and citizenship in both legal theory and legal practice.
Ahmad's appointment will be effective on July 1.
Ahmad co-teaches the Worker and Immigrant Rights Advocacy Clinic (WIRAC). In WIRAC, he and his students represent individuals, groups, and organizations in both litigation and non-litigation matters related to immigration, immigrants’ rights, and labor, and intersections among them. The clinic’s recent work included successfully obtaining the first nationwide injunction against the Trump Administration’s first Muslim Ban, challenging the termination of the Deferred Action for Childhood Arrivals program, and litigating the forcible separation of immigrant children from their families at the U.S.-Mexico border. He also has represented immigrants in a range of labor, immigration, and trafficking cases, and for three years represented a prisoner at Guantánamo Bay.
Ahmad’s scholarship includes: “Beyond Earned Citizenship,” 52 Harvard Civil Rights-Civil Liberties Law Review 257 (2017); “Resisting Guantánamo; Rights at the Brink of Dehumanization,” 103 Northwestern Law Review 1683 (2009); and “Interpreting Communities: Lawyering Across Language Difference,” 54 U.C.L.A. Law Review 999 (2007).
Spain’s approach to admitting workers from non-EU countries could inspire innovation at the EU level, Migration Policy Institute (MPI) Europe argues in a new report, though the future direction of Madrid’s policies hinges on the outcome of the forthcoming general election.
The report, Spain’s labour migration policies in the aftermath of economic crisis, investigates long-term trends in Spanish policymaking, a crucial aspect of which has been the use of bilateral deals with non-EU countries that stipulate broader cooperation in return for accepting low and medium-skilled migrants—an idea now firmly rooted in the minds of EU policymakers.
Spain has long worked with North African countries to manage migration and, after a spike in arrivals from West African countries in 2005-2006, signed deals with several sub-Saharan African governments offering legal migration opportunities in exchange for greater cooperation on migration.
Spain’s system not only provides channels for employers to sponsor workers, but also enables recruitment of migrants from these signatory countries to work in sectors such as agriculture, construction or hospitality.
Although demand for foreign workers dried up after the economic crisis that damaged Spain’s economy in 2008, Madrid has maintained close cooperation with these countries. And the report suggests that recent signs of recovery in Spain’s economy are likely to once again herald shortages of workers in the types of jobs the local population does not want to do.
‘As Spain’s economy recovers, with growth in sectors such as construction that have relied on a largely foreign-born workforce, the government may start to increase its quotas for admitting non-EU workers’, writes Kate Hooper, author of the report.
She adds that next month’s general election could be crucial in shaping these policies. ‘For now, Spain’s population remain broadly supportive of migration; however, the ability of the government to review the country’s immigration policies may hinge on the outcome of the Spring 2019 general election’.
While polls suggest the most likely outcome of the election will be a coalition led by the Socialist Party, the far-right Vox is expected to make gains. Vox’s leader has played on fears about irregular migration from African countries, even suggesting Spain build a wall to keep migrants out.
Policymakers around Europe will be watching closely to see how Spain’s next government navigates the fluid politics of migration policy in the months ahead.
Read the report here.
Immigration Article of the Day: Decolonizing Indigenous Migration, Kristen A. Carpenter & Angela Riley
As global attention turns increasingly to issues of migration, the indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as indigenous peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard for their status or experience as indigenous peoples. In a recurring set of events, indigenous detainees have been presented translation and legal services in Spanish, when they actually speak only an indigenous language, in cases associated with the separation of children from their families and even the death of individuals unable to describe their health care situation to service providers.
In this article, we argue that accounting for the experience of indigenous peoples is critical to advancing a human rights approach to migration, and addressing the legacies of conquest and colonization that undergird state policies on territorial sovereignty and border regulation. On the one hand, indigenous peoples like other migrants are often fleeing situations of economic, social, and political unrest in their countries. They seek personal and familial security, economic mobility, and political freedom. On the other hand, as “peoples” with political and cultural rights to self-determination and territory, indigenous peoples experience discrimination and violence not only in their individual capacities, but also with respect to their survival as collective entities. Moreover, indigenous worldviews and relationships with traditional landscapes often predate, by hundreds or thousands of years, the contemporary boundaries of states. For example the Haudenosaunee people of North America recognize their homeland as “Turtle Island” a place not inherently defined by current borders between the U.S. and Canada. The Yaqui and Tohono O’dham peoples’ community and ceremonies stretch across the much contested Mexico-U.S. border, such that their lives and lands have become militarized zones. Family members, sacred sites, subsistence habitats, and migration patterns are similarly dispersed across current socio-political fault lines. So too with indigenous peoples of Northern Europe, Russia, Asia, Africa, and other regions.
Accordingly, the UN Declaration on the Rights of Indigenous Peoples recognizes that when indigenous peoples are “divided by international borders,” they “have the right to contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.” Other articles define the right to be from violence, to keep families intact, and to maintain an indigenous identity without reference to national identity or citizenship status. But recognition and realization of these rights raises difficult questions – for example, if indigenous cultural identity is tied to land and territory, do indigenous peoples retain their rights following relocation and displacement? As societies are more mobile, are concepts of individual identity and collective self-determination also mobile, do they go with indigenous peoples when they cross borders whether internal or external to nation-states? Whose obligation is it to effectuate such rights? Can the situation of indigenous peoples as migrants be meaningfully addressed through legal regimes of asylum and refugee law – or must they implicate international diplomacy and norms of state-indigenous relations. These are other questions are left largely untouched by the 2018 Global Compact on Migration, which contains only the briefest reference to indigenous peoples without substantive analysis. By focusing on the situation of indigenous peoples, this article pushes migration law, both in theory and practice, to consider more fully its colonial origins and impacts, and incorporate a broader concept of individual and collective human rights going forward.
Wednesday, April 10, 2019
From Immigrants' List
On Monday, President Trump appointed Kevin McAleenan to take over as the acting head of the Department of Homeland Security. On key issues surrounding immigration -- like the wall and family separation -- discrepancies rapidly popped up between the former Commissioner’s rhetoric and his actions.
In an interview with the New York Times, McAleenan stated that “we’re a law-enforcement organization carrying out policy and law set by others.” This is a strong indicator that the new appointee was chosen because Trump thinks he can be relied on to further the implementation of bigoted policies.
Secretary McAleenan’s nature can be uncovered quickly when observing his contradictions on family separation, for example. He stated that “a better system would allow us to keep families together for the entirety of the immigration proceedings...”.
But his actions have been another story--he has kept families separated and will not stand up to Trump.
He even defended his use of tear gas at the border and went so far as to double down on justifying the persecution of the asylum seekers and undocumented immigrants, which was later reversed after it drew national criticism.
Kevin McAleenan is not compassionate when it comes to truly caring about immigrants. Immigrant’s List is not optimistic that he will bring reform becausehis cruel actions have repeatedly trumped his words, and we believe that the fight for reform under this administration is far from over.