Wednesday, December 4, 2019
Did you ever wonder where the ideas came from for the Trump administration's immigration detention policies? ProPublica, co-published this article with The New York Times, which prvides an explanation. Ian MacDougall authored the article explaining how consulting giant McKinsey & Company "Helped the Trump Administration Detain and Deport Immigrants. Newly uncovered documents show the consulting giant helped ICE find `detention savings opportunities' — including some that the agency’s staff viewed as too harsh on immigrants."
From the early days of the new administration, "Immigration and Customs Enforcement . . . had a partner on its payroll: McKinsey & Company, an international consulting firm brought on under the Obama administration to help engineer an `organizational transformation' in the ICE division charged with deporting migrants who are in the United States unlawfully.
ICE quickly redirected McKinsey toward helping the agency figure out how to execute the White House’s clampdown on illegal immigration.
But the money-saving recommendations the consultants came up with made some career ICE staff uncomfortable. They proposed cuts in spending on food for migrants, as well as on medical care and supervision of detainees . . . . McKinsey’s team also looked for ways to accelerate the deportation process, provoking worries among some ICE staff members that the recommendations risked short-circuiting due process protections for migrants fighting removal from the United States. The consultants, three people who worked on the project said, seemed focused solely on cutting costs and speeding up deportations — activities whose success could be measured in numbers — with little acknowledgment that these policies affected thousands of human beings.
In what one former official described as `heated meetings' with McKinsey consultants, agency staff members questioned whether saving pennies on food and medical care for detainees justified the potential human cost. . . ."
There are many layers to this story. The U.S. government retaining McKinsey to advise on immigration matters? The human costs of the advice?
Immigration Article of the Day: Faithful Execution: Where Administrative Law Meets the Constitution by Evan D. Bernick
Faithful Execution: Where Administrative Law Meets the Constitution by Evan D. Bernick,Georgetown Law Journal, Vol. 108, No. 1, 2019
The administrative state and administrative law are commonly understood to be the product of statutes, judicial doctrines, and agency practices rather than constitutional text. In recent years, however, federal courts have been forced to confront important constitutional questions concerning the President’s exercise of administrative discretion under broadly worded federal statutes. Among those questions: (1) Does the Constitution impose any independent constraints on the administrative discretion that is available to the President under the text of federal statutes? (2) If so, are judges obliged to determine whether that discretion has been abused? and (3) How should judges make such determinations?
This Article argues that the Take Care Clause of Article II, Section 3 constrains the President’s administrative discretion and that judges are obliged to determine whether that discretion has been “faithfully” exercised. It then constructs a faithful execution framework that judges can use to implement the “letter” — the text — and the “spirit” — the functions — of the Take Care Clause. To that end, it makes use of a theory of fiduciary government that informed the content and structure of the Take Care Clause and draws upon well-established administrative law doctrines. It uses the faithful execution framework to evaluate President Barack Obama’s 2014 Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and President Donald Trump’s 2017 travel bans. By so doing, this Article shows that central components of modern administrative law rest upon sound constitutional foundations. It also provides judges with constitutionally inspired tools that can be used to promote presidential accountability, discipline presidential discretion, secure the rule of law, and thwart presidential opportunism.
Tuesday, December 3, 2019
From the Bookshelves: Perchance to DREAM: A Legal and Political History of the DREAM Act and DACA by Michael A. Olivas
Perchance to DREAM: A Legal and Political History of the DREAM Act and DACA by Michael A. Olivas . With a foreword by former New Mexico Governor Bill Richardson. To be published in June 2020.
The first comprehensive history of the DREAM Act and Deferred Action for Childhood Arrivals (DACA)
In 1982, the Supreme Court of the United States ruled in Plyler v. Doe that undocumented children had the right to attend public schools without charge or impediment, regardless of their immigration status. The ruling raised a question: what if undocumented students, after graduating from the public school system, wanted to attend college?
Perchance to DREAM is the first comprehensive history of the DREAM Act, which made its initial congressional appearance in 2001, and Deferred Action for Childhood Arrivals (DACA), the discretionary program established by President Obama in 2012 out of Congressional failure to enact comprehensive immigration reform. Michael A. Olivas relates the history of the DREAM Act and DACA over the course of two decades.
With the Trump Administration challenging the legality of DACA and pursuing its elimination in 2017, the fate of DACA is uncertain. Perchance to DREAM follows the political participation of DREAMers, who have been taken hostage as pawns in a cruel game as the White House continues to advocate anti-immigrant policies. Perchance to DREAM brings to light the many twists and turns that the legislation has taken, suggests why it has not gained the required traction, and offers hopeful pathways that could turn this darkness to dawn.
Professor Olivas is a rock 'n roll junkie so perhaps he will like this Bruce Springsteen tune. The title of his book brought it to my mind.
Detention forever? President Trump continues to do the unprecedented.
Spencer Ackerman for the Daily Beast fills us in on not indefinite detention but detention forever!
"For the 18-year lifespan of the war on terrorism, an obscure provision of the PATRIOT Act permitting the indefinite detention of non-citizens on U.S. soil has gone unused. But to keep a Palestinian man behind bars even after he finished serving his sentence, the Trump administration has fired this bureaucratic Chekhov’s gun.
Adham Amin Hassoun, now in his late 50s, has spent nearly the entire war on terrorism in cages. First picked up on an immigration violation in June 2002, he ended up standing trial alongside once-suspected `dirty bomber' Jose Padilla. But Hassoun was never accused of any act or plot of violence. His crime was cutting checks to extremist-tied Muslim charities operating in places like Kosovo and Chechnya that Congress outlawed after the 9/11 attacks. Hassoun wrote all but one of those checks before 9/11."
Read the article for above for an explanation on how the U.S. government continues to detain Hassoun as a danger to national security.
Tom Kiefer, a former janitor at a U.S. Customs and Border Protection facility in southern Arizona, collected and photographed belongings seized from migrants between 2003 and 2014, Makeda Easter writes in the Los Angeles Times. More than 100 of his photographs are now on display at the Skirball Cultural Center in Los Angeles. Yet one of the show’s biggest tragedies, according to Skirball curator Laura Mart, is that “we have no way of knowing really who these people are, who carried these things, what happened to them, and what they’re doing now.”
Over at SCOTUSblog, I've got the rundown on Guerrero-Lasprilla v. Barr and Ovalles v. Barr, combined cases set for oral argument on December 9. Here's a short preview:
It has been 18 years since the Supreme Court’s decision in Immigration & Naturalization Service v. St. Cyr, a case about the scope of a jurisdiction-stripping statute aimed at preventing U.S. courts of appeals from considering decisions made by the Board of Immigration Appeals, known as the BIA. In St. Cyr, the court assessed 8 U.S.C. § 1252(a)(2)(C), which strips federal appellate courts of jurisdiction to review deportation orders when noncitizens are convicted of certain crimes. The Supreme Court determined that reading this statute to preclude review of “a pure question of law” would create “substantial constitutional questions.”
Congress responded to the decision in St. Cyr in 2005 by adding a statutory provision: 8 U.S.C. § 1252(a)(2)(D), an exception to the jurisdiction-stripping provision that specifically authorizes the courts of appeals to consider “questions of law.” That provision is now before the court in the consolidated cases Guerrero-Lasprilla v. Barr and Ovalles v. Barr.
Like St. Cyr, these cases ask whether a statute prevents U.S. courts of appeals from reviewing decisions of the BIA. Specifically, they present this question: If a noncitizen files an untimely motion to reopen a deportation case, asks forgiveness for their tardiness and is denied forgiveness by the BIA, can federal appeals courts review the BIA’s decision? Or has Congress stripped those courts of jurisdiction to hear such a case?
Head over to SCOTUSblog for the rest.
César Cuauhtémoc García Hernández in an op/ed in the New York Times ("Abolish Immigration Prisons") calls for the end of immigration detention: "We should shut down these institutions, end the suffering they cause and redirect the money."
October 3, 1965: President Lyndon B. Johnson visits the Statue of Liberty to sign the Immigration and Nationality Act of 1965.
RapidVisa copiled a summary of the "History of United States Immigration Laws". It is "a list of notable U.S. immigration laws in chronological order from the dates they were enacted. Over the years, certain provisions of old laws are replaced with more recent laws. This list is not comprehensive, and does not include proposed legislation that was not signed into law, such as the DREAM Act, nor does it include Presidential Executive Orders, such as DACA, which are not laws. This compendium is for research and informational purposes as a free resource to the public. We just ask that if you use this resource, please link back to this page as a source for your research."
Monday, December 2, 2019
After learning from an article in The New Yorker that Acting DHS Secretary Elaine Duke provided her short memo justifying the DACA rescission because she did not support the more elaborate policy grounds pushed on her by Trump's White House advisor Stephen Miller and then-Attorney General Jeff Sessions, I wanted to learn more.
The book-length account of the episode comes from Border Wars: Inside Trump's Assault on Immigration (Simon & Schuster Press 2019). It is gripping: 400-pages of thrilling detail about the rise and fall of DACA, TPS, border funding, diversity visas, refugee ceilings, and policies still to be introduced. The rotating cast of characters competing for political influence over the immigration policy agenda include well-known players inside the government, plus many more players whose identities were new to me even if their quest to restrict immigration to the US is not a new idea. The behind-the-scenes accounts of each individual policy episode are bursting with details and worth a read for understanding the singular issues. The tableau created by seeing thirty+ policy episodes side-by-side and sometimes overlapping is headspinning. In this reader's view, it is a must-read for those interested in immigration policy. The authors make the case that it is also a must-read for anyone interested in understanding the political world writ large, with immigration policy serving as the "defining issue" of Donald Trump’s presidency.
From the publisher's website:
Border Wars identifies the players behind Trump’s anti-immigration policies, showing how they planned, stumbled, and fought their way toward major immigration changes that have further polarized the nation. This definitive, behind-the-scenes account is filled with previously unreported stories that reveal how Trump’s decision-making is driven by gut instinct and marked by disorganization, paranoia, and a constantly feuding staff.
Julie Hirschfeld Davis is a congressional correspondent at The New York Times. She has covered politics from Washington for 21 years. She joined the Times in 2014 as a White House correspondent after stints at Bloomberg News, the Associated Press, The Baltimore Sun, and Congressional Quarterly. She won the 2009 Everett McKinley Dirksen Award for Distinguished Reporting of Congress.
Michael D. Shear is a White House correspondent in The New York Times Washington bureau, where he covers President Trump. A veteran political correspondent, before coming to the Times in 2010, he spent eighteen years writing about local, state and national politics at The Washington Post, where he was also part of the Pulitzer Prize-winning team that covered the Virginia Tech shootings in 2007.
More than 100 U.S. colleges signed on to an amicus brief opposing a lawsuit that seeks to end the optional practical training program, which allows international students to work in the U.S. for up to three years after graduating while staying on their student visas.
Inside Higher Ed summarizes the lawsuit, Washington Alliance of Technology Workers V. Department Of Homeland Security et al. The colleges in the amicus brief say that ending the program would severely harm the ability of U.S. universities to attract international students., numbers that have begin declining in recent years. The colleges also argue that OPT is crucial to the quality of education international students can get in the U.S.
The Washington Alliance of Technology Workers, a labor union known as WashTech, argues in its brief that the Department of Homeland Security exceeded its regulatory authority in creating the OPT program, effectively establishing a large-scale foreign guest worker program without congressional approval. "Because aliens on OPT are not pursuing a course of study at an academic institution that will report termination of attendance, because there is no statute that authorizes employment on F-1 visas, and because no statute authorizes aliens to remain in student visa status after they have graduated and are no longer attending school, the OPT program is contrary to law and in excess of DHS authority,” the union said in a motion for summary judgment filed in September.
MHC (h/t Michael Olivas)
Miriam Jordan of the New York Times (subscription required) reminds us that roughly half of all undocumented immigrants in the United States entered with valid visas but overstayed their terms. Visa overstays have been greater than unlawful entries into the United States for the last seven years.
What does this mean? It means that enforcement measures that focus only on entries without inspection at a port of entry (measures such as the US/Mexico border wall, detention of migrants apprehended at the border, increased Border Patrol officers, greater technology for border enforcement, etc.) will have no impact on half of the undocumented immigrant population. The focus on the US/Mexico border for immigration enforcement efforts results in the targeting of Latinx migrants. A focus on nationals of countries with the largest number of visa overstays would target Canadians, who have the largest number of overstays.
The Trump administration has announced that it efforts will focus on citizens of nations with the highest rates of visa overstays. As shown by the Washington Post, such a strategy does not necessarily require attention to the nations with the largest overstay populations in the United States, including Canada.
Immigration continues to influence popular culture. In the episode that premiered yesterday, the Showtime show "Shameless," which in the past had a removal storyline, depicted an Immigration & Customs Enforcement raid on a Latinx household on the South side of Chicago. Here is a recap of the scene:
"Carl (Ethan Cutkosky) continues to grow his relationship with Anne (Chelsea Rendon) as he helps her family with their business but when ICE comes knocking at their door, it's a hiding game for most of them. When Anne answers the door, Carl gets defensive for her and once the agents are gone he offers her a place at the Gallagher home."
Sunday, December 1, 2019
Astrid Galvan for the Associated Press (DHS Lacked Technology Needed to Successfully Account for Separated Migrant Families) provides a follow-up to the Trump administration policy of separating families with children. The policy sparked a firestorm of controversy and was abandoned.
The U.S. government separated thousands of families despite knowing it lacked the technology to document and track their whereabouts. As a result, some parents languished in custody for weeks without knowing where their children were. The report by the Department of Homeland Security’s Office of Inspector General found the agency lacked proper systems when Border Patrol agents took children from parents set to be criminally prosecuted for illegal entry. Most of those separations took place in the spring of 2018.
Alan Cumming: The racism behind anti-immigration rhetoric is palpable to every immigrant. Including me.
Born in Scotland, Alan Cumming is an American actor, comedian, singer, writer, producer, director, and activist who has appeared in numerous films, television shows, and plays. He has commentary on Think decrying the nation's anti-immigrant rhetoric:
"America is such a young country: It's only a few hundred years old, and no one who has been here for only a few generations is without an immigrant connection. So, from the outside — from a place like Europe — the idea that Americans are not connected to immigration and our immigrant pasts seems like we are denying ourselves. We sound very self-hating about the very notion of immigration, but we're actually just confusing racism with a desire to fix the immigration system.
I see that all the time: Things that are being said about immigration and the ideals of immigration are basically just being used as a thinly veiled form of racism. It's so blatant. The president himself actually said he doesn't mind people coming from countries like Norway — white people; it's the people from `shithole countries' he doesn't want. It seems almost pedantic and obsolete to actually have to talk about the fact that it's racism."
John Burnett for NPR reports on the impacts of the Trump administration "Remain in Mexico" policy, which requires asylum seekers to wait months in Mexico while their asylum claims are being decided in the United States.
Alexis Martinez, a Honduran man who traveled with his two young sons to seek asylum in the United States, last saw them holding hands, their faces streaked with tears, bravely walking across the Gateway International Bridge into Texas — alone. After weeks in a refugee camp in the Mexican border town of Matamoros, Martinez knew he had to send 5-year-old Benjamin and 7-year-old Osiel without him. Benjamin had contracted bronchial pneumonia, and Martinez couldn't afford any more antibiotics.
Asylum-seekers such as Martinez have become so desperate that they are giving up their children. In an extraordinary development, some migrant parents who were told to wait in Mexico under President Trump's asylum policies are sending their children, unaccompanied, across the bridge to surrender to U.S. agents.
Saturday, November 30, 2019
Douglas Keith for the Brennan Center for Justice provides an update on state resistance to federal immigration arrests at state courthouses. In 2017, the Chief Justice of California, Tani Cantil-Sakauye, was the first to protest federal immigration arrests at California courthouses.
Keith reports that, since President Trump took office, U.S. Immigration and Customs Enforcement officers have dramatically increased their presence in state courthouses.
ICE officers have walked the halls, sat in courtrooms, and questioned court attendees and staff, trying to identify and arrest people in court for cases unrelated to immigration. The people they target may be appearing as a defendant or witness, seeking a restraining order against an abusive partner, or seeking custody of their children.
Advocates have documented the chilling effect ICE’s presence has on courthouse access — deterring victims, survivors, and witnesses from pursuing justice and using court services — and the resulting harm it does to the justice system. That’s why judges, prosecutors, public defenders, and advocates have demanded an end to ICE’s courthouse activities.
ICE has repeatedly rejected these appeals. 2019 has seen momentum build against courthouse immigration arrests as several states have taken action.
This month, Oregon became the latest state to push ICE out of its courthouses, prompting a protest from the ICE.
Click the link above to read the full story.
#NoMusicForICE is a campaign by musicians to remove their music from Amazon in protest of the tech company's "providing digital infrastructure that powers Immigration and Customs Enforcement," in furtherance of ICE's "human rights abuses."
The podcast "This American Life" takes a look at the frontlines of the Trump administration's "Remain in Mexico" asylum policy. We hear from asylum seekers waiting across the border in Mexico, in a makeshift refugee camp, and from the officers who sent them there to wait in the first place.
Michigan Law School 2020 Junior Scholars Conference
April 17-18, 2020
Call for Papers
Deadline for Submission: January 3, 2020
The University of Michigan Law School is pleased to invite junior scholars to attend the 6th Annual Junior Scholars Conference which will be held on April 17-18, 2020, in Ann Arbor, Michigan.
The conference provides junior scholars with a platform to present and discuss their work with peers and receive detailed feedback from prominent members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed.
To apply to the conference, please submit an abstract of no more than 500 words reflecting the unpublished work that you wish to present and a copy of your CV through the online submission form by January 3, 2020. Please save all files as word documents in the following format:
LAST NAME – FIRST NAME – ABSTRACT/CV/FUNDING
Selection will be based on the quality and originality of the abstract as well as its capacity to engage with other proposals and to foster a collaborative dialogue. Decisions will be communicated no later than January 31, 2020. Selected participants will be required to submit final papers by March 16, 2020, so that they may be sent to your faculty commentator and circulated among participants in advance.
A very limited fund is available to help cover partial travel expenses and accommodation for selected participants. If you wish to be considered for financial assistance, please submit a separate written request through the online form specifying your city of departure and an estimate of travel costs. We regret in advance that we are unable to provide full financial assistance to participants.
Questions can be directed to the Organizing Committee Chair through the email address below.
Chun-Han Chen, Chair
University of Michigan Law School Center for International and Comparative Law
Junior Scholars Organizing Committee 200 Hutchins Hall, 625 South State Street
email@example.com Ann Arbor, MI 48109-1215, U.S.A.