Tuesday, August 20, 2019
Census tables from newly-released data from the 2018 Current Population Survey offer a view of immigrants' education levels, wealth and jobs. A key finding: citizenship narrows economic gaps. As the NY Times reports, "Immigrants who weren't citizens had higher rates of poverty, lower income and less education compared with native-born citizens last year. But immigrants who were citizens had less poverty, close to equal earnings and higher rates of advanced degrees than native U.S. citizens."
Disability Rights in Contemporary Immigration Debates by Jasmine E. Harris, UC Davis School of Law
We cannot fully understand the treatment of immigrant detainees and the numerous lawsuits filed against ICE and the Trump Administration without attention to disability rights. Not only do these cases underscore the intersection of immigration and disability rights broadly, but, more concretely, they offer novel and underdeveloped remedial avenues rooted in disability law. Disability statutes, like the U.S. Constitution, apply to individuals in the United States irrespective of citizenship and immigration status.
Yesterday, a coalition of leading civil rights groups filed a nationwide class action in the Central District of California to challenge the systematic denial of constitutional and statutory rights of people with disabilities in immigrant detention centers. Abdallah Fraihat et al. v. U.S. Immigration and Customs Enforcement et al., No. 5:19-cv-01546 (C.D. Cal. Aug 19, 2019) (hereinafter, Fraihat Complaint). The putative plaintiffs are fifteen individuals detained at eight different facilities in six states, representing a putative class of approximately fifty-five thousand immigrants imprisoned by ICE daily, and two nonprofit organizations, Al Otro Lado and the Inland Coalition for Immigrant Justice (ICIJ). The Fraihat Complaint challenges the federal government’s failure to ensure detained immigrants at one-hundred fifty-eight detention facilities receive appropriate medical and mental health care, its alleged use of segregation in violation of the Fifth Amendment of the U.S. Constitution, and its failure to ensure that detained immigrants with disabilities are provided legally-mandated accommodations and are not discriminated against as required by Section 504 of the Rehabilitation Act of 1973. The Fraihat Complaint details dangerous conditions present in detention facilities that place detainees with medical and mental health disabilities in precarious situations. Examples include self-accommodating wheelchair users without assistive mobility devices being forced to rely on fellow detainees to carry them; and people denied access to medications to manage chronic illness, exacerbating current disabilities and generating new ones.
Fraihat builds on well-established substantive and procedural precedents in the prisoners’ rights context. First, the key theory of liability is that Immigration and Customs Enforcement (ICE) cannot avoid statutory and constitutional duties by contracting with third parties to manage and operate detention facilities. Although ICE directly operates only a handful of detention facilities, plaintiffs rely on familiar agency principles to hold ICE, the Department of Homeland Security, and institutional actors liable for their failure to monitor, investigate, and remedy alleged systematic violations at approximately one-hundred fifty-three facilities run by local sheriffs’ offices and private contractors. Among those implicated, the GEO Group and CoreCivic (formerly “Corrections Corporation of America”) are two repeat defendants in prison condition cases. The fact that ICE has failed to effectively monitor and oversee the daily management of these private contractors, and to take effective measures when it learns of problems in those centers under their care and control, is not news. Consider this recent report from California Department of Justice detailing the findings from an investigation of all ten detention facilities in the state. Xavier Becerra, Cal. Att’y Gen., Immigration Detention in California, Cal. Dep’t of Justice, at 61, 82, 123 (Feb. 2019) (finding highly-restrictive prison-like conditions including required uniforms, compulsory prison-wage labor, restrictions on access to counsel and receipt of medical and mental health care). Nor is use of class remediation novel. Fraihat relies on Ninth Circuit precedent in an analogous prisoners’ rights case for the proposition that class certification is appropriate. The Ninth Circuit in Parsons v. Ryan , 754 F.3d 657 (9th Cir. 2014)., held that prisoners could proceed as a class to challenge Arizona’s policies and practices denying access to medical care, dental care, mental health care, and punitively employing isolation.
With respect to remedies, Plaintiffs seek injunctive and declaratory relief. They want Defendants to stop using segregation as a punitive weapon, to effectively monitor federal contractors acting as their agents, and to build institutional capacity to attend to the needs of those detained. For example, the Fraihat Complaint alleges that ICE and DHS have no system of tracking detainees’ medical and mental health needs or requests for care and accommodations. As a result, when detainees are transferred from one facility to another, they are forced to restart the process of requesting medical care or reasonable accommodations from the beginning, leading to major delays in receipt of urgent medical attention and disability accommodations.
Plaintiffs in Fraihat face an impossible choice: either languish in detention without medical and mental health care and risk exacerbation of disabilities (including death) or abandon their immigration cases. The Trump Administration’s aggressive enforcement and use of detention has flooded an already broken system that, unfortunately (and perhaps inconceivably), continues to be years behind failing prisons in terms of compliance with disability rights laws.
The lawsuit was filed by Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), the Southern Poverty Law Center (SPLC), and Orrick, Herrington & Sutcliffe LLP in the U.S District Court for the Central District of California. You can read the full Fraihat Complaint here.
Another recent example of disability rights at work in immigration debates is the Trump Administration’s amended “public charge” regulation, also the subject of California’s most recent lawsuit filed in federal court on August 16, 2019. The new DHS regulation denies green cards to immigrants who use Medicaid, food stamps, housing vouchers or other forms of public assistance. While the rule may be problematic on its face, even if considered facially neutral, en arguendo, it will almost certainly have a disproportionate impact on immigrants with disabilities and their family members who are more likely to rely on Medicaid for health insurance. Before the DHS amendment, people with disabilities were considered “public charges” if they were likely to require institutional services such as long-term care. The expanded language in the rule may result in greater exclusion of people with disabilities and their families who rely on public insurance for the very supports necessary for them to access gainful employment and avoid economic dependency, such as personal home assistants or assistive technology. Furthermore, other challenges to the Trump Administration’s immigration policies and practices, such as those pursuant to the settlement agreement in Flores v. Reno to challenge, among other policies, the Admiration’s separation of immigrant children at the U.S. border, while widely known, are filed within the immigration law cabinet without regard for the ways in which disability rights operate. Flores, for example, requires that detained children be placed in “the least restrictive setting” in line with their age and other “special needs,” language that comes from the implementing regulations for Section 504 of the Rehabilitation Act of 1973 (requiring that services be provided in the “most integrated setting” appropriate).
Perhaps most promising for this disability legal scholar is the recognition of disability rights as part of a broader civil rights agenda. My hope is that activists, practitioners, and scholars recognize the utility of these coalitions and consistently engage disability rights theoretical and legal principles to redress our most pressing social justice offenses of the day.
Edith Roberts on SCOTUSBlog provides some updates on the U.S. Supreme Court's immigration docket. She identifies blog posts on two immigration developments.
At Take Care, Leah Litman and Kyle Skinner note that “[t]he Solicitor General recently filed a petition for certiorari asking the Supreme Court to review a constitutional challenge to the so-called expedited removal system,” in Department of Homeland Security v. Thuraissigiam; they argue that “[t]he Court should deny the petition, for no other reason than that the Trump administration –within the last month–announced that it is dramatically expanding, and therefore radically altering, the scope of the expedited removal system.”
At the Yale Journal on Regulation’s Notice & Comment blog, Bernard Bell writes that although Kansas v. Garcia, which asks whether a federal immigration-law provision pre-empts a state prosecution for identity theft for using someone else’s Social Security number, “may appear to be an immigration case, … lurking near the surface is a dispute over preemption analysis, namely the role of textualism and the scope of the presumption against preemption,” which “may have implications far beyond the immigration context.”
In addition, the Trump administration filed its brief in the DACA case, and defended the lawfulness of dismantling the Obama administration policy. Here is the brief. The case is set for oral argument in November.
Environmental Refugees? Rethinking What’s in a Name, 44 North Carolina Journal of International Law 461 (2019), by Liz Keyes (Baltimore).
The phrase “environmental refugee” summons a compelling image of someone forced to relocate due to climate change. The phrase has been used effectively to raise awareness of such diverse problems as the rising sea levels that are submerging some Pacific islands, as well as the increased impact of natural disasters like hurricanes and earthquakes which cause a mixture of temporary and permanent migration. As climate change accelerates, and its human costs become ever clearer, it is completely appropriate and necessary to respond to these migrations, and a number of international initiatives are underway to do so.
As these initiatives go forward, however, it will be increasingly important to be careful and precise about the phrase “environmental refugee.” First, as a legal term, the phrase is dubious. It implicitly harnesses the language, norms, and protections of the United Nations Convention Relating to the Status of Refugees (Refugee Convention), which fits only a small subset of climate change migrants. Second, at a time when the Refugee Convention itself is under enormous strain, the phrase, with its expansive umbrella of applicability, is also problematic from a policy standpoint. Regional refugee instruments are often broader than the Refugee Convention itself, but the Convention is the particular focus of this Article.
This Article begins with an assessment of the circumstances in which the word “refugee” is appropriate for climate change migrants and demonstrates that while the Convention can and will cover individuals in some limited settings, it will be utterly inadequate to protect the broader range of populations needing to migrate. Having established these limitations, the Article then considers the costs of using the word in other contexts. Those costs include the diversion of resources into the project of expanding the Convention, through the slow and arduous work of developing new precedents and understandings to protect climate change. There is also a great risk of weakening the international system’s support for the Convention itself as it stretches to address problems for which it was never designed. The Article ends with a justification for a complementary protection regime, and a brief examination of what such a regime might look like.
Fox News reports another move to tighten immigration benefits by the Trump administration. Yesterday, the administration issued new policy guidance tightening the rules for discretionary work permits to immigrants who have been temporarily paroled into the United States for "urgent humanitarian reasons or significant public benefit" under the Immigration and Nationality Act. The move on the heels of the new public charge rule.
Section 212(d)(5)(A) of the Immigration and Nationality Act affords the Department of Homeland Security the discretion to parole noncitizens into the United States under "extraordinary" circumstances, such as to visit a dying relative or obtain life-saving medical treatment. "[T]he administration's guidance made clear that officials were wary it was being abused." U.S. Citizenship and Immigration Services (USCIS) said the new guidance emphasizes "the use of discretion when determining whether to grant employment authorization for foreign nationals paroled into the United States in keeping with existing policies."
In announcing the new policy guidance, USCIS stated that:
"Certain foreign nationals may be paroled into the United States for urgent humanitarian reasons or significant public benefit. Parolees are not entitled to employment authorization solely because they are paroled into the United States, but instead must establish eligibility and apply for employment authorization. USCIS will only consider employment authorization for parolees when, based on the facts and circumstances of each individual case, USCIS finds that a favorable exercise of discretion is warranted.
`Directly addressing loopholes that encourage the exploitation of our immigration system is the only way forward,' said Acting Director Ken Cuccinelli. `Responsible stewardship of our discretionary authorities enhances our ability to provide relief to those who lawfully qualify for it. With that in mind, USCIS is taking action within its discretionary authority by only granting employment authorization to parolees after consideration of all relevant factors on a case-by-case basis. This decision is in response to the national emergency at the southern border where foreign nationals are entering the United States illegally, as well as based on a review of USCIS adjudicatory practices over the past few years.'”
Monday, August 19, 2019
You may not know his name, but you definitely know his moves. Our immigrant of the day, Beto Perez, is the creator of that ubiquitous exercise sensation Zumba.
In a recent BBC profile of Perez, I learned that Perez invented his signature workout when he was a mere 16-year-old exercise instructor. One day, Perez inadvertently left his employer-mandated playlist of American pop songs at home and was forced to improvise with his own Latin tunes. His class was a success and the start of a long career in what would ultimately be called Zumba.
The bio offers this tantalizing tidbit about Perez' immigration history -- he came to the U.S. without authorization and lived, homeless, on the streets of Miami. Unfortunately, as it typically the case with such profiles, there's no information about how he regularized his status in this country. Anyone know his immigration lawyer?
From the Bookshelves: Understanding Immigration Law Third Edition by Kevin R. Johnson, Raquel Aldana, Bill Ong Hing, Leticia M. Saucedo, Enid Trucios-Haynes
Fresh off the press! I just received my copy today. The new edition is available for fall 2019 classes.
Understanding Immigration Law Third Edition, August 2019 by Kevin R. Johnson, Raquel Aldana, Bill Ong Hing, Leticia M. Saucedo, Enid Trucios-Haynes
The third edition of Understanding Immigration Law lays out the basics of U.S. immigration law in an accessible way to newcomers to the field. It offers background about the intellectual, historical, and constitutional foundations of U.S. immigration law. The book also identifies the factors that have historically fueled migration to the United States, including the economic "pull" of jobs and family in the United States and the "push" of economic hardship, political instability, and other facts of life in the sending country.
Each chapter has been updated to analyze the unprecedented number of immigration enforcement measures—and many simply unprecedented measures—taken by the Trump administration, including but not limited to:
- The various increased enforcement measures, including expanded detention (and the “end of catch-and-release”), workplace raids, and restoration of Secure Communities (which the Obama administration had dismantled);
- The “zero tolerance” policy directed at Central American asylum seekers, including the policy to separate minors from parents in immigration detention centers;
- The “Muslim”” or “travel ban” upheld by the U.S. Supreme Court;
- The end of Temporary Protected Status for Salvadorans, Hondurans, Nicaraguans, Haitians, and nationals of several other countries;
- The attempt to rescind the Deferred Action for Childhood Arrivals (DACA) policy adopted by the Obama administration; and
- The efforts to discourage state and local “sanctuary” policies that limit state and local cooperation with federal immigration enforcement efforts.
The chapters further update the various chapters with Supreme Court immigration decisions, including the Court’s decision invalidating a removal ground on due process grounds (Sessions v. Dimaya (2018)) and invalidating a derivative citizenship rule for violating Equal Protection (Sessions v. Morales-Santana (2017)).
Over the weekend, the media has been turning attention to Stephen Miller as the architect of the public charge rule and many other immigration hardline policies rolling out of the White House. The Washington Post ran an in-depth profile of Stephen Miller's influence on immigration policy in the White House , as part of its series "All the Best People." The New York Times featured Miller prominently in a piece about the larger forces animating his rise.
Montana Governor and Presidential Candidate -- Putting Cuccinelli in charge of immigration "like putting Putin in charge of election security"
Gov Steve Bullock (D-MT) @GovernorBullock talks to Dana about immigration "I served with Ken Cuccinelli when he was Attorney General, Putting him in charge of immigration would be like putting Putin in charge of election security" pic.twitter.com/jiZndIpSyQ— FoxNewsSunday (@FoxNewsSunday) August 18, 2019
Jimmie E. Gates and Luke Ramseth from the Mississippi Clarion Ledger report that charges have been filed accusing more than 40 people detained in the recent Mississippi chicken processing plant raids of unlawful presence in the United States. However, so far, there are no records of company officials being charged with knowingly hiring undocumented workers. This is despite information in federal search warrant affidavits suggesting company officials knew their workers were undocumented:
"Some managers knew workers wore ankle monitors to work as they waited on immigration hearings, the warrants say. One of the chicken companies was aware its workers used fraudulent Social Security numbers, a confidential informant told investigators. A human resources employee revealed an employee was hired on two occasions, under two different identities.
When a Guatemalan man encountered law enforcement in Texas, he admitted he had worked at one of the plants, Koch Foods, and reportedly said the plant knew about his immigration status and that there were `a lot of illegals working there.'"
Immigration Article of the Day: Bringing Democratic Rule of Law to Immigration (in the Age of Trump) by Carrie L. Rosenbaum
Bringing Democratic Rule of Law to Immigration (in the Age of Trump) by Carrie L Rosenbaum
This article will bring together, in a novel way, three critical themes or concepts – settler colonialism, immigration plenary power, and rule of law. The United States constitutional democracy has naturalized racialized social and political stratification and subordination. Plenary power, a Court-made doctrine founded upon sovereignty and nationalism, is one of the tools responsible for enabling these dark anti-democratic undercurrents of oppression. The Chinese Exclusion Act, the contemporary ban on migration of persons from Muslim-majority countries, and the caging of asylum seekers are justified as necessary to maintain rule of law, sanctioned by the judiciary via plenary power.
Plenary power’s legitimacy is taken for granted. In fact, it could be characterized as lawless because it has represented a politicized excuse by the judiciary to decline jurisdiction, or to provide lower levels of scrutiny to acts of congress limiting the rights of particular classes of people, including immigrants. While immigration plenary power has been carefully studied by immigration scholars, none have considered it through the lens of settler colonialism, in conjunction with a theory of rule of law to address the ways in which it undermines rights. This article will directly take on the question of whether rule of law can facilitate challenging the racializing and subordinating function of immigration plenary power. Ultimately, the plenary power doctrine may help demonstrate that the problem with “rule of law” may not be that it means too many things to too many different people, but that it means one thing, predetermined by the history of the settler colonial project.
Sunday, August 18, 2019
ImmigrationProf posted a short while ago about ICE using GPS tracking on ankle bracelets to assist in targeting employers for raids. Immigration Impact makes it clear that the U.S. government is dedicated togoing high tech in border enforcement.
U.S. Customs and Border Protection (CBP) is preparing to expand its use of facial recognition technology to screen everyone entering the United States through borders and ports of entry.
The border enforcement agency is searching for a private vendor to upgrade a sweeping range of its technological systems and recently put out a request for quotes.
CBP plans to replace its existing security system—a mix of Global Entry kiosks and password verification—with a biometric one that will scan people’s faces. The private vendor will also move CBP’s passenger processing applications to a cloud-based system.
The contract is expected to begin in December 2019 and could run through January 2025. Its total cost may be as much as $960 million.
As children return to school in many neighberhoods across the country, this op-ed by community health researchers William Lopez and Nichole Novak pays tribute to school teachers as key supports for immigrant families.
Since worksite raids like the recent one in Mississippi occur during the workday and can result in parents being taken while children are at school, it’s often teachers, counselors, principals and superintendents who scramble to care for children whose parents may have just disappeared. Educators grapple with the task of how to tell their students that some will not be picked up by their parents at the end of the school day. Teachers develop ad hoc meal delivery systems to keep children fed when parents no longer leave the house to buy groceries. Bus drivers are instructed by superintendents not to drop off children at the empty houses of their detained parents. And school counselors guide students through the psychological and emotional tumult of parental removal.
Still many kids simply do not show up to school following immigration raids. In the broader study of immigration raids, the community health researchers reveal the impacts of raids in four major worksite areas where raids occurred in 2018: Mt. Pleasant, Iowa, Bean Station, Tenn., Sumner, Texas, and O’Neill, Neb. Through interviews with immigrant detainees and their families, lawyers, faith leaders and teachers, community surveys, and vital records, they find that immigration raids inflict fear and trauma, destabilize families, create widespread distrust of government services, and negatively impact school attendance. To give one example from the study, in August of 2018, ICE raided a meat-packing plant in Bean Station, Tennessee. The next day, 500 kids were absent. In Mt. Pleasant, Iowa, a middle school teacher shared, "So when I got to school I kind of tried to observe and just see if my Hispanic kids were there, and they weren't. I think we had over 100 missing." More on this study in the full-length book, Separated: Family and Community in the Aftermath of an Immigration Raid.
These risks were front of my mind as a I read a nearly contemporaenous article about apparently unsuccessful efforts of White House officials since 2017 to block undocumented immigrant children from public schools; also described here. The effort to close school house doors was part of Stephen Miller's slate of proposals to restrict immigrant acecss to public benefits that includies the public charge rule now set to go into effect within 60 days unless invalidated in courts. The effort to restrict public education was reportedly abandoned only after repeated avowals that such blockages would defy the 1982 Supreme Court decision Plyler v. Doe and violate the equal protection of immigrant children. (Among other excellent recountings, see the writings of Hiroshi Motomura and Michael Olivas on the continuing importance of Plyler.)
The Trump administration's new public charge rule has provoked controversy and litigation. It appears that, absent the constraints of the law, the administration would go much farther in eliminating immigrants from any form of "public benefits." Jennifer Jacobs and Justin Sink for Bloomberg report that top aides to President Trump sought for months for a way to give states the power to block undocumented immigrant children from enrolling in public schools, all part of the administration’s efforts to stem illegal crossings at the southern U.S. border.
According to the Bloomberg story, Trump senior adviser Stephen Miller had been pressing cabinet officials and members of the White House Domestic Policy Council repeatedly to devise a way to limit public school enrollment, according to several people familiar with the matter. The push was one of a number of immigration initiatives that could be carried out without congressional approval. Ultimately, they abandoned the idea after being told repeatedly that any such effort ran afoul of a 1982 Supreme Court decision in Plyler v. Doe that stuck down a Texas law effectively barring undocumented childen from public elementary and secondary schools.
I became involved in immigration law in the 1980s in a class action lawsuit challenging the transfer of Salvadoran and Guatemalan asylum seekers from the San Francisco Bay Area, where they could secure pro bono representation and have families and friends visit, to remote locations in El Centro, California, Florence, Arizona, and Oakdale Louisiana. Consequently, I was not surprised to learn of a 52% of ICE detainees are held in rural areas, and that that number is rising That makes it harder for an immigrant to see their families — and less likely to get legal aid Jimmy Aldaoud died two months after U.S. officials deported him to Iraq, even though he didn’t speak Arabic, had severe mental and physical health issues, and had lived in the U.S. since 1979
From the Bookshelves: A Good Provider Is One Who Leaves One Family and Migration in the 21st Century By Jason DeParle
The definitive chronicle of our new age of global migration, told through the multi-generational saga of a Filipino family, by a veteran New York Times reporter and two-time Pulitzer Prize finalist.
Under the current Administration, asylum seekers at our southern border have prompted enormous political controversy. Amidst a record-breaking government shutdown, the separation of asylum-seeker families, the declaration of a national emergency, and other drastic actions, agency adjudicators at the border have continued their daily work of screening asylum applicants. This process was not, however, untouched by the ongoing politicization of the border. Rather, in June 2018, then-Attorney General Jefferson Sessions issued a restrictive precedent decision, Matter of A-B-, targeting domestic violence asylum claims. The Department of Homeland Security (DHS) rushed to implement A-B- in its border screenings, i.e., credible fear determinations. In December 2018, a federal district court judge enjoined as unlawful several aspects of that decision and its implementation in credible fear processes. In the interim, however, DHS likely refouled refugees at the border as a result of the Attorney General’s asylum interpretations.
My article examines these border adjudications within the structure of our administrative state. I consider proper roles between and within agencies, as well as among the three branches of our government. Specifically, I consider how the underlying aims of judicial review of agency decision-making should shape and guide credible fear processes. I argue that revised agency practices and recalibrated judicial review can help ensure fair screenings: ones that abide by statutory design and thereby help avoid refoulement of refugees. For the agencies, I suggest delayed or declined implementation of restrictive DOJ asylum precedents at the border, as well as greater consideration of the views of the asylum office. For the courts, I propose stronger assertion of Article III primacy in declaring “what the law is” for screening purposes, as well as a recalibration of judicial review to favor agency expertise over politicized decision-making. I conclude with recommendations for structural and statutory reforms of agency decision-making at the border and beyond.
Saturday, August 17, 2019
CNN: Acting Director of CIS Ken Cuccinelli has talked about undocumented immigrants as 'invaders' since at least 2007
Andrew Kaczynski on CNN reports that Ken Cuccinelli, the acting director of US Citizenship and Immigration Services, was a founding member of a group more than a decade ago that described undocumented immigrants as "foreign invaders" responsible for "serious infectious diseases, drug running, gang violence, human trafficking, terrorism." Cuccinelli has vigorously defended the Trump administration's controversial public charge rule, which is being challenged in litigation.
The group, State Legislators for Legal Immigration, was established in 2007, when an immigration revamp was being debated in Congress. According to CNN, "Its founding principle was that undocumented immigration represented an invasion of the United States on par with foreign invasion that should justify invoking war powers under the Constitution -- extreme rhetoric Cuccinelli has continued to use in recent years, and that has been adopted by President Donald Trump and other Republicans." Here is a video on the front page of the State Legislators for Legal Immigration website:
Speaking with Breitbart radio in October of last year, Cuccinelli argued that states could use "war powers" to block Central American migrants, including many asylum seekers, from coming across the border.
"We've been being invaded for a long time, and so the border states clearly qualify here to utilize this power themselves. And what's interesting is they don't need anyone's permission," Cuccinelli said. "They can do it themselves. And because they're acting under war powers, there's no due process. They can literally just line their National Guard up with, presumably with riot gear like they would if they had a civil disturbance, and turn people back at the border. Literally, you don't have to keep them, no catch and release, no nothing. You just point them back across the river and let them swim for it."
"When someone comes across your border without your permission, it's an invasion," he added. "Their purpose here is to violate the border, to violate our sovereignty, for their own purposes. That's an invasion. And here, I don't think with the caravan it's even debatable because you've got an entire group that's organized itself to come into the country."
UPDATE (Aug. 18): NPR interviewed Ken Cucinneli on the new public charge rule. "Give me your tired and your poor who can stand on their own two feet and who will not become a public charge," Cuccinelli said, paraphrashing -- "twisting" accoring to the NPR story -- Emma Lazarus' famous words on a bronze plaque at the Statue of Liberty.
Immigration Article of the Day: Crimmigration in Gangland: Race, Crime, and Removal During the Prohibition Era by Geoffrey Heeren
Crimmigration in Gangland: Race, Crime, and Removal During the Prohibition Era by Geoffrey Heeren, Ohio State Journal of Criminal Law, Vol. 16, No. 1, 2018
In 1926, local law enforcement and federal immigration authorities in Chicago pursued a deportation drive ostensibly directed at gang members. However, the operation largely took the form of indiscriminate raids on immigrant neighborhoods of the city. Crimmigration in Gangland describes the largely forgotten 1926 deportation drive in Chicago as a means to augment the origin story for “crimmigration.” Scholars up until now have mostly contended that the convergence of criminal and immigration law occurred in the 1980s as part of the War on Drugs, with crime serving as a proxy for race for policy makers unable to openly argue for racial exclusion of Latino immigrants in the post-civil rights era. Drawing on original archival research, this article traces those roots back much further, to the Prohibition Era of Gangland Chicago, when they arose in nascent form before being supplanted by the different enforcement dynamics of the Great Depression.
A close examination of the deportation drive of 1926 reveals that immigration enforcement at the time contained most of the elements that scholars today have identified when defining crimmigration: a popular preoccupation with “criminal aliens” and attribution of crime problems to them; local/federal collaboration in immigration enforcement; an increase in the criminal grounds for removal; an increase in the criminal prosecution of immigration issues; and an asymmetrical incorporation of criminal procedures into the world of immigration law.
These phenomena developed for some of the same reasons that crimmigration arose in a more monolithic form in the 1980s, and indeed, paved the way for it. The 1920s, like the 1980s, came on the heels of a massive surge in immigration as well as a shift in the demographics of immigration. Yet both were also periods of relative affluence, during which anti-immigration arguments needed to take a different tenor than the protectionist arguments that prevailed during periods of economic insecurity. Like the 1980s, the 1920s also followed on the heels of a “civil rights era”: the reconstruction period following the Civil War. Arguments that implicated race were couched in scientific terms during this era of scientific racism and eugenics. Adherents of scientific racism pursued a dubious quest to statistically establish that certain racial and ethnic groups, like Sicilians, had a greater propensity for crime. This principle justified not only limited immigration quotas for Southern and Eastern Europeans, but also deportation efforts like the 1926 raids that targeted Italian Americans, whose “whiteness” was in many ways contested at the time.
The 1980s War on Drugs paralleled the Prohibition Era in many ways. One was a return to the focus on crimmigration that developed during the 1920s. Crime served in the 1980s as an effective proxy for race because that linkage had been made so strongly during the earlier period.
Friday, August 16, 2019
Yesterday, the U.S. Court of Appeals for the Ninth Circuit refused the Trump administration's invitation to not continue of the Flores settlement, a 1997 settlement agreement governing the condition of the detention of migrant children.
Jacqueline Thomsen for Law.com report on today's immigration news from the Ninth Circuit.
The case involved a policy announced by the Trump administration in July, which makes most migrants who pass through a third country before arriving at the U.S.-Mexico border ineligible for asylum.
A divided Ninth Circuit clashed over the scope of a national injunction barring the new policy from going into effect. The Trump administration has criticized nationwide injunctions issued by district courts.
The court stayed a nationeide injunction against the Trump administration’s new asylum restrictions, only blocking the new policy within the jurisdiction of the Ninth Circuit.
The judges stated that they would not issue a stay of the injunction in its entirety. The majority found that the case’s record wasn’t strong enough to block the rule across the nation.
Judges Milan Smith and Mark Bennett ruledthat the Justice Department did not make the “required ‘strong showing’ that they are likely to succeed on the merits on this issue” in order to receive a stay.
However, the pair found that “the nationwide scope of the injunction is not supported by the record as it stands.”
“To permit such broad injunctions as a general rule, without an articulated connection to a plaintiff’s particular harm, would unnecessarily ‘stymie novel legal challenges and robust debate’ arising in different judicial districts,” their order states. They concluded that the district courty “failed to discuss whether a nationwide injunction is necessary to remedy plaintiffs’ alleged harm.”
The judges wrote that the lower court “clearly erred by failing to consider whether nationwide relief is necessary to remedy plaintiffs’ alleged harms.”
They suggested that allowing the national order to remain in place could allow for further nationwide injunctions to become the norm, even if they aren’t necessarily needed.
“Indeed, were we to adopt the dissent’s view, a nationwide injunction would result any time an enjoined action has potential nationwide effects,” the majority wrote. “Such an approach would turn broad injunctions into the rule rather than the exception.”
And they said that limiting the injunction “allows other litigants wishing to challenge the rule to do so.”
In a dissenting opinion, Senior Judge A. Wallace Tashima wrote that he agrees a stay should not be granted. However, he questioned the decision to limit the scope of the injunction, calling the need for a national order “obvious.”
“Should asylum law be administered differently in Texas than in California? These issues and problems illustrate why tinkering with the merits on a limited stay motion record can be risky,” Tashima wrote.