Tuesday, January 21, 2020
Needless to say, the Trump administration continues with immigration initiatives. Stef W. Kight, Jonathan Swan for Axios report that has "plans as early as this week to roll out a new rule cracking down on `birth tourism' . . ."
President Trump has attacked birthright citizenship and "anchor babies." "This change is intended to address the national security and law enforcement risks associated with birth tourism, including criminal activity associated with the birth tourism industry," a State Department official told Axios. For details, which seem somewhat vague, read the Axios story linked above.
Evangeline M. Chan, director of the Safe Horizon Immigration Law Project for The Hill considers the effects of the Trump administration's immigration enforcement policies, including fewer T visas and aggressive enforcement, on survivors of human trafficking. She notes that
Monday, January 20, 2020
The U.S. is considering expanding the exclusions barring individuals with criminal records from seeking asylum. Expansion is unnecessary given that the United States already bars individuals convicted of "aggravated felonies" from seeking asylum -- a bar that, counter-intuitively, already works to exclude individuals convicted of conduct that is neither aggravated nor a felony.
By statute, only individuals convicted of a “particularly serious crime,” 8 U.S.C. § 1158(b)(2)(ii), should be excluded from obtaining asylum. As mentioned, through the currently-existing "aggravated felony" bar, the United States already excludes individuals from seeking asylum who have committed crimes that are, in no sense, particularly serious. We certainly do not need to bar more individuals for committing even less-particularly-serious crimes.
Take the proposed rule to render ineligible asylum-seekers who are convicted of first-time smuggling of their family members, including their children. This expansion is nonsensical. If an individual is fleeing persecution within the meaning of 8 U.S.C. § 1101(a)(42), they will want to save their children from the same persecution. Fear and desperation in the face of a threat of persecution may well drive an asylum-seeker to enter the U.S. unlawfully -- particularly given the well-documented "metering" that is going on at the Southern Border and which (intentionally) serves as a barrier against seeking asylum at lawful points of entry. Under the current federal prosecutorial priorities, it's not unlikely that such an adult would face a criminal charge of alien smuggling. And yet the smuggling would be the direct result of our failed asylum processes on the U.S. border!
Consider too the proposal to "render ineligible aliens who engaged in acts of battery and extreme cruelty in a domestic context in the United States, regardless of whether such conduct resulted in a criminal conviction." This, too, is nonsensical. How can we exclude individuals from seeking asylum on the basis of their "particularly serious crime" if they have never been convicted of a crime! Moreover, such a change would task immigration courts with work they are wholly unsuited to do -- make factual findings about past conduct to determine if it is sufficiently criminal in nature. This is especially problematic where migrants do not have a right to counsel and are frequently pursuing their cases while in detention (or, worse, while in Mexico under the Migrant Protection Protocols). How can we expect such individuals to locate and bring witnesses to immigration court in order to address factual allegations about their past conduct?
The U.S. should be looking to narrow, not expand, the criminal grounds that bar migrants from seeking asylum.
There are still a few more hours today to submit your own comments in opposition to these proposed rules. The comment period closes Tuesday.
A number of commentators have written about the need for international refugee law to respond to migration due to climate change. CNN reports refugees fleeing the effects of the climate crisis cannot be forced to return home, a United Nations panel has ruled.
The United Nation's Human Rights Committee addressed the case of Ioane Teitiota, who applied for protection from New Zealand after claiming his life was at risk in his home country of Kiribati. The Pacific island is at risk of becoming the first country to disappear under rising sea levels.
The committee ruled against Teitiota on the basis that his life was not at imminent risk. It also outlined that countries could violate people's international rights if they force them back to countries where climate change poses an immediate threat. "Without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights," its ruling said.
I hope you are all enjoying a day of volunteer service in honor of Martin Luther King, Jr., who would have turned 91 this year.
This is a good opportuinity to think about -- and act toward -- a more just society. Former ImmigrationProf blogger Jennifer Chacón has a thoughtful law review article on Dr. King, civil rights, and immigration rights. Teresa Albano on Medium looks at Dr. King's words in artculating how he might approach the issue of immigration today.
I feel fortunate to teach at a law school building named after Dr. King, with a statue of him in the lobby. Our students have organized a Martin Luther King, Jr. Day of Service and Celebration. Voulunteer opportunities include (1) working at a homeless shelter; and (2) assisting DACA recipients with their immigration cases.
Sunday, January 19, 2020
From Common Dreams:
The U.S. held a record 69,550 migrant children in detention facilities in 2019, a report from The Associated Press and PBS Frontline found, leading to major psychological and physiscal harm and lasting trauma.
"No other country held as many immigrant children in detention over the past year as the United States—69,550," said AP tech reporter Frank Bajak in a tweet promoting his colleagues' work. "The physical and emotional scars are profound."
The story lays out in excrutiating detail the emotional pain of victims of President Donald Trump's child separation policy, focusing on, among others, a Honduran father whose three-year-old daughter can no longer look at him or connect with him after being separated at the U.S. border and abused in foster care.
"I think about this trauma staying with her too, because the trauma has remained with me and still hasn't faded," the father told AP.
This story brings together recent developments in birthright citizenship law and U.S. territories of the Pacific Islands: the United States is asking travel agencies and airlines to stop allowing pregnant woman to visit the Northern Mariana Islands to give birth.
The US intervention arises in part because any child born in U.S. territories, including America Samoa (where recent litigation has put birthright citizenship in dispute) and the Northern Mariana Islands is eligible for U.S. citizenship. The number of women delivering babies in Saipan has been rising because Chinese pregnant women travel to the Northern Marianas to avoid China's one-child policy and related population controls. The Northern Marianas are convenient for Chinese tourists because Chinese visitors can visit the islands for up to 45 days without a visa.
In a recent episode (in January 2020), a Japanese citizen was reportedly asked to take a pregnancy test to prove she was not pregnant before boarding a Hong Kong Express Airways flight to Saipan. Midori Nishida was reportedly flying from Hong Kong to Saipan to visit her parents. Once the 25-year-old woman got to the airport for her flight, she says the airline asked her to take a “fit-to-fly” assessment, which includes a pregnancy test — despite the fact that Nishida had already marked that she was not pregnant on the check-in questionnaire she was given. Nishida complied and the test was negative, but called the experience “humiliating and frustrating.” The airline subsequently apologized.
In an earlier incident (in 2013), a pregnant Chinese tourist who had arrived on a charter flight from Shanghai late one evening was sent back home early the next morning. She was deemed part of a rising trend reported by the Saipan governor who said at the time that while overall births in the Northern Marianas have been falling, births to ethnic Chinese rose 175% between 2010 and 2012 and outnumbered those of any other ethnicity.
These stories present a different angle on the birth tourism enforcement effort in maternity hotels in Southern California, which led to several arrests of business owners and hotel operators in early 2019 for conspiracy and visa fraud.
A Happy Ending: After His 2018 Deportation Made Global Headlines, Jorge Garcia Is Back In US With Family
Jorge had been living in the U.S. for more than 30 years, since the age of 10, but had not been eligible for the Deferred Action for Childhood Arrivals (DACA) program because he was too old—he is 41. He was separated from his wife and two children in early 2018, following a more than 10-year long deportation battle. Immigration advocates captured his departure to Mexico on a Facebook live stream that went viral. See above.
The family told Latino USA that while staying with relatives in Mexico, Jorge worked to get back to his wife and children living in Michigan. Shortly after arriving, his lawyer began filing the necessary paperwork and scheduling meetings at the U.S. embassy in Mexico. The process lasted two years.
Jorge had to go through visa processing which required several in-person meetings at the U.S. Embassy. Additionally, Jorge had to wait for the Embassy to process two pardons. One of these documents waived Jorge’s past violations due to his unlawful presence in the United States while the other provision allowed him to request an adjustment to his legal status after being deported.
Professor, lawyer, and scholar Michelle Alexander writes about rising white nationalism that links mass incarceration with the mass deportation of immigrants on the dual occassion of MLK Day and the 10th anniversary edition of "The New Jim Crow: Mass Incarceration and in the Age of Colorblindness." Her op-ed in the NY Times SundayReview and interview in The New Yorker highlight the racism that characterizes our past and present. She considers the optimism of the early years of "post-racial" Obama presidency the aberration and the enduring realities of race and caste to be the defining feature of our nation.
Contrary to what many people would have us believe, what our nation is not experiencing is not an "aberration." The politics of "Trumpism" and "fake news" are not new; they are as old as the nation itself.
Alexander names a growing number of scholars and activists who have begun to "connect the dots" between incarceration and deportation in U.S. history. Kelly Lytle Hernandez, historian and author of "Amnesty or Abolition: Felons, Illegals, and the Case for a New Abolition Movement" chronicles how these systems have emerged as interlocking forms of social control that relegate "aliens" and "felons" to a racialized caste of outsiders. I would add to her list Cesar Garcia Hernandez's Migrating to Prison and Amy Lerman & Vesla Weaver's Arresting Citizenship among others.
Immigration law professor Shoba Sivaprasad Wadhia has posted a reading list of books on immigration on the NYU Press blog. Its a great list including some classics and soon-to-be instant classics. One of the books Just Mercy: A Story of Justice and Redemption, Bryan Stevenson's indictment of the criminal justice system. Wadhia sees similarities between the immigration and criminal justice systems.
Saturday, January 18, 2020
Los Angeles City Council President Nury Martinez wants to ban the city from handing out any building permits for private detention centers, including facilities that would hold unaccompanied immigrant minors.
The proposal, announced Friday, could thwart any effort to open a facility for unaccompanied minors in the Arleta neighborhood in Martinez’s district. VisionQuest, a for-profit company based in Tucson, has already retained a lobbying firm to help it seek approval from the city, according to city disclosures.
The site, once occupied by an assisted living facility, has been discussed as a possible facility for those ages 11 to 17 who entered the country as unaccompanied minors, according to city records. Martinez has denounced the idea, likening such facilities to prisons.
Friday, January 17, 2020
On December 19, 2019, USCIS and EOIR proposed a new rule: Procedures for Asylum and Bars to Asylum Eligibility. Here is the government's summary of the regulatory changes being proposed:
The Departments now propose to (1) establish additional bars to eligibility for asylum for aliens with certain criminal convictions; (2) clarify the effect of criminal convictions; and (3) remove the regulations regarding reconsideration of discretionary denials of asylum.
Wowzahs. Let's delve into that a little more.
Here's the introduction regarding that first topic--additional bars:
The Departments propose to revise 8 CFR 208.13 and 1208.13 by adding paragraphs (c)(6) through (8) to add bars on eligibility for asylum for certain aliens. First, the regulations would add bars on eligibility for asylum for aliens who commit certain offenses in the United States after entering the country. Those bars would apply to aliens who are convicted of (1) a felony under federal or state law; (2) an offense under 8 U.S.C. 1324(a)(1)(A) or 1324(a)(1)(2) (Alien Smuggling or Harboring); (3) an offense under 8 U.S.C. 1326 (Illegal Reentry); (4) a federal, state, tribal, or local crime involving criminal street gang activity; (5) certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant; (6) a federal, state, tribal, or local domestic violence offense, or who are found by an adjudicator to have engaged in acts of battery or extreme cruelty in a domestic context, even if no conviction resulted; and (7) certain misdemeanors under federal or state law for offenses related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia. The Departments intend that the criminal ineligibility bars would be limited only to aliens with convictions and—with a narrow exception in the domestic violence context  —not based only on criminal conduct for which the alien has not been convicted. In addition, although 8 U.S.C. 1101(a)(43) provides for the application of the aggravated felony definition to offenses in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years, this proposal is not intended to cover such foreign convictions.
Here's the introduction to second prong--clarifying the effect of criminal convictions:
The proposed regulations governing ineligibility for asylum would also set forth criteria for determining whether a vacated, expunged, or modified conviction or sentence should be recognized for purposes of determining whether an alien is eligible for asylum. The proposed rule would apply the same set of principles to federal, state, tribal, or local convictions that are relevant to the eligibility bars described above. The rule would not apply to convictions that exist prior to the effective date of the proposed regulation. For convictions or sentences imposed thereafter, the proposed rule would provide that (1) vacated or expunged convictions, or modified convictions or sentences, remain valid for purposes of ascertaining eligibility for asylum if courts took such action for rehabilitative or immigration purposes; (2) an immigration judge or other adjudicator may look to evidence other than the order itself to determine whether the order was issued for rehabilitative or immigration purposes; (3) the alien bears the burden of establishing that the vacatur, expungement, or sentence modification was not for rehabilitative or immigration purposes; (4) the alien must further establish that the court had jurisdiction and authority to alter the relevant order; Start Printed Page 69655and (5) there exists a rebuttable presumption against the effectiveness, for immigration purposes, of the order vacating, expunging, or modifying a conviction or sentence if either (i) the order was entered after the initiation of any removal proceeding; or (ii) the alien moved for the order more than one year after the date of the original order of conviction or sentencing. The rule would thus ensure that aliens do not have their convictions vacated or modified for purported rehabilitative purposes that are, in fact, for immigration purposes.
And, finally, here's the introductory explanation about removing the regulations regarding reconsideration of discretionary denials of asylum:
The proposed rule would remove the automatic review of a discretionary denial of an alien's asylum application by removing and reserving paragraph (e) in 8 CFR 208.16 and 1208.16. The present regulation provides that the denial of asylum shall be reconsidered in the event that an applicant is denied asylum solely in the exercise of discretion, and the applicant is subsequently granted withholding of deportation or removal under this section, thereby effectively precluding admission of the applicant's spouse or minor children following to join him or her. Factors to be considered include the reasons for the denial and reasonable alternatives available to the applicant such as reunification with his or her spouse or minor children in a third country. This provision, however, has proved confusing, inefficient, and unnecessary.
Comments for this proposed CFR close on Tuesday. You have three days to submit your own comment on this proposal.
The government notices public comments. Consider taking a moment to raise your voice in opposition to these proposals.
From NBC News:
Texas Gov. Greg Abbott became the first governor in the country to refuse to take in refugees, but 18 of his 26 Republican counterparts have chosen to open the door to refugees, much to the surprise of the Trump administration.
In a September executive order, President Donald Trump gave states and local governments the right to reject refugees, but instead of saying no, most state and local officials have blindsided the administration by opting in, according to two former officials familiar with the matter.
Some of the local governments choosing to accept refugees voted heavily in favor of Trump in 2016, after an election campaign in which he vowed to clamp down on immigration and the flow of refugees — particularly Muslim refugees.
Actor and comedian Kumail Nanjiani’s new TV series, “Little America,” debuts today. The series “traverses the country and the globe, each installment tracking a different immigrant’s journey to or within the United States.” In an interview with Brandon Yu of The New York Times, Nanjiani shares his sense of optimism: “Maybe it’s a little stupid to be thinking like this right now. But I do feel optimistic in this country, and so the show obviously has that perspective in it, too.”
Here is how Apple TV+ describes the series:
"Inspired by the true stories featured in Epic Magazine, `Little America' will go beyond the headlines to look at the funny, romantic, heartfelt, inspiring and surprising stories of immigrants in America, when they’re more relevant now than ever." (emphasis added).
Jerry Kammer, senior research fellow for the Center for Immigration Studies, has an op/ed in the New York Times today entitled "I’m a Liberal Who Thinks Immigration Must Be Restricted." Judge the immigration views of Mr. Kammer for what they are. But also be aware that the Center for Immigration Studies has been characterized as a "hate group" by the Southern Poverty Law Center;
"While [Center for Immigration Studies (CIS)] . . . has been on the Southern Poverty Law Center’s (SPLC) radar for years, what precipitated listing CIS as an anti-immigrant hate group for 2016 was its repeated circulation of white nationalist and antisemitic writers in its weekly newsletter and the commissioning of a policy analyst who had previously been pushed out of the conservative Heritage Foundation for his embrace of racist pseudoscience. These developments, its historical associations, and its record of publishing reports that hype the criminality of immigrants, are why CIS is labeled an anti-immigrant hate group."
Kammer has claimed that the labeling of the Center for Immigration Studies was a "smear" (see the video above) and that the Southern Poverty Law Center has become a "propaganda arm" of the National Council for La Raza.
I understand that the New York Times wants to present a diversity of views on immigration. But a national platform for the Center for Immigration Studies, a strident advocacy group that presses racial theme to the extent that it has been classified as a "hate group"?
UPDATE (Jan. 18, 6 a.m. PST): Ben Mathis-Lilley on Slate ("Times Taps White Nationalist Organization for Thought-Provoking Perspective on Immigration") analyzes Jerry Kammer's well-worn arguments for restricting immigration. His conclusion:
"The New York Times opinion section under editor James Bennet ostensibly aims to challenge the paper’s predominately liberal readers by presenting them with thoughtful critiques of their worldview. . . . The essay `I’m a Liberal Who Thinks Immigration Must Be Restricted,' published in the Times Thursday, may represent the nadir of this approach. . . . The familiarity of the article's arguments is matched by the familiarity with its flaws."
From the Bookshelves: Organizing While Undocumented: Immigrant Youth's Political Activism under the Law by Kevin Escudero
Organizing While Undocumented: Immigrant Youth's Political Activism under the Law by Kevin Escudero, NYU Press, March 3, 2020
Undocumented immigrants in the United States who engage in social activism do so at great risk: the threat of deportation. In Organizing While Undocumented, Kevin Escudero shows why and how—despite this risk—many of them bravely continue to fight on the front lines for their rights.
Drawing on more than five years of research, including interviews with undocumented youth organizers, Escudero focuses on the movement’s epicenters—San Francisco, Chicago, and New York City—to explain the impressive political success of the undocumented immigrant community. He shows how their identities as undocumented immigrants, but also as queer individuals, people of color, and women, connect their efforts to broader social justice struggles today.
A timely, worthwhile read, Organizing While Undocumented gives us a look at inspiring triumphs, as well as the inevitable perils, of political activism in precarious times.
Thursday, January 16, 2020
AP visits immigration courts across US, finds nonstop chaos is a must read and, really, a must assign as well.
The article offers vignettes from immigration courtrooms all around the country. Each rings familiar to anyone who has spent time in immigration court, and each paints a vivid picture for students who likely have little to no experience with that unique environment. Take these paragraphs, for example:
There’s so much chaos it’s hard to keep track. At times, an interpreter is missing, or stumbles over dialects or local slang. Video systems fail.
And there are papers everywhere -- except, sometimes, where they are supposed to be.
There are other good articles about immigration court out there -- see, for example, the 2014 WaPo piece In a crowded immigration court, seven minutes to decide a family’s future, which I've assigned to students in the past.
What makes the AP piece so great and my new go-to, it the breadth of it. The snapshots from all over the US are all eerily repetitive: overburdened courtrooms, IJs crumpling under the crushing demands of performance metrics, poor technology, poor facilities, unrepresented migrants, unforgiving laws. That is a depressingly accurate portrait of our current system.
The AP reports that the White House is considering expanding its travel ban to seven additional countries. The specific countries that would be affected if the policy is implemented have not been revealed because the measure has yet to be finalized. Two anonymous sources reported that a majority of the countries under consideration are Muslim-majority.
White House House spokesman Hogan Gidley declined to confirm the plan for the AP, but praised the travel ban for "making the country safer."
The story notes that an official announcement may be timed to coincide with the third anniversary of Trump’s first travel ban, on Jan. 27, 2017. It is a signal of a "renewed election-year focus on immigration by President Donald Trump."