Thursday, November 23, 2023
Michael Barron for Culture Trip gives us food for thought on Thanksgiving. "Memoirs from Pilgrims William Bradford and Edward Winslow depict the Wampanoag tribe’s welcome of foreign settlers — which paved the way for the first Thanksgiving — and remind us that immigration is central to the celebration." Here is a heartwarming immigration story ("A migrant crossed the border and found a scared, 9-year-old Arizona boy alone in the desert. The encounter changed them both") from Thanksgiving 2007
Thanksgiving is always a great holiday. While I may be thinking some about immigration, I am certain to turn on the Green Bay Packers/Detroit Lions game. And to be eating pumpkin pie.
This Article focuses on two cases from the Supreme Court of the United States dealing with sexual orientation—Bowers v. Hardwick (1989) and Boutilier v. Immigration and Naturalization Service (1967). Hardwick held that the Federal Constitution did not recognize a right to consensual intimacy among human beings of the same sex, and states could regulate the issue. Boutilier held that the federal government could order the deportation of non-heterosexual applicants for citizenship since they were deemed to have a “psychopathic personality, sexual deviate,” and their treatment as such did not offend the Federal Constitution.
The argument is that human dignity, as represented in Hardwick, Boutilier, and other landmark cases, is not only about the status of specific individuals and communities, but also about the reverence required by individuals and communities holding superior or supreme status. Those holding such status identify individuals and objects they revere and for whom (and which) they mandate reverence. Reverence, in this context, has two meanings—veneration and deference. Veneration and deference are selectively bestowed upon specific individuals, communities, and objects, and they are denied to others, especially those associated with the most vulnerable communities.
The absence or failure of dignity is not, as commentators often argue, humiliation, demeaning, or degradation of a human being, but desecration. Desecration is an experience, an attitude, and a response, which includes humiliation, demeaning, and degradation. Desecration is the unacceptable experience, by those holding superior or supreme status, of a perceived lack of reverence for hallowed individuals, objects, and ideals. Desecration is, further, an attitude and a response. As an attitude, desecration is the intuitive act of resistance by those assigned inferior status simply by being themselves. And as a response, desecration is what those possessing superior or supreme status do to those who, simply by existing as themselves, are deemed inferior.
Wednesday, November 22, 2023
Law students are invited to apply for the 2024 Maggio Immigrants’ Rights Summer Fellowship Program, which is accepting applications.
Organized and funded by the American Immigration Lawyers Association, the National Immigration Project of the National Lawyers Guild, and the Center for Human Rights and Constitutional Law, the Fellowship is awarded to one law student each summer to work on a student-initiated project. For consideration, each student must submit a project proposal with an organization willing to host the student for 10 weeks and provide a $1,000 stipend. The $1,000 amount may be paid by the host organization or may be provided by the law student through other means, e.g., law school public interest funding, independent fundraising, etc. The Maggio Immigrants' Rights Fellowship will provide an additional $3,500 stipend for a total award of $4,500. More details may be found on the Maggio Fellowship website. The Maggio Fellowship also offers complimentary registration to national immigration conferences.
For more information on the application and to learn more about the impressive work of past fellows, visit here. The deadline is February 16, 2024.
A woman seeks refuge at the U.S. border, but U.S. officials force her to wait for her asylum hearing in Mexico where a police officer later stalks and rapes her. A father and child suffer unbearable trauma after U.S. officials separate them under a policy aimed at deterring migration. A formerly healthy family loses a loved one to the coronavirus while forced to wait at an unsanitary, makeshift tent city in Mexico after fleeing for safety to the United States. For the people impacted by U.S. border policies, the southern border is a dangerous place—it is the site of rampant U.S.-created harm. Typically, legal and policy responses to refugee crises are framed by international and domestic legal obligations to provide safety and protect those fleeing persecution or humanitarian disasters. When states fail to meet migrants’ needs or thwart humanitarian processes, critiques logically focus on the government’s failure to meet its refugee, domestic law, and moral obligations. But this focus, though an essential part of countering the government’s illegal actions, insufficiently addresses the United States’ role in creating and inflicting harm.
Recently, however, in the context of the Trump Administration’s family separation policy, a district court recognized that the state-created danger theory of substantive due process protection may have a role to play in reckoning with the harm inflicted at the border—a development constitutional law scholars described as “groundbreaking.” The recognition of state-created danger theories in the family separation context thus raises the possibility of unlocking substantive due process protection in response to other forms of immigration enforcement that cause grievous and lasting harm.
Still, commentators have long lamented the state-created danger doctrine as narrow and impossible to meet. Nevertheless, over the last several decades, many state and federal courts have affirmed the doctrine, recognizing that the State has a duty not to expose people to conscious-shocking harm, even harm committed by third parties, if it is made possible or likely because of state action. The courts have recognized the theory as a possible constitutional restraint even if they have been reluctant to recognize circumstances qualifying as constitutional violations.
This Article draws upon this strand of substantive constitutional protection to help draw attention to and conceptualize new ways of challenging the United States’ state-created border harm. We argue that this body of law provides a strong theoretical foundation for holding government actors accountable for what one commentator described as a doctrine reserved “for truly egregious” government abuse, fitting match for excessive and punitive immigration enforcement that costs people their lives, safety, health, and security. At the very least, it is a starting place for broader normative conversations about the unlawful harm inflicted by the United States in the name of border control.
Tuesday, November 21, 2023
On November 15, the Supreme Court of the United Kingdom rendered a judgment in a case challenging the UK's plan to send asylum seekers from the UK to Rwanda. The full decision is linked at the word "judgment" in the preceding sentence.
Here is the court's framing of the issue:
1. This appeal is concerned with the Secretary of State’s policy that certain people claiming asylum in the United Kingdom should not have their claims considered here, but should instead be sent to Rwanda in order to claim asylum there. Their claims will then be decided by the Rwandan authorities, with the result that if their claims are successful, they will be granted asylum in Rwanda.
You read that right. The UK wasn't looking to employ an Australian-type system where people would be housed off-country until found eligible for UK asylum. They literally wanted to send people to Rwanda where the only hope was to get asylum in Rwanda. Never the UK.
That seems like a new tactic. EXCEPT IT ISN'T. As the UK Supreme Court notes in paragraphs 95-100, from 2013-2018, Israel had an agreement with Rwanda under which persons from Eritrea and Sudan who sought asylum in Israel were removed to Rwanda in order for their claims to be processed there. That program was ultimately found unlawful by the Israeli Supreme Court.
As for the UK plan, the high court affirmed the decision of the appellate court before it:
73. We have come to the conclusion that the Court of Appeal was entitled, on the evidence before it, to consider that there were substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement in the event that they were removed to Rwanda. Indeed, having been taken through the evidence, we agree with the conclusion of the Court of Appeal.
149. ... It was accordingly correct to hold that the Secretary of State's policy is unlawful.
As WaPo reports, UK Prime Minister Rishi Sunak said that the ruling was "not the outcome we wanted." He's determined to find another way to deport asylum seekers and "stop the boats."
Using data from the UN High Commissioner for Refugees (UNHCR), the Migration Policy Institute has created a map showing countries of origin and destination for the 108.4 million forcibly displaced persons worldwide as of the start of 2023, including four subpopulations: Refugees, asylum seekers, internally displaced people, and other people in need of international protection. Select a country of origin or destination for one of these groups. Click here to check out the map.
Official White House Photo
Isabel Dias for Mother Jones reviews the draconian immigration policies advocated by Donald Trump in his campaign to return to the White House. She poses the question: "Will Trump and [Stephen] Miller’s anti-immigration agenda . . . create an opening for the Biden campaign to take the offensive on this issue?" Time will tell as the campaign continues.
Pop up immigrant detention camps? A humanitarian crisis is brewing on the outskirts of Jacumba, Calif., near the U.S.-Mexico border. Hundreds of migrants have been placed in informal, open-air camps after crossing the border and turning themselves in to Border Patrol. NPR's Jasmine Garsd describes conditions like "a scene out of a refugee camp," but with no infrastructure or official humanitarian aid. Locals volunteer to provide basic supplies and first aid. Garsd says because official asylum processes can take months, some migrants are desperate enough to cross the border and hope for the best.
Monday, November 20, 2023
You can still take advantage of Early Bird rates if you register for AALS before Wednesday, November 22. On Wednesday, prices go up by $50.
Can't decide if you want to go to Washington DC for the January 3-6, 2024 conference? Here are the immigration programs you can look forward to:
In addition there will be an extended program put on by the environmental law section, co-sponsored by both the immigration law and the natural resources and energy law sections. That extended program includes:
Official White House Photo
Donald J. Trump appears to all but have been named the 2024 Republican Party candidate for President. And he is talking even tougher on immigration than ever.
CNN reports that Trump yesterday visited Texas near the US-Mexico border and escalated his anti-immigrant rhetoric and campaigns on hardline immigration policy proposals. Trump also received the endorsement of Texas Gov. Greg Abbott.
Trump bashed President Joe Biden over his handling of the border, saying that the United States has the “most unsecure border in the history, I believe, really, of the world.”
The former president has been ramping up his rhetoric on the campaign trail, promising to conduct the “largest domestic deportation operation in American history” if he wins the White House next year. He has said that undocumented immigrants are “poisoning the blood of our country” in comments that echoed White supremacist rhetoric and has compared migrants who come to the US to the fictional serial killer Hannibal Lecter.
Friday, November 17, 2023
After 50 years of practicing and teaching immigration law, Professor Bill Ong Hing and ImmigrationProf Blog co-editor advocates for the dismantling of the US immigration law and enforcement system. Relying on personal experiences and other reported examples, he will recount his experience interviewing children in border patrol detention, representing asylum seekers within a biased system, advocating against the deportation of longtime residents –some with a criminal history deserving of a second chance, and dealing with immigration judges who believe attempted rape is not persecution or threaten to sick a dog on noisy children in the courtroom. He applauds those who are engaged in the disruption of the current system.
His talk will be hosted by the First Unitarian Universalist Society of San Francisco at 1187 Franklin Street ta Geary on January 21, 2024 (9-11 AM) and on zoom. Email [email protected] and [email protected] for more details and registration.
The notion of citizenship lies at the core of our constitutional structure, determining possession of fundamental rights ranging from the rights to vote and hold public office to the right to enter and remain in the United States at all. Indeed, the entire constitutional project of self-governance rests on the premise of a defined group of “We the people.” Determining who qualifies as a citizen is thus central to our constitutional fabric. Prior literature has tacitly assumed that the federal judiciary has been the principal arbiter for deciding who qualifies for citizenship under our Constitution. This Article, however, demonstrates that political actors, rather than federal courts, have played the primary role in defining access to constitutional citizenship for members of historically marginalized groups, which raises significant normative implications.
This Article excavates records surrounding three pivotal episodes from our nation’s history: the contestation of citizenship for Black Americans in the early to mid-nineteenth century; the denial of citizenship to Chinese Americans during the Exclusion Era from 1882 to 1943; and the stripping of citizenship from American women who married noncitizens prior to 1922. In each case, members of historically marginalized groups seeking to assert their constitutional citizenship found little recourse in the federal courts. Political institutions, however, independently wrestled to determine their citizenship status, in the absence of — or even in defiance of — federal court opinions. The historical record tells a story of judicial abdication, which allowed political actors to both narrow and expand access to constitutional citizenship.
The histories unearthed in this Article raise an urgent fundamental normative question: To what extent should constitutional citizenship be determined by political actors? This Article argues that citizenship is unique among constitutional provisions in ways that generally cast doubt on the legitimacy of efforts — political or otherwise — to deny it to members of marginalized communities. Moreover, the histories uncovered in this Article show that political institutions are not inherently more or less likely than the federal judiciary to do so. The experiences of Black Americans, Chinese Americans, and married American women thus suggest that the road to a more inclusive citizenship requires involvement by both: federal courts must play an active role in policing the constitutional floor for citizenship, but the political branches must remain free to expand constitutional citizenship beyond that floor, which may, in turn, generate a new consensus on what that floor should be.View Full Article
Thursday, November 16, 2023
TRAC Immigration reports that, according to the latest data released by Immigration and Customs Enforcement (ICE), a total of 39,748 immigrants were held in detention as of November 5, 2023. The last time detention numbers reached 40,000 was in January 2020.
The growth of ICE’s detained population is currently driven by immigration enforcement along the U.S.-Mexico border.
While detention numbers are on the rise, the number of immigrants enrolled in ICE’s electronic monitoring program known as “Alternatives to Detention” (ATD) dropped slightly over the past several weeks.
As ABC and numerous other news outlets are reporting, the Texas Senate passed SB 4 on Tuesday, by a vote of 83-61, and the bill now awaits Governor's signature.
This extreme immigration enforcement bill attempts to authorize local law enforcement to arrest migrants crossing the border into Texas. It also allows state court judges to order migrants returned to their country. And, it makes failure to return after such an order a felony punishable by up to 20 years in prison.
Lisa Graybill, vice president of law and policy at the National Immigration Law Center, had this to say about SB 4:
“SB 4 is the latest attempt by Texas legislators to take federal immigration law into their own hands for personal political gain through hatemongering and intimidation. Both the politics and the law behind this bill are dead wrong. Texas law enforcement officers should focus on protecting the health, welfare, and safety of all community members instead of trying to become the immigration police. This bill will have real human consequences that all Texas residents will feel. It is an extreme bill that will endanger communities and lead to racial profiling of both immigrants and U.S.-born residents.
“Federal courts, including the Supreme Court, have consistently held that the federal government has the sole authority to regulate immigration policy. The Texas Legislature is wrong to have passed it, and Governor Abbott will be wrong if he signs it. We call on Texas to abandon this cruel, illegal scheme and recognize that immigrants make Texas and our nation stronger.”
Wednesday, November 15, 2023
Rommel H. Ojeda for Documented reviews the documentary Esto es Frontera/At the Border.” In that film, "directors Braulio Jatar and Anaïs Michel . . . follow the lives of two trocheros, people who are familiar with the geography of an area and help others navigate it. . . . Filmed in the city of Cúcuta, the documentary depicts the crisis that has been brewing at the crossroads of the Colombian and Venezuelan border. Since 2014, more than 7.7 million Venezuelans have been compelled to leave their country to seek refuge in neighboring countries and beyond."
A No More Deaths Video
Yesterday, No More Deaths released Separate and Deadly: Segregation of 911 Emergency Services in the Arizona Borderlands. The report is the latest installment of Disappeared, a four-part series that examines the Border Patrol’s role in the deaths and disappearances in the U.S./Mexico border region. Separate and Deadly analyzes the Pima County (Arizona) Sheriff’s Department’s emergency response system. The report finds vastly different responses to the distress calls on 911 of migrants based on their citizenship status. Migrant distress calls are routinely transferred to the Border Patrol, which No More Deaths says has "demonstrated a deadly negligence when it comes to emergency response and rescue." In 2023, the remains of 175 people have been found in Arizona. Countless more remain disappeared.