Wednesday, February 19, 2020
Immigration Article of the Day: The Plenary Power Meets the Police Power: Federalism at the Intersection of Health & Immigration by Wendy Parmet
The Plenary Power Meets the Police Power: Federalism at the Intersection of Health & Immigration by Wendy Parmet, American Journal of Law & Medicine, Vol. 45, pp. 224-246 (2019)
The regulation of immigration has traditionally been considered an exclusive federal function, over which the elected branches have so-called plenary power. In contrast, the protection of public health has long been viewed as falling primarily within the purview of the states’ police power. These two long-standing, but never fully followed, tenets of federalism are increasingly in tension as so-called Blue States seek to expand non-citizens’ access to health benefits, while the Trump Administration institutes a series of immigration restrictions that will deter non-citizens from utilizing health benefits or accessing health care. This paper explores this tension, focusing in particular on the federalism implications of the Administration’s public charge rule. Part One of the paper discusses the doctrinal foundations for the federal government’s exclusive and plenary power over immigration, as well as the state’s primary responsibility over health. Part Two problematizes the notion of separate spheres, and looks at the overlapping and contested relationship between the federal government and the states with respect to immigration, health, and especially immigration policies that relate to health. Part Three discusses the values, including self-governance, accountability, and separation of powers, that are salient to determining the appropriate scope of federal and state action at the intersection between health and immigration. The paper concludes by arguing that these values, as well as a regard for public health, should lead courts to reject an expansive application of the plenary power doctrine when a President’s immigration initiatives impede state health policies.
Tuesday, February 18, 2020
On February 7, 2020, the Denver Law Review held a symposium on Immigration Law in Shifting Times.
The day began with a panel on Immigration, Citizenship and Family Law, moderated by Chris Lasch (DU).
- Gillian Chadwick (Washburn) discussed her work exploring the privilege of biological families in immigration law, what she calls "biological supremacy." She gave compelling examples regarding surrogacy and legitimation to challenge our notions of family unity and parentage.
- Ming Hsu Chen (CU and blogger extraordinaire) discussed her forthcoming piece (with the DULR) on the particular problems facing noncitizen soldiers who wish to naturalize. She talked about the extraordinary delays facing such applications, which aren't even reaching USCIS and so aren't counted in the general naturalization backlog! She also discussed the appallingly high denial rate facing soldiers who do manage to get their applications to USCIS.
- Lisa Brodyaga (Refugio del Rio Grande) spoke abut the realities on-the-ground at the Southern border today including the particular problems facing individuals whose U.S. passports have been revoked by the government.
Following this panel, we were treated to a discussion on The Historical Origins of the World's Largest Immigration Detention System by Dr. Carl Lindskoog (Raritan Valley Community College). Dr. Lindskoog spoke about his book Detain and Punish: Haitian Refugees and the Rise of the World's Largest Immigration Detention System. His comments will be published in the DULR symposium edition.
The second panel of the day, moderated by César Cuauhtémoc García Hernández (DU) tackled Immigration and Criminal Law.
- Carrie Rosenbaum (Golden Gate) spoke about her forthcoming theoretical piece with the DULR regarding the plenary power doctrine and the rule of law.
- Sirine Shebaya (National Immigration Project) discussed the breath of 8 USC § 1324 in terms of charging individuals with encouraging or inducing unlawful migration, noting the hung jury in the criminal case against Scott Warren and the pending SCOTUS case of United States v. Sineneng-Smith.
The lunchtime keynote speaker was Nina Perales (MALDEF). She gave us a sweeping view of many of the recent changes regarding asylum seekers at the Southern border including MPP, Transit Countries Asylum Ban, Asylum Cooperative Agreements, Prompt Asylum Claim Review, and HARP. While not entirely uplifting, Ms. Perales suggested that new waves of Latino voters (just now reaching 18) offer hope that our political environment may change. Her comments will also be included in the DULR symposium edition.
The third panel of the day tackled Immigration and Employment Law. Lisa Martinez (DU) moderated a panel including:
- Myself. I spoke about threats to the employment authorization of TPS and DACA recipients and discussed business entity solutions (namely LLCs) to continued work in the U.S. without running afoul of laws against the employment of unauthorized workers.
- Shannon Gleeson (Cornell) spoke about her soon-to-be published DULR piece with co-authors Kati L. Griffith and Vivian Vazquez--Immigrants in Shifting Times on Long Island NY: The Stakes of Losing Status. Their piece comes out of interviews with TPS holders and assesses what they stand to lose if their TPS status is taken away. Naturally, many were worried about their economic mobility. But many shared fears that extended beyond income.
- Shayak Sarkar (UC Davis) spoke about migrant workers in the home including the proposed federal Domestic Worker Bill of Rights and unique issues facing au pairs and employers with diplomatic immunity.
The final panel of the day considered Lives in Danger, Justice Denied: Historical and Current Perspectives on the Closing Space for Seeking Asylum in the United States. Scott Johnson (DU) moderated comments from:
- Clara Long (Human Rights Watch) who talked about on-the-ground regarding the deportation of Salvadorans as well as the Migrant Protection Protocols -- focusing on the deprivations suffered by those subject to the MPP, the violence they face in Mexico, and the damage to their due process rights. She bemoaned the lack of Congressional interest in MPP where the pace to consider these issues "is too slow for the amount of harm" being inflicted.
- Geoffrey Heereen (soon-to-be Idaho) talked about his forthcoming piece with the DULR about "distancing refugees." That is -- the encampment model under which refugees are warehoused in the least developed areas of the globe. He offered a historical perspective on his practice as well as an explanation of its current iterations in the U.S. and abroad.
- Pooja Dadhania (Cal Western) is also contributing an article to the DULR symposium edition. Her work discusses language access problems with the asylum system which managed to narrow the availability of asylum without change to substantive law. For example, interpreters at master calendars are being replaced with a subtitled video in Spanish about generic rights--never mind that there are individuals who don't speak Spanish or who are not literate at these court dates.
All in all, it was a fascinating conference. I learned a great deal that I have already taken straight to the classroom. I very much look forward to the final publication of the symposium edition.
UPDATE: I neglected to mention that all of these talks are available online at this link.
"Trump's Changes to Immigration Could Take Years to Undo — Even With a New President" and "9 Ways Trump Has Overhauled Immigration to the US"
Tyche Hendricks at KQED News (San Francisco) takes a careful look at the Trump administration's immigration initiatives on "Trump's Changes to Immigration Could Take Years to Undo — Even With a New President" and "9 Ways Trump Has Overhauled Immigration to the US"
- Trying to build a border wall
- Restricting access to asylum
- Separating families and zero tolerance
- Pushing to end DACA
- Broadening immigration enforcement
- Restricting legal immigration
- Refugee and humanitarian restrictions
- Aiming to expand detention of children
- Tightening pressure on immigration courts
|TRAC Immigration reports that the pace of deciding asylum cases is up sharply so far in FY 2020. A total of 33,194 asylum cases have already been decided on their merits according to the latest case-by-case Immigration Court data covering the first four months of fiscal year 2020 (October 2019 - January 2020). There were 67,520 asylum decisions during all of FY 2019. However, the court's backlog is still climbing as the pace of new receipts continues to exceed case completions.
So far 8,828 individuals have been granted asylum by immigration judges this fiscal year. Asylum seekers from China still make up the largest segment of those granted asylum. These are followed, in order, by individuals from El Salvador, Guatemala, India, Honduras, Cuba and Venezuela.
Asylum denial rates are also creeping upward. This fiscal year 72 percent of asylum cases were denied, up from 69 percent during FY 2019. Representation rates are also slipping. Asylum is not the only form of relief that the court granted. A total of 13,082 individuals were granted some form of relief from removal during the first four months of FY 2020. On average it took the court 936 days - over two and a half years - to decide these cases.
Stuart Anderson for Forbes compares immigration trends in the United States and Canada. New data show the number of people immigrating to Canada increased by 26% between 2015 and 2019, and is projected to rise higher as the country seeks to overcome the aging of its workforce. In the United States, legal immigration fell by 7% between FY 2016 and FY 2018, and is expected to decline even more sharply due to Trump administration policies.
Canada has announced plans to increase the number of immigrants it accepts each year. “To further ease the challenges of a shrinking labor force and an aging population, our new multi-year immigration levels plan sets out the highest levels of permanent residents that Canada will welcome in recent history,” according to Minister of Immigration, Refugees and Citizenship Ahmed Hussen. By 2021, Canada is expected to increase legal immigration to 350,000 a year, a rise of 78,165, or 29%, from the 2015 level of 271,835.
The big Canadian immigration news in 2019 was the number of Indians who became permanent residents in Canada increased from 39,340 in 2016 to 85,585 in 2019, a rise of more than 117%, according to a National Foundation for American Policy (NFAP) analysis of Immigration, Refugees and Citizenship Canada data. “Canada is benefiting from a diversion of young Indian tech workers from U.S. destinations, largely because of the challenges of obtaining and renewing H-1B visas and finding a reliable route to U.S. permanent residence,” said Peter Rekai, founder of the Toronto-based immigration law firm Rekai LLP, in an interview. (See here.)
Top Countries for Immigrants to Canada (2019)
|Country of Citizenship||Number of Permanent Residents in 2019|
Noting that the new travel ban will benefit from Trump v. Hawaii's approval of the prior travel ban, Ilya Somin discusses nondelegation as an alternative legal theory for challenging the travel ban on The Volokh Conspiracy. His interpretation focuses on 8 USC Section 1182(f), which gives the President the power to bar entry into the US by any foreign national whom he deems to "detrimental to the interests of the United States." Somin's reading of this reliance follows:
In sum, if Trump v. Hawaii's interpretation of Section 1182(f) is correct, then Section 1182(f) is an unconstitutional delegation. At the very least, it suggests that a nondelegation challenge to Trump's travel bans is worth trying. And, as noted above, both the earlier and expanded versions of the travel ban depend on presidential power under Section 1182(f). If it gets invalidated, all or most of the travel ban policy falls with it.
Faced with a strong nondelegation challenge, the courts could choose to give Section 1182(f) a narrower interpretation rather than striking it down outright. If so, that would likely still be a victory for opponents of the travel ban, as it is unlikely it can be narrowed significantly without jeopardizing at least some large parts of the travel ban. It could also set a valuable precedent for future nondelegation cases.
The New Yorker this week features an excellent article on the "hidden weapons" of immigration law. Similar to AILA's invisible wall report, which led to Congressional hearings and a January 2020 AALS panel in Washington, DC (Organizer Jill Family, Shruti Rana, Ayelet Shachar, and myself), the article focuses on lesser known and yet highly consequential policy developments. It discusses in particular detail the newest travel ban and the Migration Protection Protocols. All in all, it offers a clear-eyed perspectives on the likely legacy of Trump for immigration law going forward.
Excerpts from the interview:
Is the Trump Administration taking or trying to take steps that will move them beyond working with the existing paradigm? Are they content to work within [existing] frameworks, and push them to the very limits of legality, or are there plans to move beyond that?
The Trump Administration wants to move beyond the current paradigm, and they are taking a lot of steps that push the boundaries of what’s already on the books, to create loopholes that let them push beyond what the law says. There’s a reason that so many of the Trump Administration’s policies have been blocked in court, and, even though some of them have been resuscitated by the Supreme Court and are currently in effect, there’s so much more that’s been blocked that barely even makes the national news.
The Big Picture with Trump's Immigration Policy
I think the big picture with the Trump Administration’s immigration policy is that it’s almost impossible to know what they’re doing on a day-to-day basis and that they are willing to take every step, no matter how small, in order to crack down on legal immigration and crack down at the border on those seeking asylum. So, for every major policy out there, there are a dozen other small things, each of which could block hundreds or maybe thousands of people from being able to stay in the United States or come here in the first place. The big picture at this point, three years into the Trump Administration, is that they are winning the war on asylum, they are winning a few battles in the war on legal immigration, in cutting the number of people who’ve come into the United States, but so far they haven’t won the war. A lot of what they’ve done is held in place with duct tape and string, and one court decision that goes against them could end it because they need Congress to actually make anything permanent.
Is there one particular thing that you think the press doesn’t cover much, and that has had a huge impact?
If there was one thing that I think the nation needs to be paying more attention to right now, it’s the Remain in Mexico policy, the so-called Migrant Protection Protocols.
Immigration Article of the Day: A Passage to America: University Funding and International Students by John Bound, Breno Braga, Gaurav Khanna, Sarah Turner
A Passage to America: University Funding and International Students by John Bound, Breno Braga, Gaurav Khanna, Sarah Turner, American Economic Journal: Economic Policy, vol. 12, no. 1, February 2020, (pp. 97-126)
The number of international undergraduate students at US public research universities increased dramatically over the past two decades, alongside concurrent reductions in state support for universities. We show that these trends are closely connected as public research universities relied on foreign students to cushion the effects of falling appropriations. The growing capacity in emerging economies to pay for a US education provided opportunities for universities to recover revenues from full-fare-paying foreign students. We estimate that between 1996 and 2012, a 10 percent reduction in state appropriations led to an increase in foreign enrollment of 16 percent at public research universities.
Spectacular and very special wedding tonight with new bride and groom Stephen and Katie Miller! So much fun and still going with @realDonaldTrump having fun and the band is going strong! pic.twitter.com/1LreZhe2pd— Reince Priebus (@Reince) February 17, 2020
News from Washington! A wedding registry website celebrates the nuptials of senior white house aide Stephen Miller and Katie Waldman by directing visitors to charities that support asylum seekers and immigrants, "organisations that help the most vulnerable among us, people whose rights are receding faster than Stephen's hairline."
Mr Miller, the chief architect of President Trump's immigration policies "has made it his life's mission to strip all compassion and understanding from US immigration policy", the website says.
The mock registry was created by Full Frontal with Samantha Bee, a late-night news and satire program. An accompanying photo gallery places images of the couple between shots of children behind fencing in detention centers.
Miller married Vice President Mike Pence's press secretary at the Trump International Hotel in Washington DC on Sunday. The website gave the event a hashtag: #MatchMadeInHate.
Utah Supreme Court Justices
Good news for Deferred Action for Childhood Arrival (DACA) recipients in Utah. The Utah Supreme Court has approved a rule that permits DACA recipients to become attorneys in the state. Some states, such as California, have permitted undocumented immigrants to secure a law license.
The proposed rule read as follows:
"Rule Governing the Utah State Bar, Supreme Court Rules of Professional Practice – Comment Period Closed January 23, 2020
CJA14-0721. Admission of undocumented immigrants. NEW RULE. This new rule will allow certain undocumented immigrants with deferred action status to be eligible for admission to the Utah Bar. The Utah Supreme Court has included a statement explaining the Court’s authority to create this rule."
Monday, February 17, 2020
Guest post by Iliana de la Fuente, University of Oklahoma College of Law 2L
She’s so little.
I remember thinking that as I held my baby cousin for the first time. A week ago I didn’t even know she existed and now…
“Put all your belongings in the basket!” A uniformed officer shouted at the line of people waiting to see their loved ones. I held Lupita tighter. For a moment, I had forgotten where I was.
My grandmother struggled to walk through the metal detector. Her leg had always been a problem and she had to walk through the machine without her cane. At least they gave it back.
My friends spent their weekends studying for the SATs or going to the mall. Here I was meeting Lupita and taking her to prison. This might be her only chance to meet her father.
My uncle was in prison. His crime? Last year, his son, Juan-Carlos, attempted to kill himself and has been on life support ever since. My uncle refused to stay in Mexico, even after ICE shipped him back.
I remember my mother lighting a candle for St. Jude the night my uncle crossed the border. He traveled through a desert so he could be by Juan-Carlos’ side. Not too long after that, my uncle was stopped again. This time, he wasn’t immediately deported. He was detained in prison while he was processed.
The outcome was almost certain. It was determined last year that Juan-Carlos’ condition wasn’t enough to keep my uncle here. My uncle would be deported again.
My grandmother and I sat on one side of the small fold-out table. My uncle was escorted over by an officer. The orange jumpsuit practically swallowed him whole. He reached for Lupita with a grin on his face.
I didn’t say much during the visit. It wasn’t for me, the only reason I was here was because of my status. As our time ended, my uncle handed me a crumpled piece of paper.
“One of my friends here was transferred. They didn’t tell his family. I thought you could call them. He’s a good guy.” His eyes pleaded with me. I took the note and nodded. We hugged and said our good-byes.
I called that number the next day. “We’re sorry. You have reached a number that is disconnected or that is no longer in service.”
-posted by KitJ on behalf of Iliana de la Fuente
Cuneyt Dil of the Associated Press reports that the California's Legislature is expected to approve a resolution offering an apology to persons subject to internment during World War II. The apology is for the state's role in aiding the U.S. government's policy.
President Franklin D. Roosevelt’s executive order No. 9066 establishing the internment camps was signed on February 19, 1942. February 19 is now marked by Japanese Americans as a Day of Remembrance.
Assemblyman Al Muratsuchi was born in Japan and is one the roughly 430,000 people of Japanese descent living in California. he is sponsoring the resolution. “We like to talk a lot about how we lead the nation by example,” he said. “Unfortunately, in this case, California led the racist anti-Japanese American movement.”
A congressional commission in 1983 concluded that the detentions were a result of “racial prejudice, war hysteria and failure of political leadership.” Five years later, the U.S. government formally apologized and paid $20,000 in reparations to each victim.
The California resolution doesn’t come with any compensation. It targets the actions of the California Legislature at the time for supporting the internments. Two camps were located in the state — Manzanar on the eastern side of the Sierra Nevada in central California and Tule Lake near the Oregon state line, the largest of all the camps.
“I want the California Legislature to officially acknowledge and apologize while these camp survivors are still alive,” Muratsuchi said. He said anti-Japanese sentiment began in California as early as 1913, when the state passed the California Alien Land Law, targeting Japanese farmers who some in California's massive agricultural industry perceived as a threat. Seven years later the state barred anyone with Japanese ancestry from buying farmland.
Sara Burnett and Michelle L. Price for the Associated Press report that, now campaigning in Nevada, Democratic presidential candidate Amy Klobuchar says she no longer believes English should be the national language of the United States. She is stepping back from a vote she took more than a decade ago. Campaigning in Las Vegas, the Minnesota senator said that she has changed her stance since voting for an English-language amendment in 2007 and has “taken a strong position against” it. She also blasted President Donald Trump for using immigrants as “wedges” and said as president she would work with Republicans to achieve comprehensive immigration reform.
Klobuchar’s record on immigration is under scrutiny after her third-place finish in the New Hampshire primary this week revived her campaign and sent her on to Nevada’s Feb. 22 caucuses with momentum. She is now navigating a much more diverse electorate, where some of her moderate positions and willingness to vote with her Republican colleagues could be a liability.
Klobuchar was one of 17 Democrats to support a 2007 amendment that would have reversed President Bill Clinton’s executive order requiring federal agencies to provide materials in languages other than English. It passed 64-33, but the larger immigration bill died.
Klobuchar's campaign website does not appear to include a stated position on immigration.
Sunday, February 16, 2020
Chefs José Andrés and Andrew Zimmern take on immigration policies in the premiere of "What's Eating America," a new documentary series exploring the intersection of food and politics. The show's first episode airs on MSNBC tonight (Sunday).
The first episode shows how rollbacks on certain legal immigration programs such as H2-B and H2-A guest worker visas, among others, have impacted the lives of immigrant and migrant farmworkers, and, by extension, parts of the nation's food system.
"If you take those workers out of our food system, it literally stops. Immigrants, migrants, documented and undocumented people touch every plate of food in America, at every single stage... We don't have a system that can support feeding this country without those workers."
Applications for the Immigration Summer Legal Corps (ISLC) close this Tuesday, February 18 at 11:59 PM EST.
This program allows 20 law students to help build capacity at legal services organizations while responding to the critical needs of underserved immigrant communities, and the application closes soon. Here are some helpful links:
- "Immigration Summer Legal Corps Application Overview and Tips" is a webinar with helpful tips and tricks on how to make an application stand out.
- Project descriptions for each of the organizations hosting law students this summer. Students will be asked to identify their top three organization choices when applying for the program
- The program page and "Law Student Frequently Asked Questions" offer more opportunities to learn about the program.
February 15, 2020 was the one-year anniversary of President Trump's declaration of a "national emergency" at America's southern border to raid military funds for the purpose of building a wall despite Congress's refusal to fund that initiative. $ 11 billion and counting have been unilaterally reallocated this way based on emergency governance. Three days ago, the president extended the so-called emergency for another year. The Yale Law Journal commissioned three essays on emergency power for the occasion by Robert L. Tsai, Steve Vladeck, and Cecillia Wang. Read more.
The essay of Cecellia Wang of the ACLU sets out three reforms that would prevent future abuses of this weapon by President Trump and his successors: (1) providing for meaningful review of presidential claims of “emergency” and “national interest”; (2) abolishing the punitive and militarized approaches to immigration enforcement enacted in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and restoring basic principles of due process to the Immigration and Nationality Act; and (3) policies that recognize immigrants and refugees as fellow human beings and not as criminals.
Saturday, February 15, 2020
Have you been watching the docuseries Cheer on Netflix? If not, you need to get on that.
Everyone on the show is fabulous. But I'm going to single out Navarro's assistant cheer coach Andy Cosferent as our immigrant of the day. On Instagram Andy self-identifies as "Romanian,Canadian,American!!!" He's all that plus 100% fierce.
Check out his cheer skills from pre-coaching days: