Tuesday, January 24, 2023
"Today, global mobility is on the rise. According to The Passport Index, an interactive ranking tool created by the investment firm Arton Capital, the “World Openness Score” reached an all-time high at the end of 2022. And the score has only continued to increase.
This means that passport holders around the world are receiving permission to travel to more countries without first obtaining a visa than ever before. As pandemic-related travel restrictions waned in 2022, the total number of visa waivers increased 18.5% globally. Nearly every passport on the index, which includes 193 United Nations member countries and six territories, became more powerful, with holders receiving immediate access to 16 additional countries on average.
But there’s still a massive mobility gap between the most and least powerful passports – and it has big implications for where people can travel, reside and work. The United Nations may proclaim that “everyone has the right to leave any country, including one’s own, and to return to one’s country,” but the fact is, not all passports are created equal or treated with equal respect."
Highest and lowest Passport Power Rankings, 2023
Highest and lowest Passport Power Rankings, 2023
Each passport's rank reflects the number of destinations where its holders can travel visa-free, receive a visa on arrival (VOA) or enter subject to a visa.
Sadly, we have seen too much hate violence in recent days, with Monterey Park a tragic example.
Unknown to many, if not most, Angelenos, the Chinese Massacre of 1871 occurred in what is now downtown Los Angeles. The event in brief: "In October 1871, a simmering, small-scale turf war involving three Chinese gangs exploded into a riot that engulfed the small but growing town of Los Angeles. A large mob of white Angelenos, spurred by racial resentment, rampaged through the city and lynched some 18 people before order was restored. In The Chinatown War, Scott Zesch offers a compelling account of this little-known event, which ranks among the worst hate crimes in American history."
The City of Los Angeles is commissioning a monument to the victims of the massacre and has selected six finalists to design the 1871 Chinese Massacre Memorial.
Monday, January 23, 2023
The Daily Caller reports that Russia is offering "automatic citizenship" to foreigners who voluntarily enlist to serve in the country's war against the Ukraine.
⚡️ General Staff: Russia offers citizenship to foreigners in exchange for enlisting in army.— The Kyiv Independent (@KyivIndependent) January 16, 2023
Russian authorities have been offering foreigners in Russia Russian citizenship in exchange for enlisting in the country’s armed forces, the General Staff reported on Jan. 16.
The U.S. has a similar provision: INA § 329 (8 U.S.C. § 1440), which provides that
"Any person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States during ... any ... period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force, and who, if separated from such service, was separated under honorable conditions, may be naturalized..."
At this point, it's entirely unclear how many people might take Russia up on its offer of citizenship in exchange for war service. It's also unclear whether this offer will be enough to offset the nation's already heavy personnel losses over the course of this war.
The State Department is launching the Welcome Corps, a private sponsorship program that will harness the generosity and goodwill of American citizens to resettle refugees. Krish O'Mara Vignarajah heads up the Lutheran Immigration and Refugee Service and discusses the plan with NPR.
You can read more about the Welcome Corps program on the State Department website here.
Hate violence against Asian Americans spiked during the pandemic. Against a backdrop of violence, the nation braced itself upon learning of the mass murder perpetrated on the Lunar New Year in Monterey Park, California, an Asian American enclave on the outskirts of Los Angeles. Michael Luo for The New Yorker in "The Spectre of Anti-Asian Violence in the Monterey Park Shooting" writes that "[w]aiting for details to emerge, there was the familiar apprehension and dread experienced by so many Asian Americans since attacks against them began to soar during the pandemic."
In 2021, Luo wrote an article nicely summarizing the "purging" of Asians from the United States in the late 1800s.
My colleague Joel Dobris tipped me off to this interesting factoid:
"A 20-minute video that looks at 21 kinds of thinking errors. Here’s an example of the Gambler’s Fallacy: `A University of Chicago review found asylum judges were 19% less likely to approve an asylum seeker if they had just approved the previous two. The same person applying for a loan was more likely to get approved for a loan if the previous two applicants were rejected and was more likely to be rejected if the previous two applications were approved.'”
Sunday, January 22, 2023
Immigration Article of the Day: Strategy and Strategic Litigation in the Protection of Refugees by Guy Goodwin-Gill
Drawing on experience in practice as a Barrister and generally as an advocate, I comment on the value and the pitfalls of litigation on behalf of those seeking protection as refugees, particularly in interpreting and applying the refugee definition, ensuring access to procedures, and the benefit of non-refoulement. Reference is also made to the variety of cases, the role of the Office of the United Nations High Commissioner for Refugees, and the advantages of collaboration and cooperation. A selected list of the literature and cases is provided.
Saturday, January 21, 2023
Led by Human Rights First, 292 civil rights, human rights, and advocacy groups, including UnidosUs, the Leadership Conference on Civil and Human Rights, ACLU, MoveOn, Hispanic Federation, the Immigration Hub, and Amnesty International, signed a letter to the Biden Administration on Thursday urging administration officials to drop its proposed asylum ban. This ban, reminiscent of an asylum ban Trump attempted to implement, would deny asylum to migrants encountered along the border who transited through a third country without requesting protection or who entered between ports of entry. If implemented, this policy would undermine the Biden administration’s efforts to restore the nation’s asylum system and jeopardize the lives of desperate families seeking safety and refuge.
“We call on the Biden administration not to break your campaign promise to end restrictions on asylum seekers traveling through other countries. The Biden administration must adjust course immediately and abandon the misguided pursuit of an asylum ban…This announcement marks a full-throated embrace of policies initiated by the prior administration, which by your own description contravened our values and caused needless human suffering,” the letter says.
Inflation has been on all of our minds in recent weeks and months. As previously discussed on ImmigrationProf posts (and here), a tight labor market has contributed some to increasing prices. Marketplace offers thoughts on the issue of immigration and inflation:
"A shortage of workers has been one of many economic trends that’s emerged during the pandemic. One contributing factor was a drop in immigration. Immigrants have accounted for a major share of labor force growth for many years, and some experts say their absence contributed to the inflation the country has been grappling with.
Half the growth in the labor force since the year 2000 has come from immigrants, according to Mark Regets, a senior fellow at the National Foundation for American Policy.
“They actually became more important during the pandemic,” he said. “They have been all of the labor force growth over the last three years.”
On April 6, 2018, the Trump administration announced a “zero tolerance” policy for individuals who crossed the U.S. border illegally. As part of this policy, the administration prosecuted parents with minor children for unlawful entry; previous administrations generally placed families in civil removal proceedings. Since U.S. law does not allow children to be held in immigration detention facilities pending their parents’ prosecution, the new policy caused thousands of children to be separated from their parents. Hundreds of families have yet to be reunited.
Despite a consensus that the family separation policy was cruel and ineffective, there has been minimal focus on the attorneys who implemented it. One exception is Professor Bradley Wendel, who recently defended border prosecutors for following the zero-tolerance policy rather than pursuing their own conceptions of the public interest. Since immigration is not the only context in which prosecutors’ charging decisions may have the effect of separating families, the question of prosecutors’ ethical responsibilities in these situations continues to be of paramount importance.
This Article contends that prosecutors, as ministers of justice, should consider their charging decisions’ effects on children and families. Because of limited resources and opportunity costs, prosecutors cannot pursue every criminal misdemeanor and inevitably take the public interest into account in making charging decisions. The Trump administration’s “zero-tolerance” policy may have limited prosecutors’ discretion but did not eliminate it. Prevailing prosecutorial standards recognize prosecutors’ broad charging discretion but focus predominately on culpability in individual cases. Prosecutors should instead seek justice for the situation, which could include declining to prosecute nonviolent misdemeanors to keep families intact.
Friday, January 20, 2023
This week began with a celebration of the life and legacy of Dr. Martin Luther King, Jr. The Aoki Center on Critical Race and Nation Studies has unveiled a blog. The first post of by immigration professor, and co-director of the Aoki Center, Raquel Aldana is entitled "MLK and Border Justice." Her post concludes:
"President Biden is under extreme domestic pressure to control the border, seemingly at any human cost. Over the years, border policies have contributed to thousands of migrant deaths at the U.S.-Mexico border, with 2022 being the worst year. Domestic calls for tough on immigration control at the border, often a bipartisan project, have deadly consequences. They are also shortsighted. They will not work because they fail to address the root causes of migration, which include externalities from or the exportation of domestic U.S. policies to Latin America whose casualties are the migrants at our Southern border whose suffering we fail to heed."
Tomorrow, as part of a week of volunteer service in honor of Dr. King, UC Davis Law students are volunteering at a naturalization workshop at the Mexican Consulate in Sacramento. Volunteers will assist permanent residents in completing the application for naturalization. The workshop is being held in partnership with the UC Davis School of Law Immigration Law Clinic and the UC Immigrant Legal Services Center.
Records Show that Congressmember George Santos Falsely Said His Mother Was in the World Trade Center on September 11 When Immigration Records Show She was in Brazil
Immigration Article of the Day: Contextualizing (Children’s) Immigration in Law, History, Theory and Politics by Shani King
During his election campaign Donald Trump expressed views on immigration that were markedly more hostile to immigrants than those of the several presidents, Republican and Democrat, who preceded him. Since his election, President Trump’s administration has turned his anti-immigrant utterances into legislative and administrative action, accelerating this effort under the cover of the coronavirus pandemic. While President Trump’s rhetoric and immigration agenda represent a departure from the recent past, they are part of a long tradition of “othering” immigrants—identifying them as fundamentally different from, and subordinate to, the majority culture—that has been one part of the historically ambivalent U.S. attitude toward immigration and immigrants since the nation’s founding. Indeed, while the inflammatory language and actions of the current administration may be unusual in their blunt and frank hostility to immigrants, it is altogether too comfortable to view them as an aberration.
In this Article, in an ambitious project that delves deep into legal history, multiple substantive legal areas, theory and politics, I consider how the othering of immigrants affects undocumented immigrant children and the children of undocumented immigrants (including citizen children). I review their status as both “other as alien” and “other as sub-adult,” and I examine how these othering narratives, and their resultant status, influence their treatment in areas of law as diverse as immigration law and family law. Finally, I place this analysis in the context of the largely exclusionary history of U.S. immigration law over the past century and a half. This piece about immigrants, and immigrant children in particular, is both timely and timeless.
Thursday, January 19, 2023
Eric Adams, NYC mayor, has a 6-point plan for tackling what he terms the "immigration explosion" on the U.S./Mexico border:
- a government official solely focused on overseeing the migrant response and coordinating all relevant agencies and government entities, including the U.S. Border Patrol;
- a decompression strategy at the border that evaluates asylum claims, establishes a plan for each migrant’s arrival — before entry into the United States — and a system to fairly distribute newcomers regionally;
- additional congressionally allocated funding through the Federal Emergency Management Agency to implement that strategy at the border and in the localities where the migrants end up;
- expedited right-to-work status for asylum seekers who are allowed to enter the country;
- a clear, congressionally passed pathway to residency or citizenship for those who enter this country legally;
- leadership that takes an all-hands-on-deck approach by bringing together nonprofits, the faith-based community and the private sector, alongside state and local government, to meet this challenge.
For his full explanation, check out his WaPo opinion piece.
I could talk about each one of these, but it's #5 that's got me wondering who is helping him draft/write/craft the wording of his plan. Surely he doesn't actually mean that every individual who "enter[s] this country legally" should have a path to citizenship. Tourists enter legally. I imagine not them. Asylum seekers can enter the country legally (getting paroled in after seeking asylum at a POE for example), but they may or may not actually qualify for asylum. But, hey, I'm not a politician. Caveats on caveats are probably boring to most and certainly are not conducive to soundbites.
From the American Immigration Council
WASHINGTON, Jan. 19, 2023—Today, the Biden administration announced a new program allowing U.S. citizens and permanent residents to sponsor an individual to enter the United States as a formal refugee. This program, called the Welcome Corps, complements the traditional U.S. Refugee Admissions Program (USRAP) by permitting people to join together with others, in minimum groups of five, to apply to sponsor a new refugee. As part of this process, they will have to raise $2,750 per refugee, pass background checks, and create a support plan.
Under the current USRAP program, individuals granted refugee status outside the United States can only enter the country through a formal refugee resettlement agency, which helps arrange shelter, food, and employment assistance for newly arrived refugees. However, refugee resettlement agencies only operate in specific areas and are still operating at limited capacity after the Trump administration’s move to slash refugee admissions to their lowest in history.
The new private sponsorship program will permit individuals to enter the country even in areas where there are no active refugee resettlement organizations. Unlike parole programs such as Uniting for Ukraine, individuals who enter through this program will have formal refugee status and will be eligible for a green card within a short period of time. The Biden administration hopes to admit at least 5,000 refugees through this new process during the rest of Fiscal Year 2023.
The following statement is from Jeremy Robbins, Executive Director, American Immigration Council:
“The United States Refugee Admissions Program has long been a source of pride, protecting people from persecution while helping strengthen communities across the country. Now, the Biden administration is stepping forward to help everyday Americans take part in welcoming refugees through a private sponsorship model to increase this country’s capacity to support the most vulnerable. The American Immigration Council applauds the administration’s innovative initiative and urges similar policies going forward that demonstrate a commitment to humanitarian protection.
“As the nearly 200,000 sponsorship applications through the Uniting for Ukraine program showed, people in the United States want to step up and support refugees. But while the Uniting for Ukraine program provides only temporary relief for Ukrainians fleeing the war, people sponsored through the new program will enter the United States with formal refugee status, allowing them to stay permanently.
“The Biden administration has set an ambitious goal of resettling 125,000 refugees each year but has so far fallen short of that target. If the administration provides the funding and resources needed to ensure the program’s success, this new process may not only help the administration reach this important goal—it may also transform the way that we treat refugees around the world, creating a system that is nimbler and more responsive for those in dire need of help. In the coming weeks, we hope faith groups, nonprofit organizations, and individuals come together to support refugees fleeing persecution from around the globe.”
The Immigration Article of the Day is "Hybrid-Status Immigrant Workers" by Jacob Hamburger, Immigration Postdoctoral Associate at Cornell Law School, and available on SSRN.
Here is the abstract:
Precarious work arrangements have become a dominant feature of twenty-first-century political economy. One employer strategy that has contributed to eroding workers’ rights and protections is misclassifying them as independent contractors, avoiding the obligations that come with employee status. Recently, policymakers in some states and at the federal level have sought to combat this trend by expanding the definition of employment, notably by adopting the three-prong standard known as the ABC test. The misclassification problem has received much attention in both legal scholarship and public discourse, but these discussions have not sufficiently addressed how these reforms affect a particularly vulnerable subset of precarious workers: undocumented immigrants without federal employment authorization.
Immigrant workers often depend on independent contractor status to work. Federal immigration law requires employers to verify that all employees are permitted to work in the United States, but does not require such verification for independent contractors. As a result, immigrants can work as independent contractors without having to fraudulently claim work authorization. Independent contractor jobs are no less precarious for immigrants than for their native-born counterparts, but new reforms may improve their working conditions by extending to them many of the protections of labor and employment law. However, these reforms may also have the unintended consequence of shutting immigrant workers out of the formal economy by defining more work arrangements as employment.
This Article examines how efforts to combat employee misclassification can include immigrants without federal work authorization. It argues that immigrant workers can hold a hybrid status: defined as “employees” under new, broader labor and employment law definitions of the term, while remaining “independent contractors” for immigration purposes. As a result, these reforms do not trigger new work authorization verification requirements for employers that make it harder for immigrants to work. At the same time, allowing this hybrid status to coexist between work law and immigration law contexts will likely require action on the part of both state legislatures and federal agencies. In the fast-evolving context of immigration federalism, promoting hybrid status for unauthorized workers promises to be a powerful tool for states seeking to implement an inclusive immigration agenda.
Wednesday, January 18, 2023
Well, here is an uplifting immigration story by Dennis Romboy of the Desert News about Jesús Contreras' fight to become a United States citizen after being deported and a lengthy struggle in the courts.
A lawful permanent resident, Contreras was deported after sustaining a criminal conviction and receiving incompetent legal representation that made a series of legal errors, resulting in a denial of relief. This week, Contreras will take the citizenship oath.
His eventual victory in immigration court was paved by a 2012 Tenth Circuit en banc decision, Contreras-Bocanegra v. Holder, in which the court considered the Board's denial of Contreras' motion to reopen on the ground that the Board lacked authority to review the motion due to a post-departure regulatory bar that applied to petitioners outside of the United States. In reversing that decision, the Tenth Circuit joined "the Third, Fourth, and Ninth Circuits in invalidating the post-departure bar under Chevron."
American Immigration Council; American Immigration Lawyers Association; National Immigration Project of the National Lawyers Guild; Post-Deportation Human Rights Project; and Rocky Mountain Immigrant Advocacy Network supported Contreras as Amici Curiae.
Immigration Article of the Day: The social context of the law: A critical analysis of reliance interests in the Department of Homeland security v. Regents of the University of California
Today's immigration article of the day comes from Raquel Muñiz (BC), Maria Lewis (Penn State), Grace Cavanaugh & Melissa Woolsey. It's The social context of the law: A critical analysis of reliance interests in the Department of Homeland security v. Regents of the University of California, 95 S. Cal. L. Rev. 857 (2002). Here's the abstract:
In 2020, the U.S. Supreme Court ruled on the Department of Homeland Security v. Regents of the University of California case. The case concerned the rescission of the Deferred Action for Childhood Arrivals (“DACA”) policy, an issue that sparked the interest of a wide range of amicus curiae, including those in support of the policy. Using Critical Race Theory (“CRT”) and UndocuCrit Theory in an integrated framework, this Article interrogates the social context amici presented in their amicus briefs to see what we could learn about DACA from the perspective of amici. This Article demonstrates that amici highlighted the importance and impact of the policy to all sectors of society, but, in doing so, largely emphasized the substantial gains and potential losses to the country and U.S. citizens, de-centering DACA recipients. The social context did not fully humanize recipients before the Court. Building upon this analysis, this Article discusses the implications for legal frameworks with social context, institutional/disciplinary norms, and comprehensive immigration reform.
Tuesday, January 17, 2023
From the oral argument, it was hard to tell how the Supreme Court might decide the case in Santos-Zacaria v. Garland. which was previewed here. The official audio and transcript of the argument are here.
Click here for the Law360 report on the argument.
UPDATE (Jan. 20):
Jamelle C. Sharpe's analysis of the argument on SCOTUSBlog concluded that "based on the questioning, it seems like the government is fighting an uphill battle. A few openly shared their skepticism. Gorsuch and Kavanaugh appeared open to a resolution that would hand the government a defeat but give more explicit guidance to the lower courts. If so, that might be enough to cobble together a majority for Santos-Zacaria."