Thursday, September 8, 2022
Immigration Article of the Day: Aurelius's Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and "The Law of the Territories" by James Campbell
The Supreme Court’s unanimous decision upholding the appointments structure of Puerto Rico’s controversial Financial Oversight and Management Board in FOMB v. Aurelius has, to date, yielded commentary fixated on what the Justices did not say. The bulk of that commentary criticizes the Court for declining to square up to and overturn the Insular Cases, the series of early twentieth-century decisions holding that the Constitution does not fully apply to Puerto Rico and other “unincorporated” possessions populated by “savages” and persons of “uncivilized race.” However, Aurelius teaches that the core constitutional problems of territorial exceptionalism and status manipulation run far deeper than the doctrinal framework of the Insular Cases—such that those cases’ ceremonious judicial overthrow is unlikely to spell an end to the harms of the legal order they represent. Observing the Aurelius Court’s inclination to erase overseas expansion from its account of Article III doctrine, this Article questions the wisdom of urging judicial overthrow of the Insular Cases without a coherent rubric for the many doctrinal universes that might emerge from such an intervention. Together, the framing problems on display in Aurelius and the lessons from the recently overturned Japanese-internment case Korematsu v. United States suggest that although the Insular Cases are plainly indefensible, ill-considered judicial intervention will pose a grave threat to procedurally legitimate self-determination and to path-dependent interests with roots in that troubled framework. This Article reorients a conversation inclined to view judicial overthrow of the Insular Cases as an end in itself toward more informed and productive judicial engagement that secures legal recognition of territories’ agency in charting their own future. Formally condemning or over- ruling the Insular Cases will mean little if judges fail to account for the threshold ambiguities enabling territorial status manipulation across constitutional domains, which Aurelius shows can be effected with or without express reliance on the Insular Cases or the Incorporation Doctrine. Ultimately, this Article proposes a conversation with Federal Indian law as a starting point for theorizing judicial engagement with the Insular Cases and the so-called “law of the territories.”
Wednesday, September 7, 2022
Registration is now open for the AALS annual conference. This year, it will be IN PERSON, if you can believe that, and in sunny San Diego, CA no less.
Your executive committee for the AALS section on immigration has worked up three panels for you:
- Wednesday, January 4, 2023: 8-9:30AM. Leveraging Service Opportunities to Maximize Student Learning in Immigration Law. This panel will feature discussion amongst immprofs Kif Augustine-Adams, Lenni Benson, Richard Boswell, and Violeta Chapin, moderated by David Thronson.
- Wednesday, January 4, 2023: 3-4:40PM. New Voices in Immigration Law. Selected papers to be announced soon. Also -- I'll be hitting you up soon to be a reader who can offer feedback at this session.
- Thursday, January 5, 2023: 8-9:30AM. Racism in Immigration Regulation. Panelists to be announced soon.
We are excited about these programs and hope to see you all there.
Axios reports that, of the naturalized citizens serving in state legislatures, 90% are Democrats. About 42% are Latino, 35% are AAPI and 15% are Black. The growing demographic of naturalized citizens could significantly influence the outcome of this year's midterm elections.
CNN reports that former chief Trump advisor Steve Bannon is expected to surrender today on New York state charges related to fundraising efforts to build a wall along the U.S./Mexico border.
The state charges are based on the same conduct that Bannon was charged with by federal prosecutors in 2020. Then-President Donald Trump pardoned Bannon on the federal fraud charges related to the alleged scheme as he was leaving office. Two others charged pled guilty. Presidential pardons do not apply to state investigations.
The Washington Post first reported Bannon’s plans to surrender to New York authorities.
on The Conversation analyzes the possible labor market consequences of easing immigration restrictions. He notes that
"Labor shortages are especially severe today in certain industries that rely heavily on immigrants as employees.
For example, in 2020 foreign-born workers accounted for 39% of the farming, fishing and forestry workforce, 30% of all people employed in construction and extraction, 26% of everyone working in computer science and mathematics and 22% in health care support.
As a result, these industries are facing unprecedented challenges in trying to find workers to fill open jobs.
If these labor shortages continue, I’m certain that they will keep hurting job markets, supply chains and productivity as companies have to pay their employees more and then increase prices due in part to those higher labor costs."
The conclusion: "Even if the political hurdles can be high, I believe boosting the number of immigrants allowed to legally work in the United States is an important way that the authorities can ease labor shortages.'"
Immigration Article of the Day: When Time Stands Still: Eliminating Immigration "Death Sentences" by Lori Nessel
The nation prides itself on the notion of rebirth—the ideal that one could leave their past behind and come to the U.S. and seize the opportunities available to advance and re-make oneself. Yet, when it comes to immigration law, neither the passage of time nor a life full of positive equities ameliorates past wrongdoing or allows for future opportunities. In the words of the Senate Subcommittee when Congress permanently removed the statute of limitations for deportation from the Immigration and Nationality Act in 1952, “[i]f the cause for exclusion existed at the time of entry, it is believed that such aliens are just as undesirable at any subsequent time…” Time stands still in significant and detrimental ways throughout our immigration law. An immigrant’s manner of entry into the U.S. can result in a lifetime bar to due process in removal proceedings, and a finding that an immigrant ever filed a “frivolous” asylum application will bar her from any immigration benefit throughout her life, even if she withdrew the application and procured no benefit through it. Detained noncitizens facing removal are routinely denied bond because of criminal charges that have been filed against them, even absent any finding of guilt. This occurs even if the accuser withdraws their complaint; the very fact that criminal charges were brought signifies danger and results in ongoing detention.
In this article, I examine a few of these provisions that result in life-time consequences, as well as the lack of a statute of limitations or laches defense in immigration law. After exploring jurisprudence and legislative history in each of these areas, I analyze the theory behind statutes of limitation and laches defenses in other areas of law to argue for a statute of limitations for deportation proceedings, and for a time-limit on penalties that attach to a single bad act, like filing a frivolous asylum application. I also argue that noncitizens should be entitled to the same presumption of innocence as in the criminal justice system with regards to bond determinations. This article incorporates a broader moral and policy-based argument that after a certain period of time, a noncitizen’s membership in the nation is so well-established and meaningful that deportation, or the denial of immigration benefits based on a past bad act, should no longer be possible.
Tuesday, September 6, 2022
Home in Florida: Latinx Writers and the Literature of Uprootedness is a collection of fiction, nonfiction, and poetry edited by Anjanette Delgado. Delgado describes the book as "literature of uprootedness, literatura del desarraigo, a Spanish literary tradition and a term used by Reinaldo Arenas."
With the heart-changing, here-and-there perspective of attempting life in environments not their own, these writers portray many different responses to displacement, each occupying their own unique place on what Delgado calls a spectrum of belonging.
Together, these writers explore what exactly makes Florida home for those struggling between memory and presence. In these works, as it is for many people seeking to make a new life in the United States, Florida is the place where the uprooted stop to catch their breath long enough to wonder, “What if I stayed? What if here could one day be my home?”
Monday, September 5, 2022
Liz Truss is the new Prime Minister of the United Kingdom. The Guardian encapsulates Truss's likely actions on "immigration and homeland affairs" as follows:
"During the campaign, Truss has promised to double down on the policy of deporting asylum seekers and other immigrants to Rwanda, and to seek other countries who will take them. It remains to be seen how feasible this is, or if it would have any impact on the numbers of people crossing the Channel by unofficial means, even if some did depart.
Truss is likely to link any failure to remove people to the continued jurisdiction of the European court of human rights. While removing the UK entirely from its oversight would be complex and tricky, she is likely to push ahead with plans for a so-called UK bill of rights, with fewer protections for asylum seekers and others."
Photo from Brexit campaign courtesy of Don Roth
NPR's A Martínez speaks with migrants in Tijuana, Mexico about why they chose to leave their home countries in hopes of reaching the United States. The interviews are revealing. Immigration law students help gain a better appreciation for what is going on at the border.
Sadly, migrant deaths continue to mount as migrants continue to make the dangerous journey north.
Happy Labor Day! This CNN story recognizes that
"You probably associate Labor Day with sales, family barbecues and the unofficial end of summer. . . . But Monday’s holiday holds a much deeper meaning, rooted in the 19th century fight for fair working conditions. Labor Day was originally designed to honor workers as part of the American organized labor movement."
Immigrant workers also have contributed valuable labor to the U.S. economy. There are too many examples to mention. For me, I always think of the amazing and dangerous work of the Chinese immigrant workers who helped complete the transcontinental railroad.
Today, with a tight labor market and relatively high inflation, the U.S. economy needs workers. Farmers push for immigration reform to address labor needs. Some say that immigrant workers are critical at this time to address the needs of the U.S. economy.
In that vein, Rebecca Shi for The Hill, Executive Director of the American Business Immigration Coalition, argues that immigrants are key to addressing America’s labor needs, lowering inflation, and growing the economy.
Sunday, September 4, 2022
Michael Rothstein for ESPN relays the story of Ramla Ali, a refugee from Somalia.
Ali, a professional boxer, not long ago walked through a refugee camp in Jordan "hearing stories of separation and pain, of hope and resilience with the belief that one day, a new life would come." Ali was there as an ambassador with UNICEF UK. Ali wanted to become a voice for refugees by amplifying their stories.
"There are many celebrities who work with UNICEF, but few like Ali. Like the children she met, Ali is a refugee. Throughout her entire life, her parents have dropped hints about the country she desperately wants to one day see but has not returned to since the family left for England when she was a toddler.
Ali's life is like a jigsaw puzzle put together. From boxing to modeling, writing a book and being a humanitarian and a champion for women in London through the nonprofit she started, she has pushed past the limits of what may have seemed possible. [A few weeks ago], when she and Crystal Garcia Nova become the first women to box professionally in Saudi Arabia on the card headlined by the Oleksandr Usyk-Anthony Joshua heavyweight title fight, Ali will once again exceed expectations. And everything Ali has done in her life traces back to the place she comes from, yet has no recollection of.
Somalia." (bold added).
Saturday, September 3, 2022
Here's a fun one for your Labor Day weekend -- Olmeca's Browning of America.
I'm definitely going to work this song as an intro to one of my classes this week. It goes nicely with a discussion of "chain migration" -- after all, don't you think that phrase was created out of fear of the "browning of America"?
|Women & Philanthropy Speaker Series - Immigration & Refugees: A Closer Look, Wednesday, September 14, 2022, 12 – 1pm|
LeShelle May will facilitate a conversation with Raquel E. Aldana, Martin Luther King Jr. Professor of Law at UC Davis. They will explore forced migration, the complexities of immigration and immigration law as human rights. Aldana will also discuss refugees, most recently Ukrainians, the global response and U.S. policy.
Join us as we hear Professor Aldana's migration story, and how, at just 10 years old, that experience began her leadership journey and how she works to encourage others to lead.
Friday, September 2, 2022
District Court Enters Nationwide Preliminary Injunction in Class Action for Unaccompanied Minors in ORR Custody
Earlier this week, the Center for Human Rights and Constitutional Law, National Center for Youth Law, Cooley LLP, and UC Davis Immigration Law Clinic secured a big win when U.S. District Court for the Central District of California Judge Dolly Gee ordered the federal government to provide more robust procedural protections for detained migrant children.
Judge Gee’s preliminary injunction in Lucas R. v. Azar ensures that minors held in Office of Refugee Resettlement (ORR) custody can appeal the denial of their safe and timely release to family members in the United States. They also can appeal the decision to place them in restrictive and locked facilities such as juvenile detention centers, residential treatment programs and “medium secure” facilities.
“The protections provided in the preliminary injunction are long overdue,” Professor and Immigration Law Clinic Co-director Holly Cooper said. She noted that clinic students, who provide legal assistance under the supervision of attorneys, were crucial to the win.
For the Center for Human Rights and Constitutional Law press release and Judge Gee's order, click here.
Am I catching you before you cover family-based immigration this semester? I hope so.
I'm writing to remind you about Ming's June 2022 post about the death of the Colorado clerk who issued a marriage certificate to Adams and Sullivan (of the Adams v. Howerton decision from the 9th circuit that many of us utilize). Her post offers excellent information to really bring that case to life for students.
While I've got your attention, I'll also re-point you to my 2017 post with links to sources for teaching about family-based immigration.
Swapnil1101, Public domain, via Wikimedia Commons
The BBC reports that E.U. foreign minsters have agreed to take steps that will make it harder for Russian citizens to travel to the European Union. This, of course, is in response to the war between Russia and the Ukraine wherein the E.U., like the U.S., is backing Ukraine.
No one seems particularly happy with the move. Russia is annoyed (naturally). Ukraine and some EU members wanted a total ban on travel, not measures that merely make getting a visa a longer and more expensive process.
I found this news particularly interesting as I've recently finished my immigration law coursework on Chae Chan Ping and the constitutional power to regulate U.S. immigration. The story made me think about the war powers provision of our own constitution, its authorization that Congress shall have power to declare war, and how that power might intersect with immigration decisions during time of war (even if it's not a war we are officially a party to).
Professor Ming Hsu Chen — an expert on race, immigration, and citizenship – has launched a new center at UC Hastings this fall that will pursue groundbreaking research on equality issues and collaborate with other scholars and academic institutions.
Chen, who previously founded the Immigration and Citizenship Law Program at the University of Colorado, was a visiting professor before joining the UC Hastings permanent faculty this year.
The Center on Race, Immigration, Citizenship, and Equality (RICE) will offer lectures, conferences, panel discussions, research projects, student employment opportunities, and law classes with fieldwork components. It will promote scholarly engagement and forge links between other centers at UC Hastings, including the Center for Gender and Refugee Studies (CGRS) and the Center for Racial and Economic Justice (CREJ).
Chen said she wants people to understand intersections between concepts of race, immigration, and citizenship as they pertain to equality. She said one way to do this is to apply the lenses of different fields of study. To that end, the RICE Center will host a half-day conference on Nov. 18 on “belonging” featuring experts from UCLA, UC Berkeley, UC Davis, and Stanford University. “It’s a chance for leaders of research institutes that do related work to share resources and ideas about how universities approach these issues at an institutional level,” said Chen.
Additional goals include getting students involved in interdisciplinary research. Chen said as part of her seminar this fall on Citizenship and Equality, law students will interview immigrants and do fieldwork, including helping people fill out applications for citizenship. “It’s a way to make sure that what students are learning is connected to the real world,” she said.
She has plans for a spring colloquium on Race, Citizenship and Equality that will include legal scholars, practicing lawyers, and immigration advocates, open to the Hastings community. Enrolled students will delve deeper into papers with a closed session following the public lectures, she said, “It’s a way to have these experts in dialogue with our students and our faculty and to share that with the world outside of the law school.”
Finally, Chen said she is considering commissioning original research on high-skilled workers and Documented Dreamers, a group of some 200,000 children of long-term visa holders who come to the U.S. lawfully but face deportation if they can’t obtain independent legal status by age 18. “It is the type of understudied issue that is important in San Francisco, the hub of technology, and has implications nationwide,” she said.
Chen added that law students and research assistants could interview migrant parents and students about their experiences and the problems they would face being returned to a country they haven’t lived in for many years and where they may be unfamiliar with the language and culture – much like undocumented DREAMers. The findings would then be published and shared with policymakers and advocacy groups.
For more information about the RICE Center and its upcoming events, click here.
Immigration Article of the Day: Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference by Liz Bradley and Hillary B. Farber
Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference by Liz Bradley and Hillary B. Farber, Georgetown Immigration Law Journal, Vol. 36, p. 515
The COVID-19 pandemic forced courthouses around the country to shutter their doors to in-person hearings and embrace video teleconferencing (VTC), launching a technology proliferation within the U.S. legal system. Immigration courts have long been authorized to use VTC, but the pandemic prompted the Executive Office for Immigration Review (EOIR) to expand video capabilities and encourage the use of video “to the maximum extent practicable.” In this technology pivot, we must consider how VTC affects cases for international humanitarian protections, where an immigration judge’s ability to accurately gauge an applicant’s demeanor can have life-or-death consequences.
This Article takes a deep dive into the law and social science regarding demeanor-based credibility assessments and examines the potential impact of VTC on the adjudication of asylum, withholding of removal, and Convention Against Torture (CAT) claims. With empirical and doctrinal grounding, it recommends a prohibition on adverse credibility findings based on demeanor for hearings conducted via video. The assumptions that underpin the extraordinary deference afforded to immigration judges’ demeanor assessments are incongruous with the realities of virtual hearings. Demeanor is an unreliable metric for credibility, even for in-person hearings. Video distorts how we interact and further strains the tenuous relationship between demeanor and truthfulness. The current legal framework is ill-suited to safeguard against erroneous demeanor findings. A prohibition on demeanor-based adverse credibility findings for hearings conducted via VTC would embrace the benefits of our technological advancements while instilling greater confidence in the fair adjudication of humanitarian protection claims.
Thursday, September 1, 2022
Immigration Article of the Day: Facts versus Discretion: The Debate over Immigration Adjudication by Jayanth K. Krishnan
Facts versus Discretion: The Debate over Immigration Adjudication by Jayanth K. Krishnan, Georgetown Immigration Law Journal (Forthcoming 2023)
Justice Amy Coney Barrett recently issued her first majority-led immigration opinion in Patel v. Garland (2022). As background, immigrants looking to avoid deportation have historically applied for what is called “discretionary relief’ (e.g., asylum or adjustment of status) initially in an immigration court and then, if they lose, at the Board of Immigration Appeals (BIA). These immigration forums fall under the Department of Justice. Prior to Patel, immigrants who lost at the BIA could then ask a federal circuit court to review the factual findings of their case. Now, after Justice Barrett’s decision, Article III review is no longer available.
The decision in Patel serves as an important backdrop for the subject of this study. A related but distinct debate simmers one layer below the federal courts. Namely, the question is how much deference should the BIA give to factual determinations made by immigration courts of first resort in discretionary relief cases. Certain circuits have held that the BIA may intervene rather aggressively, while the largest circuit – the Ninth – has said that the BIA should display enhanced deference.
As this study argues, this circuit split conspicuously ignores how the dividing line between what is fact and what is discretion is often more blurred than discrete. Moreover, there is a gross inequity to this circuit discordance; the way that an immigrant’s appeal is analyzed and adjudicated depends upon the happenstance of the circuit from where that case originated.
For this reason, this study offers a new theoretical framework to improve the status quo. This model’s two-step proposal looks to raise the standard of justice in these immigration proceedings, remove the biases that presently favor the government, and provide greater fairness and equity across the circuits to immigrants seeking relief from deportation.
Keeping his name in the news during a contested gubernatorial campaign, Texas Governor Greg Abbott has been sending migrants by bus from Texas to Washington,m D.C. and New York City. He announced yesterday that migrants are being bussed to Chicago as well. Texas reportedly has spent more than $12 million sending busloads of migrants to East Coast cities.
First Texas bus of migrants has arrived in Chicago.— Greg Abbott (@GregAbbott_TX) September 1, 2022
Biden's inaction at our border puts Texans at risk & is overwhelming our communities.
We'll continue bussing migrants to sanctuary cities like NYC, DC, & now Chicago until the federal gov't does its job & secures the border. pic.twitter.com/RccsdIOXiI
The first bus arrived in Chicago arrived last night. City officials immediately welcomed the migrants and went about extending services.