Thursday, April 28, 2022
Registration link: https://ucsd.zoom.us/meeting/register/tJUkdeutrTsvHNeXckqeS48TGml4XvbhFkhi
Professor Michael A. Olivas passed on April 22, 2022. Excerpts from his obituary appear below:
Michael led an extraordinary life; he was an impactful scholar, a beloved teacher and mentor, an "accidental" historian, a radio personality, a counselor to political leaders and deans, and a beloved friend.
After his early education in Santa Fe, Michael graduated magna cum laude from Pontifical College Josephinum and received his Masters and Ph.D. at Ohio State. He then went to Georgetown University Law Center and found a passion for the law. He became a law professor at the University of Houston where he taught for 38 years. He founded the Institute of Higher Education Law and Governance and served as President of the UH Downtown Campus. He served as president of the Association of American Law Schools, elected as a member of American Law Institute and a fellow of the American Bar Foundation. He was a member of the American Educational Research Association and the National Academy of Education. He was a long time Board member of the Mexican American Legal Defense & Education Fund.
In the legal academy, he founded the Latino Law Professor Association and served as a mentor to law professors all over the country. Professor Olivas single handedly mentored and recruited dozens of Latinos into the academy. He wrote 16 books including: No Undocumented Child Left Behind: Plyler v. Doe and the Education of Undocumented School Children; Perchance to DREAM: A Political and Legal History of the DREAM Act; Suing Alma Mater: Higher Education and the Court; and, The Law and Higher Education: Cases and Material on Colleges in Court. The legacy of his scholarship is lauded in a book, Law Professor and Accidental Historian, The Scholarship of Michael A. Olivas, which collected articles by professors around the country who wrote about the brilliance and prescience of his work in immigration, education and diversity.
Funeral services are on Saturday, April 30 at the Santa Fe St. Francis Cathedral with a rosary at 11:00, the Eulogy at 11:30 and the mass celebrated at noon. A livestream will take place here. In lieu of flowers, Dr. Reyes requests donations be made to MALDEF, 634 S. Spring St. 11th Floor, Los Angeles, CA 90014 or to student scholarship funds he established at the University Houston Law Center.
Last week, we lost an influential immigration scholar Professor Michael Olivas. Besides expressing condolences in a blog post, I followed up with a post about how Michael, a music lover like no other, had become the Rock N Roll Law Professor, with a syndicated radio show and all.
Through this post, I wanted to highlight that Professor Olivas was a true immigration scholar and highlight three of his many influential books. All cover issues at the intersection of immigration and Latina/o civil rights. Three of Michael's (many) remarkable books offer a sense of his stature as a scholar.
Perchance to DREAM is the first comprehensive history of the DREAM Act, which made its initial congressional appearance in 2001, and Deferred Action for Childhood Arrivals (DACA), the discretionary program established by President Obama in 2012. Both the DREAM Act and DACA involve the rights of immigrant students and their access to education. The book reviews in detail the history of the DREAM Act and DACA over the course of two decades.
No Undocumented Child Left Behind: Plyler v. Doe and the Education of Undocumented Schoolchildren (NYU Press, 2012)
Colored Men and Hombres Aqui: Hernandez v. Texas and the Emergence of Mexican American L:awyering (Arte Publico Press, 2006)
In this monograph, Michael Olivas collected a group of scholars to analyze Hernandez v. Texas (1954) an important civil rights case for Mexican Americans that has been overshadowed by the iconic Brown v. Board of Education. This collection of ten essays commemorated the 50th anniversary of an important but almost forgotten U.S. Supreme Court case, Hernández v. Texas. This landmark case, the first to be argued by Mexican American lawyers before the US Supreme Court, held that Mexican Americans were a discrete group for purposes of applying Equal Protection.
Edited and with an introduction by Michael Olivas, Colored Men and Hombres Aquí is the first full-length book on this case. This volume contains the papers presented at the Hernández at 50 conference that took place in 2004 at the University of Houston Law Center and also contains source materials, trial briefs, and a chronology of the case.
As noted on this blog, the treatment of persons fleeing Ukraine is not the same as how nations have treated other groups on refugees. Consistent with that observation, Laura E. Alexander, Jane Hong, Karen Hooge Michalka, and Mary Luis A. Romero for the Conversation contend that "race and religion have always played a role in who gets refuge in the US." The authors note that
"[t]he different treatment of Ukrainian versus Central American, African, Haitian and other asylum seekers has prompted criticism that the administration is enforcing immigration policies in racist ways, favoring white, European, mostly Christian refugees over other groups.
This issue is not new. As scholars of religion, race, immigration, and racial and religious politics in the United States, we study both historical and current immigration policy. We argue that U.S. refugee and asylum policy has long been racially and religiously discriminatory in practice."
Check out the article above for details.
Immigration Article of the Day: "How Much Time Am I Looking At?": Plea Bargains, Harsh Punishments, and Low Trial Rates in Southwest Border Districts by Walter I. Gonçalves, Jr.
The Immigration Article of the Day is "How Much Time Am I Looking At?": Plea Bargains, Harsh Punishments, and Low Trial Rates in Southwest Border Districts by Walter I. Gonçalves, Jr., published in the American Criminal Law Review.
Here is the abstract:
Scholarship on the American trial penalty, vast and diverse, analyzes it in connection with plea bargaining’s dominance, its growth starting in the last third of the nineteenth century, and present-day racial disparities at sentencing. The overcriminalization and quick processing of people of color in southwest border districts cannot be understood without an analysis of how trial sanctions impact illegal entry and drug trafficking in these busy jurisdictions. Professor Ronald Wright wrote about the role of prosecutorial power and plea bargaining in the federal system, but he passed over how and why immigration crimes became widespread. Any discussion of prosecutors and plea bargaining requires an understanding of how they manage illegal entrants and drug couriers—the most prevalent defendants in federal court.
This Article analyzes the reasons for increasing plea rates and trial penalties in the southwest and how they helped enable the proliferation of fast-track programs. The plea-bargaining machine used racial stereotypes and stigmatizations of Latinx and African American populations to justify few trials and process as many migrants and drug couriers as possible. This paper provides practical advice for criminal defense lawyers when representing clients at the plea and sentencing stage of a case. It also unites a discussion of implicit bias to explain why judges disfavor racial minorities.
Lalo Alcaraz Satirizes Contrast Between U.S. Policy Towards Ukrainian Migrants And Others Fleeing Violence
Yesterday, I reminded you about the genius of Lalo Alcaraz, editorial cartoonist. Today, Alcaraz shows once again his ability to scathingly criticize U.S. immigration policy in just one art frame:
The Biden administration's attempt to phase out the Trump administration's Title 42 expulsion order has proven to be incredibly controversial. It is part of larger set of questions surrounding the ability of President Biden to roll back President Trump's immigration policies, including the rescission of the "Remain in Mexico" policy argued yesterday in the Supreme Court. Just as Donald Trump ran for office on a tough on immigration platform, Joe Biden campaigned on a more moderate approach to immigration.
BuzzFeed News (Adolfpo Flores & Hamed Aleaziz) reports that a federal judge yesterday temporarily blocked the Biden administration from ending President Trump's use of Title 42 to quickly expel immigrants from the country. The temporary restraining order, which stops the administration from implementing a gradual ending of the policy known as Title 42, was issued by U.S. District Judge Robert Summerhays of the Western District of Louisiana. President Trump appointed Judge Summerhays. The court will hold a hearing on a preliminary injunction on May 13.
There appears to be substantial political support for the Title 42 expulsion order even though the Centers for Disease Control and Prevention have determined that it no longer is necessary to protect the public health. Thus, although the original order was justified on public health grounds, many want to keep it in place as a tool of border control. The push to maintain the Title 42 expulsion order has increased with fears of a border "surge" with its lifting, which provoked the Department of Homeland Security to release a "DHS Plan for Southwest Border Security and Preparedness." In hearings before Congress this week, Department of Homeland Security Secretary Alejandro Mayorkas was grilled on border security, Title 42, and immigration control generally.
Wednesday, April 27, 2022
Gage Skidmore Please attribute to Gage Skidmore if used elsewhere., CC BY-SA 2.0, via Wikimedia Commons
Careful readers of this blog might recall seeing Lalo's name pop up over the years:
- 2014: He's a writer of the TV cartoon comedy Bordertown!
- 2018: His heartbreaking cartoon El Cuarto De Julio.
- 2018: Another heartbreaking cartoon about child detention.
- 2019: ANOTHER heartbreaking cartoon about child detention.
So why was WaPo covering Alcaraz this week? Because Alcaraz was recently honored at the Library of Congress with the Herblock Prize for "excellence in editorial cartooning." Alcaraz is the first Latino to be awarded this honor. The judges who chose Alcaraz complimented his "powerful versatility" and his "courage and unapologetic focus on... civil rights issues."
I look forward to years more of Alcaraz' searing illustrated political commentary.
Official White House Photo
Earlier this year, the backlog of cases in the immigration courts hit more than 1.6 million.
Hamed Aleaziz for Buzzfeed News reports on the Biden administration's approach to reducing the backlog. According to an internal memo, the immigration courts will put on hold removal cases of certain immigrants who may gain legal status outside of the immigration court system. The approach "falls in line with efforts at [Immigration and Customs Enforcement] to reshape the role of immigration enforcement in the US by focusing on what it considers more serious targets. Biden officials issued a memo to [trial attorneys] earlier this month authorizing them to consider dismissing certain cases involving immigrants who did not cross the border recently and are not public safety threats."
The internal memo to immigration judges details how the Executive Office for Immigration Review may put on hold certain removal cases involving immigrants, including those who have applications pending with the US Citizenship and Immigration Services for immigration benefits such as a lawful permanent resident status through a family member.
Official White House Photo
The Trump administration took a very different approach to reducing the backlog of cases. Attorney General Jeff Sessions placed quotas on the number of cases they should complete annually, ended their authority to close others, restricted asylum, and reinstituted thousands of previously closed cases. Many immigration judges retired or resigned, claiming Trump administration interference in how they judged cases.
Earlier this year, Representative Zoe Lofgren introduced in the House a bill that would make the immigration courts more independent.
Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: more lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, federally funded counsel for immigrants would improve due process and fairness, as well as making immigration enforcement more efficient. This Article argues the opposite: federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts—and thus are impervious to immigration lawyering. Even for those who make it before an immigration judge, factors including geography, random judicial assignment, and the limited forms of deportation relief mean that most people represented by immigration lawyers are still ordered deported. Gideon v. Wainwright’s guarantee of counsel in the criminal realm co-existed for nearly sixty years with the development of mass incarceration. Likewise, expanding federally funded counsel for immigrants could coexist with a vastly expanded deportation infrastructure without contradiction. In fact, federally funded counsel would provide cover for continued deportations, and the restrictions that would likely come with such funding would make it harder for attorneys to effectively challenge the growth of the mass deportation regime. Instead of investing in a strategy that risks normalizing expanded enforcement, pro-immigrant advocates and scholars must choose battles that aim at dismantling immigration enforcement. This means putting aside efforts that seek to add lawyers as one more mandated player in immigration court.
Tuesday, April 26, 2022
After years of attrition and lost funding, refugee resettlement agencies are hard pressed to meet the needs of those fleeing persecution in many parts of the world. Private citizens are stepping into the void with citizen-led resettlement efforts in Canada and the U.S.
One prominent example, the Sponsor Circle program, is featured in a New Yorker article about the emergency response to the arrival of Afghani and Ukrainean refugees. This American program is modelled on a citizen-led resettlement effort in Canada. Group of five or more adults can work together to establish network of ordinary americans -- e.g. pastors, professors, military veterans -- ready to welcome newcomers. They meet airplanes at U.S. bases, find apartments or host families in their own houses, facilitate applications for schools and health services, assist with obtaining legal documents such as asylum applications, provide job-hunting support, and help buffer the countless day-to-day adjustments to living in a new land. All told, Sponsor Circle volunteers commit to background checks, developing a welcome plan, fundraising $2,275 per refugee, and providing three months minimum of assistance. The model is successful precisely because it cultivates these kinds of local bonds that researchers show facilitate immigrant integation.
In the midst of several global migration crisis, interest in starting these programs has proliferated to dozens of other countries. For example, the U.S. has Sponsor Circles for Afghani refugees and more will house the 100,000 Ukrainean refugees President Biden has pledged to admit through Uniting for Ukraine. In the U.K., two hundred thousand people and organizations have expressed interest in housing Ukrainians displaced by Russian invasion through Circle Health and other Sponsor Circles.
Of course, citizen-led efforts are not the only way to respond to refugee resettlement and these efforts can be challenging given the lack of comprehensive skills in well-meaning and yet decentralized, amateur networks. The history of refugee resettlement efforts includes waves of voluntarism and government refugee resettlement offices, with the balance of resettlement shifting toward the professionalized efforts of government offices since the 1980 Refugee Act. That history and recent sagas of the private sponsorship system are retold in the article.
The phenomenon of "Documented DREAMers" looms large in Silicon Valley. In the land of technology companies that employ foreign workers, the children of these foreign workers accompany their parents as derivatives on temporary work visas such as an H-1B visa. Over time, the children age and now 40,000 of these children are approaching adulthood and struggling to find independent ways to stay in the U.S.
Congress contemplated the scenario of aging out and enacted the Child Status Protection Act to make up for administrative delays that contribute to an immigrant child no longer being considered a minor for purposes of a derivative visa. However, as described in a prior ImmigrationProf blog post, aging out is exacerbated by the decades-long wait times to apply for admission from countries like India and China and excessive USCIS backlogs. Like other DREAMers, these children have lived large chunks of their lives in the U.S. and may face difficulty returning to a homeland they scarcely know. Unlike other DREAMers, these children are ineligible for the Deferred Action for Childhood Arrivals program because they were in lawful status when they entered the U.S.
The Bay Area's public radio station KQED offers these profiles of documented DREAMers.
Official U.S. government photo
The Biden administration's announcement that it would lift Title 42's restriction on entry into the United States has provoked controversy. We will likely hear more about the controversy later this week.
Homeland Security Secretary Alejandro Mayorkas will appear at for three House of Representative hearings later this week that will likely focus on border policy. In the meantime, a federal judge has said he intends to grant a temporary restraining order that eventually could block the ending of Title 42 on May 23, CNN’s Priscilla Alvarez reports. On the border itself, the mayors of Tucson, Arizona, and Brownsville, Texas, have come out in support of Title 42’s end, Rafael Bernal reports in The Hill. "Congress should work on real immigration reform that doesn’t exploit an arcane public health authority to deny people their basic, human right to seek asylum," the mayors wrote.
In the background, the midterm elections continue.
As we have posted previously on the blog, the UK has announced a new program to send asylum seekers to Rwanda. Now, Denmark is in negotiations to follow the UK's footsteps by possibly starting its own asylum transfer program in Rwanda.
Plans for such a program appear to have been in the works for a while. As Reuters reports, last year Denmark passed a law "that allows refugees arriving on Danish soil to be moved to asylum centres in a partner country." Also in 2021, Denmark signed a Memorandum on Cooperation with Rwanda. A copy of that document is available here.
The UN High Commissioner for Refugees has warned that any attempt by Denmark to transfer asylum seekers to a third country for adjudication "frustrate access to international protection, are inconsistent with global solidarity and responsibility sharing, regularly undermine the rights of asylum seekers and refugees and thus violate international obligations of States."
Immigration Article of the Day: he Racial Justice Imperative to Reimagine Immigrant Children’s Rights: Special Immigrant Juveniles as a Case Study by Dalia Castillo-Granados, Rachel Davidson, Laila Hlass, & Rebecca Scholtz
The Racial Justice Imperative to Reimagine Immigrant Children’s Rights: Special Immigrant Juveniles as a Case Study by Dalia Castillo-Granados, Rachel Davidson, Laila Hlass, & Rebecca Scholtz, 71 American University Law Review ___ (Forthcoming 2022).
The immigration legal system has codified and perpetuated racial violence in many ways, yet the experiences of young people of color in this system has yet to be deeply examined. This Article surfaces the distinct and varied racialized harms that children experience in the immigration system through the example of Special Immigrant Juveniles. Special Immigrant Juvenile Status (SIJS) is the only immigration status created for and limited to children. A child—defined in immigration law as someone who is under 21 year of age and unmarried—is eligible to seek SIJS with U.S. Citizenship and Immigration Services (USCIS) if a state court has found that the child has been abandoned, abused, or neglected by a parent and it is not in their best interests to return to their country of origin. USCIS’s approval of a child’s SIJS petition does not provide an absolute protection from deportation on its own, but it creates a pathway to apply for a work permit and lawful permanent resident (LPR) status—often referred to as a “green card.” These benefits have the potential to create more security in the young person’s life. On their pathway to LPR status, immigrant youth seeking SIJS experience precarity in their lives and racialized harms within the immigration system.
In Part One this Article examines how racism has been implicated in immigration law and legal systems, and how immigrant children are impacted by racism, even though this has been understudied. In Part Two, this article focuses on three features of the SIJS legal framework to understand how the law’s design and implementation has resulted in racialized harms: the consent function, the SIJS backlog, and the process by which SIJS children seek LPR status. Part III offers specific prescriptions as interim steps to address the racialized harms and challenges special immigrant juveniles face. Ultimately, it calls for a racial justice analysis of the immigration legal system as it applies to children.
Monday, April 25, 2022
The ACLU of Florida and Citizens for Responsibility and Ethics in Washington (CREW) filed a federal complaint against U.S. Immigration and Customs Enforcement and the National Archives and Records Administration.
A copy of the complaint can be found here.
The lawsuit alleges that the defendants unlawfully destroyed surveillance video files from Glades County Detention Center (“Glades”), a county jail in Moore Haven, Florida, that contracts with ICE to hold persons in immigration detention.
Additional information on the case is found in CREW's web page, which explains:
Glades is destroying video footage that could be used to substantiate reports of abuse against immigrants detained at the jail. The detention center is currently the target of multiple federal inquiries and civil rights complaints due to human rights abuses and conditions so inhumane that eight members of Congress have called on the Biden Administration to terminate ICE’s contract with the facility.
“The deletion of surveillance footage at Glades is the latest example of ICE’s appalling failure to follow and uphold critical recordkeeping laws,” said CREW Senior Counsel Nikhel Sus. “It is shameful that ICE appears to be comfortable with keeping the public in the dark about abuses taking place in one of its detention centers. ICE and NARA must intervene as legally required, and if Glades continues to break the law, ICE must terminate its contract with the center.”
“The practice of deleting footage at Glades violates federal requirements and actively obstructs key evidence that is pivotal to ensuring Glades County and ICE officials are accountable for their actions,” said Katie Blankenship, deputy legal director at the ACLU of Florida. “These problems are systemic and longstanding, and if history has proven anything, Glades County will likely continue to fail to address these issues and meet federal requirements. If that proves true, then a court must compel Glades to follow these critical protocols, and the facility must finally be shut down.”
The deletion of security footage at Glades is not the only example of ICE’s attempts to skirt recordkeeping laws. In 2019, ICE obtained permission from the National Archives to destroy years’ worth of sexual assault and death investigation records from ICE facilities across the country—a plan later blocked by a federal judge following a lawsuit filed by CREW.
Official Supreme Court Photo
Tomorrow is the oral argument in Biden v. Texas, the case in which Texas, Missouri, and other states challenged the Biden administration's dismantling of the Migrant Protection Protocols (Remain in Mexico Policy). The lower courts allowed an injunction halting the Biden administration's plan to end the policy.
SCOTUSBlog describes the issues in the case as follows:
"1. Whether 8 U.S.C. § 1225 requires the Department of Homeland Security to continue implementing the Migrant Protection Protocols, a former policy under which certain noncitizens arriving at the southwest border were returned to Mexico during their immigration proceedings; and
(2) whether the U.S. Court of Appeals for the 5th Circuit erred by concluding that the secretary of homeland security’s new decision terminating MPP had no legal effect."
The U.S. government's opening brief is here.
See April argument calendar features cases on Trump-era asylum policy and praying football coach (Amy Howe, SCOTUSBlog March 15, 2022). Click here for background for the arguments by John Kruzel for The Hill.
UPDATE (April 26)
Click here to listen to the oral argument. And here is Amy Howe's recap.