Wednesday, December 22, 2021
I feel a bit guilty about posting bad news about migration in Europe (like a few hours ago). So here is a feel good story from Europe that is appropriate for the holiday season.
John Leicester of the Associated Press writes how a network of hundreds of volunteers working along the Italy-France border are providing comfort and shelter to migrants making the trek up the freezing Alps.
Since around 2016, volunteers have come "[a]rmed with thermoses of hot tea and the belief that their own humanity would be diminished if they left pregnant women, children and men young and old to fend for themselves," writes Leicester. "... In the Alps, on both sides of the border, the approach is essentially humanist and humanitarian, grounded in local traditions of not leaving people alone against the elements."
Photo courtesy of Don Roth
Remember Brexit? The United Kingdom in 2016 decided to leave the European Union. Anger over immigration fueled the vote in favor of leaving the EU.
Ferment continues over immigration in the EU. The latest evidence of the turmoil comes from Hungary.
"Hungary refuses to change immigration policies despite a ruling from the European Court of Justice, Prime Minister Viktor Orban said [yesterday], potentially resulting in heavy fines from the European Union.
Last year, the European Court of Justice ruled that Hungary had failed to follow EU law by creating pushbacks of people entering the country without permission, refusing them the right to apply for asylum, and detaining them in `transit zones' along Hungary's southern border with Serbia."
Tuesday, December 21, 2021
The American Law Institute just announced its new slate of members. Among, them... IMMPROFS!
A huge and hearty congratulations to Jill Family (Widener), Anil Kalhan (Drexel), and Shoba Sivaprasad Wadhia (Penn State)! Y'all are AMAZING! Woot. Woot.
-KitJ (hat tip David Thronson!)
The Fifth Circuit’s Interventionist Administrative Law and the Misguided Reinstatement of Remain in Mexico
The National Immigration Project of the National Lawyers Guild has published an informative advisory on the recent decision in United States v. Carillo-Lopez by Judge Miranda Du of the District of Nevada. As we have posted previously, in Carillo-Lopez the court granted a motion to dismiss an unlawful reentry prosecution (under Section 1326) on the ground that the law is unconstitutional because it has a disparate impact and was passed with a racist intent. This advisory is a helpful update and an excellent teaching tool about the equal protection challenges being brought throughout the country by persons charged with violating Sections 1325 and 1326 of Title 8 of the U.S. Code.
Monday, December 20, 2021
It is the end of a wild pandemic year. And time for our annual Top 10 Immigration Law Stories. As you might recall, President Donald Trump, who frequently made immigration news, topped the 2020 list.
The year has seen many changes. Joe Biden became President. President Trump, and his fervent dedication to a restrictive immigration agenda, now is in the rear-view mirror. Despite repeated efforts by Democrats, any type of meaningful immigration reform failed in Congress. Reminiscent of the old adage "three strikes and you're out," the Senate Parliamentarian on three occasions ruled out efforts to squeeze in immigration changes into budget reconciliations.
This is disappointing to see.— Alexandria Ocasio-Cortez (@AOC) June 7, 2021
First, seeking asylum at any US border is a 100% legal method of arrival.
Second, the US spent decades contributing to regime change and destabilization in Latin America. We can’t help set someone’s house on fire and then blame them for fleeing. https://t.co/vADyh5H0bw
Sunday, December 19, 2021
This is Refugee, a poem by JJ Bola from his book Word. Bola is a refugee from the Congo who resettled in the UK at the tender age of 6. My favorite line in the below poem is this one: "they called us refugees so we hid ourselves in their language until we sounded just like them."
imagine how it feels to be chased out of home. to have your grip ripped. loosened from your fingertips something you so dearly held on to. like a lovers hand that slips when pulled away you are always reaching.
my father would speak of home. reaching. speaking of familiar faces. girl next door
who would eventually grow up to be my mother. the fruit seller at the market. the lonely man at the top of the road who nobody spoke to. and our house at the bottom of the street
lit up by a single flickering lamp
where beyond was only darkness. there
they would sit and tell stories
of monsters that lurked and came only at night to catch the children who sat and listened to stories of monsters that lurked.
this is how they lived. each memory buried.
an artefact left to be discovered by archaeologists. the last words on a dying
family member’s lips. this was sacred.
not even monsters could taint it.
but there were monsters that came during the day. monsters that tore families apart
with their giant hands. and fingers that slept on triggers. the sound of gunshots ripping through the sky became familiar like the tapping of rain fall on a window sill.
monster that would kill and hide behind speeches, suits and ties. monsters that would chase families away forcing them to leave everything behind.
i remember when we first stepped off the plane. everything was foreign. unfamiliar. uninviting. even the air in my lungs left me short of breath.
we came here to find refuge. they called us refugees so we hid ourselves in their language until we sounded just like them. changed the way we dressed to look just like them.
made this our home until we lived just like them and began to speak of familiar faces. girl next door who would grow up to be a
mother. the fruit seller at the market.
the lonely man at the top of the road
who nobody spoke to. and our house at the bottom of the street lit up by a single flickering lamp to keep away the darkness.
there we would sit and watch police that lurked and came only at night to arrest the youths who sat and watched police that lurked and came only at night. this is how we lived.
i remember one day i heard them say to me
they come here to take our jobs
they need to go back to where they came from
not knowing that i was one of the ones who came. i told them that a refugee is simply
someone who is trying to make a home.
so next time when you go home, tuck your children in and kiss your families goodnight be glad that the monsters
never came for you.
in their suits and ties.
never came for you.
in the newspapers with the media lies.
never came for you.
that you are not despised.
and know that deep inside the hearts of each and every one of us
we are all always reaching for a place that we can call home.
Immigration Article of the Day: CRISTINA ISABEL CEBALLOS, DAVID FREEMAN ENGSTROM & DANIEL E. HO, Disparate Limbo: How Administrative Law Erased Antidiscrimination, Yale Law Journal
Our Article uncovers how modern administrative law erased antidiscrimination principles. This story begins with the Civil Rights Act of 1964, when Congress punted on questions about disparate impact and the relationship between Title VI and the Administrative Procedure Act (APA). But the plot thickened when the D.C. Circuit, in an opinion by then-Judge Ginsburg, held that § 704 of the APA barred civil rights plaintiffs from bringing an APA challenge because Title VI provided an alternative “adequate remedy.”1 Subsequent courts seized on the D.C. Circuit’s § 704 dodge, using it to channel antidiscrimination claims away from the APA. Worse, courts have reflexively applied § 704 to oust civil rights claims, even after the Supreme Court’s decision in Alexander v. Sandoval rendered Title VI demonstrably inadequate.
Antidiscrimination’s erasure from the APA, built on a mistaken relic of statutory interpretation, has consigned civil rights plaintiffs to a paralyzing limbo. Plaintiffs, unable to make out the stringent intent showings required under increasingly inhospitable civil rights laws, are also barred from mounting APA claims against agency discrimination for violations of administrative law’s baseline guarantee of nonarbitrariness.
Remedying disparate limbo is urgently needed, particularly as the nation enters a new round of soul-searching on the government’s role in racial stratification, and as agencies at all levels take up new digital-governance tools that raise vexing bias concerns. Yet understanding the current state of disparate limbo also holds vitally important lessons about the broader sweep of modern administrative law and its relationship to the American civil rights struggle. Indeed, doctrinal developments that are core to the field—most notably the emergence throughout the 1970s and 1980s of muscular “hard look” review and a more intrusive judicial role in administrative governance—may only have been feasible because courts simultaneously excised divisive issues of race from administrative law’s purview. Our account isolates a critical contingent moment when civil rights and administrative law diverged. In so doing, we place race and the scrubbing of antidiscrimination from the APA at the center of the construction of modern administrative law’s empire.
Registration for the AALS conference is up and running BUT IT CLOSES ON Wednesday DECEMBER 22.
This year's conference features a number of exciting panels on immigration:
- Wednesday January 5, 3:10 – 4:25 PM (Eastern): The Crisis of Afghanistan
- Thursday January 6, 3:10 – 4:25 PM (Eastern): Law Students and Faculty Rising to the Challenge: Responding to the Afghan Crisis
- Friday, January 7, 2-3 PM (Eastern): Immigration Law social/section business meeting
- Friday, January 7, 3:10-4:25 PM (Eastern): Immigrant Advocacy Inside and Outside Agencies, Courts, and Legislatures
- Friday, January 7, 4:45-6:00 PM (Eastern): New Voices in Immigration Law. This WIP session will focus on papers by Sabrina Balgamwalla (ICE Transfers as a Dimension of Immigration Detention) and Faiza W. Sayed (Secret Law at the Board of Immigration Appeals). Papers will be distributed ahead of time to readers -- just contact me about it.
- Saturday, January 8, 3:10-4:25 PM (Eastern): Immigration, Equality, and Security: The Biden Administration’s First Year and Beyond. This is our section's plenary session and will feature discussion with the Director of USCIS Ur M. Jaddou (!!!!!) and Amanda Frost (American WCL), moderated by Lucas Guttentag (Stanford). Woot. Woot.
Saturday, December 18, 2021
December 18 is International Migrants Day. The United Nations has declared that the 2021 theme is HARNESSING THE POTENTIAL OF HUMAN MOBILITY:
"Migrants contribute with their knowledge, networks, and skills to build stronger, more resilient communities. The global social and economic landscape can be shaped through impactful decisions to address the challenges and opportunities presented by global mobility and people on the move.
The Global Compact for Safe, Orderly and Regular Migration (GCM) offers the opportunity and guidance to actualize human mobility and seize the opportunities it presents.
The International Organization for Migration (IOM) has assisted millions of migrants since it emerged 70 years ago to assist the vast number of Europeans displaced by the Second World War and continues to lead the way in promoting a humane and orderly management of migration for the benefit of all, including the communities of origin, transit and destination."
Friday, December 17, 2021
UCLA-funded study models the toll of heat and dehydration on the human body
A 5-year-old child will probably die first. Then a nonpregnant woman, followed by a grown man and finally a pregnant woman. This is s an all-too-real ranking of how likely migrants are to perish from dehydration and exposure as they traverse the most unforgiving routes through the Sonoran Desert near the Mexico–Arizona border.
A new UCLA-funded study published this week in the journal Science demonstrates how Latina/o migrants of various ages and physiological types experience potentially fatal heat stress. Just as importantly, it suggests that a longstanding U.S. Border Patrol policy known as Prevention Through Deterrence, designed to push migrants away from urban crossing points and into the most punishing corridors of the desert, only serves to drive the death rate higher.
Elizabeth MacDonough, who holds the unelected, advisory role, said that the immigration protections proposed by Democrats would be subject to a point of order.
`These are substantial policy changes with lasting effects just like those we previously considered and outweigh the budgetary impact,' she said.
The latest version of the major budget bill does not include a pathway to permanent legal status for undocumented immigrants, instead offering a temporary parole option that falls short of what many advocates want."
Here’s the text of the parliamentarian’s decision pic.twitter.com/hDAzrSCEnT— Ellen M. Gilmer (@ellengilmer) December 17, 2021
Beyond Imagination?: The January 6 Insurrection
Mark C. Alexander, General Editor
Michèle AlexandreErwin S. Chemerinsky Danielle M. Conway Anthony W. Crowell Garry W. Jenkins Kevin R. Johnson Jennifer L. Mnookin
Kimberly MutchersonAndrew M. Perlman Carla D. Pratt Theodore W. Ruger Daniel P. Tokaji Robert K. Vischer
Beyond Imagination?: The January 6 Insurrection brings together 14 deans of American law schools to examine the January 6 events and how we got there, from a legal perspective, in hopes of moving the nation forward towards healing and a recommitment to the rule of law and the Constitution. Review Now – Complimentary Digital CopyFaculty considering adoption may request a complimentary print review copy. Faculty who wish to purchase can save 20% with discount code BEYOND20 at checkout on westacademic.com.
About the Coursebook: The United States is a nation of laws, and its Constitution and the rule of law have allowed it to confront and successfully navigate many threats to democracy throughout the nation’s complex history, including a Civil War. All of these threats challenged the nation in various ways, but never has there been a challenge to the truth of our elections like what happened on January 6, 2021.(Read more)9781636598741The Insurrection represents a turning point in America’s history. In addition to the unprecedented assault on the U.S. Capitol, members of the government sought to undermine an election and supported an attack on the government. Exposing the issues that led us to January 6, Beyond Imagination? brings together 14 deans of American law schools to examine the day’s events and how we got there, from a legal perspective, in hopes of moving the nation forward towards healing and a recommitment to the rule of law and the Constitution.
CONTACT YOUR ACCOUNT MANAGER
The United States is a nation of laws, and its Constitution and the rule of law have allowed it to confront and successfully navigate many threats to democracy throughout the nation’s complex history, including a Civil War. All of these threats challenged the nation in various ways, but never has there been a challenge to the truth of our elections like what happened on January 6, 2021.
The Insurrection represents a turning point in America’s history. In addition to the unprecedented assault on the U.S. Capitol, members of the government sought to undermine an election and supported an attack on the government.
Exposing the issues that led us to January 6, Beyond Imagination? brings together 14 deans of American law schools to examine the day’s events and how we got there, from a legal perspective, in hopes of moving the nation forward towards healing and a recommitment to the rule of law and the Constitution.
Thursday, December 16, 2021
From The Bookshelves: The Rule of Law in the United States: An Unfinished Project of Black Liberation by Paul Gowder
The Rule of Law in the United States: An Unfinished Project of Black Liberation is a just-released, open-access book authored by Paul Gowder (Northwestern).
Check out Chapter 6. The Gavel and the Fist: The Problem of Sovereignty and Borders. Here's a sample:
The origins of our immigration law lie in the Chinese Exclusion Act era, which wrote open racism into federal law; its plenary power doctrine is shared with the covertly colonial relationship between the federal government and Native American Nations, and the openly colonial Insular Cases – both covering groups who have been represented as quasi-foreigners with subordinate legal rights. In many respects its formal characteristics are a reprise (albeit at a lower key) of many of the ways in which slavery and Jim Crow warped the American legal system. Immigration, like slavery, has been characterised by the rhetorical and legal creation of categories of legal non-subjects or outlaws who are excluded from the ordinary protections of due process and subject to the whims of both specially empowered public officials as well as private persons. And much as in the time of slavery, immigration law today creates perennial conflicts over federalism, as states struggle to be more or less protective of migrants than the federal government would permit. Slavery even raised the legal issue most characteristic of immigration law, deportation itself, as some contended that free Black Americans were noncitizens who could be forcibly removed from US territory or from specific states, or at least encouraged to leave. In recent years the notion of ‘self-deportation’ has been popular on the political right in the form of the open desire to make conditions so unpleasant for immigrants that they leave of their own ‘free will’. But this is a longstanding US policy that was also applied to Black Americans and to Native Americans.
Much like the Fugitive Slave Act, in immigration too the existence of legal caste has compromised the procedural protections available to those whom the law targets as well as those adjacent; the immigration enforcement regime thereby poses a threat to the protections of law for citizens and others outside the immediate immigration context. The organisations tasked with immigration enforcement, like all bureaucracies, have a tendency to grow and to propagate the distinctive logic of their operation – in the case of the immigration agencies, a lack of internal legal culture and habit of ignoring individual rights. The willingness of political leaders, courts, and ordinary citizens to ignore the lawless behaviour of the immigration enforcement agencies has a corrupting effect on their collective capacity to check the lawless behaviour of other public officials. And the boundary between the categories of ‘citizen’ and ‘non-citizen’ is sufficiently porous, both conceptually and in practice, that citizens cannot safely assume that the misconduct of these officials will not be directed against them. Such is the argument of this chapter.
From the American Immigration Council:
Federal Court Argument in Lawsuit Challenge to Delays to Work Permits for Asylum Seekers
The federal district court in the Northern District of California will hear arguments in a motion for preliminary injunction and motion for class action in a lawsuit challenging U.S. Citizenship and Immigration Services’ extreme delays and failure to process work authorization renewals for asylum seekers. The case is Tony N. v. USCIS.
Asylum seekers with work permit renewal applications that have been delayed—sometimes taking 10 months or more to process—have lost their jobs or will lose them soon. Loss of employment authorization and delays in processing these work permit applications can cause severe hardship for asylum seekers by not only preventing them from working to support themselves and their families, but also causing them to lose health insurance and other related employer benefits. In some states, they can lose their driver’s licenses.
An attorney from the American Immigration Council will present argument before Senior District Judge Maxine M. Chesney. The lawsuit was filed by the American Immigration Council, the Asylum Seeker Advocacy Project (ASAP), and Lakin & Wille LLP.
Friday, December 17, 2021 at 9 a.m. PST/ 12 p.m. EST
United States District Court Northern District of California
Livestream Details: https://www.cand.uscourts.gov/
Teleconference number: (669) 254-5252 Webinar ID: 160 626 1089 Password: 091644
Here is the Migration Policy Institute's Top 10 Migration Issues of 2021. "The slow and uneven recovery from the COVID-19 pandemic prompted new patterns of movement in parts of the world in 2021. New conflicts also erupted, ongoing crises smoldered, and migrants were often stuck in the middle. Our annual Migration Information Source Top 10 countdown reviews what we consider to be the year's most important migration trends and events."
Number 5 is "Biden Struggles to Dismantle Trump-Era Border Restrictions.."
Wednesday, December 15, 2021
Harry Houdini, the most famous "escape artist" in America, was born in Hungary. He came to the U.S. with his family at the tender age of four. When he was eight, his father became a U.S. citizen. This was in 1882 and, while I don't know the historical laws on the books at that time, I'm guessing that's when Harry also became a U.S. citizen.
I've got Harry on the brain this week after seeing the below thread from one of my Twitter favorites, the indomitable Jennifer Mendelsohn (she of #resistance genealogy). Apparently Harry lied on his WWI draft registration, attesting that he was born in the United States. Ooof. As Jennifer points out later in the thread, Harry repeated this untruth on "at least five notarized passport applications."
On his WWI draft registration, Harry Houdini both— GET VACCINATED! (((Jennifer Mendelsohn))) (@CleverTitleTK) December 14, 2021
a) lied about being native born
and b) said his middle name was "Handcuff." 😂 pic.twitter.com/C32Aki9VrO
This is DEFINITELY going to be a real-o-thetical in a future class.
Professor (now Congress member) Jamin Raskin wrote in 1993 about the history of noncitizen suffrage in the United States. In many states, noncitizens were once allowed to vote in local elections. NPR's Rachel Martin talked to Ron Hayduk, a professor of political science at San Francisco State University, about New York City's decision to restore the ability of noncitizen residents to vote in local elections.
Fifth Circuit: Biden Administration's Termination of "Remain in Mexico" Policy "Arbitrary and Capricious"
Official White House Photo
President Trump's "Remain in Mexico" Policy lives on. Due to court order, the Biden administration recently restarted the Trump policy. An appeals court has upheld that order.
Alyssa Aquino for Law360 reports that the U.S. Court of Appeals for the Fifth Circuit has rejected the Biden administration's attempts to end the policy requiring asylum-seekers to wait in Mexico while their claims are processed. The court found that "the U.S. Department of Homeland Security's June memorandum ending the Migrant Protection Protocols [MPP], . . . had failed to address border states' reliance on MPP or the program's benefits, as required under federal administrative law."
A Trump appointee and former General Counsel to Texas Governor Greg Abbott, Judge Andrew S. Oldham wrote the opinion for the court, which held on the merits that the decision to terminate the Remain in Mexico policy
"was arbitrary and capricious under the APA. That Act, among other things, requires courts to set aside agency actions that overlook relevant issues or inadequately explain their conclusions. We anchor our analysis to a recent Supreme Court decision that applied this doctrine in the immigration context. [Department of Homeland Security v. Regents of the University of California (2020), the DACA case] Under that precedent, this is not a close case.
The Termination Decision is independently unlawful because it violates 8 U.S.C. § 1225. That statute (among other things) requires DHS to detain aliens, pending removal proceedings, who unlawfully enter the United States and seek permission to stay. It’s true that DHS lacks the capacity to detain all such aliens. Congress, however, created a statutory safety valve to address that problem. Another part of § 1225 allows DHS to return aliens to contiguous territories, like Mexico, while removal proceedings are pending. That safety valve was the statutory basis for the Protocols. DHS’s Termination Decision was a refusal to use the statute’s safety valve. That refusal, combined with DHS’s lack of detention capacity, means DHS is not
detaining the aliens that Congress required it to detain."
Tuesday, December 14, 2021
Under Executive Order 14012, Restoring Faith in Our Legal Systems and Strengthening Integration and Inclusion Efforts for New Americans, USCIS is chairing an interagency naturalization working group and is working with governmental and private sector partners on a strategy to overcome barriers to citizenship and promote naturalization. A key component of the strategy involves building stronger local level community partnerships and offering free educational resources to service providers.
In order to assist the more than 9.1 million lawful permanent residents who are eligible to apply for citizenship, USCIS is looking to partner with law schools and legal clinics to promote and foster pro bono “Days of Service” for naturalization applicants. USCIS proposes to kick-off this initiative at a few locations for Martin Luther King, Jr. Day on January 17. USCIS would like to see the initial pilot then expanded to locations around the country, encouraging day or week long naturalization-focused pro bono legal clinics, perhaps tied to key calendar dates, including but not limited to President’s Day, Citizenship Day and/or Constitution Week.
USCIS will provide a virtual training and overview of the N-400 application for legal service providers on Wednesday January 12 at 2 pm EST for those interested in hosting pro bono legal clinics on or around January 17. If your law school is interested in participating in this initiative, please contact USCIS Senior Advisor and Chair of the Naturalization Working Group, Kelly Ryan at Kelly.Ryan@uscis.dhs.gov.
MHC (h/t Lenni Benson)