Friday, September 10, 2021
Real-o-thetical: Noun. An in-class "hypothetical" based, at least in part, on real events.
The travails of Michele Thiesen would make an outstanding Crimmigration Real-o-thetical. Here are the facts:
- Thiesen is a Canadian citizen.
- In 1994, she was convicted of burglary. She broke into a home she believed was empty, but the residents were present. She stole a VCR. (See California Penal Code § 459.)
- She had prior convictions (petty theft, drug charges, prostitution) which, at the time, meant she was sentenced to at least 25 years to life. She got 40 years to life. (See California Penal Code § 667)
- California changed it's three strikes law in 2012. If sentenced after 2012, Thiesen would have been sentenced to 25 years to life.
- Thiesen was a model prisoner, so much so that the prison guards wrote letters in support of her release.
- Thiesen sought and received re-sentencing of 25 years to life, making her eligible for parole, which she was granted.
- She was released from prison..... into the arms of ICE.
Questions I would ask students:
- What will happen to Thiesen?
- What will be the basis for removal? (Identify ALL possible grounds).
- Could Thiesen's 1994 counsel have avoided immigration consequences? If so, how?
- Did counsel in 1994 have an obligation to think about the immigration consequences of Thiesen's case?
- Would Thiesen be eligible for relief from deportation?
Note that, in reality, Theisen is planning to self-deport. At least that seems to be the gist of the WaPo coverage which talks about her attorney's work to expedite her return to Canada.
Also, the coverage of Thiesen's case omits any information about her immigration status or age at the time of her crimes though Thiesen's counsel provides some color commentary, telling WaPo that her client's (alcoholic) dad died when she was 17, she took up drugs to "self-medicate" and, well, "Once you’re hooked on heroin, it’s an expensive drug to support.”
I would provide students with some made-up facts on immigration status and age. Have her enter as an infant, teen, or adult, asking whether that does or should change any of our analysis. Have her enter lawfully. Have her overstay.
The real-o-thetical variations are, of course, endless. It's the human drama of Thiesen's case that will draw students in.
Thursday, July 1, 2021
Check out Illegal en Estyle by María del Pilar:
Yo no cruzo la frontera con mis tenis marca brinca me llevan al norte.
En avión sin bigotes en tour bus, no a pata.
How does she cross the border? Not by foot, but by plane. She's illegal, in style.
This song is the perfect accompaniment to a conversation about how more undocumented migrants today are visa overstayers as opposed to border crossers.
Tuesday, June 22, 2021
Banished, by MF DOOM (Daniel Dumile), a collaboration with Jneiro Jarel, opens with: “Villain got banished/Refused out the U.S., he ain’t even Spanish.” Other sweet lyrics: "No, not deported/ Be a little minute before things get sorted."
Over at Pitchfork, Noah Yoo has the skinny about DOOM, and his "Lifelong Struggle With the U.S. Immigration System."
This article is worth a READ. Seriously. Quick version:
DOOM came to the US on a B2 visa as an infant in 1971. His mom (an immigrant from Trinidad) filed a family-based petition for him when he was three. The petition was approved but was never followed up by a visa application, apparently because his mother didn't have the money to pursue it. In 1993, he pled guilty to misdemeanor third-degree assault, paid a fine and restitution, and served probation. In the course of his rap career, he went to Canada in 2004 and had trouble returning to the US. He said he thought he was a USC or LPR; he was neither. He sought registry. The government served an RFE and ultimately denied the application saying the request for evidence wasn't responded to. He left the country again on tour, and was deemed inadmissible upon his return in 2011 based upon: (i) not having a visa, (ii) CIMT, (iii) unlawful presence. He tried to enter again in 2012, and again was denied. In an interview with Q magazine in 2012, he said: “I’m done with the United States, it’s no big deal.” DOOM died in 2020.
Y'all, the exam just writes itself!
Sunday, June 13, 2021
Here's a tweet that really caught my eye. It's from FAIR (Federation for American Immigration Reform), an anti-immigration organization, if you're not yet aware.
Text: Amnesty isn't a solution. It's a crime against American citizens.
Obviously, this is nonsense. But it might just be a good teaching tool. It's eye-catching. And I could imagine a really robust conversation with students breaking it down. Particularly in light of other FAIR tweets such as this one:
Text: Total number of illegal aliens AND THEIR US BORN CHILDREN: 175,000. (emphasis mine).
After all, wouldn't a pathway to regularizing the status of noncitizen parents be a benefit to US citizen children, as opposed to a "crime" against them?
All in all, intriguing to think about using in a classroom discussion of historical amnesty programs and/or present-day proposals to bring undocumented migrants out of the shadows.
Thursday, June 10, 2021
SCOTUS issued an opinion in Borden v. United States today. SCOTUS concludes that a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under the Armed Career Criminal Act (ACCA).
It's one of those wonky SCOTUS plurality opinions. Justice Kagan announces the judgement of the court and gets three justices (Sotomayor, Kennedy, and Gorsuch) to sign onto her opinion, which focuses on the statutory phrase “against the person of another.” Justice Thomas concurs, agreeing in the judgment that Borden's conviction doesn't qualify as a violent felony, though he focuses on different statutory language: "use of physical force.” The dissenters are Justices Kavanaugh, Roberts, Alito, and Barrett.
Wonky alliances aside, this case will have implications for aggravated felonies based on crimes of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). How? Well, the statute at issue in Borden defines "violent felony" nearly identically to the "crime of violence" lingo applicable to immigration cases. Here are the two provisions:
18 USC 924(e)(2)(B)(1): "the term “violent felony” means any crime... that... has as an element the use, attempted use, or threatened use of physical force against the person of another"
18 U.S.C. § 16 (cross referenced in INA § 101(a)(43)(F)): "the term “crime of violence” means... an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another"
In Sessions v. Dimaya, 584 U.S. __ (2018), SCOTUS applied an ACCA case interpreting § 924(e)(2)(B) (Johnson) to its interpretation of 18 U.S.C. § 16 (as referenced in INA § 101(a)(43)(F)). So, accordingly, SCOTUS' interpretation of § 924(e)(2)(B) in this Borden decision will inform any future interpretation of 18 U.S.C. § 16.
Tuesday, June 8, 2021
The Army of the Dead, now streaming on Netflix, is a totally solid zombie flick. The first 14 minutes are genuinely fabulous -- totally worth watching on their own merit. The latter hour+ has some pretty wide plot holes but is nonetheless generally enjoyable.
But where's the immigration angle?, you may be asking.
Without spoilers, I can tell you that the zombies are corralled into one quarantine zone. And when our heroes enter that zone, they pass this sign:
It's a super bummer that no single screen shot captures the whole sign. It's panned over so requires more than one still. But it's a fun sign to see and think about as immigration law scholars. (If someone is a super good editor and can get me a .gif or .mp3 of that pan, beer's on me.)
Many of us teach about the border and the vagaries of constitutional rights in that particular locale. The ACLU has gone so far as to call the entire border + 100 miles inland a "constitution free zone" -- a bit of hyperbole though, as you know, less hyperbolic if we restrict our view to ports of entry themselves.
Anyhoo, pop culture enthusiasts might think about making an Army of the Dead reference during their next border-conlaw class. Not to mention the endless hypo possibilities: "Should the Government’s interest in preventing the entry of unwanted persons and effects from a zombie-infested zone be at the same 'zenith' as its interests at the international border, as discussed in Flores-Montano?"
Friday, June 4, 2021
For the past two days, I've been attending the National Immigration Project of National Lawyers Guild's 2021 Annual Pre-AILA Crimes & Immigration Seminar. (Thanks, Ming, for letting me know about it!)
The conference introduced me to a new way of teaching the categorical approach to removal based on criminal offenses. As I've mentioned before, I habitually outsource teaching of the categorical approach to my internet "guest speaker" Prof. Maureen Sweeney (Maryland), by using her wonderful youtube videos to introduce the subject.
The NIPNLG approach, which I learned today may have originated from the ILRC, involves pictures of kittens. And who doesn't love cute pictures of kittens?
Here's the pitch: Imagine that the federal removal offense is a box. The first thing you need to do is identify the dimensions of that box. Now imagine that the state statute of conviction is a cat. You need to identify the dimensions of the cat. Finally, see if the cat will fit in the box.
If the cat is too big for the box, then the state statute is overbroad and cannot be the basis for removal. But if the kitten fits snugly within the box or has room to spare, then there is a categorical match and the noncitizen is removable.
Is this really any different from overlapping ovals, which has been my go-to for the past many years? No. But if kittens make students sit up and pay attention, and I think they will, I am definitely abandoning my ovals in favor of cats.
Sunday, May 16, 2021
U.S./Mexico border outside El Paso/Juarez; photo mine
CNN has done some really interesting reporting of late regarding smugglers working to get migrants across the U.S.-Mexico border. CNN corespondent Matt Rivers went to Mexico, interviewed polleros (smugglers), and, most interestingly, followed smugglers as they worked to get 2 migrants--a young man and woman from Ecuador--up and over the border wall and into the United States.
CNN's online article is filled with excellent still photography documenting the work of these Mexican smugglers. The online story also includes key details -- the thousands of dollars migrants spend on smugglers (as much as smugglers can charge), the likelihood of migrants making it to their final stateside destination without detection (low), and the ties smugglers have to Mexican cartels.
I also encourage you to watch Rivers' video reporting, which captures the smuggler's tools (a rebar ladder), shows the migrants and smugglers creeping up to the U.S. border, and records the migrants as they climb up and over the wall and run into the distance. These are some pretty powerful visuals that has the potential to really open the eyes of students thinking about border crossings.
Sunday, April 25, 2021
The website features an interactive map documenting over a thousand instances of retaliation against immigrant rights defenders by numerous U.S. government agencies and highlights the personal accounts of immigrant rights leaders who have been arrested, jailed, surveilled, and deported for their activism. It claims that, by abusing its immense power in an attempt to stamp out dissenting voices in immigrant communities, the government is trampling on the First Amendment right to speak truth to power.
This project is all the more salient to me this week as I watched docu-thriller The Infiltrators (Friday post) and learned more about how the movie's protagonist, Claudio Rojas, was deported in retaliation for his appearance in the film (Saturday post). It's moving to (quite literally) see the story of Claudio Rojas placed in the context of retaliatory actions taken against other immigration activists.
Friday, April 23, 2021
I don't know, is that heading too much? It's all I could think of as I watched The Infiltrators today. If you're unfamiliar with this film (I was), it follows the TRUE story of undocumented young people who intentionally get put into immigration detention (Broward in Florida) so that they can better report on the conditions of detainees and better advocate for their release. Like I said, balls of f$%*ing steel.
Check out the trailer:
I received access to the film with my registration/attendance at the UCLA Center for Immigration Law and Policy’s Immigration Policy in the Biden Administration: The First 100 Days and Beyond. Amazingly, one of the morning speakers, Claudio Rojas, is one of men who inspired the activists to infiltrate Broward. Rojas ends up a major protagonist in the film and appears to have been deported because of his participation in it. (See here & here.)
Anyhoo -- WATCH THIS FILM. You will not regret it. It's awe inspiring in a literal and not metaphorical sense. The utter fearlessness of these DREAMer activists is stunning. I bow before them.
And if you happened to miss today's segment of the UCLA conference, don't worry. The conference continues over the next two Fridays. And upcoming on April 30, you can catch a conversation with DHS Secretary Mayorkas. I'm in.
Tuesday, April 20, 2021
Yesterday, Ming wrote about the reported shift in agency language--from "alien" to "noncitizen". Today, we have access to a copy of the memo issued by Troy A. Miller regarding CBP Communications and Materials. It includes this handy chart:
A truly excellent resource for your inevitable first-day-of-immigration-law vocabulary lesson.
Friday, April 9, 2021
Lee Isaac Chung is the director of the film Minari, which both Kevin and Ming have discussed on this blog previously. The film is about Korean-American immigrants who move to Arkansas to start a farm growing Korean fruits and vegetables.
Chung recently spoke to Trevor Noah on The Daily Show about his film-making:
“We have to humanize ourselves constantly.”— The Daily Show (@TheDailyShow) April 9, 2021
Lee Isaac Chung explains the importance of telling simple stories from a minority perspective. pic.twitter.com/ehqWZ5OMSa
In the above clip, Noah notes: "Films like this ... connect people to the humanity of others who they may not have ever met or even known as human beings."
Chung responds that his film, Minari, was "meant to be a story about human beings." This, he notes, is a task many communities, including the Asian-American community, must take on: "we have to humanize ourselves constantly, show, I mean, that we're really human beings."
I was really struck by this exchange and thought it particularly relevant to our work as immprofs. That work is, I think, a big part of our jobs. We must humanize immigrants for our students. Sure, many who are drawn to immigration are immigrants themselves. But I've had numerous students who don't even know their family's immigrant origins; they've been in the U.S. for generations and have no idea where they came from. For this latter category of students, it's our job to humanize noncitizens in a real way. And thoughtful use of film clips can help us do that!
Tuesday, April 6, 2021
This beautiful photo (CristianNX, CC BY-SA 4.0, via Wikimedia Commons) is of the Mòcheni Valley in Italy's north-eastern Dolomite mountains. It's a place where people speak a medieval Germanic language and have a distinctive ethnic culture.
As the BBC reports, the valley was also home to a political refugee from Ethiopia, Agitu Idea Gudeta, whose childhood experience among nomadic shepherds led her to take on the care of the Mòcheni Valley's famed (but endangered) goats. She started to sell dairy products, made from her goats' milk, under the brand La Capra Felice (The Happy Goat).
I encourage you to read the entire story. It's not only got a textbook political persecution real-o-thetical for class, but it's also a tale of why some refugees end up where they do, and it's a story about the ways in which a refugee's unique background and skills can benefit the country of relocation.
I wish I could tell you the story has a happy ending. It does not. Gudeta was ultimately murdered by one of her employees. But Gudeta is not easily forgotten. Those who loved her are working to find ways to continue her legacy, in an out of the Mòcheni Valley.
Friday, March 12, 2021
A while back, I wrote about the difficulties of children serving as translators for their parents. My post included such examples as the deaf man who died of treatable syphilis because he was too embarrassed to talk about his condition with his child serving as a translator for his doctor.
I find that sometimes it's good to have a humorous introduction to a heady topic. In that vein, I offer you this quick (3 minute) sample a child translating for their parent:
While the translation in this clip from the BBC is quite funny, it's a great jumping off point for talking about more serious issues with using children as translators for their parents.
Saturday, March 6, 2021
SCOTUS issued a big immigration case this week: Pereida v. Wilkinson. As Kate Evans (Duke), writes over at SCOTUSBlog, "The court ruled 5-3 that because the noncitizen bears the burden to prove he is eligible for relief, he cannot carry that burden when his criminal record is unclear as to whether he was convicted of a crime that disqualifies him from relief."
César Cuauhtémoc García Hernández (Denver) has a longer take on Pereida over at his blog, Crimmigration. As he characterizes the opinion: "gaps in conviction records created by state courts should be treated against migrants who are required to show that they haven’t been convicted of certain types of crimes." This, César notes, it particularly unfair given that "migrants don’t control court records." Going forward, defense attorneys are going to have to "prioritize clarity above all else."
Putting aside the woes of Pereida himself, César notes that the opinion doesn't bode well for the categorical approach as a general matter, with a footnote that, as he reads it, "seem[s] to invite Congress to eliminate the categorical approach."
Tuesday, March 2, 2021
Lately I've been scanning online immigration glossaries. I'm in the midst of drafting my own glossary for students, and I want to make sure that my work is comprehensive.
Along the way, I found this stunning chart on the FAIR website.
Some of these differences are ones that I already address in class -- chain migration vs. family-based migration, for example. Others are new to me -- immigration ban vs. immigration freeze. Either way you slice it, there's a lot of great teaching material in this singular chart of dos and dont's.
Friday, February 26, 2021
Kala Fryman, a 4E University of Baltimore Law student who has long been active in immigration law and policy, is taking part in the UB's Legal Data and Design Clinic, where she produced this "SCOTUS map" linking the 1943 Hirabayashi v U.S. decision (holding that President Roosevelt’s executive orders enacting curfews for individuals of Japanese descent living in the United States following the Pearl Harbor attack were constitutional) to the 2020 DACA decision (DHS v. Regents of Univ. of California).
-KitJ (with hat tip to immprof Liz Keyes!)
Monday, February 22, 2021
Watch this two minute video from Lexis Nexis about its new feature: Code Compare. Code Compare, as its name suggests, allows for easy comparison of current codes to prior iterations. I cannot think of a tool more useful to immigration scholars and students -- particularly those using an older statutory supplement who want to make sure what they have is still good law.
Thursday, January 28, 2021
Guest post by Tania Valdez, Clinical Fellow, University of Denver Sturm College of Law
Episode 1 of Immigration Nation has several scenes that provide fodder for substantial discussion and participatory class exercises around suppression and termination. For background on these issues, the American Immigration Council has published a Practice Advisory that provides excellent information on motions to suppress and terminate.
The first scene in the episode (from around 30 seconds in to around 03:05) provides enough facts for a rich discussion of potential suppression issues based on regulatory violations.
The regulations at 8 C.F.R. § 287.8 provide parameters for ICE officers’ conduct. There are echoes of constitutional protections in some of these regulations, which students might recognize based on what they learned in their Criminal Procedure class.
- To detain someone temporarily requires reasonable suspicion that the person has committed an offense against, or is illegally in, the United States. Arrest requires “reason to believe” essentially the same. 8 C.F.R. § 287.8(b)(2), (c)(2)(i).
- A warrant is required, unless ICE can show that the person is “likely to escape” before a warrant can be obtained. 8 C.F.R. 287.8(c)(2)(ii).
- ICE may not enter a home or other non-public area without consent. 8 C.F.R. 287.8(f)(2).
- Use of force must be reasonable. 8 C.F.R. 287.8(a)(1).
- An officer must identify themselves as immigration officer at the time of arrest and state the reasons for the arrest. 8 C.F.R. 287.8(c)(2)(iii).
- An officer may not use “threats, coercion, or physical abuse” to induce someone to waive their rights or make a statement. 8 C.F.R. 287.8(c)(2)(vii).
One issue in the first scene that troubled students this past semester was that ICE officers represented, both verbally and by patches on their clothing, that they were “police.” This struck students as a misrepresentation—and possibly an illegal or at least unethical one.
Yet, there is no ban on ICE officers identifying themselves as “police.” The regulations only provide that an officer must identify themselves as an immigration officer “[a]t the time of arrest . . . as soon as it is practical and safe to do so.” 8 C.F.R. § 287.8(c)(2)(iii).
There have been some attempts to change ICE’s practice. In 2017, Representative Nydia M. Velazquez (D-NY) introduced H.R. 2073, a bill seeking to amend INA § 287 “to prohibit immigration officers or agents of the Department of Homeland Security from wearing clothing or other items bearing the word ‘police.’” Also in 2017, Los Angeles city officials asked ICE to stop identifying themselves as “police,” because the practice affects the willingness of immigrants to cooperate in criminal investigations and prosecutions.
Even though ICE officers stating that they are “police” is technically legal, the topic is certainly worth discussing as a class. There are also other regulations implicated in this same scene. For example, several of the facts raise a question regarding whether the officers truly obtained “consent” to enter the home: the operation is occurring in the wee hours of the morning when the household is asleep (causing obvious confusion for the occupants of the household), the officers bang on the door as if there is an emergency, they yell “Police!,” state they have a warrant but refuse to present it, and gain entry to the home by saying they want to show the woman pictures. These tactics at least cast doubt regarding consent and could lead to a lively class discussion.
A useful case to assign as class reading to prime discussion on the topic of consent to enter a home is Oliva-Ramos v. Attorney General, 694 F.3d 259 (3d Cir. 2012). Oliva-Ramos was a ground-breaking case (litigated by the NYU Immigrant Rights Clinic) where the court discusses at length ICE’s coercive tactics and the use of ruses to gain entry to a home.
Here is a skeletal lesson plan (for Zoom or in person):
- Watch Episode 1 of Immigration Nation. In the Immigration Nation episode, look for constitutional or regulatory problems you see with ICE’s conduct in the scenes where officers gain entry to homes, question, detain, and/or arrest people.
- Assign a case from your circuit. Since I was teaching in the Third Circuit, I assigned Oliva-Ramos v. Attorney General, 694 F.3d 259 (3d Cir. 2012), a fabulous clinic case.
Debrief film. I found this to be important to do first because of the heavy emotional content.
Present, or facilitate a discussion, on suppression and termination.
Argument exercise. I allocated 25 minutes for this exercise but would now plan for more like 45 minutes because the 10 students really got into it.
- Choose a “case” to litigate from among the violations students noted in the film. I selected the first scene.
- Divide class into breakout groups where teams come up with the best arguments for each side (citing facts and legal authority). We divided into two Zoom Breakout Rooms (5 students per room), one for Respondent’s counsel and one for DHS counsel.
- Come back together as a whole and hear arguments from each side, with professors (or students if they are comfortable) playing the IJ.
-posted by KitJ on behalf of Tania Valdez
Saturday, January 23, 2021
If you're unfamiliar with the Darién Gap, you're not alone. I did not know about it until just this evening when I watched this PBS Newshour report from August: What migrants face as they journey through the deadly Darien Gap. It's a largely uninhabited area of mountains, forests, and water that straddles Colombia and Panama. Migrants from around the world (Haiti, Cameroon, Bangladesh were all featured in the report below) travel to Brazil and Ecuador and, from there, make their way north to the U.S. and Canada. This requires passage through the Darién Gap, which as the clip shows, is incredibly dangerous.
The clip is just under 11 minutes long. It would be a really interesting addition to discussion about migration to the U.S. as it shows (a) non-desert travels and (b) migration from outside the Northern Triangle countries.
Oddly enough, I found out about this story from the journalist--Nadja Drost--on twitter. She reported today that a Bangladeshi food delivery man and asylum seeker recognized her from this report. He showed her the report, saved on his phone, which he has shared with family and friends to explain the realities of his journey to America.