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.
Saturday, December 19, 2020
On December 14, 2020, NY's Governor Andrew Cuomo signed into law the Protect Our Courts Act.
The law amends the state's civil rights law, stating:
A person duly and in good faith attending a court proceeding in which such person is a party or potential witness, or a family or household member is a party or potential witness, is privileged from civil arrest while going to, remaining at, and returning from, the place of such court proceeding, unless such civil arrest is supported by a judicial warrant or judicial order authorizing such civil arrest.
The text of the law does not refer in any manner to ICE, but it's clearly directed at that agency's activities. What it does is prohibit courthouse arrests by ICE without a judicial warrant authorizing the arrest. In addition, the law makes ICE liable for false imprisonment and contempt if an arrest is carried out in violation of this new law.
The Protect Our Courts Act also amends the state's judiciary law. Most significantly, by stating that
any representative of a law enforcement agency who, while acting in an official capacity, enters a New York state courthouse intending to observe an individual or take an individual into custody shall identify himself or herself to uniformed court personnel and state his or her specific law enforcement purpose and the proposed enforcement action to be taken; any such representative who has a warrant or order concerning such intended arrest shall provide a copy of such warrant or order to such court personnel;
In addition, the law contemplates review of any warrant by a judge or court attorney and no courtroom arrests absent "extraordinary circumstances."
Tuesday, December 15, 2020
Independent news outlet ProPublica has an amazing resource that may not yet by on the radar of immprofs. They are tracking every one of the Trump administration's current efforts to pass "midnight regulations" between election day and the inauguration of Joe Biden.
You can look through every pending regulation or you narrow the search by topic. Immigration is one of the topics. ProPublica color-codes the rules by the stage in the process it is in: White House Reviewing Proposal (red), Proposed Rule (orange), White HOuse Reviewing Final Rule (yellow), and Rule Finalized (green).
The immigration rules that have been finalized are:
- Lowering Wages for Immigrant Farm workers
- Narrowing Eligibility for High-Skilled Work Visas by Tightening Educational Requirements
- Requiring Some Visitors to the U.S. to Post Bond So They Leave When Their Visas Expire
- Restricting High-Skilled Immigrant Work Visas by Raising Wage Minimums for Visa Holders
- Radically Narrowing the Grounds for Asylum Eligibility
The immigration rules where the White House is reviewing the final rule are:
- Making It Harder for Asylum-Seekers to Compile Their Applications -- and Easier for Judges to Cherry-Pick Evidence
- Preventing Judges From Using Discretion to Close Immigration Cases
Outstanding proposed rules include:
- Barring Work Permits for Immigrants With Deportation Orders
- Fording Deportation Hearings for Some Immigrants Who Have Pending Applications for Legal Status
- Making It Harder for Immigrants to Reopen Their Cases
Monday, October 12, 2020
This new one-pager on § 1473.7 motions explains the basics of this new vehicle for vacating a conviction or sentence in California. Individuals who were not properly advised of the immigration consequences of their plea can qualify to have the conviction or sentence vacated.
For those wanting to learn even more about 1473.7 motions and other types of post-conviction relief, check out this amazing guide by the Immigrant Legal Resource Center and Californians for Safety and Justice.
Tuesday, September 8, 2020
The Collateral Consequences Resource Center Releases a New Report on Restoring Rights and Opportunities after Arrest or Conviction
Today the Collateral Consequences Resource Center released a new report, The Many Roads to Reintegration: A 50-State Report on Laws Restoring Rights and Opportunities after Arrest or Conviction. The report is by Margaret Love and David Schlussel, with an introduction by Professor Gabriel J. Chin. This wonderful new resource provides a comprehensive review of the landscape of laws across the country aimed and restoring rights and opportunities after arrest or conviction. As the authors note, they are "heartened by the progress that has been made toward neutralizing the effect of a criminal record since the present reform effort got underway in a serious fashion less than a decade ago, especially in the last two years."
The report focuses on loss of civil rights, dissemination of damaging record information, and loss of opportunities and benefits. It does not focus on a fourth type of consequence, namely limits on personal freedom including immigration consequences of convictions. Yet, it does include a thorough national discussion of post-conviction record relief, including executive pardons, that will be useful to crim-imm practitioners.
For additional resources on immigration consequences, see https://www.ilrc.org/crimes.
Saturday, August 22, 2020
Philosophical Frameworks for Evaluating Immigration Law and Policy: a Video by Prof. Maureen Sweeney
Prof. Maureen Sweeney (Maryland) has created a short video (6:38) about the philosophical frameworks for evaluating immigration law and policy. I'm honored to say that the video draws from my 2014 article Theories of Immigration Law.
My favorite part comes at the end (5:49) when Prof. Sweeney gives listeners homework:
"You can do this little analytical experiment at home. You can find some piece of immigration advocacy or justification or even an attack on an immigration policy and see if you can identify which one or more of these frameworks is at issue and is being used. And then find arguments against that position, whatever it is, in the same framework. And then, as step 2, find some arguments for or against the policy in one of the other frameworks."
An excellent exercise!
I have to say that I was over the moon when Prof. Sweeney shared this video with me. As I've talked about on the blog before, she is has been a virtual guest lecturer in my immigration and crimmigration classes for years -- no one explains the categorical and modified categorical approaches with more clarity. So I'm thrilled to be a part of her classroom in a small way as well.
Friday, August 7, 2020
Immigration Nation, now streaming on Netflix, offers a treasure trove of film to use in the classroom. Here is just one possibility using Episode 1 (Installing Fear).
Try playing 29:24-28:26, 8:20-7:25, and 5:25-2:00. These are countdown numbers, which are easier to find on Netflix than the minute markers when they appear. Though you'd be looking at roughly minutes 71-72, 92-93, and 95-98. This will give you approximately 5 minutes of film.
You'll be introduced to the gentleman in the foreground of the photo on the right and his young daughter in the middle-back of the photo. The two talk about family separation.
Dad (interview 1, crying): "When I was at ICE, they told me that they were going to separate us forever. She was going to stay here. I don't know in whose hands."
Dad (interview 2): Discusses how his daughter saw her mother murdered, how he took her to a psychologist who told him "You must always be close to her."
Reunion, Daughter (interview 1): Recounting how officials said "That I would never get to see you again, that they are going to move me from home to home. I told them I would see you again but they just told me that I would never see you again, and I cried."
These segments put a human face on the issue of family separation. It's impossible not to be moved by the two. Also, what kind of monster tells a kid that she'll never see her dad again?
The segments also offer real insight into how people process trauma differently. The dad is sobbing, his pain obvious and visible. The daughter has a thousand yard stare. She's crying, but it's like the tears are just running out of her while she stares into the far distance and tries to shut it out.
This concept -- that clients will present trauma differently -- is one that I've been trying to emphasize for years. I use John Oliver's discussion of visas for war translators and talk about how "flat" one interviewee is when talking about his father's murder and his brother's kidnapping.
Of course, you can also refer back to these same 5 minutes of film when you're teaching asylum. What information is missing from the story that would need to be established before this family might be eligible for asylum?
Wednesday, August 5, 2020
American Oxygen by Rhianna might be a great way to start or end the semester. Check out these lyrics:
Oh say can you see, this is the American Dream
Young girl, hustlin'
On the other side of the ocean
You can be anything at all
In America, America
I say, can't you see
Just close your eyes and breathe
Breathe out, breathe in
Every breath I breathe
Chasin' this American Dream
We sweat for a nickel and a dime
Turn it into an empire
Breathe in, this feeling
American, American oxygen
The video is far more dark than those lyrics suggest. One might ask -- at the start or end of the semester -- whether this is really is a country where "You can be anything at all" anymore.
Monday, August 3, 2020
Looking for a new podcast to enhance the productivity of your commute? Sidenote: Is anyone still commuting?
Regardless, check out Immigration Review Podcast, a weekly show by Kevin A. Gregg, a partner at Kurzban's firm. Here's the official description:
Every Monday, the Immigration Review podcast discusses the latest published opinions from the U.S. Supreme Court, Board of Immigration Appeals, and all U.S. Circuit Courts of Appeals. Kevin discusses some cases in depth, provides holdings for others, and always gives practice pointers and insights, rummaging through the week’s decisions so you don’t have to. Subscribe wherever you get your podcasts, and never miss a case!
There are 14 episodes in the bank to get you started.
Thursday, July 30, 2020
How to incorporate engaging remote activities is something we are all seeking this fall.
One terrific teaching tool worth calling attention to is the “Learning Legal Interviewing and Language Access Film Project” (“Learning”) by Professor Lindsay Harris of UDC David A. Clarke School of Law and Professor Laila Hlass of Tulane University School of Law.
“Learning” is a set of two dramatized videos for use in experiential education settings. One features clinical students interviewing a teenage asylum seeker and the second features a student interview of a U visa applicant. The videos work with any class teaching interviewing skills, but especially well in immigration law related courses. I have used the films in my class and they raise a range of important issues, including building rapport with clients, trauma-informed lawyering, working with an interpreter, and much, much more. The films could be provided as asynchronous course content to discuss later as a class, or included during an online session.
More information and a link to the videos is available here.
Monday, July 27, 2020
John Oliver tackles this issue of China's treatment of its Uighur (pronounced wee-grr) population in this week's episode of Last Week Tonight.
It's a stunning segment, perfect for discussing asylum. Immprofs who teach Criminal Law might also find the moments from 6:45-10:17 interesting, as they delve into the concept of predicting/preventing crime.
There is footage from Uighur camps, with folks singing "If you're happy and you know it say 'yes, sir!'" (It's as horrifying as it sounds.) There's exposure of international corporations who benefit from forced labor by Uighurs (Nike, VW). And there's a snippet from John Bolton's book with insight I'd not heard about previously. Check out this statement: "Trump said that Xi should go ahead with building the [Uighur concentration] camps, which Trump thought was exactly the right thing to do." Holy hell.
Thursday, July 16, 2020
In a recent article, WaPo explores the hardships facing refugees in the United States during the COVID pandemic. Recently resettled refugees have been hit hard by the pandemic-induced economic downturn. They are struggling to find or keep work. Many struggle with food insecurity. And unlike Americans with an established tax record, they don't qualify for stimulus payments.
Professor Michaela Hynie (York University) notes that the problems facing refugees extend beyond the economic. Traditionally, case workers help refugees get used to their new lives stateside. Yet these workers, like so many, have halted in-person meetings. "How do you explain to somebody how to use the transportation system, for example, or a toilet, when you can’t show them?” Hynie told WaPo.
I wonder if this would be a good classroom exercise -- thinking of something that a refugee would need to know about the United States and working to explain it. Off the top of my head:
- How to access public transportation
- How to open & use a checking account
- How to obtain a driver's license
- How to use a microwave/dishwasher/fridge/washer/dryer
Wednesday, July 1, 2020
Immprof Shoba Sivaprasad Wadhia (Penn State) led me to ILRC's flow charts on penalties for crimes involving moral turpitude. Check out this inadmissibility CIMT visualization:
Sweet. Students are sure to love these given the many requests I get for flowcharts each semester.
Friday, June 26, 2020
Law students are generally pretty savvy about their online presence. They've grown up with Facebook (launched in 2004 when many 1Ls were five or six), Twitter (launched in 2006 when many 1Ls were seven or eight), and Instagram (launched in 2010 when many 1Ls were eleven or twelve).
Still, law students may not yet have thought about how their online lives might affect their professional opportunities. And immprofs themselves might be regretting their own forays into online social networks.
Students and immprofs alike might, accordingly, appreciate some direction about how to curate their online history.
Facebook recently made it extremely easy to eliminate old posts by date or even associated people. This Washington Post article has a good write-up of the new tools. As for Twitter, TweetDelete is an app that makes it easy to delete tweets by date or specific text. Finally, Instagram posts can also be deleted or archived.
Think of it as online Spring cleaning, in early summer!
Wednesday, April 29, 2020
Recent legislative proposals from Rep. Matt Gaetz (PANDEMIC) and Sen. Booker (FIRST) offer another exciting opportunity for legislative analysis in the classroom.
Sen. Booker's proposal came first (pun originally unintended, but I'm thoughtfully keeping it in). It's FIRST or the Federal Immigrant Release for Safety and Security Together Act. What's he hoping to accomplish? "To require the release of most aliens detained by U.S. Immigration and Customs Enforcement during a national emergency related to a communicable disease."
As for Rep. Gaetz, he's got a different agenda. PANDEMIC stands for Protect American Nationals During Emergencies by Mitigating the Immigration Crisis Act. His goal? He wants to remove all noncitizens in detention during a "national emergency related to a communicable disease," except for any "alien against whom charges for a crime of violence are pending."
The two proposals work nicely read together. You could assign them both to get students used to reading proposed legislation. You could assign just one (say PANDEMIC which is only 3 pages compared to FIRST's 14) and utilize it to discuss policy or to review law (what would it mean to allow removal of all noncitizens during a pandemic "Notwithstanding any other provision of law"?). Lots of exciting possibilities here.
Thursday, April 9, 2020
With President Donald Trump, you've got your pick of excellent clips for use in your Critical Race Theory class. Let me suggest one more (0:07-0:16):
Reporter: Seattle police have reported a surge in calls about domestic violence. A number of groups have raised concerns...
President: About Mexican violence?
Reporter: Domestic violence.
Sunday, March 29, 2020
I've only got 4 online classes under my belt, but I thought I'd share some preliminary thoughts.
Pre-releasing Hypos. I've made one significant change to my teaching approach: I am pre-releasing all hypotheticals that I plan to go over in class. So, this past Friday, I released all the hypos that I plan to use this coming Thursday and Friday. The idea is to allow students time to prepare responses ahead of time and therefore be ready to pipe up with their answers when we meet virtually.
I realize that some teachers have been doing this for a long time. I haven't because I've often been tinkering with new hypos up until the moment before class. And when we do practice multiple choice questions, for example, I think there's value to doing them in class under timed conditions.
That said, I'm really happy with this change and I will likely implement it going forward even when I return to in-person class-time.
The Zoom Waiting Room. I also have a further caution about the "waiting room" feature on Zoom. A few days ago, I noted that I'd inadvertently left the entire class in there. That's something I could learn to deal with. What I can't deal with is that every time a student loses their internet connection (which happens a lot), when they try to rejoin I have to notice that they're in the waiting room and let them out. That's one more distraction that I don't need while teaching.
The Zoom Chat. For my upper-level class, Crimmigration, the chat feature on Zoom has been fabulous. On Friday, we did a virtual tour of a detention facility and a virtual tour of a port of entry. They were filled with fabulous questions. And jokes (that were super on point). Somehow, even with just texts, the chat function created a real sense of community.
For a few semesters, I tried to get students to utilize a twitter hashtag during class (something like #KJS20Crimmigration). It was a tip I picked up at a SALT conference that sounded so promising, but it never worked with me. I couldn't get students to use it. I imagine that if the Twitter thing had worked it might feel like the successful chat function.
Here's wishing all my fellow immprofs great success in this new online world. We can do it!