Friday, January 19, 2018
How One Clinic Client Confirmed That Immigration Law Is For Me - Guest Post by Law Student Jasmine Pope
Guest post by Jasmine Pope, 3L at University of Baltimore School of Law
This past semester, I embarked on an incredible journey as part of the Immigrant Rights Clinic (IRC) at the University of Baltimore School of Law. I set out to learn more about an area of law that interests me, to become a zealous advocate for my client, and to learn how to grow, not only as an individual, but also as a future lawyer.
When I was first assigned Bessy’s case, I was nervous, yet determined. I was excited that I was given the opportunity to try her asylum case. While I already had some prior experience working on immigration cases, I had never worked on an asylum case before. I wanted the opportunity to not only broaden my exposure to immigration issues, but to challenge myself as well.
From the beginning, I was anxious to meet Bessy. I was nervous about whether she would like me and whether she would deem me competent and capable to represent her. Yet, at the same time, I was determined to do my best by this client -a woman I had yet to meet, whose story I had yet to fully understand. Bessy was the woman who would send me on the journey of my life.
From the moment I first read Bessy’s story, I was determined to bring her justice. Bessy, a transgender woman from El Salvador, had endured decades of abuse, simply because of the person she knew she was. From an incredibly young age, Bessy had known that she was a woman. The only thing Bessy had done was be herself.
Once I met Bessy, all of my nervousness and anxiety faded away. She was kind, sweet, and composed. She seemed to immediately trust me, and knowing that I had her trust, allowed me to open myself up more to our representative-client relationship. Once I heard her story, rather than reading it on a piece of paper, one thing became incredibly clear to me - Bessy was resilience personified. I have never met a person, man or woman, who has experienced all that she has experienced and yet somehow managed to wake up every day and live her life. In the face of adversity, hate, discrimination, homophobia, and transphobia, Bessy remained strong and pushed forward.
If I could envision the perfect asylum client, Bessy would be it. She was fully invested in her case, how the court process works, and all the possible outcomes. She believed in me every step of the way. Moreover, she was beyond deserving of asylum. She had suffered more than what any one person should ever had to endure, the system simply had to work in her favor.
And yet, this semester was not always a smooth ride. As I began to research Bessy’s asylum claim and familiarized myself more with her story and the law, I was terrified of what could happen. The more confident I became in my knowledge of Bessy and asylum law, the more terrified I became that no matter how hard I worked and how deserving I believed my client to be, the system could work against us. I struggled with the idea that I could give my all, put everything I had into trying to win her case, and somehow come up short in Immigration Court. This thought was frightening to me. However, I am forever grateful for my amazing clinic partners, class mates, supervisors, family and friends. At no point during my clinic experience did I ever feel like I was completely on my own to work through my emotions or to work through a legal issue.
One of the most amazing things about the Immigrant Rights Clinic is the ability to reach out to anyone in the clinic and know that they will not only understand my frustrations and doubts, but also be able to comfort me, offer me advice, and help me work through things. Emotionally, I would not have survived this semester without the understanding and support of my classmates and supervisors.
Then, on November 6, 2017, months of hard work came into fruition. The stars in the sky aligned and the universe sent good vibes Bessy’s way. Bessy was granted asylum!
WE WON! There have been very few times in my life where I have been at a loss of words, and that day was one of those times. My emotions ranged from shock, excitement, pride, relief, and gratefulness. But looking at Bessy once she realized the gravity of the judge’s decision truly humbled me.
That moment, of watching the nervousness leave my client’s body, and of seeing a grateful and content smile adorn her face, are images forever engrained in my mind. Nothing could ever come close to that feeling. Nothing. It made me realize that being a zealous advocate for your client should not be for one’s own self, but for the benefit of your client. Ultimately, they are the most important piece of the equation. It is their life, their emotions, their wants, that matter most.
Perhaps the most important thing that this clinic has taught me is how to always keep my client’s best interest in mind. The concept of client-centered lawyering is one I wish to take with me moving forward. Additionally, I am still of the belief that the law, while at times can be the almost impossible burden for our clients to overcome, can work for us if we let it. As lawyers, it is our job to work with the law, and if we find that the law does not work or is a hindrance to justice, we must work to change it.
President Trump's comments about immigration, including his statement about immigration from "s------- countries," make it clear that he thinks about immigration in racial terms. For analysis, see this opinion piece in the Los Angeles and San Francisco Daily Journal. Download Discriminatory immigration policy past and present
The Roberts Court (April 2017 – present). Front row (left to right): Ruth Bader Ginsburg, Anthony Kennedy, John Roberts (Chief Justice), Clarence Thomas, and Stephen Breyer. Back row (left to right): Elena Kagan, Samuel A. Alito, Sonia Sotomayor, and Neil Gorsuch.
Amy Howe on SCOTUSBlog reports that the Trump administration is seeking the immediate review of the district court's injunction barring the rescission of the Deferred Action for Childhood Arrivals (DACA) program. Yesterday, the government filed a petition for certiorari before judgment. It urged the justices to take on the case immediately, telling them that the district court’s “unprecedented order requires the government to sanction indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens—and, indeed, to confer on them affirmative benefits (including work authorization) pursuant to the DACA policy.” Unless the court steps in, the government continued, the district court’s order could remain in effect for months while it appeals to the 9th Circuit; if the 9th Circuit were to leave the order in place, the government emphasized, “it could continue for more than a year given the Court’s calendar.”
The "government also told the justices that the district court’s ruling is simply wrong." Howe summarizes the arguments, namely that the decision to end DACA "falls within the agency’s discretion and is thus not reviewable by courts." "Somewhat surprisingly, the government did not ask the justices to put the district court’s ruling on hold while its appeals play out."
Howe explains that direct and immediate review of a district court in the Supreme Court (and bypassing the court of appeals) is incredibly rare:
"As the attorney general acknowledged, it is indeed rare for a losing party to ask the Supreme Court to weigh in before the court of appeals has had a chance to rule. The Supreme Court’s rules indicate that certiorari before judgment `will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.' As Kevin Russell has observed, the court has granted review before judgment `in only a handful of cases over the last seventy-five years.' Most of those cases, Russell wrote, fall into one of at least three categories: The justices granted review to allow the court to hear a case at the same time as another one that it had already agreed to review through normal channels; the federal government petitioned for review; or the cases involved `international relations and presidential authority, particularly in the context of the president’s war powers.' The DACA case obviously meets the second criterion; we’ll know soon whether the justices will agree that the case is so important that it warrants immediate review." (emphasis added).
Thursday, January 18, 2018
As Fox News reports, the Executive Office for Immigration Review (EOIR) issued new measures and performance metrics yesterday that will prioritize certain immigration cases in an effort to reduce the backlog of cases in the immigration courts.
On December 6, 2017, Attorney General Jeff Sessions issued a memorandum to all EOIR employees outlining several principles to follow to ensure that the adjudication of immigration court cases serves the national interest. It also provided that the Director of EOIR may issue further guidance to ensure the achievement of those principles. In response, a memo listing guidelines was sent yesterday by John McHenry, the director of the Justice Department’s Executive Office for Immigration Review, to the Office of Chief Immigration Judge, all immigration judges, all court administrators and all immigration court staff. Here is the memo: Download Case Priorities and Immigration Court Performance Measures.01.17.18
It has never been more exciting to teach family-based migration. No longer do students' eyes glaze over as they struggle to read the visa bulletin. No, they are riveted. And we have President Trump to thank.
President Trump is avidly against family-based migration, which he calls "chain migration."
The president sees immigration based on family relationships as pushing out merit-based migrants, which he favors. Trump has also indicated that family-based migration might be problematic from a national security standpoint. Check out this press briefing following Sayfullo Saipov's October 2017 attack in NYC. Watch particularly from 1:48-2:20. (Hat tip to my student Kat Sand who pointed me to this press briefing; I hadn't picked up on the chain migration implications at the time.)
There's so much to unpack in those 30 seconds of tape! For those who don't recall, Saipov came to the U.S. on a diversity visa. He was unmarried and childless, meaning he had no spouse or children "accompanying or following to join" pursuant to INA 203(d). At the time of the attack, Saipov was an LPR, not a U.S. citizen. Therefore, Saipov was ineligible to sponsor the migration of any family members apart from his spouse and unmarried sons and daughters. INA 203(a)(2). But Saipov married and had kids in the U.S. so he didn't in fact sponsor any family members. Yet in the above speech, Trump states that Saipov was the "primary point of contact" for "23 people that came in or potentially came in with him." And it's this sort of "chain migration" that Trump calls "not acceptable." (For the record, both the NYT and WaPo called Trump out for his inaccurate statements regarding Saipov's family-based sponsorships.)
You can couple the above clip with Problems 3 & 4 in the Legomsky/Rodriguez casebook (pages 276-277 in the 6th ed.). They're great problems that force students to read and use the visa bulletin, understanding just how long it takes to bring in family members from overseas. Also, done back-to-back, they illustrate the issues of aging out discussed in the Scialabba v. Cuellar de Osorio case.
For fleshing out policy discussions on chain migration, consider pairing this White House blog on chain migration with this Vox piece on the same topic, which we highlighted previously. There's also this story about one of the most successful U.S. chain migrants.
In addition to all these goodies, check out my post from last year about teaching family-based migration. Happy teaching!
P.S. Immprof Alan Hyde points out that #resistancegeneology (covered in this article) is another genius way to talk about chain migration.
This morning the National Immigration Forum Action Fund launched a digital ad campaign, “America is Better with Dreamers,” urging members of Congress to pass legislation protecting Dreamers. The ads feature Dreamers alongside pastors, police chiefs and others speaking candidly about how a DACA solution is crucial to communities across America. Today’s launch includes Arizona, South Carolina, and Washington with Illinois, Iowa, North Carolina and Texas slated to follow.
There are more than 247,000 doctors with medical degrees from foreign countries practicing in the United States, making up slightly more than one-quarter of all doctors. Although the data used in this report does not contain information on country of birth or citizenship, evidence from other sources indicates that most foreign-trained doctors are not U.S. citizens—meaning that the majority are foreign-born. These doctors play a key role in providing healthcare for millions of Americans.
This American Immigration Council report builds upon other studies that have looked at the critical role foreign-trained doctors play regionally, in underserved communities, in rural areas, and in providing primary health care. It finds that foreign-trained physicians are more likely than U.S.-trained doctors to practice in lower-income and disadvantaged communities and, as a result, their presence is critically important.
More precisely, this report examines foreign-trained doctors in Primary Care Service Areas (PCSAs) and analyzes the socio-demographic characteristics of the populations they serve (see Methodology). For instance, it finds that:
-- In areas with the highest poverty rates—where more than 30 percent of the population lives below the federal poverty rate—nearly one-third of all doctors are foreign-trained.
-- Where per-capita income is below $15,000 per year, 42.5 percent of all doctors are foreign-trained.
-- Where 75 percent or more of the population is non-white, 36.2 percent of the doctors are foreign-trained.
-- Where 10 percent or less of the population has a college degree, nearly one-third of all doctors are foreign-trained.
Wednesday, January 17, 2018
From the Bookshelves: The Displaced: Refugee Writers on Refugee Lives by Viet Thanh Nguyen (Editor) (released (April 2018)
Immigrants have been fleeing the United States for Canada, hoping for a less stringent immigration system that will allow them to establish a permanent home in the land of our neighbor to the North. It's an issue we've covered before (here, here, here, here, here, here).
As the NYT reports, "Canadian officials are warning that even liberal Canada has its limits amid concerns, fairly or not, that illegal migration is stretching the immigration system to a breaking point[.]"
Ahmed Hussan, Canada's minister of immigration, notes that only 8% of claims for asylum from Haitian migrants have been granted. That's not a strong shot.
Canada is taking steps to let would-be migrants know that the odds are not in their favor. Worried about Salvadorans fleeing north after the loss of TPS, Canada sent one member of parliament, Pablo Rodriguez, to L.A. to meet with "members of the Hispanic community there to explain the limits of Canadian asylum policy."
It's a strategy Canada has employed before. This summer, another Canadian member of parliament, Emmanuel Dubourg, traveled to Miami to inform members of the Haitian communities there that gaining asylum in Canada would be difficult.
But there is a very large backlog of cases (over 40,000) in Canada. And just waiting for one's asylum case to be heard will inevitably buy migrants some time in Canada. Maybe even years.
Immigration Article of the Day: MS-13 as a Terrorist Organization: Risks for Central American Asylum Seekers by Jillian Blake
In its first year, the Trump Administration has used aggressive rhetoric in a crusade against the transnational gang MS‑13. In April, Attorney General Jeff Sessions called MS‑13 “one of the most violent gangs in the history of our country” and said that the gang “could qualify” as a terrorist organization. Since then, the administration has put its fight against MS‑13 at the front and center of its agenda. In a speech this summer, President Donald Trump called MS‑13 gang members “animals” and vowed to “dismantle, decimate and eradicate” their operations. The president has also used the threat posed by MS‑13 to justify his increased use of immigration enforcement generally.
While the rhetoric coming from the administration against MS‑13 is tough, the president has yet to develop a comprehensive plan to combat the gang. Law enforcement officials argue that Trump’s harsh deportation policies will make the fight against MS‑13 more difficult by impairing their ability to gather intelligence on the gang within immigrant communities. Furthermore, hardline approaches against the gang by Central American governments like El Salvador, to which the administration plans to cut aid, have failed in the past because of the region’s weak security and judicial institutions. In fact, experts warn that the combination of mass deportation and weak institutions in Central America could create the perfect storm for MS‑13 to grow and boomerang back into the United States.
Officially designating MS‑13 as a terrorist organization could be harmful. Draconian provisions within U.S. asylum law bar those who have given support to terrorist organizations from entering the country, even if they gave the support under duress. These provisions mean labeling MS‑13 as a terrorist organization could prevent many of the gang’s victims from seeking asylum in the United States. Reforms are necessary to prevent barring victims of persecution from seeking asylum. While the power and brutality of MS‑13 must be recognized and effectively combated, MS‑13 should not be designated as a terrorist organization because of the damaging effect it would have on the ability of Central American asylum seekers to gain protection in the United States.
Tuesday, January 16, 2018
Breaking News: Trump Administration to skip the Ninth Circuit and go straight to Supreme Court in DACA Rescission Case
Over 65 million people around the world have been forced from their homes to escape famine, climate change and war in the greatest human displacement since World War II. Human Flow, an epic film journey led by the internationally renowned artist Ai Weiwei, gives a powerful visual expression to this massive human migration. The documentary elucidates both the staggering scale of the refugee crisis and its profoundly personal human impact.
Captured over the course of an eventful year in 23 countries, the film follows a chain of urgent human stories that stretches across the globe in countries including Afghanistan, Bangladesh, France, Greece, Germany, Iraq, Israel, Italy, Kenya, Mexico, and Turkey. Human Flow is a witness to its subjects and their desperate search for safety, shelter and justice: from teeming refugee camps to perilous ocean crossings to barbed-wire borders; from dislocation and disillusionment to courage, endurance and adaptation; from the haunting lure of lives left behind to the unknown potential of the future. Human Flow comes at a crucial time when tolerance, compassion and trust are needed more than ever. This visceral work of cinema is a testament to the unassailable human spirit and poses one of the questions that will define this century: Will our global society emerge from fear, isolation, and self-interest and choose a path of openness, freedom, and respect for humanity?
Amazon Studios and Participant Media present, in association with AC Films, Human Flow, a film directed by Ai Weiwei. Human Flow is produced by Ai Weiwei, Chin-Chin Yap and Heino Deckert and executive produced by Andrew Cohen of AC Films with Jeff Skoll and Diane Weyermann of Participant Media.
A trio of Washington Post reporters have an interesting and revealing story, "based on interviews with more than a dozen White House officials, Capitol Hill aides and lawmakers," about the now-famous meeting last week at the White House, with President Trump's inflammatory remarks about immigrants from "s------ countries." It really is revealing.
President Trump's inflammatory comments about immigration from "s------- countries" continues to provoke commentary and outrage. Admir Skodo on The Conversation writes that the President, in urging admission of fewer immigrants from “s-------” – such as Haiti and poorer African nations – and more from the likes of Norway, labors under the misconception that the Scandinavian countries are ethnically and economically homogeneous.
Among Scandinavian countries, Denmark has the most restrictive immigration policy and Sweden the most open one, with Norway falling somewhere in between. These differences are reflected in the number of foreign-born. In Sweden, 15% of residents are foreign-born; in Norway it’s 11%, and in Denmark 8%.
Skodo looks at the countries of origin for the immigrants to those nations and concludes that "the Scandinavian countries are rather more open to what Trump would call `s------- countries” than the US president might think."
According to a post on Latino Rebels, Facebook last week removed immigration attorney Bryan Johnson’s social media post detailing an attempt by U.S. Immigration and Customs Enforcement to intimidate his law firm. On December 26, 2017, ICE agents hand-delivered a letter to the law firm of Amoachi & Johnson, implying that it may be obstructing its law enforcement activities. Johnson is nationally known for his representation of unaccompanied minors in removal (deportation) proceedings. He has also written pieces for Latino Rebels. Johnson had shared images of officers belonging to the ICE HSI gang unit in New York on his firm website, stating in Spanish, “If you see any of the people below who are with the ICE HSI gang unit, avoid them. If you’re outside, stay away. If you are at home, do not open the door.”
Monday, January 15, 2018
This poster by artist Watson Mere is called "My Brother's Keeper." Highlighted by twitter in August 2017, it's picking up internet traffic again today as folks look for ways to express how they feel on this Martin Luther King, Jr. Day.
In this article, Walter Ewing considers the relationship between fighting crime and the view of immigrants -- and particularly immigrants of color -- are criminals who deserve removal from the United States. President Trump is far from the first President to use crime-based removals to remove hundreds of thousands of immigrants of color. As Ewing explains:
"Even under the relatively liberal Obama administration, deportations of undocumented immigrants and legal immigrants with minor criminal records took place at a feverish pace. While then-President Obama wanted a comprehensive legislative revamping of the U.S. immigration system, he was unable to get a bill through Congress and reportedly felt obligated to enforce the letter of the existing draconian laws in the meantime.
It is against this backdrop—the rise of mass incarceration, the targeting of both African Americans and predominantly Latino immigrants, and the imposition of an unequal system of justice on the foreign-born—that the Trump administration came to power. And while Trump’s brand of nativism may be extreme, it nevertheless has a long pedigree in U.S. history."
If you have doubts about the racialized nature of immigration enforcement, check out the "ICE Most Wanted" on the ice.gov website.
Summary of the Ruling in Regents of the University of California v. U.S. Department of Homeland Security
In this decision, the court considered the government’s three arguments asserting that the court lacks subject matter jurisdiction: 1) that the rescission of DACA was a discretionary act barred from judicial review under the Administrative Procedure Act (APA), 2) that the INA bars judicial review, and 3) that only individual plaintiffs, rather than states or public entities, have standing for claims challenging the rescission. Additionally, the court granted partial provisional relief for the plaintiffs.
The court begins by giving a brief overview and history of deferred action programs. The court summarized the circumstances surrounding the DACA rescission, explaining that the government’s stated reason for rescinding the program was the illegality in the establishment of the program, allegedly similar to the problems found by the Supreme Court with regard to the DAPA program in Texas v. United States. Additionally, the government claims that rescinding DACA would provide an orderly wind-down of the program while avoiding an inevitable injunction from the Fifth Circuit as a result of the DAPA decision. After describing Plaintiffs’ action against the government for the rescission of the program, the court turned to the government’s arguments.
Government’s FRCP 12(b)(1) Dismissals Partially Denied
First, the court explained that Section 701(a)(2) of the APA provides that district courts lack subject matter jurisdiction to review agency action that is “committed to agency discretion by law.” Contrasting the instant case with Heckler v. Chaney, the court determined that ending DACA, a five-year-old program affecting 689,800 individuals nationwide, is distinct from an agency’s discretion to refuse to enforce certain policies; the decision to terminate a program is distinct from an agency’s decision not to regulate. The court concludes that there is law to apply to determine the legality of the program, and that determination is a quintessential role of the courts. Thus, the government’s first argument fails.
For its second argument, the government points to 8 U.S.C. § 1252(g) which limits courts’ “jurisdiction to hear any cause or claim by or on behalf of any alien,” arising from the discretion of the Attorney General. The court rejects this argument, however, determining that judicial review in this case does not inappropriately delay removal of any individual, as the action concerns no individual removal, but rather the across-the-board cancellation of a nationwide program. Thus, § 1252(g) is inapplicable in this case.
The court rejects the government’s third argument, that all non-individual Plaintiffs lack standing, explaining that most of the city and state Plaintiffs have expended resources hiring DACA recipients, and, should those recipients be deported, would be subjected to more expenses in the replacement of those employees. The court points to the University of California’s loss of proprietary interests as a significant harm. Further, the state Plaintiff’s loss of students and teachers at their public universities are sufficient harms. Finally, the court concludes that the SEIU Local 521 has standing because it has members who are DACA recipients, and its stated goals are to protect workers’ interests, regardless of immigration status. The court notes, however, that loss of significant tax revenue and negative impacts on public health programs are so marginally related to the DACA rescission that the states asserting only these claims – Maine and Minnesota – were dismissed.
Plaintiff’s Provisional Relief Partially Granted
Lastly, the court turned to Plaintiff’s request for provisional relief. To support a preliminary injunction, Plaintiffs must establish 1) the likelihood of success on the merits; 2) irreparable harm in the absence of preliminary relief; 3) that the balance of equities tips in Plaintiffs’ favor; and 4) that the relief is in the public interest.
Stating that the Plaintiffs were likely to succeed in arguing that the DACA rescission was based on legal error, the court explains that the reasoning behind the rescission – that it was unlawfully passed – was incorrect. Instead, the court explains, the DACA program was rooted in authority provided by Congress and the Supreme Court, and in establishing the program, the agency acted within its scope of authority. Further, DACA and DAPA are sufficiently distinct that the results from the DAPA litigation are not determinative for the instant case.
The court concludes that the government’s alternate rationale for ending DACA – to avoid a Fifth Circuit injunction – was a post hoc rationalization. The court notes that the government has blindly accepted that DAPA and DACA present the same legal concerns, without providing an analysis on how the programs are distinct. The government offers no discussion on whether the program was worth fighting for, if it was susceptible to litigation, and has provided no analysis regarding the DACA recipients’ reliant interests on the program after five years of implementation. The lack of any sufficient reasoning for ending DACA supports the assertion that the decision was arbitrary, capricious, and an abuse of discretion.
Without this injunction, Plaintiffs would undoubtedly suffer irreparable harm, as discussed in the standing section. The court further found that public interest will be served by DACA’s continuation, pointing to President Trump’s support of the program as evidence. Based on these factors, the court ordered the DACA program to be maintained on a nationwide basis, with a few exceptions: that new applicants need not be processed, that the advanced parole feature need not be continued, and that defendants may take necessary steps to ensure discretion is exercised on an individual basis for each renewal application.