IMMIGRATION 2020: a legal and historical overview

YOUNG LAWYERS DIVISION OF THE VBA IMMIGRATION PANEL

01.16. 20 MONTREAL, CANADA

Erin Jacobsen, Esq., Vermont Immigrant Assistance at Vermont Law School

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THE LEGAL CONTEXT

IMMIGRATION LAW OVERVIEW

Definitions, terminology, processes

IMMIGRATION UNDER TRUMP

HOW and WHY

(and what can we do about it?)

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A note about offensive terminology

On describing people as "Aliens" or "Illegals"

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Better options=Non-citizenForeign NationalMaybe ‘Unauthorized migrant’ or ‘Person without status’ or Undocumented

Or -- be specific: e.g., asylum seeker, permanent resident, migrant worker

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Department of Justice (DOJ)

Department of Homeland Security

(DHS)

Executive Office for Immigration Review (EOIR)

Board of Immigration Appeals (BIA)

Office of the Chief Immigration Judge

(Immigration Courts)

USCIS

ICECBP

IMMIGRATION AGENCIES5

Department of State(DOS)

Consular Affairs

CATEGORIES OF NON-CITIZENS

NON-IMMIGRANTS

Visitors/tourists

Temporary Workers

Students

Others whose authorized stay is limited.

o Approx. 101 travelers admitted from CA and MX in 2018;

o Approx. 78 million admissions from all other countries

Undocumented/out of status(approx. 11 mil. per year)

IMMIGRANTS

Legal Permanent Residents

o Family-based = 750-800k per year

o EB- 1-5 = 140k per year

o Diversity = 50k per year

Refugees and Asylees

o 85,000 refugees in 2016

o 22,500 refugees in 2018

o 20,500 asylees in 2016

o 38,600 asylees in 2018

*All data from mpi (Migration Policy Institute) and DHS

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IMMIGRATION PROCESS:The path to citizenship

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Entry into United States ----> Lawful Permanent Resident ----> Naturalization

-- Unlawful entry or Humanitarian Application or -- Apply for citizenshipTemporary Status (NIV) Family or Employer sponsor after 5 (or 3*) years

LPR status

-- Immigrant Visa -------------------- -- enter with LPR status -- Apply for citizenship

(family, employer, diversity visa) after 5 or 3* years_______________________________* 3 years if LPR thru marriage to USC

And NB: child LPRs can derive citizenship if under 18 when parents naturalize

• People fleeing persecution: ASYLUM

• Victims of Domestic Violence: VAWA

• Victims of Trafficking and other Crimes: T, U visas

• Abused/Abandoned/Neglected children: SIJS

• Deferred Action for Childhood Arrivals (DACA)

• Temporary Protected Status (TPS)

Humanitarian immigration cases

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TRUMP’S AMERICA

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• Travel Bans I, II, III• EOs on ramping up interior enforcement and border

enforcement (rescinding Obama’s prosecution priorities)• “Zero tolerance” policy

Detaining asylum seekersFamily separationFighting Flores settlement (BABY JAILS)

• THE WALL • Sanctuary City crackdown and issuing reports about

declined detainers• Reducing refugee admission numbers to record lows• Cancelling the CAM program• Rescinding DAPA and DACA• Cancelling TPS for nationals of Haiti, Honduras, Nicaragua, Sudan• De-naturalization taskforce• Citizenship question on census

TRUMP ADMINISTRATION'S ACTIONS, POLICIES, AND PROMISES(as of 1.16.2020)

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• Changing USCIS mission and adjudication policies• Increasing categories of who can be deemed a “public charge”• Quotas on immigration judges, stripping judicial discretion • Greatly limiting viability of D/V and gang-based asylum cases• Sending military to border, use of tear gas• Order blocking asylum for those who cross southern

border without inspection• Temporary closing of border, metering of arrivals at POEs• Migrant “Protection” Protocols• CBP agents as asylum officers• Safe third country agreements with Mexico and Guatemala• Deporting Mexican asylum seekers to Guatemala to apply for

asylum there• Rolling back Special Immigrant Juvenile protection for kids• Paper wall

TRUMP ADMINISTRATION'S ACTIONS, POLICIES, AND PROMISES(as of 1.16.2020)

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HOW CAN THIS BE?

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Immigration Law 1889: The Plenary Power Doctrine

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Immigration Law 1889: The Plenary Power Doctrine

Chae Chan Ping, aka “The Chinese Exclusion Case”

• May 6, 1882: Congress passed Chinese Exclusion Act, barring

Chinese laborers for ten years.

• The act required a reentry permit; Chae Chan Ping left the US to visit family in China, returned with the required permit.

• Scott Act had passed in the meantime, completely barring his re-entry.

• Not allowed to re-enter U.S., detained on ship. Habeas petition went to the Supreme Court.

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Chae Chan Ping(The Chinese Exclusion Case)

“[T]he United States, in its relation to foreign countries and [its] subjects or citizens are one nation, invested with powers which belong to independent nations . . . . To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends, nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding upon us.”

Chae Chan Ping held that the courts lack authority to review Congressional exercise of it PLENARY POWER

over immigration.

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The plenary power doctrine & the Constitution

ConLaw 101: the Constitution created a federal government of enumerated powers.

But nothing in the constitution expressly enumerates to the federal government the power to regulate immigration. So where do these powers come from?

ENUMERATED POWERS afforded to Congress:Naturalization powerCommerce PowerMigration and importation powerWar powersInvasion Clause?

IMPLIED POWERS of Executive branch:Powers over foreign affairs(Principles of sovereignty)

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What about constitutional protections for immigrants?

• Extremely limited rights at the border“An alien seeking initial admission has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.”

-- Landon v Plasencia, 459 US 21 (1982)

• ONCE ON U.S. SOIL:o Many of the same rights inhere to non-citizens as citizens, but in varying degrees.

o And courts will be loath to question constitutionality of immigration laws and consider it improper to read in or impose protections not already in statute.

o (Plus, don’t forget, immigration proceedings are not criminal proceedings, so constitutional protects such as the 4th, 5th, 6th, 8th, don’t always apply or with the same force)

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DUE PROCESS for immigrants

PROCEDURAL DUE PROCESS:

• Courts have recognized the weighty and important interests at stake in removal proceedings.

• Over time, courts have expanded due process rights for n-c’s• Often the analysis about whether a non-citizens should be afforded due process

involves consideration of strength and length of ties to the U.S.

SUBSTANTIVE DUE PROCESS:

• Limited protections for “aliens”• Flores v Reno – court rejected SDP claim of minors to be released from detention to

custody of people not their parents or legal guardians.• Zadvydas v Davis – court held that regular review for release from detention was

required, though not in statute

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HOW to HELP

• Volunteer at the southern border

• Volunteer remotely

• Volunteer in VT

• Especially need family law attorneys for SIJ

• Language interpretation

• Get private prison stocks out of your portfolios

• Write public comments

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MY CONTACT INFORMATION

Erin Jacobsen

Senior Staff Attorney & Professor of Law, Vermont Immigrant Assistance clinic @VLS

(802) 831-1500

ejacobsen@vermontlaw.edu

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