December 20, 2019

Futures for Delta Smelt

[Cross-posted from California WaterBlog]

By Karrigan Bork

Co-authored with Peter Moyle, John Durand, Tien-Chieh Hung and Andrew Rypel

A recent biological opinion (BiOp) released by the U.S. Fish and Wildlife Service (FWS) concluded that a proposed  re-operation of California’s largest water projects will avoid driving the federally threatened Delta smelt to extinction. The plan proposes increasing water exports from the Central Valley Project and State Water Project, which will reduce water available for ecosystems and local uses. Both projects move water through pumps in the California Delta, a productive but sensitive ecosystem and home to the Delta smelt.

Under the federal Endangered Species Act (ESA), the FWS reviews federal agency actions to ensure that they will not drive listed species into extinction. In 2009, FWS reviewed the operation of the state and federal pumps that export water from the Delta and concluded in a BiOp that operation of the massive pumps jeopardizes the smelt’s continued existence. FWS required reduced pumping and other measures to protect the smelt, and those measure are currently in effect.

In 2019, the FWS again reviewed this new plan for the pump operations and concluded that many of the 2009 protections were actually not necessary and that the pumps could export significantly more water without jeopardizing the smelt. It draws this conclusion in two ways. First, the opinion notes that “recent abundance trends strongly suggest [the smelt] is in the midst of demographic collapse” and will likely go extinct without intervention. Based on this existing trajectory, the opinion concludes it won’t be the project’s fault when smelt disappear. Second, the opinion implies that, because agencies will spend $1.5 billion on habitat restoration, a production hatchery for smelt, and other measures, the net effect for the smelt will be positive. Based on these considerations, FWS concluded that the new operation plan would not drive the smelt to extinction, although it acknowledges extinction might happen anyway.

But the BiOp considers a very narrow question. The BiOp does not consider whether the plan is likely to improve the smelt’s status, and this BiOp in particular constrains its analysis so it does not meaningfully consider what is likely to happen to the Delta smelt under the new plans.

So, moving away from the narrow BiOp and considering the smelt in a broader context, what is going to happen to smelt in the wild? Is extinction likely?  This essay explores some issues affecting Delta smelt and suggests possible futures. This blog is a short version of a longer white paper (with references) available at: https://watershed.ucdavis.edu/shed/lund/papers/FuturesForDeltaSmeltDecember2019.pdf.

The basic problem

The estuary where Delta smelt evolved no longer exists, and smelt are poorly adapted for the new conditions. Much of the water that once flowed through the estuary is stored or diverted upstream or exported by the south Delta pumps (Hobbs et al. 2017; Moyle et al. 2016, 2018). The smelt’s historical marsh habitats are now artificial channels and levees protecting agricultural islands. These hydrologic and physical changes make the Delta prone to invasion by non-native organisms, some of which disrupt food webs and confound restoration. Lower flows allow salts, toxic chemicals, and nutrients to accumulate. Harmful algae blooms occur regularly. As climate change further disrupts flows and increases temperatures, little historical habitat is left for sensitive species like smelt.

A tipping point

Smelt populations have probably been in gradual decline since at least the 1950s (Figure 1), but their population has collapsed since the 1980s, tracking the increase in water exports (Figure 2). This correlation is compelling, but other major system changes took place in the same period.  In the late 1980s, an invasive clam spread through the Delta, removing much of the smelt’s planktonic food supply. Concurrently, invasive weeds spread across the Delta, transforming former Delta smelt habitats into clear, food limited, lake-like environments. From 1969-89, the Delta tipped away from good smelt habitat to a novel ecosystem unfavorable to smelt.  This shift is practically irreversible, and the shift put the Delta smelt on a trajectory toward extinction as a wild fish. It is currently largely absent from surveys that once tracked its abundance.

Figure 1. Indices of Delta Smelt abundance in the Delta’s two longest-running fish sampling programs, the Summer Townet Survey (for juvenile smelt) and the Fall Midwater Trawl Survey (mostly pre-spawning subadults). Figure by Dylan Stompe.

 

Figure 2. Annual water export (left axis) from the south Delta by the State Water Project (red) and federal Central Valley Project (blue) in million acre-feet. Gray bars show droughts, when pumping was reduced primarily because of low inflows. Annual inflows of water to the Delta in million acre-feet (right axis) are open circles. Data: www.water.ca.gov/dayflow. Figure: Moyle et al. 2018 https://afspubs.onlinelibrary.wiley.com/doi/full/10.1002/fsh.10014

Is habitat restoration the answer?

The BiOp relies in part on habitat restoration under California’s EcoRestore and other programs to support flagging smelt populations. There is little guarantee that this will make much difference to smelt, although many other native species will benefit.

First, the area under restoration is insufficient. Delta smelt originally inhabited an area about the size of Rhode Island, moving opportunistically to find appropriate conditions. Because Delta smelt are migratory and pelagic, smelt will overlap with restoration sites only occasionally. Successful habitat restoration would have to include multiple sites adjacent to water corridors, with abundant food and cool water, and in areas suitable for both spawning and rearing. Instead, the restoration approach has been more opportunistic than strategic, with restoration often focused on wetlands with willing sellers, regardless of suitability. We have little working knowledge whether we can build, connect, and manage these sites to benefit smelt.

Second, some projects rely on the idea that just creating tidal wetlands will be sufficient. It will not. Most Delta restoration sites are vulnerable to invasion by non-native species, which can subvert habitat solutions. Successful restoration sites require intensive, continuous management to meet even minimum expectations of restored habitat, and there is little incentive to actively manage “natural” restoration sites.

Third, current smelt populations are too small to be able to see an immediate (annual) response to habitat changes alone. Whatever steps are taken to protect smelt may be too little too late.

Finally, while water users hope that restoration provides an alternative to water use, this is not realistic. Successful restoration requires water flowing across the landscape. Moving water promotes the exchange of nutrients, controls introduced species, distributes food production, and creates habitat structure. Flows help restorations mimic natural environments and improves their effectiveness. Flows give managers better control of where Delta smelt end up during the spring, summer and fall. Habitat with minimal outflow is an empty promise.

If we are serious about providing the outflow required for habitat for smelt and other fishes, a substantial environmental water right is needed to provide reliable water to interact with physical habitat to produce food and shelter. Allocation of a sufficient water right is difficult to envision, given the current conflicts in the Delta, but California’s Bay Delta Plan, currently under development, generally proposes significant water for Delta fish, based on a percentage of the rivers’ natural flows. If this water were treated as a right under the control of an ecosystem manager, Delta smelt might have a chance of more than extinction avoidance—they might recover.

Hatchery Smelt

The BiOp also relies on hatchery supplementation of wild stocks to mitigate smelt impacts. The UC Davis Fish Conservation and Culture Laboratory (FCCL) has maintained a genetically managed Delta smelt population since 2008, but low wild smelt numbers complicate its operation. FWS allows FCCL to incorporate 100 wild Delta smelt into its population annually, to maintain genetic diversity, but recently the FCCL has been unable to capture 100 individuals. Without those fish, inbreeding might rapidly increase and add further uncertainty to the success of supplementation.  Other hatchery supplementation programs, such as those for salmon, have had limited success in re-establishing self-sustaining wild populations. The smelt efforts will likely follow suit (Lessard et al. 2018).

Conclusions

Based on our experience and research in the Delta, any benefits from the habitat restoration and hatchery plans in the new opinion are too uncertain to reliably offset negative impacts of increased water exports. The Delta has changed so much that suitable habitat for Delta smelt is increasingly lacking. Large-scale restoration projects that provide habitat and food for smelt will at times need increased outflows.  Desperate measures such as a production smelt hatchery and establishment of smelt in reservoirs may provide a veneer of ‘saving’ smelt for a while, but they seem unlikely to prevent extinction in the long run. In short, the smelt are likely to continue on their extinction trajectory. The following seem the most likely alternative futures for Delta smelt, in rough order of likelihood:

  1. Extinction of the wild population in 1-5 years, with a population of increasingly domesticated hatchery smelt kept for display and research purposes.
  2. Persistence of a small wild population in a few limited intensively managed habitats, until these habitats cease being livable from global warming and other changes.
  3. Global extinction after wild populations disappear and hatchery supplementation or replacement fails.
  4. Replacement of the wild population with one of hatchery origin, continuously supplemented.
  5. Persistence of wild populations as the result of supplementation and through establishment of reservoir populations.

The authors are at the University of California – Davis, Center for Watershed Sciences.

Further reading

Hobbs, J.A, P.B. Moyle, N. Fangue and R. E. Connon. 2017. Is extinction inevitable for Delta Smelt and Longfin Smelt? An opinion and recommendations for recovery.  San Francisco Estuary and Watershed Science 15 (2):  San Francisco Estuary and Watershed Science 15(2). jmie_sfews_35759. Retrieved from: http://escholarship.org/uc/item/2k06n13x

Lessard J., B. Cavallo, P. Anders, T. Sommer, B. Schreier, D. Gille, A. Schreier, A. Finger, T.-C. Hung, J. Hobbs, B. May, A. Schultz, O. Burgess and R. Clarke (2018) Considerations for the use of captive-reared delta smelt for species recovery and research, San Francisco Estuary and Watershed Science 16(3), article 3.

Moyle, P. B., L. R. Brown, J.R. Durand, and J.A. Hobbs. 2016. Delta Smelt: life history and decline of a once-abundant species in the San Francisco Estuary. San Francisco Estuary and Watershed Science14(2) http://escholarship.org/uc/item/09k9f76s

Moyle, P.B., J. A. Hobbs, and J. R. Durand. 2018.  Delta smelt and the politics of water in California. Fisheries 43:42-51.

Moyle, P.B., K. Bork, J. Durand, T-C Hung, and A. Rypel. 2019. “Futures for Delta Smelt”. Center for Watershed Sciences white paper, University of California – Davis, 15 December, https://watershed.ucdavis.edu/shed/lund/papers/FuturesForDeltaSmeltDecember2019.pdf


December 20, 2019

Making It Work: Administrative Reform of California’s Housing Framework

[Cross-posted from Legal Planet]

By Chris Elmendorf

How recent legislative changes have given the state greater power to enable prohousing policies

This blog post is coauthored by Chris Elmendorf, Eric Biber, Paavo Monkkonen, and Moira O’Neill.

As California’s housing crisis swirls through the national news, attention has focused on statewide upzoning bills. Sen. Scott Wiener’s ballyhooed effort to allow 4-5 story buildings near transit was tabled until 2020, but earlier this fall the legislature effectively terminated single-family zoning, authorizing homeowners to add two “accessory” dwellings to their property.

Less widely appreciated is that the legislature has also empowered a state oversight body, the Department of Housing and Community Development (HCD), to make local governments rezone for much more housing while removing unnecessary constraints to development. It was not one big reform that put HCD in the driver’s seat. Rather, as we show in a new working paper (issue brief, full paper), the department’s newfound position is the byproduct of a number of individually modest reforms that work together to enable administrative interventions which would have been (legally speaking) unimaginable just a few years ago.

We argue, for example, that HCD can effectively double the amount of “zoned capacity” that local governments must provide, by requiring local governments to account for development probabilities in their housing plans. The department can also enact metrics and standards for whether the supply of housing within a local government’s territory is substantially constrained. Leveraging these standards, HCD could require poorly performing local governments to commit to speedy, ministerial permitting of projects that conform to the locality’s housing plan.

To put these ideas in context, let’s turn the clock back to 1980. In that year, California enacted an ambitious statutory framework to make local governments accommodate their “fair share” of “regional housing need.” But the law on the books was not enough to overcome entrenched local resistance. The Legislative Analyst estimates that between 1980 and 2010, developers produced only about half of the housing units that would have been needed to keep California housing prices from escalating faster than the national average. Similarly, during the most recent planning cycle, California’s local governments permitted, on average, only about half of what was determined to be their share of regional housing need.

Some of the blame for these failures rests with the misbegotten process by which California determines regional “need” and then allocates production targets among local governments. And some of the blame lies with the rickety state-law conveyer belt for converting housing targets into actual production.

Our new white paper focuses on the conveyor belt. It theory, it works like this: (1) a local government, after receiving its housing target, revises the housing element of its general plan, showing that there exist developable or redevelopable parcels with “realistic” zoned capacity to accommodate the locality’s production target; (2) the draft housing element is submitted to the state housing department, HCD, for review and approval; (3) if  HCD disagrees with the housing element’s assessment of capacity, the department may require the local government to include “program actions” for rezoning and removal of other constraints; (4) the local government then enacts the housing element and implements the program actions; and finally (5) if the local government improperly denies a zoning-compliant project, the developer may sue under the state’s Housing Accountability Act (HAA) to get her project approved.

This conveyor belt was prone to all sorts of breakdowns. But in the last couple of years, the legislature has substantially reinforced it. Among other things, the legislature has amended the HAA to prevent local governments from denying or reducing the density of a proposed housing project if any reasonable person could deem the project to be consistent with the general plan (which includes the HCD-approved housing element), notwithstanding local zoning and development standards that are more restrictive. This effectively reverses the traditional norm of deference to local governments on questions about the consistency of local zoning with the general plan, and allows developers to end-run restrictive zoning if a local government fails to complete a rezoning promised in its housing element.

Yet the reinvigorated HAA won’t accomplish all that much unless housing elements are beefed up too. This is where HCD’s new authority comes into play. Historically, the department’s reach was tightly circumscribed. HCD could issue interpretive guidelines, but local governments were obligated only to consider them. HCD could find a housing element noncompliant, but if the local government then turned to the courts, the courts would likely approve it—deferring to the local government’s judgment at the expense of the department’s. HCD’s review of housing elements was also frustrated by a lack of systematic, reliable information about local permitting practices, zoned capacity, and more.

All of this is changing. The legislature has authorized HCD to issue “standards, forms and definitions” concerning the analytic side of the housing element, including the assessment of developable sites’ capacity, while tightening the standards for what qualifies as a developable site. The department’s new standard-setting charge extends to local governments’ obligation to report annually to HCD on housing development applications, approvals, and processes. The legislature has also authorized HCD to decertify housing elements midcycle for failures of implementation, and backstopped decertification with fiscal penalties and more. This allows for both more immediate response by HCD to recalcitrant local governments (rather than having to wait through the eight-year cycle until it’s time for a new housing element), and for more effective penalties (in the past, the stiffest penalty available against noncompliant local governments was a court order shutting down all development in the jurisdiction, a penalty that might not have stung for growth-averse cities). Finally, we argue that the legislature has tacitly ratified HCD’s preferred, functional gloss on whether a housing element complies with state law, abrogating the traditional judicial standard, which was highly deferential to local governments.

The import of any one of these reforms, considered in isolation from the rest, would be modest. But they work together to fundamentally transform the position of HCD. Ambiguities in the new substantive requirements of housing element law provide occasion for HCD to exercise its “standards, forms, and definitions” authority. HCD’s expanded authority over local governments’ reporting will allow the department to obtain information it needs to make good decertification decisions, and also to shape the analytical side of the housing element. The legislative ratification of HCD’s gloss on what is required for a housing element to comply with state law should result in judicial deference to HCD’s findings of noncompliance. And judicial deference to the department’s decertification decisions, coupled with newly serious penalties for remaining out of compliance, should make local governments much more willing to accede to the department’s demands.

This is not to say that all is well with California’s planning-for-housing framework. There’s certainly important work that the legislature still needs to do. But it’s equally important to ask whether HCD will have the necessary resources and leadership to take advantage of its new authority. The director’s position has been vacant since late summer, and it’s up to governor to choose the department’s next leader. When he was running for office, Governor Newsom boldly announced that he would more than triple California’s rate of housing production. The ball is in his court.

December 16, 2019

Top 10 Immigration Stories of 2019

[Cross-posted from ImmigrationProf Blog]

By Kevin Johnson

2019 had many big immigration stories.  The big news at the ImmigrationProf blog was the addition of a new superstar blogger.  Welcome Professor Ming Hsu Chen to the ImmigrationProf Blog!

If one is looking simply at changes to U.S. immigration law and policy, the biggest immigration news story of 2019 (like 2017 and 2018) unquestionably was President Donald Trump.  He probably has been the biggest immigration news story since his inauguration in January 2017.  For better or worse, no modern U.S. President has made immigration the priority that Trump has day in and day out.  President Trump is a virtually endless source of immigration comments, insults, tweets, and policy initiatives.   Law professors are indebted to the President for providing fodder for law review articles for many years to come. 

In addition to President Trump, here are my Top 10 Immigration News Stories from 2019, followed with some awards. 

1.  Immigration in the Supreme Court

A wide array of immigration cases continue to make their way to the Supreme Court.  The biggest immigration case of the 2019 Term will decide the future of President Obama's Deferred Action for Childhood Arrivals (DACA) policy.  In November, the Court heard oral arguments in three consolidated DACA cases in which the lower courts enjoined the Trump administration’s attempted rescission of DACA.  See the Argument Recap in DACA Cases.   A ruling in the case is expected at the end of the Term in June.  I predict a 5-4 vote.  Expect fireworks whatever the outcome.  Stay tuned!

The high Court has before it a full array of immigration issues, including the availability of damages for cross-border shootings, judicial review of a variety of immigration decisions, federal versus state power over immigration, the legality of expedited removal, and more.  For an overview of the Supreme Court's 2019 Term immigration docket, see Immigration in the Supreme Court, 2019 Term: DACA, Judicial Review, Federalism, Etc.

In a blockbuster decision at the end of the last Term in June, the Supreme Court by a 5-4 vote held that the Department of Commerce had provided unconvincing reasoning for adding a question on U.S. citizenship to the 2020 Census.  The Trump administration had made the addition of a citizenship question a high priority.   Joining the liberal justices, Chief Justice John Roberts wrote for the majority.  For an explanation of why he sided with the liberals, see Department of Commerce v. New York: Why the Supreme Court asked for an explanation of the 2020 census citizenship question.  Many Court watchers were surprised by the outcome of the Census case.  To add to the surprises, the Trump administration announced a few weeks after the decision that it was throwing in the towel on the citizenship question; consequently, the 2020 Census will not have a citizenship question.

2.  Turnover in DHS Leadership

2019 saw a game of musical chairs in the office of the Secretary of the Department of Homeland Security.  In April, Kirstjen Nielsen, rumored to be on the outs with President Trump, stepped down.  See Former Department of Homeland Secretary Kirstjen Nielsen Explains Resignation.  Next, the Acting DHS Secretary, Kevin McAleenan, resigned.  See Breaking News: Acting DHS Secretary McAleenan Resigns. He was replaced by another Acting Secretary, Chad Wolf, who at least for now remains in the position.

3.  William Barr Replaces Jeff Sessions as Attorney General

Who is the smiling man in the picture above?  He is the current Attorney General of the United States,  Judging from the picture, the current administration makes him happy.

In February, William Barr was sworn in as Attorney General.  He replaced Jeff Sessions, who had made enforcement of the U.S. immigration laws a high priority.  President Trump had reportedly lost confidence in Sessions.  Barr previously served as Attorney General under President George W. Bush.

The Attorney General, of course, heads the Department of Justice, which houses the Executive Office of Immigration Review (the home of the immigration courts and Board of Immigration Appeals (BIA)). 

Like Attorney General Sessions, Barr has intervened in cases before the BIA to narrow relief for removal.  See, e.g., L-E-A-, 27 I. & N. Dec. 581 (AG July 29, 2019) (narrowing "membership in a particular social group" for purposes of asylum).  Put simply, do not expect any slowing down of immigration enforcement under Attorney General Barr.  

4.  Flores Settlement

The Flores settlement, agreed to by the U.S. government under President Clinton in 1997, governs the detention of migrant children and generally bars minors from lengthy and indefinite immigrant detention. The settlement made the news regularly in 2019. A short and sweet summary of the Flores settlement can be found at The Conversation: A Short Explanation of the Flores Settlement and Its Possible Demise. 

 

Throughout 2019, President Trump continued his effort to abrogate the Flores settlement. He has sought to detain migrant children, and all other migrants, indefinitely while their cases move forward in the immigration courts.  Judge Dolly Gee, who is monitoring the Flores settlement, rejected the latest effort to end the settlement.  See Federal Court Rejects Trump Administration's Effort to End Flores Settlement; Ninth Circuit Rejects Trump Administration's Latest Challenge to Flores Settlement, Holds that Soap, Toothbrushes, and Toothpaste Cannot Be Denied Migrants.

 

The bottom line:  The Flores settlement remains in place and no doubt will be in the news in 2020 as the Trump administration continues to utilize detention in its immigration enforcement efforts. 


5. Public Charge and Other Trump Immigration Policy Initiatives

The Trump administration continued to press forward with new immigration enforcement efforts.  There are literally too many to list all of the Trump immigration initiatives.  But here are a few.

The Trump administration proposed a new, stricter approach to the public charge exclusion under the immigration laws.  The proposed rule has been criticized for making it too tough on immigrants of low- and moderate-incomes to come, or stay in, the United States.  The Ninth Circuit -- and later the Fourth Circuit -- stayed a nationwide injunction barring implementation of the proposed rule.  See Ninth Circuit Stays Injunction of Trump Public Charge Rule; The Nationwide Injunction in the Public Charge Case; Breaking news: public charge rule enjoined.

The Trump administration's  Remain  in Mexico policy, a novel approach that makes asylum-seekers wait in Mexico for their claims to be decided, remains in place and is controversial as ever.  

This year, the administration entered into agreements with El Salvador, Guatemala, and Honduras in an attempt to  better manage the flow of asylum seekers to the United States and deny relief to migrants who failed to seek asylum in countries on their way to the United States.  See DHS FACT SHEET: DHS AGREEMENTS WITH GUATEMALA, HONDURAS, AND EL SALVADOR.

Departing from the practice during the Obama administration, the Trump administration has used immigration raids as an immigration enforcement tool.  During the summer, the President threatened to direct Immigration & Customes Enforcement to conduct mass immigration raids in cities across the country.  The threat struck fear in communities from coast to coast.  In August, the Trump administration on the first day of school conducted immigration raids at food processing plants in Mississippi.  Many children came home from school unable to find their parents.  See ICE Raids in Mississippi, 680 Arrested.

 In November, news reports made the rounds that senior White House aide Stephen Miller had promoted white supremacist, anti-immigrant articles in emails to Breitbart.  Miller has been said to be the architect of the Trump administration's immigration policies. 

In April, there were rumors that President Trump was considering the possibility of completely closing the US/Mexico border.  Business interests raised concerns.  Such a measure would dramatically affect trade as well as migration between the two neighboring nations.  In the end, the President never followed through on the threat to close the border.  See Trump backs off threat to close the U.S.-Mexico border.

The state of California continues to resist the Trump administration's immigration enforcement efforts.  In April, the U.S. Court of Appeals for the Ninth Circuit rejected most of the administration's challenges to California's sanctuary laws, which sought to distance the state from federal immigration enforcement.  President Trump and others in his administration continue to rail against the public safety risks caused by sanctuary cities.  See Ninth Circuit Rejects Bulk of Trump Administration's Challenge to California "Sanctuary" Laws.

6.  Immigration Court Backlog Hits One Million

In September 2019, the backlog of cases in the U.S. immigration courts' surpassed one million.  The enormous backlog affects every noncitizen with a hearing in the immigration courts, their attorneys, and the immigration judges.  The Trump administration's aggressive enforcement efforts contributed to the rapid growth of the backlog.   Noncitizens seeking relief from removal can expect long -- years in some insttances -- waits for a hearing. 


7.  President Trump Lowers Refugee Admissions

It has been said that  the world is experiencing a global refugee crisis.  Still, President Trump again decreased the number of refugee admissions.  See Presidential Determination on Refugee Admissions for Fiscal Year 2020; Trump administration sets lowest cap on refugee admissions in four decades. Again.  On November 1, President Trump released the Presidential Determination on Refugee Admissions for Fiscal Year 2020.  It provides for "[t]he admission of up to 18,000 refugees to the United States during Fiscal Year 2020 . . . ."  (emphasis added).  Criticism followed the announcement.  In 2016, President Obama had capped refugee admissions at 85,000.

8.  Immigrants and Impeachment

As the nation well knows, Congress has been considering the impeachment of President Trump.   Over the last few months, Democrats and Republicans have regularly and literally been screaming at each other about impeachment.  In stark contrast, several key immigrant witnesses in the impeachment hearings kept their heads for the good of the nation.

 

In hearings on the impeachment  in November, immigrants played a vital role Ambassador Marie Yovanovitch is the child of immigrants who fled the Soviet Union and later the Nazi occupation of Europe. Born in Canada, she grew up in Connecticut and became a naturalized U.S. citizen.  Born in Ukraine when it was part of the USSR, Lt. Colonel Alexander Vindman and his family fled to the United States. He joined the U.S. Army, earning numerous commendations including a Purple Heart for wounds suffered in combat in Iraq. Vindman is the Director for European Affairs on the National Security Council (NSC).  Fiona Hill, who until recently served in a senior position on the NSC, opened her testimony by describing herself as “American by choice.” Born in a hardscrabble coal mining town in Northern England, Hill came to the United States, attended Harvard, and became a citizen.  All of the immigrant witnesses left enduring competent impressions and important testimony.


9.  The Retirement of Professor Michael Olivas

One of the leading immigration scholars of his generation, Michael Olivas of the University of Houston Law Center, has retired from law teaching.   Here is a Guest Post: Celebrating Michael Olivas's Retirement

At the January 2019 annual meeting, the Association of American Law Schools honored Olivas with a lifetime achievement award.  See Immigration Law Values Program, Michael Olivas Honored

In 2010, Olivas was the ImmigrationProf blog's Outstanding Immigration Professor of the Year.   A mentor to countless law professors, myself included, Olivas is an esteemed immigration scholar (as well as a renouwned scholar in higher education, civil rights, and other areas) . For a review of his body of work, see Law Professor and Accidental Historian:  The Scholarship of Michael A. Olivas (Ediberto Roman ed., 2017).

Be on the lookout next June for Olivas' latest book on the DREAM Act and DACA.

10.  25th Anniversary of Proposition 187

Contrary to popular belief, California, which produced two Republic Presidents in the twentieth centiry (Richard Nixon and Ronald Reagan), was not always a sanctuary state and liberal haven.  Far from it.  In 1994, California voters passed the anti-immigrant milestone known as Proposition 187, which would have barred undocumented children from the public schools and stripped undocumented immigrants of virtually all non-emergency public benefits.  A federal court enjoined most of the initiative from going into effect.  Nonetheless, Proposition 187 prodded Congress in 1996 to pass two major pieces of tough immigration reform and and to eliminate immigrant eligibility for major public benefits program in welfare reform.

Times have changed and, in response to the Trump administration's immigration initiatives, California has declared itself to be a sanctuary state.  By spurring naturalization and increasing Latinx voter turnout, Proposition 187 contributed to the political transformation of the state and the ascendancy to dominance of the Democratic Party.  For analysis of Proposition 187 and its legacy, see

UC Davis Law Review Symposium: The 25th Anniversary of Proposition 187: Challenges and Opportunities for Immigrant Integration and Political Identity in California  Be on the lookout for the symposium issue from this conference, which will be available in spring 2020.

DACA, Proposition 187, and the legacy of the Trump immigration enforcement revolution

25 Years After The Passage of California's Proposition 187: The Beginning of the Political Transformation of California

 Honorable Mention

There are many other big immigration stories in 2019.  Here are a few worthy of note:

1.  An Immigrant "Invasion": Words Used by Members of Congress as well as the President and the El Paso Shooter (August):  A sniper, who in an online rant had railed about the "Hispanic invasion," targeted -- and killed -- Latinx people at a shopping center in El Paso. 

2.  News from the US/Mexico Border: JURY ACQUITS NO MORE DEATHS VOLUNTEER OF FELONY HARBORING CHARGES (November):  The Trump administration loses a criminal prosecution of a humanitarian worker seeking to save migrant lives.  One can only wonder whether there were better types of cases for the U.S. government to prosecute.

3.  Death on the Border: NPR report: When Migrants Die, Many Bodies Remain Unidentified:  This is not really a news story.  In fact, deaths have been a fact of life for decades along the US/Mexico border.  I include it here lest we forget that migrantse regularly are dying while trying to make it to the United States.  This is a tragic impact of the nation's immigration enforcement policies that seems to not have penetrated the nation's consciousness.

4. Inaugural Issue of AILA Law Journal (Apr. 28):  The new American Immigration Lawyers Association Journal focuses on cutting edge immigration law issues.

 5.  Fox Apologizes for Graphic: "Trump Cuts U.S. Aid to 3 Mexican Countries" (Apr. 4):  No this is not a late April Fool's Day joke.  You can't make this stuff up.  The show "Fox & Friends" reported news of President Trump's plans to reduce millions of dollars in aid to three Central American countries for not doing enough to stem the stream of migrants to the United States.  As one commentator talked about the president “going full-court press on Mexico” and the co-host spoke of “cutting payments, aid payments, to El Salvador, Guatemala and Honduras,” a caption read "Trump Cuts U.S. Aid to 3 Mexican countries.”  This, of course, is a sad reflection on the state of education in the United States.

Immigration Article of the Year

The Interior Structure of Immigration Enforcement by Eisha Jain, 167 University of Pennsylvania Law Review 1463 (2019).  This article is a deep dive into immigration enforcement, going well beyond removals. It calls for restructuring immigration enforcement to consider the full impact of enforcement in light of the impacts of the immigrants present in the United States.

Honorable Mention: Self-Deportation Nation by K-Sue Park, 132 Harvard Law Review 1878 (2019).  Besides writing an incredible article, Professor Park should be praised for convincing the editors of the venerable Harvard Law Review to publish an immigration article.  The article analyzes the long history of self deportation policies in the United States.

Honorable Mention: Immigration Litigation in the Time of Trump by Shoba Sivaprasad Wadhia.  How did Shoba keep up with all the challenges to Trump’s immigration policies?

Book of the Year

Ghosts of Gold Mountain: On the Chinese Immigrants Who Built the Transcontinental Railroad by Gordon H. Chang (2019).  A groundbreaking history of the Chinese workers who built the Transcontinental Railroad, helping to forge modern America only to disappear into the shadows of history. I loved reading this book while vacationing in the Sierras, not far from where the Chinese workers once toiled on the railroad.  

 

Honorable Mention: America for Americans: A History of Xenophobia in the United States by Erika Lee (2019).  The time is perfect for reading a book on the history of xenophobia in the United States.  Will a supplement and pocket part be necessary?

Honorable MentionMigrating to Prison: America’s Obsession with Locking Up Immigrants by César Cuauhtémoc García Hernández (2019).  After the events of the last few years, the entire nation should be considering the morality and policy-sense of mass immigrant detention.  Cesar Garcia's book offers critical analysis on "America's Obsession" with immigrant detention.

Immigrant Sportsman of the Year

José de Jesús Rodríguez Martínez, a professional golfer, currently plays on the PGA Tour.  He grew up in poverty in Irapuato, Mexico. At age 12, he dropped out of school and began caddying full-time at Club de Golf Santa Margarita. At age 15, Rodríguez crossed the Rio Grande and entered the United States. He worked in the United States for a decade, mostly as part of the maintenance crew at a country club in Fayetteville, Arkansas. Rodriguez then became a pro golfer.  See ‘The most unbelievable story in golf’: A treacherous border crossing was just the beginning of José de Jesús Rodríguez’s journey to the PGA Tour.  The Golf Channel is working on a documentary about Jose Rodriguez.


Photo of the Year

I could not resist ending the year without recognizing this photograph:

The photo was posted on March 3, 2019 in the post A Sign of the Times: Arkansas church sign -- ‘heaven has strict immigration laws, hell has open borders'.  

In April, the photo that showed the world the cruelty of the Trump administration's family separation policy, was honored with the World Photo of the Year Award.  See "Crying Girl on the Border" Wins World Photo of the Year Award.  This photo helped fuel the public outcry against family separation and led to the policy's demise.

Film Landmark

2019 marked the 35th anniversary of the classic refugee film El Norte.  The film tells the powerful story of a young Guatemalan brother and ister who fled the war-torn nation and journeyed to the United States.  It is a true classic.  Sadly, El Norte remains topical today as Central Americans continue to come to the United States seeking asylum from violence in their homelands.