[Cross-posted from ImmigrationProf Blog]
By Kevin R. Johnson
It is the end of a wild pandemic year. And time for our annual Top 10 Immigration Law Stories. As you might recall, President Donald Trump, who frequently made immigration news, topped the 2020 list.
The year has seen many changes. Joe Biden became President. President Trump, and his fervent dedication to a restrictive immigration agenda, now is in the rear-view mirror. Despite repeated efforts by Democrats, any type of meaningful immigration reform failed in Congress. Reminiscent of the old adage "three strikes and you're out," the Senate Parliamentarian on three occasions ruled out efforts to squeeze in immigration changes into budget reconciliations.
1. President Biden Brings in a New Immigration Regime
In January, President Biden brought to Washington D.C. a new approach to immigration and immigration enforcement. Nonetheless, a variety of Trump policies, such as the much-maligned "Remain in Mexico" policy, remained in effect. Its survival led to an op/ed by Ruben Navarrette Jr. entitled "Trump Lost the Presidential Battle but Won the Immigration War?," which to many raised a very good question.
The Biden administration also continued the Title 42 border closure justified by public health concerns, a move that has been harshly criticized. Former Yale Law Dean Harold Koh left the State Department and ripped President Biden's use of Trump-era Title 42.
Events on the United States' southern border almost immediately put the Biden administration on the defense. On her first visit as Vice President to Guatemala, Kamala Harris expressed optimism about cooperation with the Guatemalan government on reducing migration to the United States but bluntly told the Guatemalans considering the journey: "Do not come. Do not come." This blunt message provoked controversy and criticism.
With challenges from the left and right, the Biden administration has a tough row to hoe in formulating a coherent and effective immigration policy.
The Biden administration made important changes in the top officials making U.S. immigration policy decisions. New Attorney General Merrick Garland has a very different perspective on immigration and immigrants than President Trump's first AG, Jeff Sessions. Alejandro Mayorkas, the new Secretary of the Department of Homeland Security, is very different from John Kelly and Kirstjen M. Nielsen, DHS secretaries in the Trump administration.
2. The Shocking Treatment of Haitian Asylum Seekers by the U.S. Government
In August, an earthquake devastated Haiti. Thousands of Haitians fled the country. The sight of Border Patrol officers on horseback chasing Haitians on the U.S./Mexico border was, to say the least, "bad optics." It provoked controversy and a spirited defense from the Biden administration.
Human Rights Watch condemned the treatment of Haitian migrants on the U.S./Mexico border. This headline says it all: "US: Treatment of Haitian Migrants Discriminatory -- Chased by Border Agents on Horseback; Returned to Danger in Haiti."
3. The Afghan Refugee Crisis
A refugee crisis followed the U.S. military's withdrawal in August from Afghanistan and the almost immediate takeover by the Taliban. The United States has a long and difficult relationship with this war-torn nation. Many wondered how the nation might respond to Afghan refugees.
There have been many calls to help Afghan refugees. A number of governmental and nongovernmental (including faith-based) groups publicly offered assistance to the refugees. Nonetheless, resettlement in the United States has been challenging.
ImmigrationProf posted regularly about the plight of Afghan refugees. One of those posts highlights the complex immigration avenues in the United States -- including Special Immigrant Visas, refugee status, and asylum -- for persons fleeing Afghanistan. "The tens of thousands of Afghan refugees who made it to the United States as part of a historic humanitarian evacuation are entering an extraordinary system with very different benefits."
4. Immigration in the Supreme Court
In the 2020 Term, the Supreme Court decided five immigration cases. The U.S. government prevailed in four of the five cases, an 80 percent success rate. This rate was higher than that seen in recent Terms.
There were no blockbusters among the five immigration decisions -- nothing like the DACA decision in 2020. The decisions primarily focused on interpreting the complexities of the Immigration and Nationality Act.
Although the U.S. government prevailed in all but one case, there were no sweeping statements about the power of the U.S. government over immigration, such as the statements in the 2020 expedited removal case (Department of Homeland Security v. Thuraissigiam) and its ringing endorsement of the plenary power doctrine.
There continued to be a steady stream of immigration rulings in the lower courts, especially as the Biden administration sought to walk back Trump era policies. Two lower court decisions stand out.
In one case, a U.S. District Court found "strong and disconcerting evidence" of the racist origins of 8 U.S.C. § 1326, which criminalizes unlawful re-entry into the United States. Judge Michael H. Simon's opinion carefully reviewed the historical record of the racial animus behind Section 1326.
In another case, Chief Judge Miranda M. Du of the U.S. District Court, District of Nevada ruled that:
"Carrillo-Lopez has demonstrated that Section 1326 disparately impacts Latinx people and that the statute was motivated, at least in part, by discriminatory intent . . . [T]he Court reviews whether the government has shown that Section 1326 would have been enacted absent discriminatory intent. Because the government fails to so demonstrate, the Court finds its burden has not been met and that, consequently, Section 1326 violates the Equal Protection Clause of the Fifth Amendment."
It is rare for a law to be found unconstitutional. It is even rarer for an immigration law to be found unconstitutional. Will these two rulings start a trend?
5. DOJ Reverses Course and Agrees to Recognize Immigration Judges Union
Earlier this mnnth, the Department of Justice's Executive Office for Immigration Review agreed to a settlement with the National Association of Immigration Judges (NAIJ) to again recognize NAIJ as the exclusive representative and collective bargaining agent for the nation's immigration judges. The settlement put an end to the Trump administration's effort to end the union's representation of the immigration judges.
Before the settlement, the Biden administration has been accused of "doubling down" on the Trump administration's efforts to de-certify the immigration judges union.
6. Economist with Major Immigration Contributions Wins Nobel Prize
UC Berkeley economist David Card, who studied the effects of the Mariel Boatlift on the Miami labor market, won the Nobel Prize. Card wrote the 1990 article: The Impact of the Mariel Boatlift on the Miami Labor Market. In that article,
"Card studied the effect that the large influx of Cuban workers (125,000 arrived between May and September of 1980) had on the Miami labor market. He found that the labor force grew by 7%, with a greater increase in less-skilled occupations and industries. But he found no effect on the wages or unemployment rates of non-Cuban workers nor non-boatlift Cuban workers. There was, in fact, 'rapid absorption' of the Mariel immigrants into the Miami
workforce."
Card's cutting-edge scholarship is a briefly summarized here.
7. Death on the Border Continues
Sadly, the regular deaths along the U.S./Mexico border are not breaking news. But they are a reality of modern immigration enforcement along the border.
Migrants die on a regular basis and the death toll has risen over the years. ImmigrationProf regularly reports on the deaths to remind readers of the deadly impacts of U.S. immigration enforcement. Shouldn't the nation be considering alternative enforcement strategies that do not result in deaths?
8. The Complicated Legacy of 9/11: 20 Years After
2021 marked the 20 year anniversary of the tragic events of September 11, 2001. News reports reminded us of the implications of that fateful day. Importantly, serious discussions of immigration reform designed to remedy the harsh edges of the 1996 reforms, ended with that tragic event.
In "How 9/11 stalled immigration reform - and inspired a new generation of activists," Meena Venkataramanan for the Los Angeles Times offers an interesting -- and more positive -- take on a collateral impact of September 11, 2001:
"The Sept. 11 attacks upended U.S. immigration policy, linking it for the first time to the nation's anti-terrorism strategy and paving the way for two decades of restrictive laws. But it also gave rise to a new kind of immigrant rights movement led by young people . . . . "
The immigrant rights movement has continued to grow and is one of the amazing social movements of the 21st century and hold the promise of immigration reform.
9. Census 2020
The Trump administration's proposed citizenship question, which it abandoned after a Supreme Court ruling against the administration, on Census 2020 provoked controversy and concern with an undercount. Although some noncitizens may have been too fearful to respond to the Census, The Census revealed some interesting things, CNN reads the data as follows: "America is more diverse and more multiracial than ever before, according to new 2020 Census data . . . ." (bold added).
10. 10 Most-Cited Immigration Law Faculty in the U.S., 2016-2020
This, I believe, was the first Leiter Law Report citation court of immigration scholars. "Based on the latest Sisk data, here are the ten most-cited law faculty working on immigration law . . . in the U.S. for the period 2016-2020 (inclusive) . . . ."
HONORABLE MENTION
1. A Surprising Immigration Factoid (At Least to Me)
I would not have guessed that, at least for a moment, Honduras was the largest source of migrants to the United States. Conditions in Honduras have fueled greater migration to the United States so that the number of migrants from Honduras currently exceed those from El Salvador, Guatemala, and Mexico.
2. Belarus Uses a Border Crisis as a Political Weapon
Sadly, we cannot make this stuff up.
In November, CNN reported that thousands of people trapped on the border between Poland and Belarus were being stopped from crossing the border into Poland. The European Union, the United States and NATO accused Belarusian leader Alexander Lukashenko of manufacturing the migrant crisis as retribution for sanctions imposed on Belarus over human rights abuses. Stranded migrants have faced "catastrophic" conditions in freezing forests and makeshift camps.
3. DACA Recipient Heads Georgetown Law Journal
Here is a positive immigration story. Deferred Action for Childhood Arrivals (DACA) recipient Agnes Lee, was named the editor-in-chief of the Georgetown Law Journal. NBC News reported that. "Growing up in Los Angeles, [Lee] saw many in her community incarcerated for petty drug charges. Several of her friends' family members were deported. . . . [She] learned from her parents to fear the police and remain quiet . . . . 'The best thing you could do with the law was to stay away from it,' she said."
4. Immigrant of the Day Leads Milwaukee Bucks to NBA Championship
Two time Immigrant of the Day, National Basketball Association superstar Giannis Antetokounmpo (Milwaukee Bucks) became an NBA champion!
5. Law Faculty News
RIP Cruz Reynoso, first Latino Justice on California Supreme Court. A Professor Emeritus at UC Davis, Justice Reynoso devoted his life to defending the rights of immigrants and other vulnerable communities. In an amazing career, Reynoso was appointed by President Carter to serve on the Congressional Select Commission on Immigrant and Refugee Policy. President Clinton appointed Cruz to be the vice-chair of the U.S. Commission of Civil Rights and, in 2000, gave Cruz the Presidential Medal of Freedom for his social justice work.
Professor (and former Dean) John Eastman has long been known for taking dubious immigration positions, including questioning Kamala Harris eligibility to be President, arguing that birthright citizenship was not required by the U.S. Constitution, and more. In 2021, Eastman entered the national spotlight in a big way. He spoke to Trump supporters just before they stormed the U.S. Capitol. The mob included many white supremacists. The New York Times reported that Eastman was in the Oval Office with President Donald Trump the day before the Capitol violence, arguing that Vice President Mike Pence had the power to block certification of Joe Biden's Electoral College victory. Later, CNN published a copy of the "Eastman Memo" advising President Trump's legal team on a strategy to overturn the election results.
Eastman retired from his law professor position at Chapman in the middle of the academic year.
Eastman has filed suit to protect his phone records from discovery by Congress. He also is the subject of a new complaint with the California State Bar signed by nearly 1,000 lawyers. The complaint alleges Eastman was working in concert with Rudy Giuliani and Jeffrey Clark to overturn the 2020 election results. Attorneys who signed the complaint include Erwin Chemerinsky, Laurence Tribe and two former presidents of the American Bar Association.
Book of the Year
The ImmigrationProf Book of the Year is Driving While Brown: Sheriff Joe Arpaio versus the Latino Resistance by Terry Greene Sterling & Jude Joffe-Block.
Remember Sheriff Joe? The book describes his immigration reign of terror on Latina/os in Arizona. Until he lost a re-election bid in 2016, Sheriff Joe gave me an almost daily story for this blog. The new book brings back memories.
The book specifically tells the story of
"How Latino activists brought down powerful Arizona sheriff Joe Arpaio
Journalists Terry Greene Sterling and Jude Joffe-Block spent years chronicling the human consequences of Sheriff Joe Arpaio's relentless immigration enforcement in Maricopa County, Arizona. In Driving While Brown, they tell the tale of two opposing movements that redefined Arizona's political landscape-the restrictionist cause embraced by Arpaio and the Latino-led resistance that rose up against it."
Jude Joffe-Block guest blogged about the book on this blog.
Honorable Mentions
These two great books are important scholarly contributions.
Mae Ngai, The Chinese Question: The Gold Rushes and Global Politics (2021). She has been speaking widely on this important book.
Sahar F. Aziz, The Racial Muslim: When Racism Quashes Religious Freedom (2021). Here is the University of California Press description of the book:
"Why does a country with religious liberty enmeshed in its legal and social structures produce such overt prejudice and discrimination against Muslims? Sahar Aziz's groundbreaking book demonstrates how race and religion intersect to create what she calls The Racial Muslim. Comparing discrimination against immigrant Muslims with that of Jews, Catholics, Mormons, and African American Muslims during the twentieth century, Aziz explores the gap between America's aspiration for and fulfillment of religious freedom. With America's demographics rapidly changing from a majority white Protestant nation to a multiracial, multi-religious society, this book is an essential read for understanding how our past continues to shape our present-to the detriment of our nation's future."
