My city of Montpelier Vermont voted this week to allow non-citizens to vote in local elections.

Early permissiveness. From 1776 to 1926, 40 states and federal territories permitted non-citizens to vote in local, state, and even federal elections. Non-citizens also held public office. In practice, immigrant voting promoted civic education and citizenship.

Retrenchment in late 19th – early 20th C. Noncitizen voting was abolished at the same time that other restrictive measures were also enacted by elites, including literacy tests, poll taxes, felony disenfranchisement laws, and restrictive residency and voter registration requirements—all of which combined to disenfranchise millions of voters. Efforts to “clean up” what were allegedly rampant “corrupt” practices in local government and electoral politics by big city “party machines” associated with immigrants culminated in a series of reform measures that were passed by state legislatures at the end of the nineteenth and beginning of the twentieth century.

A come back. Since 1988, Chicago permits non-citizens to vote in school board elections (as did New York City from 1969 until 2003 when school boards were eliminated for unrelated reasons), and non-citizens currently vote in six municipalities in Maryland. These jurisdictions make no distinction between documented and undocumented immigrants—all non-citizens are permitted to vote in these local elections (as was true in New York City). Since the 1990s, Cambridge, Amherst, Newton, and Brookline, Massachusetts, have extended the right for documented non-citizens in local elections.

In 2010, voters in San Francisco narrowly defeated a ballot proposal (Proposition D) that would have granted all parents and guardians of children in the public school system voting rights in school board elections, regardless of their immigrant status. In 2016, voters passed a similar proposal (Proposition N).

Republican attack.  The House passed on September 26, 2018 a resolution to rebuke cities that allow non-citizens to cast votes in certain local elections.

Content from here.

 

 

 

Since Sept. 11, 2001, over 109,250 members of the Armed Forces have attained their citizenship by serving in the military. Today, about 5,000 legal permanent resident aliens (green card holders) enlist each year, eligible for citizenship after a year in the military.   The recent uproar has been about enrollees in a special program started in 2008 to recruit medical and language specialists.

As reported by National Immigrant Forum: “Earlier this summer the U.S. Army forcibly discharged over one hundred immigrant enlistees. The Military Accessions Vital to the National Interest program (MAVNI) promised highly-skilled immigrants an expedient path to citizenship in exchange for their service in the army. As of this week, over 30 recruits have been reinstated into the program, signaling an improving situation. However, more information recently came to light about why immigrant recruits were targeted for removal – recruits were reportedly red-flagged as a security risk for a variety of mundane activities, such as placing calls to their parents abroad and playing video games with noncitizens.”

Background:

Military Accessions Vital to the National Interest (MAVNI) began in 2008 as a pilot program. 10,000 troops have signed up to serve through MAVNI since 2008. New entrants have been suspended since 2016, leaving about 1,000 persons in still under review.

The program is restricted to healthcare professionals or experts in certain key languages with associated cultural backgrounds. Around 30% of MAVNI recruits were assigned to Special Operations units due to their language abilities, (go here).

MAVNI program applicants must be in a legal immigration status, with a valid temporary visa. The applicant must have been in valid status for at least two years prior to the enlistment date.

For a Defense Dept. fact sheet go here. It says that non-citizens have served in the military since the Revolutionary War. The Lodge Act of 1950 permitted non-citizen Eastern Europeans to enlist between 1950 and 1959. The United States officially began recruiting Filipino nationals into the Navy in the late 1940s.

 

Because the federal D.C. Circuit rarely hears cases directly involving immigration law, Kavanaugh has only written three opinions in cases involving immigrants. All three opinions were dissents, where Kavanaugh stated that he believed the immigrant should have lost the case.

In 2008, Kavanaugh issued his first major dissent in a case involving immigrants. In Agri Processing Co. Inc, v. National Labor Relations Board, Kavanaugh declared that undocumented immigrants should not be entitled to labor-law protections because they were not legally permitted to be “employees.”

Even though the Supreme Court had years before declared that undocumented immigrants were “employees” for the purposes of labor law, Kavanaugh argued that a 1986 law making it a crime to employ undocumented immigrants had implicitly overruled the Supreme Court. The majority on the D.C. Circuit called his reasoning illogical and accused him of misapplying principles of statutory interpretation.

Next, in 2014, Kavanaugh wrote a dissenting opinion in Fogo de Chao Holdings Inc. v. U.S. Department of Homeland Security. In that case, Washington, DC restaurant Fogo de Chao applied for an L-1 visa to bring a chef from Brazil to the United States. Fogo de Chao argued that the chef had “specialized knowledge” in churrascaria cooking and methods, a form of Brazilian barbecue that the restaurant is known for.

The government initially denied the chef’s visa. In overturning the denial, the D.C. Circuit criticized the government’s “wooden refusal” to consider that specialized knowledge might come from a person’s upbringing, family, and community tradition.

However, Judge Kavanaugh dissented strongly. He framed the dispute as simply about the restaurant “want[ing] to employ Brazilian chefs rather than American chefs,” and suggested that hiring such chefs was just trying to “cut labor costs masquerading as specialized knowledge.”

Finally, Judge Kavanaugh dissented in the 2017 case of Garza v. Hargan, in which an undocumented teenager sued the Department of Health and Human Services Office of Refugee Resettlement for preventing her from obtaining an abortion. He accused the majority of a “radical” expansion of the law, suggesting that the D.C Circuit had created a “new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

From here.

The Washington Post reports that a judge threatened to hold Atty General Sessions in contempt over a court review of an asylum appeal by a El Salvadoran woman and her daughter.

Immigration Impact says that for border crosses, fewer are getting approvals for asylum. Per TRAC, the share of asylum requests being turned down by immigration judges has skyrocketed since mid-2017.

How it works

Here is what happens for border crossers without proper documentation. They are subjected to a fast-track deportation process called “expedited removal,” unless they express fear of returning to their home countries. These individuals must be referred to an asylum officer for a “credible fear interview” to assess the likelihood of making a successful asylum claim.

During the interview, if the asylum officer finds that there is not a “significant possibility” that the asylum seeker could establish eligibility for asylum, the asylum-seeker can appeal to an immigration judge for a Credible Fear Review (CFR). The judge’s decision on the matter is final. Currently about 500 CFR cases are decided each month, down from about 700 cases per month in 2015-2016.

The data analyzed by TRAC indicate that the share of positive outcomes nationwide from CFRs had fallen to 14.7% as of June 2018 which is less than half of what it was in June 2017 (32.7%).

Depending upon the particular Immigration Court undertaking the credible fear review, the proportion of asylum seekers passing this screening step varied from as little as 1% all the way up to 60%. Thus, whether or not asylum seekers receive favorable CFR court decisions appears to be largely driven by which Immigration Court and judge heard their cases.

Sessions’ remarks on October 12, 2017

The system is being gamed. The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an easy ticket to illegal entry into the United States.

Here are the shocking statistics: in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, that number had increased to 94,000. The number of these aliens placed in removal proceedings went from fewer than 4,000 in 2009 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving those with just claims buried.

The increase has been especially pronounced and abused at the border. From 2009 to 2016, the credible fear claims at the border went from approximately 3,000 cases to more than 69,000.

 

Immigration court cases now involve more long-time residents, according to this report.

The latest available data from the Immigration Court reveals a sharp uptick in the proportion of immigration court cases involving immigrants who have been living in the U.S. for years. During March 2018, for example, court records show that only 10% of immigrants in new cases brought by the Department of Homeland Security had just arrived in this country while 43% had arrived two or more years ago, and 25% at least four years ago,

In contrast, the proportion of individuals who had just arrived in new filings during the last full month of the Obama Administration (December 2016) made up 72%, and only 6% had been here at least two years. During the period between May 2013 and February 2017 over 75% of all court cases involved those who had only recently arrived. During this period the Obama Administration had prioritized recent illegal entrants to the country. Faced with a growing court backlog and not enough judges to hear and decide new cases, DHS believed this focus would serve as a more effective deterrent. Concentrating limited resources in this manner naturally increased the odds that recent illegal entrants and over-stayers would be promptly deported.

The top 25% of cases in terms of length in the U.S. were about this long in the U.S. at a minimum:

2000 – 2003 about 6 years

2004 – 2005 about 3 years

2006 – 2012 8 years or higher

2013 – 2016 rapidly descended to and stayed at zero years.

TheMigration Policy Institute wrote, “the Obama-era policies represented the culmination of a gradual but consistent effort to narrow its enforcement focus to two key groups: The deportation of criminals and recent unauthorized border crossers. Eighty-five percent of all removals and returns during fiscal year (FY) 2016 were of noncitizens who had recently crossed the U.S. border unlawfully. Of the remainder, who were removed from the U.S. interior, more than 90 percent had been convicted of what DHS defines as serious crimes.”

2017 rapidly rose to 4 years.

Note that these figure are not for deportations but for being brought before an immigration court.

John Bates, judge in the federal district court of the District of Columbia, and a Republican appointee, struck down on April 24 the administration’s rescission of the DACA program. He gave the administration 90 days to come up with a better justification for ending DACA. If it fails to do so, Bates will order the government to open up DACA for any new applicant as well as protect those already awarded DACA status.

As noted by the Washington Post, The program has transformed the lives of hundreds of thousands of immigrants, allowing them to get driver’s licenses, qualify for in-state tuition, buy homes and attend college and graduate school. They must meet educational and residency requirements and cannot have serious criminal records.

From the conclusion of Bates’ opinion:

the Department’s decision to rescind DACA was predicated primarily on its legal judgment that the program was unlawful. That legal judgment was virtually unexplained, however, and so it cannot support the agency’s decision. And although the government suggests that DACA’s rescission was also predicated on the Department’s assessment of litigation risk, this consideration is insufficiently distinct from the agency’s legal judgment to alter the reviewability analysis. It was also arbitrary and capricious in its own right, and thus likewise cannot support the agency’s action. For these reasons, DACA’s rescission was unlawful and must be set aside.

For the reasons given above, then, the Court will vacate the Department’s September 5, 2017 decision to rescind the DACA program. The Court will stay its order of vacatur for 90 days, however, to afford DHS an opportunity to better explain its view that DACA is unlawful.

Also, in the body of his opinion, Bates wrote:

The Rescission Memo made no mention of the fact that DACA had been in place for five years and had engendered the reliance of hundreds of thousands of beneficiaries, many of whom had structured their education, employment, and other life activities on the assumption that they would be able to renew their DACA benefits. 24 The Supreme Court has set aside changes in agency policy for failure to consider reliance interests that pale in comparison to the ones at stake here. See, e.g., Encino Motorcars, 136 S. Ct. at 2126 (setting aside the Department of Labor’s interpretation of a statutory exemption from the Fair Labor Standards Act’s overtime-pay requirements, in part because the agency had failed to address “decades of industry reliance” on its prior view that the exemption applied to a particular class of employees). Because DHS failed to even acknowledge how heavily DACA beneficiaries had come to rely on the expectation that they would be able to renew their DACA benefits, its barebones legal interpretation was doubly insufficient and cannot support DACA’s rescission.