Category Archives: Immigration

The Fourth Amendment Implications of ‘U.S. Imitation Judges’

Source: Mary Holper, Boston College Law School Legal Studies Research Paper No. 507, 2019

From the abstract:
Scholars, immigration judges, attorneys, and congressional committees have been calling for a truly independent immigration adjudication system for decades, critiquing a system in which some judges describe themselves as “U.S. imitation judges.” This article examines the lack of truly independent immigration judges through the lens of the Fourth Amendment, which applies when a noncitizen is arrested for deportation. In 1975, the Supreme Court held in Gerstein v. Pugh that to continue detention after an initial arrest in the criminal context, the detached judgment of a neutral judge is necessary; a prosecutor’s finding of probable cause is insufficient to protect the important Fourth Amendment rights to be free from an unreasonable seizure. In contrast, in the immigration detention context, no such neutral judge has any role in the process. Every person who authorizes a noncitizen’s arrest and detention works for a law enforcement agency, causing one to wonder who exactly is exercising independent judgment over decisions concerning noncitizens’ physical freedom.

This article begins with an overview of the relevant Fourth Amendment law, which requires a neutral judge to review a law enforcement officer’s warrantless arrest in order to continue detention, and demonstrates why the Fourth Amendment applies to immigration arrests, although nominally “civil.” Thus, the lack of a truly neutral judge available to review DHS arrest decisions exposes the entire immigration detention system to a Fourth Amendment challenge. To resolve this issue, I propose that, in order to continue pretrial detention for deportation, federal magistrate judges, rather than immigration judges, must make a probable cause finding. This proposal resolves the Fourth Amendment violations that occur when the only supposedly “neutral” judge, who authorizes the jailing of a human being, is regularly critiqued as not so “neutral.” While others have effectively argued that the entire immigration adjudication system needs a judge who is untethered from a law enforcement agency, in this article I focus only on the initial decision to continue pretrial detention, as this is where, in the criminal pretrial context, the Fourth Amendment’s probable cause hearing requirement attaches.

Undercounting Hispanics in the 2020 Census will result in a loss in federal funding to many states for child and family assistance programs

Source: David Murphey, Dana Thomson, Lina Guzman, Claire Kelley, Child Trends, Issue Brief, August 14, 2019

This brief examines the potential reduction in funding to states for five critical federal programs that could result from an undercount of Hispanics in the 2020 Census. More than 300 federal programs allocate funding based on Census-derived data. The five programs we examine serve children and families and account for almost half of all federal funding to states. Hispanics are the largest racial or ethnic minority group in the United States and are especially at risk for being undercounted a problem which research indicates may be exacerbated by ongoing concerns about efforts to link citizenship status to Census respondents. ….

….. The interactive maps and tables below illustrate low, medium, and high estimates of potential losses of federal funding to states for five programs: the Medical Assistance Program (Medicaid, children only), the Children’s Health Insurance Program (CHIP), Title IV-E Foster Care, Title IV-E Adoption Assistance, and the Child Care and Development Block Grant (CCDBG). The low-estimate scenario is based on published research by the Urban Institute, and assumes a Census count that proceeds as planned by the U.S. Census Bureau. The medium and high estimates (based on research published by the Census Bureau and Harvard University researchers, respectively) assume that participation will be reduced due to data-privacy and other concerns resulting from federal efforts to determine the citizenship status of Census respondents. …..

…. Under existing federal funding formulas, a total of 37 states will forfeit a portion of federal funds for the five aforementioned child and family programs as a result of a Hispanic undercount in the 2020 Census. ….

Supreme Court census citizenship decision leaves open credit risk for some states; others stand to benefit

Source: Marcia Van Wagner, Nicholas Samuels, Emily Ralmes, Timothy Blake, Moody’s, Sector Comment, June 27, 2019
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The court’s ruling that fails to resolve whether a citizenship question will be included on the 2020 census form leaves open the possibility of population undercounts, a credit negative for some states. Nine states stand to lose federal Medicaid matching funds because of undercounts.

Why Does Immigration Matter So Much?

Source: Dante DeAntonio, Regional Financial Review, Vol. 29 no. 9, May 2019
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Given the demographic hurdles facing the U.S. economy, it becomes more clear that increasing immigration should be seen as a net positive. Although the changing face of immigration may provide slightly less support in terms of combating an aging workforce, the benefits of stronger labor force growth and the potential to fuel birthrates with a robust first generation remain clear.

Care For America’s Elderly And Disabled People Relies On Immigrant Labor

Source: Leah Zallman, Karen E. Finnegan, David U. Himmelstein, Sharon Touw, and Steffie Woolhandler, Health Affairs, Vol. 38, No. 6, June 2019

From the abstract:
As the US wrestles with immigration policy and caring for an aging population, data on immigrants’ role as health care and long-term care workers can inform both debates. Previous studies have examined immigrants’ role as health care and direct care workers (nursing, home health, and personal care aides) but not that of immigrants hired by private households or nonmedical facilities such as senior housing to assist elderly and disabled people or unauthorized immigrants’ role in providing these services. Using nationally representative data, we found that in 2017 immigrants accounted for 18.2 percent of health care workers and 23.5 percent of formal and nonformal long-term care sector workers. More than one-quarter (27.5 percent) of direct care workers and 30.3 percent of nursing home housekeeping and maintenance workers were immigrants. Although legal noncitizen immigrants accounted for 5.2 percent of the US population, they made up 9.0 percent of direct care workers. Naturalized citizens, 6.8 percent of the US population, accounted for 13.9 percent of direct care workers. In light of the current and projected shortage of health care and direct care workers, our finding that immigrants fill a disproportionate share of such jobs suggests that policies curtailing immigration will likely compromise the availability of care for elderly and disabled Americans.

Separated Children Placed in Office of Refugee Resettlement Care

Source: Department of Health and Human Services (HHS), Office of Inspector General (OIG), HHS OIG Issue Brief, OEI-BL-18-00511, January 2019

Key takeaway:
The total number of children separated from a parent or guardian by immigration authorities is unknown. Pursuant to a June 2018 Federal District Court order, HHS has thus far identified 2,737 children in its care at that time who were separated from their parents. However, thousands of children may have been separated during an influx that began in 2017, before the accounting required by the Court, and HHS has faced challenges in identifying separated children.

Proportion of Non–US-Born and Noncitizen Health Care Professionals in the United States in 2016

Source: Yash M. Patel, Dan P. Ly, Tanner Hicks, et al, JAMA: Journal of the American Medical Association, Research Letter, Vol. 320 no. 21, December 4, 2018
(subscription required)

From the abstract:
National estimates of the proportion of current health care professionals, including physicians, who are non–US-born or noncitizens are unknown. These proportions may be significant. For example, non–US-born medical graduates comprise approximately one-fifth of practicing US physicians, and among non–US-born medical graduates who match into residency positions in the United States, approximately 60% are not US citizens. Using data from the US Census, this study estimated the proportion of non–US-born and noncitizen health care professionals in the United States in 2016.

Who are the “Illegals”? The Social Construction of Illegality in the United States

Source: René D. Flores, Ariela Schachter, American Sociological Review, Volume: 83 Number: 5, October 2018
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From the abstract:
Immigration scholars have increasingly questioned the idea that “illegality” is a fixed, inherent condition. Instead, the new consensus is that immigration laws produce “illegality.” But can “illegality” be socially constructed? When initially judging who is an “illegal immigrant,” common observers and even authorities typically do not rely on an individual’s documentation. Instead, people rely on shared stereotypes to assign “illegality” to certain bodies, a condition we refer to as “social illegality.” Ethnographers have documented that individual traits like occupation or national-origin may trigger illegality suspicions, but it is not clear how widespread these stereotypes are, or whether all stereotypes are equally consequential. To address this question, we examine the personal attributes shaping perceived “illegality.” We apply a paired conjoint survey experiment on a nationally representative sample of 1,515 non-Hispanic white U.S. adults to assess the independent effect of each dimension. We find that national origin, social class, and criminal background powerfully shape perceptions of illegality. These findings reveal a new source of ethnic-based inequalities—“social illegality”—that may potentially increase law enforcement scrutiny and influence the decisions of hiring managers, landlords, teachers, and other members of the public.