Archive for category: Current Events

As our Forensic Evaluations program comes to a close, we’d like to acknowledge the contribution of Dr. Jodi Berger Cardoso, a mentor for our program. Her 15+ years of experience working with the immigrant community and her participation as a mentor has been invaluable to fortifying HILSC’s clinical network. In this article, we ask her what brought her to forensic evaluation and what insights she has for others interested in this work.

1. What inspired you to do forensic evaluations?

There was a need for clinicians to help with the response of unaccompanied minor children arriving at the border in 2014. Children were arriving at the U.S-Mexico border with significant mental health needs and attorneys were struggling to interview them because they were not trained in working with traumatized children. So, I was motivated to help meet the need so that children were prepared to fight their asylum cases in court. 

2. Why is providing mentorship for other forensic evaluators important?

There is an incredible need in the Houston area for social workers and other mental health providers to collaborate with attorneys. Because of an extensive history of psychological trauma, asylees and refugees often struggle to explain to others how trauma has affected their well-being. The forensic evaluation is often a way to explain to the courts how an individual would benefit from asylum and what would happen to them if they were returned to their country of origin. For some, a forensic evaluation can be what contributes to a positive outcome in their case. This is the reason I provide mentorship. Because we need others that can effectively do this work and provide this service to a vulnerable population of immigrants. 

3. What was your experience like working as a mentor?

I had a great experience working as a mentor. I learned a lot from my colleagues through our collaborative partnership. What I have learned as a mentor has directly translated into improvements in my own forensic evaluations. It has been a pleasure to work with such talented and dedicated mental health providers.

4. What insight would like to share with clinicians interested in this work?

While a biopsychosocial assessment and a forensic evaluation share similarities, the latter requires the clinician demonstrate symptoms and traumatic experiences with a greater burden of proof. I would really encourage clinicians who want to do this work to: (1) have specialized training in trauma, and (2) receive training and mentorship in formulating a forensic evaluation, and (3) become comfortable with testifying in court, as this is a major way that evaluators advocate for their clients.

Learn more about Dr. Cardoso and her work through the University of Houston here.

Texas is the capital of the uninsured.^[1]

• In 2020, around five million Texans lacked health insurance.
• 3% of Texans were uninsured,^[2] almost doubled the national average of 8.7%.
• 27 out of Texas’ 36 Congressional districts were at the bottom 10% of insurance coverage.
• The district that had the highest uninured rate in the nation – 31% of the residents were without insurance – was in Harris County.

Texas is one of twelve states that did not expand Medicaid eligibility to cover individuals whose income is between 100% and 138% of the Federal Poverty Guideline.^[3] Studies have shown that those who are uninsured are also most likely have low income. Latinos are nearly three times more likely to be uninsured than Whites in Texas.^[4] Non-citizens who made up more than 30% of the people without health insurance in Texas are three times as likely to be uninsured as natives. More than 45% of unauthorized immigrants went without insurance in 2018, compared to 10% of U.S. natives and 23% of those with lawful immigration status.^[5]

For more than a quarter century, low-income non-citizens, with few exception,^[6] who have insufficient work history in the U.S. are not eligible for Medicaid and other federal benefits. Immigrants must navigate a patchwork of healthcare that is often confusing and costly. Family separation, public charge regulation, and mass expulsion during the last administration created additional and lasting chilling effects that discourage immigrants from accessing healthcare. Immigration status is a social determinant of health: being an immigrant limits behavioral choices that “directly impacts and significantly alters the effects of other social positioning, such as race/ethnicity, gender, or socioeconomic status, because it places individuals in ambiguous and often hostile relationships to the state and its institutions, including health services.”^[7] Immigration status not only affects the immigrants, but it also impacts the health of their children even though the children are U.S. Citizens. This is evident when parents disenrolled their children from Medicaid and food assistance programs when the now repealed public charge regulation surfaced.^[8]

The latest Supreme Court decision in Dobbs v. Jackson Women’s Health further complicates immigrant women’s already constrained access to reproductive health services. National data show that overall, Black, Hispanic, American Indian and Alaska Native, and Native Hawaiian and Other Pacific Islander women of reproductive age are more likely to be uninsured or relied on Medicaid for healthcare coverage. They have more limited access to health care, which affects their access to other reproductive health services, such as contraception and other sexual health services, as well as maternal and infant health. The long history of racist healthcare practices targeting sexual and reproductive practices of women of color, and discriminatory practices of healthcare providers, together with stereotypes, assumptions, inattention, and dismissive attitudes have led to mistrust, lower and delayed healthcare usage among women of color. Delayed or lack of prenatal care has meant that people of color are more likely to experience certain birth risks and adverse birth outcomes such as preterm, low birth weight, higher risk of dying for pregnancy-related reasons or infant mortality.^[9] Among women of the 18-49 age group, 35% Asian women, 27% Hispanic women, and 20% Native Hawaiian and Pacific Islanders are noncitizens. Many who are citizens live in mixed immigration status households, travelling out of state to access abortion may risk adverse criminal and immigration consequences. In addition, low-income immigrant women, documented or unauthorized, must overcome barriers such as financial, transportation, childcare, work schedule, education, English proficiency, and internet access in making healthcare decisions.^[10]

Women made up about half of all immigrants, 95% of them are of childbearing age.^[11] As advocates for immigrant rights, we must recognize the intersectionality of immigrant justice with economic justice and reproductive justice. In passing Violence Against Women Act and creating waiver from joint petition for victims of domestic violence, Congress had recognized the connection between immigrant justice and reproductive justice and passed laws to protect immigrant victims of domestic violence to break the power and control wielded by the citizen spouse and abuser who hold the power to confer immigration status to the immigrant spouse. Reproductive justice is not just about the right to end a pregnancy, it includes the right to control one’s reproductive future, the right to decide when or whether to have a family, the right to have a healthy pregnancy, and the right to have safe and healthy families and relationships. Reproductive justice is a crucial scaffolding to social justice. Our immigration system is replete with measures to control immigrants’ reproductive freedom. In 1875, Congress passed the Page Act to limit the immigration of Chinese women, which together with anti-miscegenation laws and laws barring the immigration of Asians, removed Chinese immigrants’ ability to form or reunite with families. The continued practice of separating immigrant families on the border by splitting spouses into different detentions, removing children from fathers or other guardians, detaining part of a family unit continues to assault the sanctity of immigrant families and disparage their family values. Attempts in population control and social engineering by the eugenics movement led to fanatical “selective breeding” resulting in the sterilization following childbirth of thousands of Latinas, especially those of Puerto Rican and Mexican descent, without their knowledge or fully informed consent.^[12] The 1996 federal welfare reform limiting recent immigrants’ access to Medicaid creates additional barriers to immigrant women’s access to reproductive health. Reports of forced hysterectomy and other gynecological procedures in the Irwin County ICE detention in Georgia are the latest examples of infringement of immigrant women’s reproductive rights as a means of control and deterrent.^[13] Anti-immigrant zealots’ use terms such as “anchor babies” and out-of-wedlock birth rate among immigrant women (which is roughly equivalent to that of citizen women) to argue for restrictive immigration are examples of how immigration debate denigrates immigrants’ reproductive justice.

Health is a fundamental human right enshrined in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. Reproductive justice is a crucial component of health justice, which we cannot achieve if reproductive justice is not on the agenda.

The draconian public charge regulation of the last administration and the corresponding chilling effects in the immigrant community spurred HILSC to launch the Connect for Healthcare project to improve immigrants’ access to healthcare and ultimately to health. By adopting a multidisciplinary approach, we build a network comprising providers in benefits enrollment, organizing and advocacy, legal services, and healthcare to create a “no wrong door” web where we leverage our relationship in the immigrant community and our diverse expertise to improve the immigrant community’s access to healthcare. We also partner with Children Defense Fund of Texas and Every Texan to launch the “Thawing the Chilling Effects” campaign to dispel rumors and misinformation about “public charge” and to provide resources to facilitate the immigrant community’s access to life-sustaining safety net programs such as food and shelter. For more information, check out our new webpage on Connect for Healthcare.

~ Written by Zenobia T. Lai

[1] Michael Macagnone, Texas lags nation in health insurance coverage rate in census data, Roll Call, (Mar. 17, 2022), https://rollcall.com/2022/03/17/texas-lags-nation-in-health-insurance-coverage-rate-in-census-data/.

[2] A 2019 estimate placed Texas at the top of uninsured state at 24.5%, four percent higher than the next state with high uninsured population, and the Texas uninsured rate was almost twice the national average of 12.9% at the time. https://www.texmed.org/Template.aspx?id=5519.

[3] According to the 2022 Federal Poverty Guideline, an individual whose annual income is less than $13,590 is officially poor. At 138% of poverty guideline, it translates to $18,754 for one person and $38,295 for a family of four. https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines.

[4] https://www.texmed.org/Template.aspx?id=5519.

[5] Health Insurance Coverage Among Special Populations in Texas (Texas Medicine) https://www.texmed.org/uninsured_in_texas/#:~:text=to%20Uninsured%20Population-,Non%2Dcitizens%20are%20almost%20three%20times%20as%20likely%20to%20be,the%20uninsured%20are%20non%2Dcitizens. See also, Sean Price, Texas’ High Rate of Uninsured Hurting the Economy, Study Says, Texas Medicine, (Oct. 30, 2019), https://www.texmed.org/TexasMedicineDetail.aspx?id=49562.

[6] Refugees, asylees, victims of domestic violence or human trafficking, certain parolees, individuals granted withholding, conditional entry, Haitian/Cuban Entrants, Amerasians are exempt under the 1996 federal welfare reform.

[7] Heide Castaneda, et al, Immigration as a Social Determinant of Health, 36 Annual Review of Public Health 375, 378 (March 2015), https://www.annualreviews.org/doi/pdf/10.1146/annurev-publhealth-032013-182419.

[8] Cheasty Anderson, Public Charge and Private Dilemmas: Key Challenges and Best Practices for Fighting the Chilling Effect in Texas, 2017-2019, Children’s Defense Fund – Texas (2020), https://cdftexas.org/wp-content/uploads/sites/8/2021/01/Public-Charge-and-Private-Dilemmas_report_020.pdf.

[9] Amanda Jean Stevenson, The Pregnancy-Related Mortality Impact of a Total Abortion Ban in the United States: A Research Note on Increased Deaths Due to Remaining Pregnant, 58 Demography, 2019-2028 (Oct. 25, 2021), https://read.dukeupress.edu/demography/article/58/6/2019/265968/The-Pregnancy-Related-Mortality-Impact-of-a-Total.

[10] Samantha Artiga, et al., What are the implications of the Overturning of Roe v. Wade for Racial Disparities? Kaiser Family Foundation, (July 15, 2022), https://www.kff.org/racial-equity-and-health-policy/issue-brief/what-are-the-implications-of-the-overturning-of-roe-v-wade-for-racial-disparities/.

[11] Fact sheet: Immigration Policy and Reproductive Justice, American Progress (Jul 10, 2007), https://www.americanprogress.org/article/fact-sheet-immigration-policy-and-reproductive-justice/.

[12] Julissa Arce, The Long History of Sterilization, UNISOS US Blog, https://www.unidosus.org/blog/2021/12/16/the-long-history-of-forced-sterilization-of-latinas/.

[13] Victoria Bekiempis, More immigrant women say they were abused by ICE gynecologist, The Guardian (Dec. 22, 2020), https://www.theguardian.com/us-news/2020/dec/22/ice-gynecologist-hysterectomies-georgia.

Reflections on a Historical Supreme Court Term

What can one say about the SCOTUS Term 2021-2022? Yes, the U.S. Supreme Court in Biden v. Texas did find that the Biden Administration has authority to end the “Remain in Mexico” policy, a program that forced asylum seekers to live in squalid and dangerous conditions across the border as they awaited adjudication of their applications. However, this victory does not mitigate the harm and suffering of the 71,000 people who were put through that program and no date has been set for its termination as of this writing.

Prior to issuing the “Remain in Mexico” decision on the last possible day of the term, the Court issued a string of decisions depriving fundamental rights of individuals and diluting safeguards against overzealous criminal prosecution and immigration enforcement. At the same time, this Court also cinched the ability of state and federal government in regulating public safety, global warming, and corruption.

For the first time in U.S. history, the U.S. Supreme Court stripped away a longstanding fundamental right of the people. In reversing Roe v. Wade and vesting abortion decisions in state legislatures, the Court in Dobbs v. Jackson Women’s Health Organization robs individuals of their fundamental right to have autonomy over their body and to make decisions about forming families. The Court found support for this decision by referencing state laws criminalizing abortion dating back to 1828, undoing two centuries of advancements in civil liberties. The immediate impact of the Dobbs decision is that 13 states with “trigger ban” laws will proceed to ban abortion with another slate of states preparing to follow suit, leaving only 20 states that will maintain access to reproductive services. This decision will cause enormous harm to women of color, immigrant women and low-income women who already have limited access to basic healthcare. In a companion article, we outline some of the reproductive health resources that are still available despite Dobbs.

However, Dobbs is really not about abortion or morality or traditions. In Dobbs, the SCOTUS majority tossed away the fundamental judicial doctrine of stare decisis, opening up for legal challenge all settled precedents establishing fundamental rights. Justice Clarence Thomas made clear his intent of revisiting, likely reversing, other decades-old decisions establishing fundamental rights of privacy legalizing contraception, consensual sex among adults and same sex marriage should any such case come before the Court, though he curiously left out interracial marriage in his grand rights reversal scheme. Dobbs’s intent of returning abortion decision-making to state legislatures elected by the people is particularly disingenuous when this same court failed to protect voting rights, allowed rabid gerrymandering, and other state actions that decimate the voting rights of people of color.

Weeks after the catastrophic ruling by the Supreme Court in Dobbs, we continue to wonder what direction our courts, healthcare system and elected government will take next. While our federal government and healthcare systems remain gridlocked, the conservative supermajority of the Supreme Court continued its rightward shift that it has prepared for in the past half century. Discarding the incrementalism and guiding principle of stare decisis, the conservative justices moved quickly to strip down civil liberties outside of reproductive health and remove restraints on law enforcement while paradoxically weakening the government’s ability to enact regulation protecting its citizens.

The Expansion of Unaccountable Government Power

From accusation of a crime to detention on death row, the court enfeebled many protections and limitations on government power in criminal law, even to the extent of infringing on the sovereignty of native people. Oklahoma v. Castro-Huerta dealt a blow to tribal sovereignty, allowing state law enforcement to prosecute crimes on reservations, potentially causing massive disruption to Indian country criminal justice. Other cases removed deterrents to law enforcement agents. Egbert v. Boule made it much more difficult to sue federal officers engaging in misconduct while Vega v. Tekoh held that those with their Miranda rights violated could not seek civil damages against its violators.

The Hollowing Out of Habeas Relief

In Shoop v. Twyford, Brown v. Davenport and Shinn v. Martinez Ramirez, the Court instituted more hurdles for criminal defendants to obtain habeas relief in federal court. Raising deference to state sovereignty “to enforce social norms through criminal law,” and zeroing in on inmate’s failure to exhaust remedies in state court pre-conviction, the SCOTUS majority ruled to significantly narrow habeas relief for fear that its use would allow the guilty to go free. This conclusion fundamentally contradicts the intent of habeas corpus, which is to ensure that no one is convicted or executed in violation of the Constitution.

All these cases served to hollow out constitutional rights by sharply reducing the avenues in which victims of an overzealous criminal justice apparatus can seek relief from unjust punishment. Immigrants did not escape the impacts of this march to narrow availability of habeas corpus. In two companion cases, Garland v. Aleman Gonzalez and Johnson v. Arteaga-Martinez, the SCOTUS majority found that the immigration statute in question does not require the government to hold bond hearings, effectively permitting indefinite detention of individuals caught in removal proceedings. As in the criminal law realm, the conservative court worked diligently to weaken rights and protections. With cases such as affirmative action coming up in the next session, the outlook for further undermining of these protections looks bleak. Though the Court strongly supported government power in the realm of law and order, it weakened its ability to protect the community through regulation.

Weakening Protections and Rights for the Community

The conservative push by the Court weakened the government’s ability to pass regulations protecting public safety and stemming the tide of climate change. In New York State Rifle & Pistol Association Inc. v. Bruen, the Court struck down a 100-year-old New York statute requiring applicants for gun licenses to show special need. In West Virginia v. EPA, the Court removed the federal agency’s ability to regulate emissions, defanging our ability to stem global warming at a time when tens of thousands of migrants were forced to abandon their homes to come to the U.S. because of destitution and famine caused by climate change. This pair of decisions together with FEC v. Ted Cruz, in which the Court agreed politicians could use campaign funds to repay themselves, weaken the ability of government to regulate against harm and to protect the integrity of our democracy against corruption in politics.

A Portentous Supreme Court Term

It is too depressing to recount all the decisions of this SCOTUS term that divested fundamental rights, emboldened government bullies, narrowed Constitutional protections, and trampled on the vulnerable. Those who work with marginalized communities know what unaccountable government force can exact on human dignity. Immigrants have faced it with indefinite imprisonment without due process and many minority communities have horror stories of abuse by law enforcement and prosecutors with no recourse.

The conservative supermajority in the Supreme Court has loudly trumpeted their aims to continue whittling down constitutional protections or outright annihilating them. This trend promises a more inhospitable America for everyone. Today we see minorities and undocumented immigrants greatly affected by these decisions, but as the Dobbs decision showed, the ramifications of these decisions will continue expanding outward to disrupt the lives of people who never expected to have their liberties curtailed.

Like the current pandemic, this court term also laid bare the failures of a healthcare system that does little to nothing for marginalized communities. Groups such as immigrants have little to no access to healthcare due to the quarter-century-old welfare reform that predicated eligibility for healthcare on having the right kind of immigration status and lengthy work history in the U.S. Though many advocates and organizations have and continue to step in to help victims of the damage wrought by disastrous policies and jurisprudence, work remains to provide a lifeline to those in need while working towards systemic change that remains the only answer to achieve true equality in America. Organizing, advocacy, civic participation and legal challenges remain our strongest defense against the relentless rightward march toward decimating fundamental human rights and civil liberties.

~ Written by Zenobia Lai and Chris Dupree

Every May, we celebrate the history and heritage of Asian Americans, Native Hawaiians, and Pacific Islanders in the United States. There are more than 25.6 million Asian Americans, Native Hawaiians, and Pacific islanders in the United States (24 million Asian Americans and 1.6 million Native Hawaiians and Pacific Islanders). Asian Americans, Native Hawaiians, and Pacific Islanders (AANHPI) encompass more than 50 ethnic groups that trace their lineage from more than 40 countries. As a group, AANHPI is the fastest-growing racial group in the United States. Their skin color ranges from fair to brown hues. They are U.S. Citizens, Lawful Permanent Residents, U.S. National, undocumented, and non-immigrant visitors. They are straight, gay, queer, bisexual, trans and nonbinary. Just who are Asian Americans and who are Pacific Islanders? How did they become part of the American mosaic and how have they shaped American jurisprudence and immigration law? Native Hawaiians are, by definition, natives of Hawaiʻi, and how did they become part of America?

There are no Asians in Asia. There are people with national identities in Asia. It is only in America where the diverse Asian ethnicities become Asian Americans, a pan ethnicity out of necessity and rooted in their collective struggle against racism and racist immigration policies. Most, if not all, Americans of Asian descent trace their American origin to that forebear who immigrated to the United States, as laborers who built the transcontinental railroad, as foreign students, as farm workers, as miners, as fishermen, as entrepreneurs, as gardeners, as refugee, as scholars…. Because of restrictive and racist immigration policies, more than one hundred and seventy years since the first group of Chinese immigrated to the United States (Filipinos Americans established their first recorded North American settlement in St. Malo, Louisiana in 1763, Filipino sailors had been coming to Morro Bay in California as early as 1587), sixty percent of Asian Americans are still immigrants. Nearly one in three individuals immigrated to the United States is from an Asian country.

Native Hawaiians and Pacific Islanders, on the other hand, are natives to their land, which was acquired by the United States as spoils of wars or conquests. The legacy of settler colonialism and imperialism partly explains the incorporation of Native Hawaiians and Pacific Islanders in this nation’s demographics.

Hawaiʻi was an independent sovereign kingdom until it was overthrown in a coup d’état led by Sanford Ballard Dole, a sugar planter born to American parents, on January 17, 1893 with the tacit support of the U.S. government. The end of the Spanish-American War provided the McKinley Administration a pretext to annex Hawaiʻi. Through the Hawaiian Organic Act, U.S. annexed Hawaiʻi on April 30, 1900. Chinese then residing in Hawaiʻi could obtain certificates of residence one year after the enactment of the Hawaiian Organic Act, but they would be prohibited from entering the U.S. mainland from Hawaiʻi even with these certificates of residences due to the Chinese Exclusion Acts.[1] Hawaiʻi became the fiftieth state in 1959 by act of Congress ratified by 94% of voters who voted in a plebiscite in Hawaiʻi. Native Hawaiians became United States Citizens under the Hawaiian Organic Act, which has also been codified in the Immigration and Nationality Act.[2]

Puerto Rico, Guam, Cuba, and the Philippines became American possessions after Spain lost the Spanish-American War in 1898. Cuba became an independent country under the Treaty of Paris that ended the Spanish-American War. The United States bought the Philippines from Spain, and it remained a U.S. territory for almost fifty years until it gained independence in 1946. The U.S. colonization of the Philippines rendered Filipinos U.S. Nationals with no right to citizenship. As U.S. Nationals, Filipinos were exempt from immigration laws that barred Asians from immigrating to the U.S. The Asian ban was completed when Congress passed the Tydings-McDuffie Act in 1934, under the guise of granting independence to the Philippines in ten years,[3] reclassified Filipinos as “aliens,”[4] thus subjecting them to the Asian bar, prohibited them from migrating to the mainland from Hawaiʻi[5] and drastically reducing Filipino migration to fifty persons per year,[6] essentially ended Filipino immigration. Many Filipino men came to the U.S. to work on Hawaiian plantations, Californian farmland, and Alaskan fisheries and canning industries as sojourners, leaving behind wives and children, planning to one day return to the Philippines. In the end, eighty percent of them remained in the United States. Stripped of their status as U.S. Nationals under the 1934 law and ineligible to become U.S. Citizens under Asian exclusion laws, Filipino Americans endured decades of family separation until the 1965 immigration reform allowing them to petition for family members to immigrate to the United States. Those who served in the military were given the option to become U.S. Citizens. Under the current quota system with visa caps on country and immigration categories, Filipinos continue to endure decades of family separation as the immigration backlog continues to grow.[7]

Guam and Puerto Rico remained U.S territories 124 years since the end of the Spanish-American War. Pursuant to the Insular Cases,[8] residents of unincorporated territories and insular possessions of the United States, such as Guam, Puerto Rico, and the Philippines, were ineligible for U.S citizenship. The Jones-Shafroth Act[9] that was signed into law on March 2, 1917, gave U.S. citizenship to Puerto Ricans.[10] This was codified into law as part of the Immigration and Nationality Act.[11] Between 1967 and 2020, Puerto Rico has held six referenda on statehood. Despite a majority of voters favoring statehood, Congress has yet to act to make it a reality. The Organic Act of Guam[12] that was signed into law on August 1, 1950, conferred American citizenship to all persons residing in Guam at the time of its enactment, thus ended a half-century quest for U.S. citizenship by its native Chamorros. It also identified Guam as an Unincorporated Territory of the United States to be overseen by the Department of the Interior. As a U.S. territory, people of Guam are represented by one non-voting delegate in Congress. Since 1998, the island has undertaken several plebiscites on decolonization. The latest one that took place in 2016 opened solely to Chamorro native people of Guam was struck down by a federal court for being racially discriminatory.

The other “Pacific Islands” include the Commonwealth of the Northern Mariana Islands that is an unincorporated territory with Commonwealth status, and several unincorporated and unorganized[13] territories such as American Samoa, Baker Island, Howland Island, Wake Island, Midway Atoll, Johnson Stoll, Kingman Reef, Jarvis Island and Navassa Island.

American Samoa lies in South Pacific halfway between Hawaiʻi and New Zealand. The Tripartite Convention of 1899 settled the international rivalries concerning the Samoa Islands and partitioned the islands into two: the eastern island group became a U.S. territory, known today as American Samoa, the western cluster became possession of Germany. Formal annexation by the U.S. took place in 1900 by Deed of Cession. The matai (local chiefs) of Tutuila, the largest island in American Samoa, ceded the island to the United States in 1900. Manu’a followed in 1904. Swain Island joined the territory in 1925 by an act of the Congress. The U.S. Navy administered the American Samoa until 1950 before turning it over to the Department of the Interior. People born in American Samoa are nationals but not citizens of the United States at birth.[14] American Samoans can apply for citizenship through naturalization three months after they move to the mainland of the United States. A group of American Samoans sued the federal government for birthright citizenship in 2012. In Tuaua v. United States, the federal court affirmed that the Citizenship Clause of the Fourteenth Amendment does not apply to persons born in unincorporated territory, including American Samoa, thus reviving the two-tiered framework laid out by the Insular Cases from more than a century ago. The case renders the 50,000 American Samoans the only people born on American soil who are denied birthright citizenship.

The Commonwealth of the Northern Mariana Islands (CNMI) is an unincorporated territory comprising fourteen islands (including Saipan, Tinian, and Rota) on northwestern Pacific Ocean just north of Guam. Around 48,000 persons live in CNMI according to Census 2020. The territory was colonized by Spain, Germany, and Japan until the United States assumed administration after World War II under the Security Council Resolution 21 establishing trusteeship of strategic areas. The islands were part of the United Nations Trust Territory of the Pacific Islands (TTPI). In 1976, Congress approved the Covenant to Establish a Commonwealth of the Northern Marianas Islands in Political Union with the United States; CNMI formally came under U.S. sovereignty on November 4, 1986 under Proclamation 5564,which also conferred U.S. citizenship to the islanders. The Consolidated Natural Resources Act of 2008 (CNRA) made federal immigration law applicable to CMNI beginning on November 29, 2009.[15] In Eche v. Holder, the Nineth Circuit held that the Naturalization Clause does not extend to the unincorporated territory such as CNMI such that residency prior to the enactment of CNRA did not count toward fulfilling residency requirement for naturalization.

The Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) were part of the TTPI administered by the United States since the end of World War II. Both have become independent sovereign states under Compact of Free Association: FSM on November 3, 1986, and RMI on October 21, 1986. The United Nations Trusteeship ended in December of 1990. Marshallese, together with people from the Federated States of Micronesia and Palau[16] can come to the U.S. to live, work, and study without visas, but they are not U.S. Citizens or U.S. Nationals. They could apply for permanent immigration status through the same avenues available to all others intending to immigrate to the United States.

So when you tell me my time is

up I tell you this.

Pride has kept my lips

pinned by nails,

my rage coffined.

But I exhume my past

to claim this time 

~ Janice Mirikitani, in “Mr. Commissioner”

~ Article Written By Zenobia Lai

[1] Pub. L. 56-339, Section 101 (April 30, 1900).

[2] 8 U.S.C. §1405.

[3] Pub. L. 73-127, §10(a). (March 24, 1934), https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/48/STATUTE-48-Pg456.pdf.

[4] Id. §8(a)(1)

[5] Id. §8(a)(2).

[6] Id. §8(a)(1).

[7] For example, a married son or daughter of a Filipino American will have to wait 61 years before an immigrant visa is available. David J. Bier, Immigration Wait Times from Quotas Have Doubled: Green Card Backlogs Are Long, Growing, and Inequitable, (Cato Institute, Policy Analysis No. 873, June 18, 2019), https://www.cato.org/publications/policy-analysis/immigration-wait-times-quotas-have-doubled-green-card-backlogs-are-long.

[8] The Insular Cases refer to a series of cases decided by the U.S. Supreme Court from 1901 to 1914 that created a two-tiered framework for applying constitutional rights in the U.S. territories. Constitution applied with “full force and effect” for “Incorporated” territories that were destined ultimately for statehood. Downs v. Bidwell, 182 U.S. 244 (1901). See also, Rasmussen v. United States, 197 U.S. 516 (1905) (Sixth Amendment mandated a right to jury trial in Alaska.) Whereas for “unincorporated territories” that lacked the necessary “anticipation of statehood,” only “fundamental” constitutional rights applied. See Dorr v. United States, 195 U.S. 138 (1904). (Residents of the Philippines did not enjoy the right to jury trial unless Congress saw fit to confer it by statute.) These cases justified the American government’s treatment of insular territories as satellite colonies from which it could freely extract resources without corresponding obligations to the people on these land.

[9] 39 Stat. 951-968 (1917).

[10] Pub. L. 64-145, §5 (March 2, 1917).

[11] 8 USC §1402.

[12] Pub. L. 81-512 (1950). https://www.govinfo.gov/content/pkg/COMPS-1142/pdf/COMPS-1142.pdf.

[13] These territories are classified as “unorganized” because Congress has not passed an Organic Act for these territories.

[14] 8 U.S.C. §1408.

[15] Pub. L. 110-229, §6 (May 8, 2008).

[16] Palau has a separate Compact of Free Association that took effect on October 1, 1994. https://www.uscis.gov/sites/default/files/document/fact-sheets/FactSheetVerifyFASCitizens.pdf.

This January marks the anniversary of many things, but what tops the list is the January sixth insurrection that took place in 2021. The January Sixth insurrection was a frontal attack of the American democracy, a violent assault on our faith that in a democracy, the majority decides and that there will be peaceful transfer of power following a free and fair election. It was the gravest threat to our democracy. The insurrection also ripped open the thin veil to bare the deeply divided Congress where immigration reform proposals have run into a dead end. Gone are the days when the bipartisan Gang of Eight ushered to passage in the Senate an immigration reform bill in 2013.

One year into the Biden Administration, despite the House passed the Dream and Promise Act of 2021 and the Farmworker Modernization Act in March of 2021 and the introduction of President Biden’s U.S. Citizenship Act of 2021, there has been no action on any of these bills in the Senate. Proposals to incorporate measures of immigration reform through the Budget Reconciliation process were thrice rejected by the Senate Parliamentarian. Common sense legislative change such as advancing the date from the current January 1, 1972 (set thirty-five years ago as part of the 1986 Immigration Reform and Control Act) to allow long-term residents to acquire permanent immigration status through the registry process went nowhere.

On the campaign trail, President Biden promised to finish the work of building a fair and humane immigration system. What would a fair and humane immigration system look like? First, stop calling immigrants “aliens.” U.S.C.I.S. has replaced references of “alien” with “noncitizen” or “undocumented noncitizen,” but there is still a lot of work remaining to meet the goal of replacing that word in all federal statutes and regulations as proposed in the U.S. Citizenship Act of 2021.

To begin building a humane and fair immigration system, we must acknowledge that the system we have is a product of systemic racism. It started with the Naturalization Act of 1790 that allowed only free whites with good moral character to attain citizenship. The law excluded African Americans, Native Americans, and all immigrants of color. The Fourteenth Amendment and the Naturalization Act of 1870 conferred citizenship to African Americans, but Asian immigrants would have to wage decades-long losing legal battle trying to squeeze within the riddle of who is a White person.[1] It was not until 1952 when Asian immigrants became eligible for American citizenship.

A fair and humane immigration system also does not create family separation. Under our current immigration system, families are separated because of the artificial quota that limit how many people from which country under which immigration category can immigrate to the U.S. The quota system is another product of systemic racism. It came into being under the Emergency Quota Act of 1921 that imposed a national origins quota restricting the number of immigrants from any country based on its share of U.S. population in the 1910 Census, thus favoring immigrants from Europe over the rest of the world. Congress further tightened the national origins quota system to favor immigrants from western Europe in the 1924 legislation by setting the quota based on the 1890 Census. Asians, except Filipinos who were U.S. Nationals, were categorically excluded due to the Chinese Exclusion Acts barring Chinese and the Asiatic Barred Zone adopted by Congress in 1917 that barred all immigrants from Asia. This racially discriminatory quota system remained the principle of our immigration system until 1965 when Congress overhauled our immigration laws and assigned the same 20,000 visa quota for every country. Despite the improvement, our immigration law creates family separation by classifying different members of the same family into various preference groups, separating immigrant families for years, and in some cases, decades. For example, in 2018, there were 1.3 million Mexicans waiting for visas to immigrate to the U.S. The interaction between per country quota limit and immigrant preference means that an unmarried adult son or daughter of a Mexican green-card-holder must wait 51 years for an immigrant visa to be available, and should this person decide to get married, this decision will set him or her back another 11 years. Filipinos who are married sons and daughters of a U.S. Citizen also experience a lengthy wait of 61 years for immigrant visas. Should the petitioner pass away before the immigrant visa becomes available, the immigration petition becomes null and void unless there is another parent who can substitute as petitioner. An immigration system that causes families to separate for decades cannot be a humane system. A quota system that originated from systemic racism is fundamentally unfair.

A fair and humane immigration system must have pathways to citizenship for our long-term residents. Among the estimated 10.5 million unauthorized immigrants, 58% have lived in the U.S. for more than 10 years as of 2019, 33% came to the U.S. at seventeen years old or younger, nearly one in three lived in households with U.S. Citizens (the overwhelming majority of them children), 96% of those in the work force were employed.[2] If the pandemic has taught us anything, it is that 7.2 million essential workers who are unauthorized immigrants have risked their lives to feed us, care for us, stock the shelves of supermarket, process our Amazon orders, and are the engines of our economic recovery. Conferring legal status to these individuals would be the true measure of our gratitude.

To have a fair and humane immigration system also means that we honor our obligations under our laws and international treaties and conventions. It means that we allow asylum-seekers to enter the U.S. to seek refuge, not turning them away under spurious public health excuses or create un-resourced refugee camps across the border in Mexico to expose migrants to grave dangers. A fair and humane system also means providing equitable access for everyone, especially Black migrants, to our immigration system. In 2021, Immigration and Customs Enforcement (ICE) operated 1,056 deportation flights, expelling at least 100,000 migrants.[3] Of these deportation flights, 154 were flown to Haiti, 116 of these flights took place after September 19, 2021, expelling around 15,300 Haitians. Most of the Haitians expelled never had a chance to seek asylum prior to removal. These numbers did not include most expulsions that happened on land border.[4]

United States is a signatory to the International Covenant on Civil and Political Rights. Article 9 of the Covenant provides that everyone “has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.”[5] Immigration violations are civil in nature. Immigrants, and especially asylum-seekers, who violate immigration law for entering U.S. without a visa or immigration inspection should not be detained. If our immigration system continues to detain individuals for violating immigration laws, they should have assigned counsel to help them defend against deportation before Immigration Judges. Public funding to provide legal counsel to detained immigrants is sound policy not only because it improves administrative efficiency by helping immigration Judges move cases along and ensuring immigrants appear for scheduled hearings, but it is also a matter of fundamental due process rights. More than forty years ago, the U.S. Supreme Court found that indigent parents who stand to lose custody of their children have strong liberty interest, and that due process demands that they be appointed counsel in these proceedings.[6]  The U.S. Supreme Court also found that a litigant’s right to counsel is not determined by whether the case is civil or criminal in nature, but the right attaches when the outcome of the case may result in the individual’s freedom being curtailed.[7] Immigrants, children and adults alike, lost their freedom when they are thrown into immigration detention from which they are not free to leave. Detention curtails their freedom before they even get a chance to seek immigration protection. From that point on, they must alone navigate the complex immigration system operated in a language not their own against the U.S. government represented by trained attorneys. This David versus Goliath situation can hardly be fair. Unrepresented and detained individuals are more than ten times more likely to lose their bid for immigration relief.[8] The outcome of losing an immigration case is deportation and expulsion back to a country where grave danger awaits, in addition to family separation. A fair and humane immigration system must protect the significant liberty interest of immigrants and their right to due process.

Throughout decades of public discourse about immigrants and debate about what our immigration system should look like, our country looks at what immigrants do for us: pick the crops, cut and pack the meat, clean our offices and hotels, teach our children, care for our elders and sick, innovate our technology, invest to elevate our economic prowess. Immigrants must also prove their worth in dollars, degrees, diplomas, extraordinary skills, squeaky clean backgrounds, among other things. Our country rarely considers what our immigration system does to immigrants, whom we need but do not welcome. Our immigration system can never be fair and humane if we cannot agree on this core truth “that we are all human, we are all Americans and we have common hopes for our communities and country to thrive.”[9]

~ by Zenobia Lai

[1] In a unanimous decision in 1923, the U.S. Supreme Court found that the term “Caucasian” is not synonymous with “White,” and an Indian person though might be Caucasian was not White as recognized by other White people, and therefore should be stripped of U.S. citizenship. United States v. Bhagat Singh Thind, 261 U.S. 204 (1923). In so deciding, the U.S. Supreme Court contradicted its logic in deciding that Takao Ozawa, an immigrant from Japan who had adopted western culture and upbringing, was ineligible for citizenship as he was not a Caucasian. Ozawa v. United States, 260 U.S. 178 (1922).

[2] Donald Kerwin, et al., Ready to Stay: A Comprehensive Analysis of the US Foreign-Born Population Eligible for Special Legal Status Programs and for Legalization under Pending Bills, (Center for Migration Studies, Dec. 9, 2021), https://cmsny.org/publications/ready-to-stay-report/

[3] Thomas Cartwright, ICE Air Flights: December 2021 and Last 12 Months, (Witness at the Border, Jan. 4, 2022), https://static1.squarespace.com/static/5e221cacff87ba2d2833cf54/t/61d39007020a5d713c988e78/1641254920060/ICE+Air+Dec+2021F_THCPDF.pdf

[4] Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions FY2021, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics-fy2021; Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions FY2022, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics

[5] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

[6] Lassiter v. Dept. of Soc. Services, 452 U.S. 18 (1981).

[7] In re Gault, 387 U.S. 1 (1967).

[8] Jennifer Stave, et al, Assessing the Impact of Legal Representation on Family and Community Unity. P. 28 (New York: Vera Institute of Justice, 2017), https://www.vera.org/publications/new-york-immigrant-family-unity-project-evaluation; Transactional Records Access Clearinghouse (TRAC), “Representation Makes Fourteen-Fold Difference in Outcome: Immigration Court ‘Women with Children’ Cases,” July 15, 2015, https://perma.cc/7NBM-BNXW.

[9] Jimmy Carter. I Fear for Our Democracy (New York Times, Jan. 6, 2022), https://www.nytimes.com/2022/01/05/opinion/jan-6-jimmy-carter.html