Thursday, September 30, 2010

Conservative Insecurity and Immigrants

This week the Oregon Commission on Hispanic Affairs, on which I am an appointed commissioner, sparked controversy by asking the Multnomah County (includes Portland) Board of Commissioners to opt-out of the federal Secure Communities program. We attached a letter from Homeland Security Secretary Janet Napolitano that acknowledges the existence of such a procedure.

San Francisco’s Board of Supervisors is to be credited for pushing the opt-out issue and gaining this formal recognition. Following Napolitano’s acknowledgment on September 7th, so far at least two counties, California’s Santa Clara County and Virginia’s Arlington County, have invoked the opt-out procedure. In Oregon, our Commission letter this week sparked immediate controversy. National hate radio blowhard Lars Larson commented on his program that our Oregon Commission is complaining because the County is checking backgrounds of criminals who are rapists, drug dealers and killers. Of course, the knock on Secure Communities is that it is being used primarily to target immigration status violators rather than for dangerous criminals. In fact, our Commission letter specifically indicated that we support the deportation of those immigrants convicted of serious crimes. As expected, conservative commentators can’t be concerned with such nuances, as they are looking for stories to support their two-pronged belief that all undocumented immigrants are dangerous criminals, and that Latino organizations are complicit in the supposed carnage.

Wednesday, September 29, 2010

Rants of a former advocate of diversity/scholarship in the legal academy....

While many of my fellow bloggers on the site typically submit posts on a variety of important topics that directly affect the Latina and Latino community, I have found myself often writing about more general issues related to the challenges and costs of diversity. While I typically write on Latina-Latino-related issues in my articles and books, I find blogging a great way to not only vent about what is currently on my mind, it is a useful vehicle to begin to collect my thoughts on future book projects.

In an effort to continue my ruminations on subjects that have captured a good deal of my attention of late, and perhaps to overcome a case of writers block, I will attempt here to recast my views on the value of diversity as well as the importance of scholarship in the legal academy.

In terms of diversity, there is little doubt about the legal academy's stated support for the value of diversity. There are several well-known statements by both the ABA and AALS. Indeed, if there is any profession in the world that should, and in fact has made statements about the importance of diversity, it is legal education. For instance, the AALS's powerful statement on diversity issued in 1995, provides that "the commitment to diversity reaches beyond merely granting access to persons from underrepresented groups, but actually increasing the number of minorities in the profession." The ABA likewise has a similar goal "to promote full and equal participation in the legal profession by minorities, women, and persons with disabilities." The AALS announced that it: "expects that by providing an educational experience and environment at its members schools that is inclusive and representative of our multicultural society, there will be increased and more meaningful representation and access for all members of society before our many different legal forums and systems."

These statements are truly impressive, but the question I have found myself asking is whether they are enough. Do law schools meet their respective obligations to promote diversity by merely pronouncing that they support it? Most would respond to this question by saying " obviously not." Yet most law schools fall terribly short of truly being diverse environments. Some might counter by saying law schools actually do better in terms of both students and faculty than many other disciplines and cynics like me should be grateful. Really? If this last approach is true, attempting to meet the goal of diversity is a gift to the less qualified. We, the beneficiaries of diversity goals and programs like affirmative action should be eternally grateful for what we have been given.

The problem is that when examining the facade of merit and inclusion, what some still see is a profession that extols inclusions, but exists in a state, to put it as generously as possible, where peculiar statistics exist. For instance, virtually every law school in America has at least one African-American faculty member, but most, irrespective of the size of the faculty, have no more than a handful at best( excluding HBCU's, that obviously have become experts on recruiting and retaining faculty of color). As I have written and spoken about elsewhere, for African-Americans, this profession's view of diversity for most law schools resembles a 1960s dinner party by an appropriately liberal Northerner--there is the one diverse invitee and the obligatory second. Are there really so few African-Americans out there? Or do we still use the classic, but inaccurate argument, that there is a dearth of qualified candidates? I think my fellow travelers know the answer here. I would nonetheless love to hear from them.

And as the handful of you that know my work would understand, the statistics for Latinos and Latinas are even more bleak. Indeed, as I have written about in the past, half of American law schools, despite their stated commitments to diversity, do not have a single Latina or Latino faculty tenured or tenure-track member. Yet Latinas and Latinos represent roughly 10% of law school student bodies and these individuals are the largest minority group in the country. How about the qualified candidate argument? As the work of AALS President-elect Michael Olivas has illustrated, Latina and Latino faculty have qualifications that typically exceed those of non-minority candidates. More recently, Profssor Olivas questioned Hispanic Business Magazine's ranking of top law schools for Hispanics by noting: "if these figures are to (not) be believed. Even counting as “Hispanic faculty,” those
who have eaten in Mexican restaurants, these are inflated." If the above is true, and diversity is either avoided, or distorted, then what is at play in this era of a "post-race" world? Can someone explain this to me before I jump ship?

If in fact advocating for diversity and arguably a more just academy is a waste of time and actually against my own interests in terms of advancement, I am left with the choice of being tactical. Shouldn't I ponder whether I should formally abandon my writings of social justice and civil rights, and merely attack diversity and openly write about opposing affirmative action? Perhaps this way I can prove myself worthy? Perhaps this way I can prove I should not be feared? At the very least, it may leave me less frustrated with statements like " scholarship is the coin of the realm for this profession." Is it really? In actuality, just a few years ago I never would have asked that question, but experience with school after school suggests my cynicism may stem from some truths.

If abandoning diversity isn't worthwhile and support of diversity isn't dangerous, what happens to race scholars like myself that achieve or exceed, by any objective measures, the label of being successful scholars? Do schools clamor for our services? Do the postulates of supply and demand come into play and make us valuable in the market place? If not, what then is at play here?

Irrespective of what your responses are to these questions, I hope you think about them as we approach our faculty recruiting season. Do we really believe in diversity in our profession? Let's not lose sight of what I recently told a school, that I am sure I frightened: if we believe in diversity, there should be a value to it and that value must be measured against the costs that are all too often used to discount reasons to hire a diverse candidate. The realities are, statistically speaking, for every racially and ethnically diverse professor there are at least 20-30 non-diverse professors, and the numbers are worse for faculty candidates. Unless diversity means something real and has a true quantifiable value, there is always a reason not to hire that potentially scary and different faculty member.

Tuesday, September 28, 2010

Ethnic Studies and the Power of Ideas

We blogged earlier about Arizona's new law which is designed to suppress ethnic studies. Will Arizona be successful in this effort to eliminate ideas? It seems unlikely. Richard Delgado has recently observed that "ideas are not easy to kill" and that "education is an inherently destabilizing force that cannot readily be contained." (Liberal McCarthyism and the Origins of Critical Race Theory, 94 Iowa law Review 1505, 1544 (2009)). Arizona is finding this out. Instead of suppressing the ideas that ethnic studies generates, Arizona's new law has created greater interest in such studies and the number of students who are enrolled in such programs has almost doubled this year in Tucson, Arizona. (Mary Ann Zehr, Education Week, Tucson Students Aren't Deterred By Ethnic Studies Controversy,

Saturday, September 25, 2010

Is Cuba Abandoning Its Revolutionary Marxist Economic System?

For years now the writing has been on the wall. Over the last decade two great factions within the Cuban governing elite have been debating the future course of Cuban economic development.  On the one side stood the governing apparatus of traditionalists tied to the old Soviet model of development.  This group assumed there was no flaw in the Soviet model and they were determined to show that they could succeed where the Soviet sphere failed.  On the other stood progressives, with significant elements in the Fuerzas Armadas Revolucionarias, that increasingly looked to East Asian models of development as a means of preserving the political system while modifying the economic system to preserve political stability and the legitimacy of the leadership role of the Party.  The battle between the two sectors of the governing elite appeared to tip in favor of the Raulistas at the beginning of September, 2010, when in a carefully staged interview, Fidel Castro appeared to concede the point. And so it is important to ask, at this point, what the Cuban elite is permitting to be said about this change.  For that purpose, a recent article in the Communist Party paper may be of help. Leticia Martínez Hernández, Mucho más que una alternativa, Granma, Sept. 24, 2010.

To read the rest of the analysis, see Cuba Responds to Globalization and Reorganizes its Political Economy: Revolution, Retrenchment or Small Steps Towards Market Engagement Within a Marxist Framework Under the Leadership of a Vanguard Party Apparatus.

Thursday, September 23, 2010

The U.S. Census and The List

The United States census is critically important for a number of broad and varied reasons. On top of attempting to enumerate the population of the United States, the Census also provides extensive economic data. In the best of situations the Census mobilizes beneficial changes but in one instance its data fails in drawing sufficient bold and transformative trajectories.

In particular recent data shows poverty figures are increasing and reveal a measure of past failed policies in eliminating poverty in the nation. Past measures include for example linking the nation’s farm bills with food stamps but we all know not all hungry individuals are permitted food stamps. Honestly when the USDA changed the term “hungry” and replaced it with “food insufficiency” unnecessary battle lines generated further angst for activists seeking to eliminate the hunger that plagues the most vulnerable such as the elderly and children.

While not one individual -- particularly children -- should ever confront poverty and hunger, the figures underscore an essential emphasis. Specifically poverty and its attendant harm crosses race, class and gendered lines, yet the recent news of poverty in the Latina/o community dismays. The total figures emphasize that all such circumstances must be eliminated completely from the nation. Any ideas?

I have a list but as a start poverty with its attendant harm renders imperative our continued and collective vigilance in eradicating all heinous impoverishment figures from the nation’s economic base.

Saturday, September 18, 2010

In celebration of Constitution Day!

Yesterday was Constitution Day, the day we celebrate the signing of the U.S. Constitution. To highlight how the Equal Protection clause of U.S. Constitution applies to noncitizens, I authored an op-ed in my local newspaper, the Indianapolis Star. I include it below with the link to the newspaper site at the bottom. The comments to the op-ed in the site make for very interesting reading.

U.S. Constitution extends protection to immigrants
By Maria Pabon Lopez
Indianapolis Star September 17, 2010

As we celebrate today the 223rd anniversary of the signing of the U.S. Constitution, which took place on Sept. 17, 1787, let us understand what the Constitution says about immigrants. In doing so, an examination of U.S. Supreme Court case law about immigrants and equality is instructive as well, having just ended a long summer during which the immigration debate has been raging nationwide.
I believe that a close look at the Constitution -- particularly its amendments, having over time been ratified by the states -- demonstrates the will and wisdom of the people of the United States. Take, for example, the 14th Amendment, which in Section One, Clause Two states: ". . . nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This is the Equal Protection Clause, and it mandates that the government -- both federal and state -- treat persons equally when enacting legislation. If the government treats persons unequally, the Supreme Court has devised analytical tests based on the government's reason for passing the law in order to assess whether the law complies with the Equal Protection Clause.
Notice that the clause specifically says "person," not "citizen." What this means is that the equality promise of the Equal Protection clause is available by its very terms not only to citizens of this country, but to any person, including those who are not U.S. citizens, as long as they are within the jurisdiction of the United States. The Supreme Court itself has recognized that immigrants are persons in cases that further outline what rights immigrants have in the United States.
In fact, the Supreme Court has confirmed the applicability of the Equal Protection Clause to those who are not U.S. citizens, whether they are present in the country in lawful immigration status or even if they are undocumented. The case is called Plyler v. Doe, and it is a 1982 decision in which the U.S. Supreme Court struck down a Texas law that excluded children of undocumented immigrants from public schools. The court found that the law violated the Equal Protection Clause without having any rational basis for so doing.
In reaching this result in Plyler, the Supreme Court delved into the history of the enactment of the 14th Amendment. In particular, the court cited language from the 1866 congressional debate recorded at the time of passage of the Amendment as follows: "Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property?'' These are the words of John Bingham, Republican congressman from Ohio, the principal framer of the 14th Amendment. So we see that the Supreme Court found not only in the letter, but also in the history, of the 14th Amendment that the guarantee of equal protection under the law applies to all persons, immigrants or citizens, in the United States.
Having reviewed the history of the 14th Amendment, the Supreme Court emphasized "that a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter." Thus, the court found that the 14th Amendment applies to those in the country unlawfully.
With this review of the past and present of the 14th Amendment, it is my hope that as the country continues to debate immigration matters into the fall, we will approach the discussion with a fuller understanding of the equality guarantee found in this amendment to the U.S. Constitution.

Thursday, September 16, 2010

Arizona's Immigration Stance in a Regional Perspective--Mexico Builds a Wall to Keep Central American "Ilegales" Out

The thrust of discussion of Arizona's efforts to participate in the control of its internal space, and in the process challenge the federal government's role in the policing of national borders and the management of immigration,  has tended to focus solely on Arizona, as if it existed in its own space-time unconnected with the rest of the world--and especially the world beyond American borders.   As ill advised and destructive as Arizona's efforts are, they are better understood in the context of regional efforts to control immigration.  

A principal actor in the region is not the United States, but Mexico.  It appears that Mexico is fierce in the defense of its own nationals as they cross the border northward into the United States.  However, Mexico is perhaps even more fierce than the United States right wing in the defense of its own national borders against immigration from its "south"--especially migrants from Central America, either seeking a better life in Mexico or passing through to the United States.  For these people, Mexico's elite sometimes tends to mimic the behaviors and politics of the more xenophobic of elements int he United States. Mexico thus occupies a middle place within hierarchies of power--the subaltern in its relations with the United States, and the dominant power with respect to its Central American neighbors.  And, like any dominant power, Mexico appears ready and willing to reproduce the markers of subordinating power relationships between itself and those states lower down on the hierarchies of power in the Hemisphere.  Whether it does this out of a need to serve the interests of the United States, to which it is dependent, or whether it represents the application of the ideals of power relations applied to inferior powers, is unclear. 

Now clearly, Mexico's policies are as much a reaction to that of the United States as it may be a reflection of Mexican xenophobia in the region.  Yet Mexico's enthusiasm for tactics that  would be scandalous in the United States and among Latino advocates, is disturbing.  Amnesty International has criticized Mexico for its treatment of its undocumented migrant populations.  Amnesty International, Report:  Invisible Victims: Migrants on the Move in Mexico, AMR 41/014/2010, published April 28, 2010. The Report is also available in Spanish as: VÍCTIMAS INVISIBLES MIGRANTES EN MOVIMIENTO EN MÉXICO  

And now it has been reported that the Mexican government is contemplating mimicking the United States in another way--by the building of a partition wall between Mexico and Guatemala.  This wall is meant ostensibly to control the flow of goods through Mexico, but also has an objective to  control the free passage of illegal immigrants, according to officials (who interestingly had no problem using the term in Spanish). This proposed effort has been denounced by Mexican human rights and civil society advocates.

Por Danilo Valladares

GUATEMALA, sep (IPS) - Viajar sin documentos a Estados Unidos desde América Latina supone una verdadera odisea, eludiendo delincuentes comunes, leyes contra las migraciones y narcotraficantes. Pero ahora, además, parece que también habrá que sortear un nuevo muro: esta vez entre Guatemala y México.
El intendente de aduanas de la guatemalteca Superintendencia de Administración Tributaria, Raúl Díaz, afirmó que, para impedir el paso de balseros con contrabando, el sureño estado mexicano de Chiapas pretende construir un muro en la costa del fronterizo río Suchiate, similar al ya avanzado en la frontera sur de Estados Unidos.
"Podría también evitar el libre paso de inmigrantes ilegales", admitió el funcionario.
El río Suchiate es utilizado para ingresar productos mexicanos al mercado guatemalteco sin pagar impuestos, pero, a su vez, es atravesado por miles de centroamericanos y sudamericanos con destino a Estados Unidos en busca de oportunidades y sin la documentación requerida.
Unas 500.000 emigrantes cruzan cada año el territorio mexicano sin permiso, según la Comisión Nacional de los Derechos Humanos de México (CNDH).
La intención de construir el muro fronterizo ha provocado una ola de rechazo en sectores sociales y gubernamentales por considerarlo una medida "sin sentido", la cual "no evitará" que las personas crucen la frontera "sin papeles" para llegar al Norte.
"Vemos con mucha preocupación la iniciativa del gobierno mexicano, porque los emigrantes están en una situación de altísima vulnerabilidad, como lo demostró la matanza de Tamaulipas, donde murieron cinco guatemaltecos", dijo a IPS Erick Maldonado, secretario ejecutivo de la Consejo Nacional de Atención al Migrante de Guatemala.
La crueldad a la que usualmente son sometidos miles de indocumentados quedó al desnudo el 23 de agosto, cuando 72 emigrantes procedentes, además de Guatemala, de El Salvador, Honduras, Ecuador y Brasil fueron brutalmente asesinados en la localidad de San Fernando, en el oriental estado de Tamaulipas, supuestamente a manos de la mafia criminal Los Zetas.
Además, un total de 9.758 secuestros de inmigrantes fueron denunciados en México entre septiembre de 2008 y febrero de 2009, según la CNDH.
La idea de amurallar la frontera guatemalteca con México "va a empeorar la situación de la población emigrante, porque nuestros connacionales tienen necesidades y siempre logran pasar en nuevos puntos ciegos que carecen de controles migratorios y de seguridad, lo cual implica mayores riesgos", señaló Maldonado.
La vulnerabilidad de la población latinoamericana, principalmente de América Central, que emigra "sin papeles" a Estados Unidos ha permanecido a flote en los últimos meses no sólo por el recrudecimiento de la violencia plasmada en la matanza de Tamaulipas, sino también por las medidas legales en su contra.
Tal es el caso de la ley SB1070, promulgada el 23 de abril por el sudoccidental estado estadounidense de Arizona, la cual autoriza a la policía a capturar a cualquier persona de la que tengan una "sospecha razonable" sobre su estatus migratorio.
A esta serie de barreras a la inmigración se ha sumado la construcción del muro en la frontera de México y Guatemala.
Sin embargo, las autoridades de Guatemala no han recibido hasta ahora ninguna comunicación del gobierno mexicano al respecto.
No obstante, Maldonado expresó el lunes su preocupación por esta medida al delegado mexicano de migración en el país, Alejandro Martínez.
El rechazo al proyecto llegó incluso a Casa Presidencial. "Los muros nos los saltamos y no son la solución a los problemas", dijo escuetamente sobre el asunto el vicepresidente de Guatemala, Rafael Espada.
La intención del estado de Chiapas trajo a colación la polémica construcción del muro perimetral de 1.126 kilómetros que bordea el río Bravo que realiza Estados Unidos en su frontera con México para contener la llegada de indocumentados.
"El aumento terrible del costo de polleros (traficantes de personas) y la corrupción de las autoridades es el fruto de los muros que Estados Unidos pretende construir y ha construido en la frontera. Este caso lo podemos trasladar en esta situación y los resultados serán los mismos", dijo a IPS el sacerdote Francisco Pellizari, de la Casa del Migrante.
Según el religioso, los muros son un "error histórico" de varios países en el mundo que no han ayudado a resolver las migraciones.
"Se supone que es para detener la migración pero eso no ha dado resultado y sí ha provocado un derrame económico y el desvío del flujo migratorio por caminos más inhóspitos que provocan miles de muertes", señaló.
Erick Zúñiga, alcalde del occidental municipio de Ayutla, más conocido como Tecún Umán, fronterizo con México, dijo a IPS que el estado de Chiapas ya comenzó con la construcción de la barrera, la cual "parece un muro para evitar que el río Suchiate se desborde".
En todo caso, "ningún muro impedirá las migraciones. Eso no impedirá que las personas pasen al otro lado porque la gente va en busca de oportunidades de empleo y un futuro para su familia", explicó.(FIN/2010).  Danilo Valladores, Migraciones-América Latina: Otro Muro en la ruta a EEUU, Visiones de IPS (Inter Press Service) (Sept. 15, 2010).

English Version:

GUATEMALA CITY, Sep 15 , 2010 (IPS) - Travelling without documents to the United States from Latin America can turn into an odyssey, in which migrants have to elude common criminals and drug traffickers along the way, not to mention the laws on migration. But now another obstacle is emerging: a wall between Guatemala and Mexico.

According to the head of customs for Mexico's tax administration, Raúl Díaz, in order to stop boats carrying contraband, the southern Mexican state of Chiapas is building a wall along the border river Suchiate, similar to the one the United States is building along its southern border with Mexico.

"It could also prevent the free passage of illegal immigrants," admitted the Mexican official.

Smugglers use the Suchiate River to move products across an international border without paying duty taxes, but at the same time, thousands of Central and South Americans cross the river in their attempts to reach the United States in search of opportunity -- and without the required documents.

Some 500,000 migrants cross Mexican territory without permission each year, according to Mexico's National Commission on Human Rights (CNDH).

The intention to build a border wall has triggered a wave of opposition from civil society and government organisations, with charges that it is a "senseless" measure that will not succeed in preventing undocumented migrants from crossing the border on their way north.

"We are watching the Mexican government's initiative with concern because the migrants are in a situation of highest vulnerability, as demonstrated by the massacre in Tamaulipas, where five Guatemalans died," Erick Maldonado, executive secretary of Guatemala's National Council on Migrants, told IPS.

The cruelty to which undocumented migrants are often subjected was laid bare Aug. 23, when 72 people coming from Guatemala, as well as El Salvador, Honduras, Ecuador and Brazil, were brutally murdered in San Fernando, a town in the eastern Mexican state of Tamaulipas. They were presumably killed by the Los Zetas drug cartel, which is also involved in kidnapping and exploiting migrants.

In addition, a total of 9,758 kidnappings of migrants were reported in Mexico from September 2008 to February 2009, according to the CNDH.

Putting up a wall on the Guatemala-Mexico border "is going to make the migrants' situation worse, because to meet their needs they are always going to find blind points where there are no migration or security controls, which implies greater risks," said Maldonado.

The vulnerability of the Latin Americans, and especially Central Americans, who emigrate "without papers" to the United States has remained at the forefront in recent months, not only because of intense violence like the Tamaulipas massacre, but also because of government measures taken to fight illegal migration.

Law SB1070, enacted Apr. 23 by the southwestern U.S. state of Arizona, authorises police to inquire into the immigration status of any person based on "reasonable suspicion." Critics say the legislation leads to racial profiling and violations of civil liberties.

The long line of obstacles that migrants face on their way to the United States gets longer with the construction of the wall on the Mexico-Guatemala border.

However, the authorities in Guatemala have yet to receive any information from the Mexican government about the wall.

Nevertheless, Maldonado expressed his concern this week to Mexico's migration representative in Guatemala, Alejandro Martínez.

Opposition to the project has even reached the highest circles: "Walls we can jump over; they are not a solution to the problem," was the terse comment from the vice-president of Guatemala, Rafael Espada.

The Chiapas state's intention to build a wall in some ways echoes the United States' controversial construction of the 1,126-kilometre wall along its southern border river -- known as Río Grande in the U.S.; Río Bravo in Mexico -- to prevent entry of undocumented immigrants.

"The dramatic increase in the cost of 'polleros' (human traffickers) and the corruption of the authorities is the result of the walls the United States plans to build and has built along the border. We can transpose the Guatemala case to this situation and the results will be the same," Catholic priest Francisco Pellizari, of the Casa del Migrante (Migrant House), told IPS.

According to the priest, walls are a "historic error" in many countries around the world, and have failed to resolve the problems associated with migration.

"They are supposedly intended to halt migration, but that hasn't happened. Instead they have triggered an economic haemorrhage and a shift in the migratory flow to inhospitable routes that lead to thousands of deaths," he said.

Erick Zúñiga, mayor of the western Guatemalan municipality of Ayutla, better known as Tecún Umán, bordering Mexico, said the state of Chiapas has already begun construction of the barrier, which he said "looks like a wall to prevent the Suchiate River from flooding."

In any case, said the mayor, "no wall will prevent migration. It won't stop people from crossing because they are going in search of job opportunities and a future for their families." (END)   Danilo Valladores, Another Wall Blocks Route to US, Visiones de IPS (Inter Press Service) (Sept. 15, 2010).

The report suggests the contours of the problem and even its relation ship to Hemispheric issues of drug interdiction and trade flow management.  All of these lead inevitably to the United States and through Mexico.  It is possible that Mexico must adopt the approach to these policy issues that reproduce precisely those activities which, when undertaken by the United States, produces the greatest outrage within the Mexican elite.  Apparently that elite is doping more than seeking to  dismantle those barriers to migration and trade that separate Mexico from the United States--for while that project of deconstruction is being undertaken, a project of barriers is being constructed on Mexico's southern border every bit as restrictive and aggressive as the one with respect to which Mexico complains in its own and in the American press. Understood in this more regional context, the difficulties of campaigns against Arizona's efforts to impede migration in and through its own borders become clearer.  Those who join with Mexico and other elements in the dismantling of barriers to movement between states ought to be aware that selective spot lighting, while producing some measurable benefits may not ultimately produce substantive results and might, to some extent, produce perverse results. 

Tuesday, September 14, 2010

Ashcroft v.Iqbal Takes a Toll in SB 1070 Litigation

I earlier blogged that the U.S. Supreme Court in Ashcroft v. Iqbal has established a tough new pleading standard -- the plausibility standard. I said then that Latinos/as and other minorities would find it difficult to allege sufficient facts to state a plausible claim and thereby satisfy the new standard. This has come to pass in the SB 1070 cases. In Escobar v. Brewer, the plaintiff, a Latino police officer, alleged among other things, that he had standing to bring the legal action because "as a Hispanic residing in Arizona" he was "exposed to all the dangers that [SB 1070] presents." Despite this, the district court dismissed the case for failing to allege sufficient facts to state a plausible claim. The court's opinion is here: (

Monday, September 13, 2010

America's Toughest President?

Last week I blogged about the federal Department of Justice lawsuit against Sheriff Joe. Since then, speculation has emerged whether Arizona’s iconic lawman plans a run in the 2012 presidential race. Over the weekend he addressed a Republican committee in New Hampshire as a lunch keynote speaker, sparking the rumor.

Candidates who build their campaigns around hate for immigrants have found some isolated success at the local level, as well as in some state races such as Pete Wilson’s reelection in California in 1994 built around his support for Proposition 187. But at the national level, at least, their campaigns have fizzled. Just ask Pat “we need an immigration time-out” Buchanan and Tom “defend the border against undocumented immigrant terrorists” Tancredo. I worry, though, about the appeal to the Fox-entranced masses of something like a Palin/Arpaio ticket. Watching most media these days gives the impression that we are under siege from criminal immigrants, who arrive with backpacks stuffed with illegal drugs to exploit our wealth and public services, while beheading the rich and dumping their bodies in the desert. The reality that many of us have detailed is that the undocumented immigrants are the ones exploited in labor at the margins of society. U.S. border cities are among our safest cities despite, and probably because of, the immigrant influx. And in Oregon, where anti-immigrant sentiment is blossoming, crime statistics released today by the FBI show violent crime here has dropped to the lowest rate since 1969, with property crime down to 1966 levels.

We don’t need the prison culture that Arpaio would bring to any public office. Rather, we need better funded schools and meaningful job growth and economic opportunity. Joe, we don’t need your bloated ego in the White House or anywhere inside or near the Beltway. You’ve got plenty to do in Maricopa County chasing down Jan Brewer’s incessant phantoms and delusions.

Sunday, September 12, 2010

Lozano et al. v. City of Hazleton: Another Blow to Local Regulation of Undocumented Persons

On September 9, 2010, the U.S. Court of Appeals for the 3rd Circuit issues its long anticipated opinion in Lozano et al., v. City of Hazleton, Case 07-3531(appeal from the Middle District of Pennsylvania). The opinion, written by Chief Judge McKee (on a panel with Judges Nygaard and Siler (Sr. Judge, 6th Cir., sitting by designation))  is worth careful consideration in its own right, but it may be as valuable for pointing to a possible resolution in state efforts, like those of Arizona, to regulate undocumented workers and others.  The local regulations at issue related to employment and housing.  For an insightful analysis, see Professor Ruthann Robson's posting at the Constitutional Law Prof Blog, Third Circuit Declares Hazelton Immigration Ordinances Unconstitutional (Sept. 9, 2010).  I suspect we have not heard the last of this case.  It may well provide a useful vehicle for a revision of the  law of preemption, which itself might now serve as the battlefield for conflicts over the extent of state power and the nature and structural limits of federalism.

Saturday, September 11, 2010

Rest In Peace....

Dear friends,

In addition to the solemn anniversary of the tragic events associated with the attacks in NYC and Washington D.C. on this date ten years ago, I wanted to pass on a sad message a friend recently sent me. It is about the death of Puerto Rican Independence champion Juan Mari Bras. Mr. Mari Bras fought for Puerto Rican sovereignty for decades and went as far as attempting to denounce his United States citizenship in an effort to proclaim Puerto Rican citizenship. United States officials, after initially accepting his act, later proclaimed he had no right to revoke his U.S. citizenship. In some of my works, I examined this effort to raise the question concerning whether United States citizenship for my brothers and sisters in the land of my ancestors is a mark rather than a bundle of rights.

I truly feel fortunate to have met Mr. Mari Bras when I gave a talk at the University of Puerto Rico and compared his challenge to subordinate membership to the brave efforts of Dred Scott. After the talk, Mr. Mari Bras approached me and we shared a tear-filled hug. I wanted to share this sad moment in an effort to remind us of the sacrifices of others.

Here is an article about this civil rights advocate:


Ediberto Roman

Avoiding Arizona

The passage of the anti-Latina/o SB 1070 has really changed my TV-viewing habits. I am amazed at how many of my favorite television programs had Arizona connections. "Had" because I stopped watching anything that has any connection to Arizona.

House Hunters, on HGTV, for example, often features home searches in Arizona cities. Changed channels. Stopped watching.

ESPN of course features the many sports teams from Arizona, especially those that play at the University of Phoenix Stadium. So, no Arizona Diamondbacks, Cardinals or Rattlers; no Phoenix Suns, Coyotes, Mercury, or International Raceway; no Wildcats, Sun Devils or Lumberjacks. No Cactus League next year either. Change channels. I cannot stop watching all of ESPN —that would be wrong— so I just have to get good at channel-surfing. The ticker used during Sports Center makes it easy to plan which items I want to avoid. Arizona or Bob Knight (different story), change channels.

And then came the truly horrible realization. Even the Tostitos Fiesta Bowl, the national championship of college football in which, with a little luck, the mighty Gators might play (I can dream). Change channels. Turn off TV.

Hasta la vista Arizona.

Tuesday, September 7, 2010

New Economic Data on Cuba From the Spanish Embassy in Havana

The Spanish Embassy in Havana has recently published a short economic analysis of the Cuban economy.  Embajada de España, Oficina Economía y Comercio de España, Coyuntura político-economía (March 2010).

The critical issue, ironically, was one of translation.  
La existencia de un sistema económico centralizado, con precios intervenidos y control de salarios, rentas y, lo que es más importante, controles sobre las cantidades de bienes y servicios suministrados, hace difícil traducir a términos de economía de mercado la información económica del país.  Id.
The systemic differences between free market and state market systems makes the use of numbers generated by each essentially incomprehensible to the other for purposes of comparison.  Moreover, the free market focus on pricing as an indicator of value is of little help in state market systems where price is an expression of political will with respect to availability rather than a measure of the value of the object priced. 
Los precios no funcionan como indicadores de los costes ni de las preferencias del consumidor: una parte importante del consumo de las familias lo proporciona el Estado a precios políticos, por lo que valorar dicho consumo es difícil (los costes salariales son determinados centralizadamente). Por otro lado, los márgenes de distribución de muchas empresas cubanas funcionan más como impuestos sobre el consumo que como retribución de la actividad empresarial.  Id.
For those interested in the relationship between law and economics, and the approaches to governance in states where the public and private spheres are conflated in a way that privileges government direction and control of the factors of production, the document makes fascinating reading.

For those interested in the subject, the country report on Cuba prepared by the  Oficina Económica y Comercial de España en La Habana (Feb, 2010) is also worth reading for a global Spanish perspective--sympathetic but critical, of the situation in Cuba. 

Saturday, September 4, 2010

Illegal Immigration Has Declined: Why?

By Heather Horn

A new study from the Pew Hispanic Center finds that illegal immigration is down. Annual inflow between 2007 and 2009 was roughly two-thirds less than between 2000 and 2005, report Pew authors Jeffrey Passel and D'Vera Cohn. Furthermore, "the most marked decline in the population of unauthorized immigrants has been among those who come from Latin American countries other than Mexico."

This might not be what one would expect, given the current political tension over illegal immigration, say, in Arizona. Here's how immigration experts and political observers are parsing the numbers.

•'It's the (Labor) Market Stupid,' says Kevin Johnson, law professor and professor of Chicana/o Studies at University of California, Davis. Audrey Singer elaborates at The New Republic: "Loss of immigrants, particularly the unauthorized, may be the ultimate indicator of economic sluggishness." The fascinating thing about the Pew Hispanic Center estimates, she says, is that "because of the time period measured (through March 2009), [they] may not yet have captured the greatest declines in unauthorized immigrants for these states that have seen abrupt u-turns in their overall growth and as enforcement capacity is strengthened at the border."
•And a Few Other Factors The Washington Post's Tara Bahrampour talks to Princeton University sociologist Douglas Massey, who studies migration. He, too, says the recession and job market are "major factors." He brings up some other trends worth noting:
Massey also pointed to a rise in guest-worker visas, from 104,000 in 2000 to 302,000 in 2009, allowing more immigrants to come to the United States legally. The other likely reasons for the decline, he said, include an increase in law enforcement and deportations, and enactment of stricter legislation against illegal immigrants.

•More Evidence This Immigration Debate Is Bizarre This report is "yet another piece of information which seemingly debunks" the idea that we're in an "immigration 'crisis,'" thinks Doug Mataconis. "Before we start engaging in a wholesale immigration debate, it would be nice to get the facts right."
•But Unlikely to Change Anything Adam Serwer, filling in for Greg Sargent at the Washington Post, agrees: "The report ... offers more evidence that the criticisms of Arizona Gov. Jan Brewer and other Republicans about lax enforcement on behalf of the federal government are overblown." But "none of this is likely to change the politics of comprehensive immigration reform."

I-95 A 'Trap' For Migrant Fruit Pickers

September 4, 2010

Audio for this story from Weekend Edition Saturday will be available at approx. 12:00 p.m. ET
Phillippe Diederich/Getty Images
Farmers depend on cheap and flexible labor to pick fragile crops like oranges, peaches, blueberries and more.
text size A A A September 4, 2010 Look closely at the traffic on Interstate 95, between the tractor-trailers and the vacationing families piled into minivans, and you might see them: migrant farm workers, following the growing season from state to state. When the season ends in the North, those workers along the East Coast will head south in search of work.

For the undocumented workers who make up the majority of that labor pool, the journey can be harrowing. Just ask Ramiro, a migrant worker on a tomato farm in New Jersey. "Last year, we almost had an accident," he says. "Thanks to God we didn't, but we came close."

Ramiro was riding in a van with other undocumented workers on I-95 in Maryland when another car swerved into their lane. Ramiro's van wound up on the side of the road, and the police came to investigate. He was afraid of being deported.

"We definitely were scared. It stays stuck in your mind," he says.

Ramiro doesn't want his last name used because he's afraid of attracting attention from immigration officials. But it's a risk migrant workers can't always avoid when traveling.

"They just move and hope they will not be detained, stopped or anything like that. So that's the risk that they're taking," says Nelson Carrasquillo, the general coordinator of CATA, a support group for agricultural workers in New Jersey and Pennsylvania.

Carrasquillo says migrant workers try to keep a low profile, traveling with friends and labor contractors in cars and unmarked vans. They generally avoid buses for fear of running into immigration checkpoints.

"The 95 corridor — the traditional way of moving for them — has become kind of a trap," Carrasquillo says.

A Change Along The Way

Greg Schell, an attorney at the Migrant Farmworker Justice Project in Florida, estimates that more than 100,000 farm workers commute up and down the I-95 corridor every year.

"When the Florida harvest ends and the workers need to get to North Carolina, the fastest way there is to get on the interstate," he says. "Likewise, when they finish in the Carolinas and need to get to Pennsylvania or New Jersey, Interstate 95 or other interstates are the highway of choice."

Migrant workers have been traveling up and down the East Coast since well before the days of I-95. Farmers depend on cheap, flexible labor to pick fragile crops like tomatoes, peaches, blueberries and more.

In the 1960s, the workers were mostly American citizens. University of Delaware professor Mark Miller says the migrant workforce has changed dramatically since he began studying it 30 years ago. "There, still at that juncture, was a prevalence of African-American migrant workers from Florida. Today, the composition is very different. There's been a 'Hispanization' of the agricultural workforce," he says.

African-Americans have largely moved on to jobs with better pay and working conditions, Miller says. Back on the New Jersey tomato farm, Ramiro says he, too, would like to settle down.

"I've been thinking about it," he says. "Work's going to be finishing up pretty soon. I would like to stay here, but I don't know what else to do."

Without documentation, Ramiro says, it's difficult to find work in the off-season. So in October, he'll probably head back down I-95 to Florida and take his chances.

by Joel Rose
NPR News

Friday, September 3, 2010

Katrina, Kimberly and Scott Roberts and "Con Todo Mi Corazon"

This year marks the fifth year since the full force of Katrina and the “man made” contributions of its failed levees brutalized New Orleans. For the past couple of weeks the media has broadcasted various news clips on what has been identified as one of the nation’s deadliest storms to hit the coastal and Gulf of Mexico regions. Amid the news clips and the focus of this post emerged a documentary that speaks volumes as to how the poor, the disabled and elderly in New Orleans’ 9th Ward were left to confront the storm and attendant breach of the levees. Although issued last year and while there have been other films on what happened during Katrina, the documentary “Trouble the Water” is compelling beyond the norm.

The documentary features Kimberly Rivers Roberts, her husband Scott and their family, as they fought to survive Katrina in their house a few blocks from the ill “maintained” levee system that bordered the 9th Ward. The Roberts along with their poor, elderly and disabled neighbors were unable to leave because they lacked funds. The City’s failure to provide public transportation to safer grounds moreover forced the Roberts’ and their neighbors to confront inestimable odds in their fight to survive.

Kimberly who happened to purchase a $20.00 camcorder to film family events instead used it to record what they and their neighbors endured during and after the storm. The result provides a much-needed historical record of what the poor faced and how they survived nature’s force.

Yet while much of New Orleans weathered the storm the poorly maintained levees further constructed the horror story that the Roberts and 9th Ward confronted. At one point in the film we see the family and the neighbors in the Roberts' attic and the shots Kimberly took of outside showing the forceful rain, and increasingly rising water and winds left us breathless.

The documentary takes us on a journey of the difficulties the Roberts’ witnessed during and after the storm. It provides extensive heart-wrenching details of the wide spread governmental failures that added to the family’s distress. Aside from failing to maintain the levees that exposed the 9th Ward to great dangers, the government also barred the Roberts’ and their tiny band of survivors from staying in a vacated National Guard building. When the Roberts’ requested entry (after the water had subsided) the guards denied them access with M16s. Thereafter the government that failed the Roberts commended the guards for protecting governmental property.

Other details reveal the cavalier responses of government officials that caused the family to endure so much. Their dealings with FEMA for example underscores the scary and violent spaces the poor confront. Eventually after a series of delays Kimberly receives the funds FEMA promised, but her brother who lacked a permanent address was denied financial assistance.

Yet what remains truly astonishing is the hope that Kimberly possessed notwithstanding each hurdle she confronted. She kept her family together and rescued others with immeasurable courage and astonishing hope that tomorrow would bring improved conditions.

In sum, the documentary also speaks volumes as to what status the poor reside in, shows in concrete detail the class struggle and hardships that poverty imposes on those from working class and impoverished backgrounds. It reveals moreover causal links with the disparate treatment and the lack of foresight attendant to the nation’s stubborn refusal to eradicate poverty across the country. Try and reconcile the governmental subsidies the agricultural industrial complex obtains with the narrow definitions of who among the impoverished “qualify” for food stamps and other government “assistance.” Impossible!

Finally and although five years after Katrina and the breach of the levees, a recent tour of the 9th Ward still packs an emotional wallop. For me moreover and ultimately rendering a mystery was the huge writing across an abandoned ranch style house in the 9th Ward. Written across the length of the house was this: “Con todo mi corazon” (“with all my heart”) that left me with yet another reminder.

While New Orleans' history is tightly woven with earlier Spanish governance, how and why those four Spanish words ended up on a house in the 9th ward is a mystery. The words nonetheless underscore how the violence of poverty and particularly as constructed and maintained by ill intended governmental policies show a systemic and perpetual harm on the poor. This stance moreover tainting and spreading across class, race and gendered lines.

Kimberly Rivers Roberts and her hopeful stance ultimately help conclude this post. How? Kimberly is a rap musician who writes music that speaks to the difficulties she faced and the hope she promotes. You can find her music at A copy of the documentary can also be purchased at

Thursday, September 2, 2010

Sheriff Joe

On Thursday, the Department of Justice turned up the heat on Sheriff Joe by filing a lawsuit in federal district court to force the controversial Sheriff to cooperate in the DOJ’s investigation of allegations that his policies and policing discriminate against Latinos/as. The complaint can be found at: That investigation dates to early 2009 and encompasses alleged unconstitutional search and seizures and discriminatory practices, including those targeting limited or non-English proficient inmates. Among the allegations investigated is that Maricopa County’s Sheriff Joe runs an English-Only jail, requiring even bilingual officers to speak to inmates in English at all times, except in emergencies.

Even prisoners have constitutionally protected language rights, sourced in constitutional guarantees of free speech and protection from cruel and unusual punishment. Of course, these protections are balanced against safety prerogatives and funding issues. For example, a Wisconsin prison demanded its inmates speak English in front of staff, fearing that Spanish conversations might include discussions of escape, assault, hostage-taking, riots, and gang activity. State of Wisconsin ex rel. Velez v. Litscher, 680 N.W.2d 833 (Wis. Ct. App. 2004 ) (unpublished opinion affirming dismissal of lawsuit based on these security concerns and the bilingual capability of the complainant prisoner). This is reminiscent of employer arguments in Title VII cases attempting to justify English-Only policies to prevent worker plots to steal from the workplace. Of course, hiring a bilingual supervisor or prison guards would solve the problem, and there is always the potential for planning illicit activity, in any language, out of earshot of guards.

Prison officials might be motivated by legitimate safety concerns to impose restrictions on non-English language in some limited prison settings. My assumption, however, is that Sheriff Joe cares little for the nuances of constitutional balancing and imposes his English-Only policies as part of his overarching campaign to humiliate prisoners. Pink underwear, scorching tent cities, and forced marches through the streets are the stuff of legend in Arizona, but signal a man with an outlaw agenda that surely exceeds the bounds of decency and constitutional privilege.