Friday, May 19, 2017
Today was the second (and, sadly, last) day of the 4th Biennial Emerging Immigration Scholars Conference. We began the day with a scholarship panel. Sameer Ashar (Irvine) spoke about his desire to "expand the spectrum of what’s permissible to talk about in the classroom.” In that vein, he spoke about picking work for the clinic, resisting NGO or academic privilege, criminalization, critiquing culture competence, not ignoring race, and questioning professional norms. He also referred folks to Guerilla Guides to Law Teaching - which includes information about clinical teaching and teaching criminal law. An immigration guide will be forthcoming, so stay tuned.
Becky Sharpless (Miami) spoke about her doctrinal and clinical immigration work - including the particular challenges of teaching in a time when "everything feels so important and significant but paltry at the same time." She spoke about ways in which she's challenging students - asking students to complete writing assignments in her doctrinal course, guiding students through the Socratic method, and challenging students to articulate their beliefs with analysis and not simply emotion. At the same time, she acknowledged that she gives herself permission to complete some tasks on her own without student involvement.
Isabel Medina (Loyola New Orleans) spoke about the arc of her career as an immprof. She emphasized the opportunities created by teaching in the post Trump era, the difficulties that occur when the classroom becomes a battlefield, and how to handle, raise, and have uncomfortable conversations with students in the classroom.
Carolina Núñez (BYU) spoke about her concerns with teaching immigration law in the time of Trump including the particular challenges of students who are afraid, keeping up with swift changes in the law, connecting the abstract with real consequences, responding to student comments that aren’t related to facts, and creating opportunities for students to DO something. Beyond identifying these concerns, Carolina spoke about how she has adjusted the format of her courses to take into account and address many of these issues.
After the plenary session, we broke into small group sessions to discuss works in progress. I had the pleasure of reading the current work of Jason Cade (Georgia), who is exploring whether sanctuary cities are not bastions of civil disobedience, as they're often described, but rather enforcers of the rule of law. Liz Keyes (Baltimore) spoke about her efforts to focus on state and local level advocacy in the time of trump - including how to re-align clinic space and build capacity among students to engage in such advocacy.
Liz's work was a terrific segment to the next break out session on Transformation Work at the State and Local Level. Bram Elias (Iowa), Liz Keyes (Baltimore), and Annie Lai (Irvine) moderated an interactive session on how professors can effectively and efficiently engage with state and local issues. We were encouraged to come up with new and concrete steps to take in order to maximize our effectiveness going forward. Many of our comments involved the identification of others who might help carry the weight of community work - including folks who could help out with or take over such tasks as know your rights presentations, administrative work, and media appearances.
After our breakout sessions, we regrouped as a whole. Pooja Dadhania (Georgetown) filled folks in about the discussions happening in another breakout session about Transformation through Amicus Work. That session also talked about developing partnerships, and also discussed the particular challenges of using amicus work as teaching and learning opportunities. Suzan Pritchett (Wyoming) summarized the breakout session on state and local advocacy.
We ended our time at TAMU with cake and cupcakes to celebrate the birthday of beloved immprof Anita Maddali (Northern Illinois).
Thank you, TAMU, for hosting this excellent conference. Whether you were able to attend or not, you can look forward to the next immprof get-togethers. We'll be in Philadelphia at Derexel for the immprof conference in May 2018. And May 2019 will take us to BYU for the next emerging immprof conference. Plan your travel budgets accordingly!
Thursday, May 18, 2017
Today began the Fourth Biennial Emerging Immigration Scholars Conference, hosted this year by Texas A&M University School of Law in Fort Worth. The focus of the conference is "New Realities" - a perfect theme for the times we find ourselves in.
We were graciously welcomed to the program by TAMU immprofs Fatma Marouf and Angela Morrison.
The first plenary session was a career panel. Jean Han (American) kicked things off with advice for those going on the market: "Don't freak out." Solid. Angela Morrison (TAMU) spoke from the perspective of a new hire having served on the appointments committee, addressing how to "make yourself a competitive candidate.” Liz Keyes (Baltimore) spoke about success on the tenure track including how to be a team player while playing to your individual strengths. Leticia Saucedo (Davis) offered insights from the other side of tenure - including my favorite nugget "cultivate a network" to help with the various aspects of your career. Leticia also plugged the Faculty Boot Camp available through facultydiversity.org, which sounds fantastic.
After the plenary session, we broke into smaller groups for discussion of works-in-progress. I had the pleasure of reading the WIPs submitted by Mary Holper (BC) and Mina Barahimi (Berkeley). Mary is exploring the Fourth Amendment implications of administrative and expedited removal, and Mina is examining the coercive tactics used at the border to encourage voluntary removal to Mexico. Great pieces to keep an eye out for as they develop into to published works.
Over the lunch hour, Anil Kalhan (Drexel) led us all in a discussion of what it means to teach immigration law in interesting times. It's not always easy.
Post-lunch, we reconvened as a whole to discuss scholarship. César Cuauhtémoc García Hernández (Denver) spoke about his post-Trump scholarship which has taken new forms, embracing blog posts, op-eds, legislative testimony, and media appearances. He strongly recommended the acquisition of an umbrella insurance policy covering legal fees for defamation and libel suits - concrete, actionable advice! Jennifer Lee Koh (Western State) spoke about the intersection of her work as a clinician/practitioner/advocate/scholar and also about the benefits of identifying an individualized writing process to facilitate scholarship. Rick Su (Buffalo) encouraged everyone to question the assumed foundations of immigration scholarship - for example that immigration law is federal and federal immigration law is good - and perhaps move the field forward by taking new approaches. Ming Hsu Chen (Colorado) spoke about interdisciplinary work and how professors can endeavor to ensure that their scholarship matters. Ming helpfully pointed the group to the Scholars Strategy Network as a concrete way to become a "citizen scholar."
And then it was time for another round of WIPs or, in our group's case, incubator sessions. Geoffrey Heeren & Robert Knowles (Valpariso) are looking at how use of force in immigration enforcement functions as a form of regulation. Jennifer Lee Koh (Western State) is continuing her research on "shadow removals" (outside of immigration courts), looking at the expansion of expedited removals under Trump, and the implications of that expansion for legal and non-legal advocacy. And I'm examining how immigration might pose a unique opportunity to improve US foreign intelligence efforts.
It was a wonderful day of scholarly engagement. I look forward to continuing these discussions tomorrow.
Monday, April 17, 2017
I love an outside-the-box immigration solution. And Pascal-Emmanuel Gobry has published a whopper over at The Week.
Gobry starts by introducing the reader to the concept of "charter cities," an idea from economist Paul Romer.
Romer wants to make the poor world richer by creating, essentially, mini-Hong Kongs in the developing world. These would be small enclaves whose governments would be run with first-class institutions by a first-world country — say, Norway or New Zealand. The idea here is that corrupt governments are what is holding back the world's poorest countries, and just as Hong Kong's success while under British rule prompted China to modernize and liberalize to imitate it, creating small Hong Kongs in Africa, South Asia, or Latin America would have a similar effect on those regions.
Gobry then takes this concept one step further:
The U.S. should seek to create U.S.-administered, low-tax, low-regulation charter cities on every continent — surely the world's lone superpower can wield any combination of carrots and sticks to get that done — and then make it a law that anyone who moves to these sorts of charter cities gets a green card if, after three years, they speak English and have "made good" in some specific way that is both broad and demanding. Perhaps they've earned a selective degree, started a business, founded a church, or written a book.
Gobry believes his idea will identify people with the "can-do" spirit that is fundamentally American. After all, "You wouldn't take this bargain — move to a foreign, strange city for three years for just a green card — if you didn't have a strong belief in the American experiment, and you wouldn't succeed in it if you didn't have something to contribute."
Monday, March 27, 2017
The Lewis and Clark Law Review is seeking submissions for it's symposium issue - Volume 23, Issue 2. The symposium's focus is on the current administration's immigration policies -- from specific litigation over and effects of Trump's Executive Orders, to the general immigration power of the federal government, the roles of state and local governments, and 'antagonistic federalism.'
The symposium is currently slated to be a paper symposium, but they have the goal to secure funding for a live symposium that would occur in early 2018.
Submissions or abstract proposals can be sent to the Editor in Chief, Elizabeth Schmitt, at firstname.lastname@example.org. Final drafts from the author will be due the first week of January 2018.
Monday, January 9, 2017
There were many wonderful immigration panels at the AALS conference this year in addition to the field trip to Angel Island.
Thursday morning kicked off with a Hot Topic session - Federal Power Over Immigration.
This was a fairly charged session with peppery debate about not only who can and should regulate immigration but also the value of having consistent responses to those questions. Josh Blackman (South Texas) spoke (lovingly) about United States v. Texas. Jennifer Chacón (Irvine) spoke about the "large and stable unauthorized population" that isn't "going anywhere anytime soon," while theorizing about just how incoming President Trump might try to speed up their removal. Jill Family (Widener) spoke about interplay between national sovereignty and immigration. Anil Kalhan (Drexel) talked about immigration surveillance, including the technology-driven collection of personal information about migrants. Finally, Ilya Somin (George Mason) offered the very unique perspective that the federal government doesn't have general power to regulate immigration.
Thursday afternoon included a panel titled Asylum from Persecution by Non-State Actors: Upholding and Updating Refugee Protection.
The panelists, with skillful moderation by Jenny Moore (NM), did a fantastic job challenging long-held beliefs about asylum protection. Susan Akram (BU) challenged the ethno-sectarian narrative of violence in Syria to identify more complex reasons behind persecution. Shalini Ray (Florida) spoke about efforts by non state actors to rescue victims of persecution, and how such non-state-sanctioned rescuers may face prosecution for their involvement. Shana Tabak (Georgia State) offered a "gendered perspective" on women facing persecution in the form of domestic violence. I have to give a shout out as well to Ukrainian law professor Iryna Zaverukha who asked, during Q&A, if the lack of protection for internally displaced persons isn't a way to "domesticate an international issue" when displacement occurs as a result of invasion by a foreign power (e.g. Russia in the Crimea). A provocative panel, to be sure.
On Friday, the AALS Academy Program (fancy!) was Does Anyone’s Law Matter at the Border? Shootings, Searches, Walls, and the U.S. Constitution.
Stephen Vladeck (Texas) moderated this interesting panel. Chiméne Keitner (Hastings) kicked things off by offering a framework for thinking about when those affected by harmful public action might be entitled to pursue legal action that deters and punishes the state or compensates the individual injured. Gerry Neuman (Harvard) updated us about two pending lawsuits concerning cross-border shootings: Hernandez v. Mesa and Rodriguez v Swartz. Lee Gelert (ACLU) then spoke about two other pending border cases: Castro v. DHS and Jennings v. Rodriguez. Finally, Leti Volpp (Berkeley) spoke about functionalist and formalist approaches to these complicated issues.
The last panel of Saturday - Presidential Politics and the Future of the Supreme Court: Post-Election Reflections and Forecasts for the "Post-Racial" Post-Obama White House - offered surprise bonus immigration with a second appearance by Jennifer Chacón (Irvine) speaking about the demonization of migrants and Shirin Sinnar (Stanford) commenting on the intersection of immigration and national security.
All of these sessions will eventually be podcast by AALS. So if you missed the conference, you can still catch these great talks.
Friday, September 9, 2016
Actually, Padilla Does Apply To Undocumented Defendants by Daniel A. Horwitz, 19 Harvard Latino Law Review 1 (2016).
ABSTRACT: In Padilla v. Kentucky, the U.S. Supreme Court held that non-citizen defendants who plead guilty as a consequence of having received incompetent immigration advice are entitled to withdraw their pleas if they can “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” To date, however, a nearly unanimous line of authority that includes two U.S. Circuit Courts of Appeals, seven U.S. District Courts, trial and appellate courts in four states, and at least one academic scholar has concluded in some form or fashion that “Padilla applies only to those who were present in the country lawfully at the time of the plea.” Specifically, these authorities have reasoned that because “a guilty plea does not increase the risk of deportation” for undocumented defendants, “in a situation where a defendant seeks to withdraw a plea based on Padilla, and alleges lack of knowledge of the risk of deportation, prejudice cannot be established[.]” In other words, these authorities conclude, regardless of either the breadth or the magnitude of their counsel’s incompetent immigration advice, undocumented defendants are never entitled to relief under Padilla because they are categorically incapable of satisfying Padilla’s “prejudice” prong.
These contrary authorities notwithstanding, however, this Article argues that Padilla does apply to undocumented defendants. Four reasons are offered to support this view. First, the contrary conclusion neglects the legal and practical reality that a guilty plea frequently does increase the risk of deportation for undocumented defendants. Second, regardless of the fact that there are myriad situations in which a guilty plea can cause an undocumented defendant to be deported who otherwise would not have been, the test for prejudice under Padilla is not whether a non-citizen defendant would have been deported anyway; instead, the applicable test is whether “a decision to reject the plea bargain would have been rational under the circumstances.” Third, the contention that Padilla does not protect undocumented defendants undermines the underlying purpose of the right to effective assistance of counsel itself: to prevent inaccurate convictions. Fourth, Padilla held without equivocation that: “It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the ‘mercies of incompetent counsel,’” and because this holding expressly includes undocumented defendants, lower courts lack the authority to ignore it.
Taken together, this Article concludes that future courts should reject the prevailing view that Padilla does not apply to undocumented defendants and should hold instead that undocumented defendants’ Padilla claims must be carefully reviewed for prejudice on a case-by-case basis.
Thursday, September 8, 2016
Photo via theresaunfried
Throwback Thursday is back, today featuring 100% more narcissism.
Here's the thing. New York City's Fashion Week is underway. Melania Trump has been in the news for about a solid month, facing scrutiny over her time in the United States as a foreign fashion model (or undocumented migrant?). Other Trump models have come forward talking about their shady immigration history.
So, in fairness, I couldn't resist. I had to nominate myself for Throwback Thursday.
Specifically, I recommend my piece Importing the Flawless Girl, 12 Nev. L. J. 831 (2011). The article gives an overview of how the modeling world works, the mechanics of the current H1B3 visa for foreign fashion models, and how that visa came to be. It also covers failed attempts at reforming that visa, which were spearheaded by... wait for it... disgraced public servant Anthony Weiner. For reals, people. You can't make up stories like that.
Thursday, June 9, 2016
Last Thursday, I had the pleasure of sitting in on a Law & Society panel regarding The Politics of Respectability and Immigrants.
Angela Banks (William & Mary) introduced the panel by explaining "respectability" - it's a political strategy used by “any social group subject to marginalization” whereby they argue for equal rights based on the having the same values, norms, and practices as mainstream society. While academic discussion of respectability politics has, to date, largely focused on African Americans, this panel explored the concept in regards to immigrant communities.
Mariela Olivares (Howard) spoke about the "power of narrative" in immigration politics (e.g. "surge" and "flood" versus "refugees"). And, in particular, she identified the "narrative dilemma" that occurs when pushing the respectability of one group necessarily involves the denigration of group outsiders ("families not felons").
Liz Keyes (Baltimore) spoke about the "crispness" of the DREAMer narratives that has driven their political gains. But she sees problems at the reform level given that 85% of the undocumented population do not fit within the DREAMer narrative and, in the end, deferred action with its lack of durability is a "crappy outcome." She also sees the DREAMer success as shrinking discretion on an individual basis. (See this post about her client Juan who has been affected by shrinking discretion).
Jennifer Lee (Temple) spoke about narratives regarding immigrant workers and, in particular, how workers might "own, shape, and deploy" narratives. She spoke about how the narrative of the "good and hard [migrant] worker" touches on the universal message of those who want to improve their family's lot, and she identified the other important narrative of victimization of migrant employees by US employers who do not obey the law. She also noted the downsides to narrative, "out groups" of those who do not and cannot belong and "essentializing" or defining individuals by virtue of the low wage jobs they hold. These are perils to "master framing" that may be remediable if workers themselves choose their own framing.
Muneer Ahmad (Yale) spoke about the framing of “earned citizenship” as a moral and political issue. He described the origins of the concept (IRCA) and it's intended goal (to counter the bad amnesty narrative). Earned citizenship was a good counterbalance to fears of amnesty by suggesting that individuals obtained citizenship based on merit - a message that evolved in 2013 to a multi-stage test of cultural competency, taxes, and economic contributions. But, there is a significant downside of placing migrants constantly in a deficit where status earned is consistently precarious until citizenship is obtained.
Jayesh Rathod (American) spoke about how respectability is already incorporated into immigration law through the concept of good moral character, a concept that's been around since 1790. He looks at good moral character through the lens of history (where good moral character reflects both norms and nativism), by way of a systemic analysis (seeing good moral character applied inconsistently across immigration categories) and teleologically (looking for the purpose driven framework that underlies the immigration law).
A fascinating panel. Look for these great papers to come!
Friday, May 20, 2016
Our last plenary panel of the today centered on international norms in immigration law.
We started with rapid-fire background material from the panelists.
Jaya Ramji-Nogales (Temple) spoke about international norms and immigration law. She informed us about the four sources of international law: (i) treaties, (ii) customary international law, (iii) general principles of law that recognized by "civilized nations", and (iv) the teachings of the most highly qualified folks on the law (us!). She also talked about the fields of international law that are relevant to migration - principally human rights law, labor law, criminal law.
Maryellen Fullerton (Brooklyn) talked about the institutions entities involved making international law relating to migration: The UN (which includes the following bodies working on migration: UNHCR, Global Form on Migration and Development, Global Migration Group, ILO, ILC), UN treaty bodies, international courts, regional human rights institutions, and NGOs.
Dan Kanstroom (BC) noted that the United States had a role in the architecture of the international legal system, yet it doesn't really play a positive role in creating international law itself, particular in the human rights aspects of immigration norms.
Denise Gilman (UT) spoke about enforcing international norms. In particular, she talked about using fora like the Inter-American Court of Human Rights to engage the U.S. government and to challenge its immigration practices, for example in regard to family detention, under international law. She also spoke about using international laws as pressure points in litigation.
Dan then returned to stage to talk about international law regarding the expulsion or deportation of noncitizens. There is little explicit international law in this area. The void has allowed the established U.S. system of deportation to be "exported around the world," which Kanstroom sees as a bad thing. He wants progressive international norms put into place. Enter the UN's draft articles on the expulsion of aliens and his own declaration of expelled and deported persons, which he walked us through identifying highlights.
Jaya offered thoughts on the "refugee crisis" and international law. The quotes are hers. She questions whether there is, in fact, a crisis. And whether it's about refugees at all. What she does see is a systemic failure of international migration law to address three critical issues: safe transit, entry, and the right to remain. She wants to see a comprehensive approach to tackle these issues.
Denise emphasized the value of discussing international law in the immigration context, even after acknowledging the enforcability issues and problems with substantive international norms themselves already identified by Dan and Jaya. She sees international law as having the potential to pull us out of the "quagmire" of domestic immigration law by offering new perspectives.
Maryellen grabbed the baton to bring this panel to a close. She focused on her book The Global Reach of European Refugee Law (Cambridge Univ. Press 2013), which addresses the extent to which EU asylum norms have influenced the law and practice of states around the world ("norm diffusion").
A shout out to Jill Family (Widener) for excellent moderating.
Johnson & Baluarte
The biennial immprof conference offers a wonderful opportunity to present works-in-progress to our scholarly cohort and to get valuable feedback. This afternoon at #immprof2016 was no exception.
David Baluarte (Washington & Lee) presented on his current piece The Risk of Statelessness in Hispaniola: Defining New Frontiers in the Protection of the Right to Nationality. It's a work that offers a welcome history of the efforts of the Dominican Republic to denationalize those born to migrant Haitian workers within the DR. And, importantly, to do so retroactively so as to denationalize individuals whose nationality was not previously questioned. The country's moves have been debated in the Inter-American Court of Human Rights and the Dominican justice system, with differing conclusions. David weaves a coherent story of this history and offers unique insights on how Haiti's status as a "failed state" might affect the courts' analysis of statelessness.
Like David, my current scholarship is enmeshed in the world of citizenship. In A Citizenship Market, I consider whether individuals should be permitted to swap citizenships at will, without government oversight, for money or not.
Motomura, Wishnie, Anker, Benson, Landau
Panel two of #immprof2016 is "Activist, Scholar, or Both?"
Lenni Benson (NYLS) shared her journey towards creating Safe Passage. It had an unpredictable start. She came upon a juvenile docket by happenstance during a government data collection project. Observing from the back of the room, Lenni saw an unrepresented 8 year old boy, "Miguel" (not his real name), called to the stand. Lenni, being Lenni, jumped up and asked to serve as a "friend of the court" to help speak for the child. The rest you know.
Deborah Anker (HLS) spoke about her incredible work with the Harvard Immigration and Refugee Clinic to push the boundaries of gender asylum law. Interestingly, a lot of change benefited from cases and laws from overseas (Canada, New Zealand, UK).
Michael Wishnie (Yale) considered the issue of "what kind of scholarship, if any, might be useful to activism." I love the ",if any," which he colored by explaining that he came to scholarship only after being told that he had to do it for his job. He called this "disclosing his priors." Wishnie acknowledged that some articles do, in fact, change the world. (Charlie Reich's The New Property). But, more often, it's to say something novel that can start to legitimize an idea or perspective. Treatises, too, he noted, are enormously helpful. Social science scholarship can illuminate patterns through empirical work, while legal history revealing past practices can contribute to activism as well. At the end of the day, though, Wishnie is skeptical of how we can judge whether and how legal scholarship itself has or does impact the world.
Hiroshi Motomura (UCLA) has "agonized" over the idea of the activism-scholarship divide for some time. He spoke about the "lifecycle" of a project. His started with the example of his 1990 article on statutory interpretation. He talked about taking the ideas in that article to litigators (by presenting at AILA) and marketing them as something to try that might help with cases. Those panels led to him being included on litigation teams. This was a true lifecyle from his 1990 article on phantom norms to Zadvydas v. Davis (2001). Hiroshi then spoke about a similar cycle on his work with discretion in immigration enforcement. And it was about taking the effort to reframe his ideas to bring them to different audiences, and being patient.
Joseph Landau (Fordham) did a fabulous job moderating the panel. I have to hand it to him for having the ability to keep these heavyweights on task!
Thursday, April 21, 2016
Throwback Thursday is back!
Today's featured scholar is Assistant Professor at the the University of Chicago's School of Social Service Administration Angela S. García. We'll be looking at her 2012 paper Return to sender? A comparative analysis of immigrant communities in ‘attrition through enforcement’ destinations.
In this article, García examines the link between sub-national immigration policy structures in the US -- particularly attrition through enforcement policies at the state and local level -- as well as immigrants’ settlement and residency behavior responsive to those policies. Analyzing data from two sending Mexican communities (Yucatán and Tunkás), García finds that migrants do not alter the duration of time they spend in receiving locales or change their state of residence due to restrictive subnational policies. Rather, economic and social factors more prominently shape immigrants’ settlement and residency patterns.
Her findings lead García to a bigger question, that of immigrant incorporation within restrictive receiving locales. For more on that, check out her later article: 40(12) Hidden in Plain Sight: How Unauthorized Migrants Strategically Assimilate in Restrictive Localities, Journal of Ethnic and Migration Studies, 1895-1914 (2014).
Thursday, April 7, 2016
UB Law immprof Elizabeth Keyes has penned the following:
Barack, Lin-Manuel, Juan. Seeds in the garden planted so long ago by another man who was young, scrappy and hungry and who then accomplished extraordinary things. The first two you know, and there they were free-styling at the White House last month. One, the child of a Kenyan immigrant and an American who became President. The other, the child of Puerto Rican parents who is, so far, a Tony, Grammy and Macarthur genius award winner. But who is Juan, and can’t we get back to Hamilton? (Please?)
Juan is my client. An undocumented immigrant. And Hamilton is his story. Yes, the musical tells a specific story, about a specific man in a different era. But it is a quintessential story of immigration, hunger, and accomplishment, and that story is Juan’s, too. Almost precisely, but for one important difference. I’ll get to that in a moment. (Wait for it.)
With Hamilton, we all fall in love with the characters and the performers and the music in equal measure. But as an immigration lawyer, I also very powerfully felt my heart soar with gratitude and recognition about something much more specific: Here was the story of an immigrant disdained as a “Creole bastard,” being told with unabashed glory and pride. The love and respect that the Hamilton cast show in their narrative is akin to the love and respect that I feel for Juan and so many of my clients who so seldom feel the love and respect from anyone.
From the first song, asking us to spot Hamilton, “another immigrant comin’ up from the bottom” to the show-stopping moment at the Battle of Yorktown where he and Lafayette reconnect and—with deserved pride—nod their heads and say “immigrants…we get the job done,” Hamilton is an immigrant story, featuring the ambitious young person with little more than a “top-notch brain,” who makes his way here and thrives in a land full of opportunity for anyone bold enough to seize it.
Hamilton’s story is helped by the laws of his day. When he arrived in the United States in 1772 or 1773, there was no immigration law that prevented him from coming. He was a British subject, who could travel freely among all parts of the world that Britain controlled—and much beyond it as well, if he wished. When he and Lafayette came, there was no such thing as being “undocumented” or immigrating illegally because there were no such laws to break and no visas to acquire. States had some rules about who could arrive, and sometimes charged fees on arriving passengers, but that was about it until the late 19th century, when we started excluding Asians, then poor people, then LGBT people, and so on and so on.
In his more open era, Hamilton could and did lay immediate claim to his country, shifting from loyal, royal subject to American as easily as he breathed. Ron Chernow, in the biography that inspired Lin-Manuel Miranda to ultimately create Hamilton, writes:
Few immigrants have renounced their past more unequivocally or adopted their new country more wholeheartedly. ‘I am neither merchant nor farmer,’ he now wrote, just a year and a half after leaving St. Croix. ‘I address you because I wish well to my country.’
“My” country. Hamilton claimed America as his, in 1774. As he could. As he was legally able to do.
By 1777, Hamilton became General George Washington’s chief aide-de-camp, and Chernow evokes the power of his transformation of identity:
Once again, the young immigrant had been transported to another sphere…The high-level service completed Hamilton’s rapid metamorphosis into a full-blooded American. The Continental Army was a national institution and helped make Hamilton the optimal person to articulate a vision of American nationalism, his vision sharpened by the immigrant’s special love for his new country.
How does someone metamorphose into a full-blooded American today? Not through valiant service, although for some, that remains a possibility—Margaret Stock, another Macarthur genius award recipient and a senatorial candidate from Alaska, made that connection to the Pentagon when she rapidly pushed through the idea that some immigrants with legal status could acquire citizenship rapidly in exchange for providing valuable military service to the nation. Hamilton’s heirs, certainly.
But for most, there is no metamorphosis available, and that is where Juan’s story differs from Hamilton’s. But what a story his is. Juan came to the U.S. from a place where he just could not get the education he wanted. He had finished high school, and came here in his late teens, intent on getting further. Literally the day after he arrived, he started loading and unloading trucks at a nearby hardware store, earning the precious dollars he needed to go to school. He hasn’t stopped working since, but he also managed to go to community college, and then transfer to a four-year university. No big deal, but he graduated from that university summa cum laude. While studying in a second language. While working full-time. Young, scrappy, hungry…you see it, right? (I’ve written about him before, so see here if you want to read more.)
Being a non-stop person himself, Juan applied to graduate school, and he now goes to a prestigious one on the scholarship he earned from being so danged studious. Like Hamilton, there are a million things he hasn’t done, but just you wait. I expect him to reinvent the world one day, and when he does, I will be so proud to have known him.
But unlike A.Ham claiming citizenship in his new country, Juan cannot. Paths to legal status in the United States are achingly narrow for all, and treacherously easy to fall off. Nowhere is this more true than for people of color living in communities that are over-policed, for immigrants with limited English skills who accept guilty pleas for crimes they may not have committed, without fully understanding the consequences of those pleas. I could go on. But let it suffice to say that there is a deep, sometimes painful, beauty in the immigrant story being told as passionately and evocatively as it is by the richly diverse case of Hamilton, when our enforcement policies today target so many people who look like that cast.
Juan, like many thousands of young people, is too busy studying to get into trouble—until the day he forgets to replace a headlight on their car, gets pulled over by the police in an immigrant-unfriendly town or county, run through an immigration database that may reveal his lack of status, and placed in removal proceedings. If that happens to Juan, I will be there with him, fighting for him. Most immigrants in removal proceedings are not fortunate enough to have a lawyer. They leave, and with their departures we lose people who could have contributed vibrantly to our nation.
Imagine America if Hamilton had been deported for lacking papers. We make all manner of things deportable offenses these days, and it doesn’t matter if everything is “legal in Jersey” if the federal government says, say, dueling is a deportable offense. We would have lost a man who, by the time of his engagement to Eliza Schuyler in 1780, even his future father-in-law recognized as American. Philip Schuyler told Eliza that Hamilton was “the ornament of his country.”
His country. America. A place where even an orphaned immigrant can make a difference. How do we treat these immigrants today? With contempt (sometimes literally). With jail. With life in the shadows. With hope after hope of political accommodation dashed by a Congress which responds to the worst voices of fear, and not the call of Hamilton’s own legacy.
Juan, too, is an ornament of his country, as are the DREAMers who are reinventing our idea of citizenship by claiming their American-ness so forcefully. In this, and in their project of redefining who America is, and who Americans are, they are Hamilton’s heirs. They are the seeds he planted in a garden 250 years ago when he walked off that boat in New York.
As depicted by the brilliant Lin-Manuel Miranda, Hamilton kept searching for ways to do more for the country he loved, and to take advantage of every opportunity this country gave him. Thankfully, people like George Washington judged him for his talent, and not for his place of birth. Might we do the same for young, scrappy, and hungry Juan, and so many like him. If we could see them as Hamilton’s heirs, that would be enough. And if we could reform our laws to let them be the Americans in law that they already are in their hearts, that would be enough. It’s only a matter of time.
Tuesday, February 16, 2016
At Yale’s Notice-and-Comment blog, immprof David Rubenstein suggests that United States v. Texas provides an opportunity to rethink immigration exceptionalism -- or, as he and co-author Deep Gulasekaram explain in their forthcoming article -- “immigration exceptionalism(s).
When petitioning for certiorari, the United States’ reply brief framed Texas as a case “that implicates fundamental questions of standing, separation of powers, federal immigration authority, and administrative law . . . .” To pile on, however, we might also ask the following: Do all of these “fundamental questions” warrant exceptional treatment? None of them? Just some of them? And if so, which ones, and why not the others?
That is to say: "how should we split the exceptionalism atom?"
Their co-authored piece doesn't seek to answer this question. Rather, it "shine[s] a spotlight on that conceptual void, and explore what it may entail for the future of immigration theory and advocacy."
Thursday, February 11, 2016
Same enigmatic smile, slightly greyer hair
Today's Throwback Thursday focuses on Kevin R. Johnson, Dean of the U.C. Davis School of Law and absurdly prolific writer of books (yes, plural), articles, book chapters, and blog posts (appearing on this blog steadily since September 2005 and on another locale in the interwebs you might have heard of, Scotusblog).
I might be tempted to write about Kevin's 2007 book Opening The Floodgates, which sits on my desk thumbed, tabbed, and highlighted, as I continue to wrestle with the ideas he presents.
But immprof Carrie Rosenbaum has instead nominated Kevin's paper Race, the Immigration Laws, and Domestic Race Relations: A 'Magic Mirror', 73 Indiana Law Journal 1111 (1998), for Throwback Thursday.
In the article, Kevin shows how "the differential treatment of citizens and noncitizens serves as a 'magic mirror' revealing how dominant society might treat domestic minorities if legal constraints were abrogated. Indeed, the harsh treatment of noncitizens of color reveals terrifying lessons about how society views citizens of color."
The article has a historical track, tracing the history of racial exclusion in U.S. immigration laws from Chinese exclusion through Prop 187. He finds that the racial exclusion of noncitizens "reveals to domestic minorities how they are viewed by society," stigmatizes them, and reinforces their subordination. He draws on psychology to explain why this "historical dynamic" of prejudice "cannot be marginalized as simply an 'immigration' issue."
For better or worse, the history of national origin and racial exclusion in U.S. immigration laws serves as a lens into this nation's soul. By considering the nationalities and racial minorities that a society seeks to exclude from the national community, we better understand how that society views citizens who share common characteristics with the excluded group.
In Carrie's words, the article is "timeless." It is. Consider just this one post-1998 example.
Muslim immigration has been, directly or indirectly, restricted since 9/11. And more than a decade later we still have current presidential candidates calling for a complete ban on Muslim immigration. So what does this "magic mirror" tell us about the treatment of the Muslim minority in America? Trump, of course, needs no mirror. He's front and center ready to call for surveillance and tracking of all Muslims in the United States regardless of their immigration status. But President Obama has only recently addressed the dynamic of prejudice. This month, for the first time and within spitting distance of leaving office, President Obama visited a U.S. mosque. And he addressed the effects of "inexcusable political rhetoric against Muslim-Americans."
The only open question seems to be which new group will be the subject of future exclusionary policies, and which corresponding domestic minorities will feel the subordination effects of that exclusion.
Friday, February 5, 2016
You likely know immprof Stephen Yale-Loehr from his textbook Immigration and Nationality Laws: Problems and Strategies (with Lenni Benson, Lindsay Curcio and Veronica Jeffers). Or maybe you know him as the congenial fellow who organizes immprofs attending AILA. Then again, you might be familiar with one of his over 200 (that's not a typo) publications.
Throwback Thursday today is reminding you of just one of those works, co-authored with Christoph Hoashi-Erhardt, A Comparative Look at Immigration and Human Capital Assessment, 16 Geo. Immigr. L.J. 99 (2001). (And sure, this is posting on Friday and not Thursday but we had to dot some i's and cross some t's to make that hyperlink work).
The article looks at the process of selecting "economic-stream migrants," which is to say migrants entering a country primarily to fill labor market demand for highly-skilled workers. It takes a comparative approach, looking at the point-based schemes utilized by Canada and Australia. And it proposes a points-based system for the United States.
The article provides helpful charts that walk you through the math of points-based migration. And it explains how these programs fit within migration systems that do not have a single-minded focus on "economic-stream migrants" but rather also have a place for family-based migration and humanitarian streams.
"No government is an economic island - not even Australia," the authors conclude. "As global economic integration increases at an ever-quickening pace, so does the competition for talented economic immigrants." And while "Economic enhancement is just one of many worthy goals" of immigration policy, "a point system makes sense conceptually, practically, and procedurally."
Thursday, January 28, 2016
Throwback photos of Prof. Moore are hard to find. But I did locate this one!
Simple Justice: Humanitarian Law as a Defense Against Deportation, 4 Harv. Hum. Rts. J. 11 (1991), was immmprof Jennifer Moore's very first law review article. It was published in 1991, just as Moore was starting her first post with the United Nations High Commissioner for Refugees in West Africa.
You may know Moore's work today, especially as she is a co-author of the first textbook on refugee law: Refugee Law and Policy (with immprofs Karen Musalo and Richard Boswell).
Her 1991 article looks at the relationship between refugee law and humanitarian law. She argues that immigration judges should use the Geneva Conventions as well as the Refugee Convention in determining relief from deportation for individuals fleeing persecution in the context of civil war violence characterized by widespread attacks on civilians. While such individuals cannot obtain refugee status, Moore argues they should have a "humanitarian law defense" to deportation.
Thursday, January 7, 2016
If you weren't able to attend AALS, don't fret. We here at immprof will happily fill you in on what you missed in the world of immigration law.
Thursday morning started with the important question "Is immigration law administrative law?"
Jill Family (Widener Commonwealth) opened the panel by talking about how important this question is. After all, the Supreme Court may soon address it in the Texas v. US litigation.
Chris Walker (Ohio State) kicked things off by questioning "exceptionalism," that is, whether an area of law is so special that it's exceptional and thus separate and apart from administrative law. It's a question that's come up not just in immigration but in IP and tax as well. Walker opined that both immigration and administrative law scholars shouldn't be so quick to think immigration is exceptional. Immigration scholars might benefit from the thinking administrative law scholars have done on important questions like "What do we do with discretion?" and "How can we have systemic effect on agency behavior and not just in a particular case?" He also called on administrative law scholars to look at immigration as a "rich" area for empirical studies of administrative law.
Bijal Shah (NYU) spoke about one specific exercise of bureaucratic power that implicates administrative law, namely the "referral and review" mechanism that allows the Attorney General to refer questions to himself and overturn caselaw. For example, AG Mukasey used this process to resolve a circuit split on whether the forced sterilization of one spouse gave the non-sterilized spouse a basis for an asylum claim. And AG Ashcroft used the process to change the evidentiary burden for showing an alien poses a danger to national security. Shah noted that the R&R process serves as a political tool - it's exercised by a bureaucrat without stakeholder input to shape change in the law. This sort of manipulation of administrative structures -- with attendant procedural and political outcomes -- has been understudied. I, for one, look forward to her continued studies in this area!
David Rubenstein (Washburn) spoke about his work with immprof Deep Gulasekaram (Santa Clara) on immigration exceptionalism. He argued for the need to find a unifying theory that would explain immigration exceptionalims (yes with the s) as they pertain to rights, separation of powers, federalism, and administrative law. Is immigration exceptional in some circumstances but not others? Perhaps. And, if so, what does that mean for an overarching theory? Immigration advocates seem to be "ringing and unringing the exceptionalism bell" as a means to an ends. And that has consequences going forward.
Finally, Shoba Sivaprasad Wadhia (Penn State--University Park) offered a history of the relationship between prosecutorial discretion (PD) and employment authorization. Like Walker, she argued that immigration law "is not exceptional." "Standard administrative law principles apply." Congress has, through INA § 103, given the Secretary of DHS broad discretion to enforce the INA. And that vested authority includes the specifically mentioned right (discussed in INA 274 § (h)(3)) to grant individuals, including those subject to PD, work authorization. The question is how far does that authorization extend - could it cover DAPA and expanded DACA among others? She argued that meaningful reforms (expanding work authorization) can be made without Congress because the statutory framework allows it. But there are policy or, better stated, political consequences to doing that given the strong feelings many have against giving unauthorized migrants the right to work.
Thursday, December 17, 2015
Emily Ryo is not just an immprof; she's also a professor of sociology at USC. Her paper Deciding to Cross: Norms and Economics of Unauthorized Migration, 78(4) American Sociological Review 574-603 (2013), is today's pick for Throwback Thursday.
You're excused if you haven't read the paper before. The ASA, while the flagship journal of the American Sociological Association and the highest ranking journal in sociology, isn't available in Westlaw. (Though, in fairness, Kevin did bring it to your attention in 2013.)
The paper makes use of survey data collected through the Mexican Migration Project. It's used to assess the decision-making behind the choice to engage in unauthorized labor migration.
Ryo finds that the threat of arrest and punishment doesn't deter unauthorized migration, though "perceptions of availability of Mexican jobs and the dangers of border crossing" matter significantly. "General legal attitudes" matter too as do perceptions of "procedural justice," meaning whether immigration laws are legitimate and fairly applied. She concludes that the decision to migrate without authorization "cannot be fully understood without considering an individual’s underlying values and norms."
If you don't like reading double-columned papers (I feel you, they're unnatural), you can listen to this podcast from Sage Publications.
Do also check out Ryo's companion piece: Less Enforcement, More Compliance: Rethinking Unauthorized Migration, which immprof Juliet Stumpf covered on Jotwell.
Thursday, December 10, 2015
A throwback 2005 Bill Hing photo
In 2005, immprof (and ImmigrationProf blogger) extraordinaire Bill Ong Hing published Detention to Deportation - Rethinking the Removal of Cambodian Refugees, 38 U.C. Davis L. Rev. 891 (2005). It's a work of tremendous scope and heart.
The article lays out the case for how the United States helped to created the Cambodian refugee crisis as a byproduct of our involvement in the Vietnam War. It documents the ways in which the United States sought to resettle Cambodian refugees stateside and the problems that resulted from resettlement in inner-city neighborhoods, "where crime was rampant and culture was radically different." Hing draws a direct link between resettlement efforts that were not well thought out and the fact that many of the refugee children ended up involved in crime.
The Article then goes on to explain the effect of a March 2002 repatriation agreement between the United States and Cambodia. That agreement paved the way for the deportation of refugees, brought to the United States as children, who accumulated a criminal record in the United States, "to a country that most never knew or left as infants".
Hing strongly "challenges the moral basis for these deportations and asks whether justice is really being served." He concludes:
In our hearts, we know that removal is not always appropriate, especially when our country bears culpability for creating the problem. In our souls, we know that when we repatriate Cambodian refugees, we further destroy a family at a time when the family needs, more than ever before, to be whole.
It's a powerful article. One that pairs wonderfully with the PBS documentary Sentenced Home. I strongly recommend both.