Saturday, March 10, 2018
Yesterday, I had the distinct pleasure of participating in the Lewis and Clark Law Review's Spring symposium, titled The Immigration Nexus: Law, Politics, and Constitutional Identity.
Our day started with an intimate lunch for the panelists as well as Juliet Stumpf, Stephen Manning, Jim Oleske, and the incoming and outgoing EICs. Juliet and Stephen facilitated discussion about sanctuary cities. We talked about the California lawsuit as well as local problems in Oregon with immigration enforcement actions.
The symposium officially began after lunch with the following lineup:
- Kit Johnson, Opportunities & Anxieties: A Study of International Students in the Trump Era
- Earl Maltz, The Constitution and the Trump Travel Ban
- Howard Wasserman, Universal Not Nationwide and Not Appropriate: On the Scope of Injunctions in Constitutional Litigation
- Amanda Frost, In Defense of Nationwide Injunctions
After a break, we heard these additional talks:
- Susan Dussault, Who Needs DACA or the DREAM Act?
- Andrew Hammond, The Immigration-Welfare Nexus in a New Era?
- Kari Hong, The 20-Year Attack on Asylum
The entire session can be viewed at this link, which I'm told works best with Chrome. Jump to 10:08 for the start.
Sunday, March 4, 2018
On Wednesday, I gave a lecture to the University of North Dakota and Grand Forks communities -- Models, Medivacs, Moguls, and More: Finding the Curious in Immigration Law. UND has a write-up of the talk here.
It was a unique opportunity to present select portions of my scholarship as as a cohesive whole. I've written before in praise of written scholarship summaries such as the Virginia Journal's write up on Kerry Abrams. I tried to emulate that approach in developing my talk.
I started with what drew me to immigration -- a quest to understand my own history. Seven of my eight great-grandparents all came to the United States in a 15-year window between 1875 and 1910. They hailed from Poland, Russia, Sweden, and Germany. Each benefited from the lack of immigration quotas and quality controls at the time. One was fleeing conscription into the Russian Army, others came to join family members already here -- stories that resonate today with the debate over "chain migration" and questions of what we owe to those fleeing violence.
In terms of scholarship, I discussed:
- My work regarding the Disney visa, documenting the history of the Q visa -- legislation written by and for Walt Disney World in order to staff the World Showcase at Epcot. It's a fascinating tale of lobbying and advocacy that I'm revisiting shortly in a NYU Journal of Law & Liberty symposium issue (links coming soon).
- My work on foreign fashion models, which documents the history of the H1B3 visa for fashion models and discusses the failed legislative proposals to move fashion models out of the H1B sphere and into the P visa. The piece also talks about how it might be possible to use the visa for foreign fashion models to address the public health consequences of the modeling industry by restricting its availability on the basis of age and BMI.
- My work on proposals to fix the post-2006 housing crisis with a visa for home buyers. It's a story of legislation with a sound economic rationale (surplus homes can't be shipped overseas, but people can be invited from overseas to fill them), and it's also an example of trying to use immigration law to fix a non-labor-based economic problem.
- A Citizenship Market, which will be published by the Illinois Law Review this year. In it, I explore a thought experiment about whether whether individuals should be permitted to swap citizenships with each other.
- The private expulsion of uninsured noncitizens by U.S. hospitals - a practice known as "medical repatriation."
- An empirical study of international students at the University of North Dakota that I conducted for a contribution to an upcoming Lewis & Clark Law Review symposium on Trump's executive orders. (It will be held on Friday, March 9, if you're in the Portland, Oregon area.) Between March and October 2017, I interviewed 45 UND students to discuss the anxieties they had about studying in this country and the opportunities that drew them to pursue their education here. (One interesting tidbit: They were perhaps as worried about guns in the U.S. as they were about being denied re-entry by the CBP.)
It was a tremendous honor to share my passion for immigration with a diverse audience and to have the opportunity to take a broader look at my own work.
Thursday, March 1, 2018
LtoR: Lori Nessel, Mario Rizzo, Michael LeRoy, Ilya Somin, Kit Johnson
On Tuesday morning, I had the pleasure of participating in a symposium put together by the NYU Journal of Law and Liberty. The topic of the day was Freedom versus Fairness: The Tension Between Free Market and Populist Ideals in Labor.
The panel I participated on was titled The Free Movement of Labor. My co-panelists lya Somin (George Mason), Michael LeRoy (Illinois), and Lori A. Nessel (Seton Hall) and I discussed wide-ranging issues from the management of immigration historically to whether consumers are hurt by immigration restrictions.
The conference put in stark contrast the strange bedfellows who support greater labor mobility. As I discuss in soon-to-be-published paper A Citizenship Market (that's not on SSRN quite yet as it's still in the editing process), both the political left and political right favor reduced immigration restrictions, albeit for very different reasons. On the left, supporters tend to focus on the rights of migrants. On the right, supporters tend to focus on the benefits of letting the free market roam free.
What I found most enjoyable about the program was the ability to engage with the audience, most of whom really had no foundation in immigration law. It was a good opportunity to educate folks about the realities of immigration law - for example, the small numbers of LPRs admitted to work in contrast to the significant larger numbers of nonimmigrant workers in the United States. Every chance we immprofs have to dispel myths regarding immigration is a gift.
There will be papers forthcoming from the symposium. I'm excited to report that I'll be revisiting the Q visa in a piece titled Beauty and the Beast: Disney's Use of the Q and H-1B Visa. Michael LeRoy will also be tackling the H-1B visa in the context of Trump's Executive Order 13788 (Buy American and Hire American). Stay tuned!
Monday, February 26, 2018
2018 Immigration Law Scholars and Teachers Workshop at Drexel Law School, May 24-26, 2018
A major focus of the biennial Immigration Law Scholars and Teachers Workshop is the opportunity for immigration scholars to share scholarship in progress. Opportunities will be available to receive feedback from colleagues on draft papers and on ideas in the formative stage during incubator sessions.
If you are interested in presenting a work-in-progress (WIP) or an incubator idea, or in serving as a commentator, please fill out this google form by Friday, March 23.
(If you have trouble clicking on the link, you can also find the form here: https://docs.google.com/forms/d/e/1FAIpQLSd0xQqAQpm2aMDT6H2lPKazzgXNsSiVnjOvDK_QysaRmK5Oig/formResponse)
Your draft paper for a WIP session (50 pages maximum) or a brief description of your incubator idea (3 pages maximum) will be due by Friday, April 27. You will receive further instructions about how to upload your paper to the password-protected conference website closer to the date.
After the committee receives submissions in response to this call for papers, the committee will assign commentator(s) for each work in progress based on shared scholarship interests. The date and time for each work in progress session will be posted on the conference website in early May.
We hope to have room for all who express interest in presenting a work in progress. If we face any constraints, we will give priority to junior scholars.
The members of the Works in Progress committee for the Workshop are: Amanda Frost (American); Denise Gilman (Texas); and Jaya Ramji-Nogales (Temple). If you have any questions, feel free to contact Amanda at firstname.lastname@example.org.
-KitJ on behalf of Amanda Frost
Sunday, February 18, 2018
Calling all NYC-area immprofs. If you're free on Tuesday, February 27, consider heading over to NYU's Greenberg Lounge in Vanderbilt Hall. The NYU Journal of Law & Liberty is holding a one day conference on Freedom versus Fairness: The Tension Between Free Market and Populist Ideals in Labor.
The first session is a non-immigration panel on "Janus and ‘Fair Share’ Fees," but the second session (starting at 11:15 a.m.) is about "The Free Movement of Labor." I'll be there along with immprof Lori A. Nessel as well as prawfs Ilya Somin and Michael LeRoy.
You can find details, and an RSVP link, here.
Thursday, December 21, 2017
Christmas is just around the corner, but you still have time to finish off that work-in-progress. And just in time, too. The Northwestern University Law Review exclusive submission window is coming open in January. Here are the details from their website:
We will accept exclusive submissions from January 1, 2018-January 14, 2018 at 11:59 PM Central Time. For all articles submitted in accordance with the instructions outlined below, the Law Review guarantees Articles Board consideration and a publication decision by February 5, 2018.
Articles receiving a publication offer via the exclusive submission track will be published in Volume 113 in the fall of 2018. Participating authors must agree to withhold the article submitted through our exclusive submission track from submission to any other publication until receiving a decision back from us. Authors not receiving publication offers are free to submit elsewhere after notification of our publication decision, which will occur no later than February 5, 2018.
Please note that by submitting an article via the exclusive submission track, the author agrees to accept a binding publication offer, should one be extended.
To submit beginning January 1, 2018, please email your article manuscript, a cover letter, and CV to Brandon Johnson, Senior Articles Editor, at email@example.com. Please kindly title the subject line "2018 Exclusive Submission Track."
Friday, December 8, 2017
Ohio State University immprofs Inés Valdez, Mat Coleman and Amna Akbar question President Trump's rhetoric regarding the enforcement of federal immigration law in this thoughtful WaPo piece. Despite public statements to the contrary, the trio writes: "Laws don’t enforce themselves; people make decisions about how to enforce them."
The authors note that "whether a migrant has a legal right to be in the United States must be adjudicated in immigration courts." It's not a simple matter of enforcement.
Moreover, "locating migrants who may lack legal status requires surveillance and policing that are also constrained by laws." Regarding this piece, the authors offer some helpful background on Secure Communities and INA 287(g) agreements, both of which have been subject to civil rights challenges.
"These law enforcement approaches are not static," they write. Which is why then-DHS Secretary Kelly was so wrong when he said: "the law deports people. Secretary Kelly doesn’t.”
Want to read the long form version of these arguments? Check out the authors' article Missing in Action: Practice, Paralegality, and the Nature of Immigration Enforcement.
Monday, October 9, 2017
The Central States Law Schools Association annual meeting took place at Southern Illinois Law School in Carbondale, IL this past weekend. The conference is not subject specific, which offers the chance for feedback from scholars outside our immprof bubble. But Geoffery Heeren (Valpariso) was present to help provide an immprof perspective!
Geoff presented his developing work Crimmigration in Gangland: Race, Crime, and Removal during the Prohibition Era. It's the first piece to see the prohibition era as historically important in the development of the convergence of immigration and criminal law. It's a fascinating piece of legal history that's sure to inform the crimmigration field.
I presented on my work Immigration Commodification. Immigration scholars have challenged specific immigration proposals on the basis that they commodify immigrants. I aim to bring the rich commodification literature to the immprof community in order to facilitate more nuanced conversation around the topic.
Wednesday, July 12, 2017
Check out DePaul immprof Daniel Morales' piece Transforming Crime-Based Deportation, 92 N.Y.U. L. Rev. 698 (2017). Here's the abstract:
Why not rid the United States of criminal noncitizens and the disorder they cause? Because, scholars urge, immigrants reduce crime rates, deporting noncitizens with criminal convictions costs far more than it is worth, and discarding immigrants when they become inconvenient is wrong. Despite the force of these responses, reform efforts have made little headway. Crime-based deportation appears entrenched. Can it be transformed, rather than modified at the margins?
Transformation is possible, but only if crime-based deportation is reenvisioned as the prerogative of local governments. National transformation, this Article shows, is a dead end. When the problem of immigrant crime is digested at the national level, under the rubric of “the national interest”—where noncitizen interests do not count by definition—there are numerous “rational” reasons why a self-interested citizenry would want to deport noncitizens, even for minor crimes. Additionally, whatever rational reasons exist are exaggerated by the national media, which gives the rare violent crime committed by an immigrant outsized national attention. The danger posed by this distorted media reality was highlighted by Donald Trump throughout his campaign for president. Trump’s establishment of an office to publicize crimes committed by deportable noncitizens will make the problem more acute.
Local governments, by contrast, can be more concrete, flexible, and pragmatic; they are apt to think in terms of residents and community, rather than citizen versus alien. Local residents think about neighbors, classmates, and fellow churchgoers, and the economic and social contributions of noncitizens who run afoul of the law loom larger in the local calculus than the national one. Were local governments granted responsibility for crime-based deportation, the humanity, value, and membership of immigrants who commit crimes would be more likely to enter the conversation about appropriate responses, helping to transform crime-based deportation.
Monday, June 26, 2017
Check out Dissent in Immigration by recently-tenured immprof Daniel Morales (congrats!) of DePaul University College of Law. It's published in Law, Culture and the Humanities, a peer-reviewed publication.
Here's the abstract:
This commentary argues that prescriptive immigration scholarship has something to learn from the rise of Donald Trump. The Republican party’s relatively close ideological engagement with the aspirations of its immigration dissenters (white nationalists) has paid political dividends in the long run by allowing the party to capture a passion for immigration issues and marry that atavistic energy to legal know-how. But mainstream Democrats, along with scholars whose immigration reform prescriptions align with that group, reject as fantasy the open-borders demands of its dissenters. Yet fantasy can be made real, or at least spark real political enthusiasm, as Trump illustrates. A deeper engagement with the dreams of open-borders advocates, like the group #Not1More Deportation, could in time prove similarly fruitful and galvanizing for the mainstream immigration left.
Thursday, June 22, 2017
Throwback Thursday is back! Be excited.
First, some background. On Tuesday, during discussion that followed the screening of Warehoused, several individuals got into a discussion about whether the term "refugee" has negative connotations. I don't typically think of it that way, but as I've mentioned before, some do. One member of the discussion tried to articulate why he prefers the term "New American." For him, it was an issue of time. How many years after resettlement should he still be considered a refugee? Will he always and forever be one? Is he instead a "former refugee"?
These are fascinating questions that had me thinking about the work of Dr. Bernadette Ludwig, who teaches in the sociology department at Wagner College. For those who haven't read it before, I want to highlight her 2013 article: “Wiping the Refugee Dust from My Feet”: Advantages and Burdens of Refugee Status and the Refugee Label. It's about the experience of Liberian refugees living in Staten Island, New York and, in particular, their struggles with being identified as refugees.
Ludwig notes that there is real stigma to the term refugee in this particular Liberian community because, among other things, it's a label placed on people rather than one they've actively chosen for themselves. It's also a term that's associated with poverty, homelessness, and lack of education. It is, in short, "insulting" and "degrading." The word carries such weight that "many refugees anticipate the end of their 'refugeeness.'"
And yet, of course, the term has significant advantages. "Refugees" are entitled to special protections and services - ones not available to all immigrants.
Ludwig concludes that there's a difference between the "legal refugee status and the informal refugee label" that ought to be understood. And individuals' perspective on the term "change in the course of time." Being a "refugee" is not "a ﬁxed identity."
It's a great read. I highly recommend it.
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.