Monday, May 31, 2021

UK Orchestrating Rapid Relocation of Afghan Interpreters & Their Families

UK Troops Leaving Afghanistan, photo by Defence Images; CC BY-NC-ND 2.0

The United Kingdom has announced an operation to rapidly relocate some 3,000 Afghans to the British Isles, the BBC reports. The relocated Afghans include individuals who worked for the British military and UK government as well as their families. Most served as interpreters.

UK Defence Secretary Ben Wallace told the BBC that it was "only right" to undertake this rapid relocation program given the heightened dangers facing interpreters and their families in the wake of international pullback of military forces from Afghanistan.


May 31, 2021 in Current Affairs | Permalink | Comments (0)

Ironic tribute to MAVNI on Memorial Day

A timely story at the end of AAPI Heritage Month and on Memorial Day highlights the federal government's shifting posture toward immigrants who serve in the military. At an annual AAPI heritage month event, Fort Hamilton’s Command Sgt. Maj. Michael McCabe said “We’re paying tribute to all those generations of Asians and Pacific Islanders that have enriched America’s history,” said McCabe. “They are instrumental in our future successes, and we are honoring them for their sacrifices, both military and civilian service.”

He introduces as the guest speaker for the observance was Capt. Sungjae Kim, New York City Recruiting Battalion Queens Company commander, who discussed this year’s theme, “Advancing Leaders Through Purpose-Driven Service.” In his remarks, Capt. Kim speaks about serving two tours in Korea and one combat tour in Afghanistan with 3rd Special Forces Group out of Fort Bragg before taking his current company command position in New York. He spoke positively of the experience and how much the army valued diversity:

“When I joined the Army, I met Soldiers who would say that they’ve never met or spoken to an Asian person, or never seen an Asian in my size, and so on. That was a culture shock for me. I began to learn why the Army emphasizes diversity and equal opportunity so much, and how we all learn from each other with different backgrounds and cultural experience. As a company commander, it’s so important to know and understand my formations. Queens Company has more than 10 AAPI Soldiers, more than 10 Hispanic Soldiers, and about 10 Black Soldiers from Jamaica, Nigeria, and so on. That makes up more than 80 percent of my formation. Future Soldiers that we recruit in the Queens area, three out of four are minorities. The Army is only getting more diverse, as is our society.

I love being in the Army…it changed my life completely. Wherever I go, I do not consider myself just as an Army officer, but I remind myself that I represent Korean American Army Officer or Asian American Army Soldier. I have to set an example for everyone who served before me and after me. Also, I would like to thank everyone who served before me and is serving now, for setting the conditions and letting us serve in this environment where diversity is valued.”

Prior reporting from Miriam Jones at the WSJ reveals that Captain Sungjae Kim was once an immigrant struggling to make a living on his temporary visa when he stumbled upon a Korean-language Web site that described a short cut to getting U.S. citizenship. The program was called MAVNI, and it was created to entice military service from temporary immigrants who speak strategically important languages such as Arabic, Farsi and Korean in exchange for skipping the decade-long process of securing a a green card and then citizenship for nearly immediate eligiblity for citizenship. The website was created by another Korean immigrant, James Hwang, and it explained in minute detail the steps required to qualify. As Jones explains, like Captain Kim, so many Koreans applied to serve that the Army did not need them all at the time.

Since then, the Department of Defense has effectively ended the program and heightened vetting and background checks for Asian immigrants seeking to enlist who are considered "national security threats." As a result, the immigration attorney and Lt. Colonel who created the program, Margaret Stock, remarked on the irony of lauding a military officer who would not longer be eligible to serve or obtain citizenship... let alone recruit others like him with family who have served in South Korea or have other foreign ties.  More resources about the changing requirements for background checks and their effects on immigrants are collected by AILA here and described in an article I wrote for the Denver Law Review.

MHC (h/t Margaret Stock)

May 31, 2021 in Current Affairs | Permalink | Comments (0)

2021 Annual Pre-AILA Crimes & Immigration Seminar

Join the National Immigration Project of National Lawyers Guild's CLE on Thursday and Friday June 3-4. Among other highlights, Fatma Marouf will be discussing the Supreme Court's decision in Pereida v. Wilkinson with Nancy Morawetz (NYU) and Kathy Brady (ILRC). Full schedule is below. Online (registration fee $150 and up; more info here).


12:00 pm - 12:15pm: Welcome

12:15 pm - 1:45pm: Basics of the Categorical Approach (90 minutes of instruction/1.50 CLE Credits)

This session will cover how advocates can make the most of the categorical approach methodology in their defense of immigrants with convictions. We will cover the relevant Supreme Court cases and key features of the categorical and modified categorical approaches.


  • Khaled Alrabe, Staff Attorney, NIPNLG
  • Matthew Vogel, Senior Staff Attorney, NIPNLG


1:45pm - 2:15pm: Break 


2:15pm- 5:00pm:  Winning Effective Post- Conviction Relief for Immigrants  ( 150 minutes of instruction in two parts/2.50 CLE Credits)

These two sessions will address the various legal, factual, and procedural issues involved in securing post-conviction relief (PCR) for noncitizens that is effective for immigration adjudicators. We will cover the governing legal standards concerning PCR in immigration proceedings as well as recent developments and related issues. In light of these legal standards and requirements, the session will provide a framework for understanding, planning, and obtaining PCR that will be effective in immigration proceedings. We will also address potential challenges to these legal standards as well as ways to push back against efforts to restrict the effectiveness of PCR in immigration proceedings.

2:15pm- 3:30pm: Part 1- Effective Post-Conviction Orders to Vacate 

( 75 minutes of instruction in part one/1.25 CLE Credits)

This session will cover the legal standards governing whether PCR orders are effective in the immigration context, including Pickering and Thomas & Thompson.


  • Norton Tooby, Law Offices of Norton Tooby
  • Matthew Vogel, Senior Staff Attorney, NIPNLG


3:30pm - 3:45pm: Break


3:45pm - 5:00pm: Part 2- Winning Post-Conviction Relief 

( 75 minutes of instruction in part two/1.25 CLE Credits)

This session will present a conceptual and procedural framework for obtaining PCR relief that is effective in immigration proceedings.


  • Norton Tooby, Law Offices of Norton Tooby
  • Matthew Vogel, Senior Staff Attorney, NIPNLG


FRIDAY, JUNE 4, 2021

12:00 pm - 12:15pm: Welcome

12:15 pm - 1:45pm: Pereida v. Wilkinson and Its Implications  (75 minutes of instruction/1.25 CLE Credits)

This session will address the U.S. Supreme Court’s recent Pereida decision. We will examine the case, the decision, and their ramifications for burden of proof in immigration proceedings and the modified categorical approach, as well as situate the decision in the context of Supreme Court litigation and legislative advocacy.


  • Fatma Marouf, Professor of Law, Texas A&M University School of Law
  • Nancy Morawetz, Professor of Clinical Law, New York University School of Law
  • Kathy Brady, Senior Staff Attorney, Immigrant Legal Resource Center (ILRC) 


1:30pm - 2:00pm: Break

2:00 pm - 3:15pm: Crimes of Violence After United States v. Borden  (75 minutes of instruction/1.25 CLE Credits)

This session will examine the Supreme Court’s Borden decision and situate it in the context of crime of violence (COV) law post-Dimaya. After surveying the state of COV law in the circuits and at the BIA post-Dimaya, we will discuss the Borden case, the Court’s decision, and their implications for litigating COVs in immigration proceedings. We will also explore the realistic probability requirement in the COV context.


  • Khaled Alrabe, Staff Attorney, NIPNLG
  • Adina Appelbaum, Program Director, Immigration Impact Lab, Capital Area Immigrants's Rights (CAIR) Coalition


3:15pm - 3:45pm: Break

3:45 pm - 5:00pm: Immigration Implications of Diversion Programs  (75 minutes of instruction/1.25 CLE Credits)

With more and more jurisdictions employing a wide variety of diversion programs, it is necessary to better understand how such programs interact with immigration law. This session will examine various kinds of diversion programs and their immigration consequences and will develop ways to craft diversion agreements that reduce or avoid immigration consequences.


  • Jonathan Moore, Immigration Resource Specialist, Immigration Project, Washington Defender Association 
  • Anita Gupta, Staff Attorney, Immigrant Legal Resource Center
  • Norton Tooby, Law Offices of Norton Tooby
  • Matthew Vogel, Senior Staff Attorney, NIPNLG


May 31, 2021 in Conferences and Call for Papers, Current Affairs | Permalink | Comments (0)

EU adopts high tech in border enforcement in post-pandemic world

Derek Gatopoulos and Costas Kantouris for the Associated Press reports thatGreece is engaging in new forms of border enforcement:

"Greek border police are firing bursts of deafening noise from an armored truck over the frontier into Turkey. Mounted on the vehicle, the long-range acoustic device, or `sound cannon,' is the size of a small TV set but can match the volume of a jet engine.

It’s part of a vast array of physical and experimental new digital barriers being installed and tested during the quiet months of the coronavirus pandemic at the 200-kilometer (125-mile) Greek border with Turkey to stop people entering the European Union illegally.

A new steel wall, similar to recent construction on the U.S.-Mexico border, blocks commonly-used crossing points along the Evros River that separates the two countries."


May 31, 2021 in Current Affairs | Permalink | Comments (0)

Sunday, May 30, 2021

President Biden Proposes Flat Budget for Immigration Agencies, Redirected Funding


Official White House Picture of President Joe Biden

President Biden has made a budget proposal, including allocations for the U.S. government's immigration activities.  

Nick Miroff and Maria Sacchetti of the Washington Post report that "President Biden’s immigration policy changes took shape . . . in a budget request that would eliminate border-wall funding, boost spending on care for unaccompanied migrant children to $3.3 billion and overhaul the way asylum seekers are handled at the Mexican border by dramatically increasing staffing to process their claims. . . . Lawmakers from both parties have expressed concern that Biden’s $52 billion request for the Department of Homeland Security leaves overall funding flat, despite a migration influx this spring that has sent border crossings to their highest levels in 20 years."

Expect discussion and debate about the President's budget to continue.  

NPR's Ailsa Chang speaks with Randy Capps from the U.S. research at the Migration Policy Institute about the Biden administration's approach to funding Immigration and Customs Enforcement.






May 30, 2021 | Permalink | Comments (1)

Immigration Article of the Day: The unintended consequences of US immigration enforcement policies by Emily Ryo 


The unintended consequences of US immigration enforcement policies by Emily Ryo,   View ORCID Profile, See all authors and affiliations, Proceedings of the National Academy of Sciences, PNAS May 25, 2021.  Edited by Douglas S. Massey

US immigration enforcement policy seeks to change the behaviors and views of not only individuals in the United States but also those of prospective migrants outside the United States. Yet we still know relatively little about the behavioral and attitudinal effects of US enforcement policy on the population abroad. This study uses a randomized experiment embedded in a nationally representative survey that was administered in El Salvador, Guatemala, Honduras, and Mexico to analyze the effects of US deterrence policies on individuals’ migration intentions and their attitudes toward the US immigration system. The two policies that the current study examines are immigration detention and nonjudicial removals. The survey results provide no evidence that a heightened awareness of these US immigration enforcement policies affects individuals’ intentions to migrate to the United States. But heightened awareness about the widespread use of immigration detention in the United States does negatively impact individuals’ assessments about the procedural and outcome fairness of the US immigration system. These findings suggest that immigration detention may foster delegitimating beliefs about the US legal system without producing the intended deterrent effect.


May 30, 2021 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Saturday, May 29, 2021

Remittances, More Important Than Ever, Continue to Flow During Pandemic


Photo by; CC BY 2.0

Migrants Keep Money Flowing Home as Rich Economies Bounce Back is the Wall Street Journal headline. The article follows the story of how remittances have become more important than ever to receiving families in countries hard hit by the global pandemic. Monies sent from relatives working in wealthy countries abroad have helped families to survive the economic hit --  giving them the ability to pay for needed food and medicine. Some senders have increased their contributions to families abroad, knowing that they're facing particularly tough times. "It is a lifeline," said one recipient of remittances.

This WSJ's global analysis (with interviews and data from the Philippines, India, Latin America, and the Caribbean) jibes with the conclusions of the LA times back in September 2020 regarding pandemic-related increases in remittances to Mexico and Central America.


May 29, 2021 in Current Affairs | Permalink | Comments (0)

White House honors close of Asian American heritage month with celebrity appearances, reauthorizes WHIAANHPI

WH logo

As Asian American, Native Hawaiian, and Pacific Islander Heritage Month comes to a close, the Center for Asian American Media (CAAM), Pacific Islanders in Communications (PIC), and PBS will be hosting “A Celebration of the AA and NHPI Community: Highlighting Our Diverse Tapestry.” Following a year of immense challenges for AA and NHPI communities, this event will celebrate the diversity of experience and culture across their communities, uplift AA and NHPI voices, acknowledge the harm and suffering anti-Asian violence has caused this year, and look toward a future of continued healing, strength, and solidarity. Guest speakers include President Joe Biden, Vice President Kamala Harris, and several celebrity guests such as Yo-Yo Ma, Lea Salonga, and Auliʻi Cravalho. Click here for full details and line-up. The event premieres Monday May 31, on Facebook and YouTube at 8:00 p.m. ET/5:00 p.m. PT/2:00 p.m. HT.

The event comes on the heels of the announcement that the White House will reauthorize the White House Initiative on Asian Americans, Native Hawaiians, and Pacific Islanders (WHIAANHPI). The longer name reflects the addition of Native Hawaiians to the acronym after steady efforts from community advocates.


May 29, 2021 in Current Affairs, Film & Television | Permalink | Comments (0)

The Emergence of the Global Heartland?

A new report (The Emergence of the Global Heartland by Joel Kotkin, Mark Schill, Karla Lopez Del Rio, Wendell Cox, Alicia Kurimska, Celia Lppez Del Rio) issued by Heartland Forward focused on demographic changes resulting from immigration to the heartland of the United States.  It states that

"[a] major shift in the demographic evolution of America is occurring, largely out of sight in the national media, but profoundly affecting communities throughout the Heartland. The 20 state region, which extends between the Appalachians and the Rockies, has for generations been largely unaffected by the massive movement of people from abroad that has so dramatically transformed the great metropolitan regions of coastal America. . . . Over the past decade, the Heartland’s share of the foreign-born population has risen from 23.5 percent in 2010 to 31.1 percent in 2019. This shift can be seen in many Heartland communities, some such as Louisville, Columbus and Nashville, have seen their immigrant populations swell more than 40 percent from 2010 to 2019, often helping to reverse generations of demographic decline. They are now growing their foreign-born populations faster than such historic immigrant hubs as New York, Los Angeles, San Francisco, Boston and Philadelphia."

Heartland Forward describes itself as "a nonpartisan, nonprofit `think and do' tank focused on improving economic performance in the center of the United States. Heartland Forward is based in Bentonville, Ark., but our work focuses on the entire region which is comprised of 20 states.".

For commentary on the report and demographic changes in Iowa, click here.


May 29, 2021 in Current Affairs | Permalink | Comments (0)

Friday, May 28, 2021

Call for Papers: Southern Perspectives on Border Control, European Society of Criminology

The European Society of Criminology will host an online conference on September 8 - 11, 2021. Border Criminologies at Oxford University is seeking submissions to organize one or two panels. Submissions should contain a brief abstract of no more than 200 words, title, and a brief bio. The deadline for submission is May 30, 2021. Acceptance of papers by the panel organizers will not guarantee their inclusion in the ESC programme and will be subject to the ESC’s assessment. Please send your submissions to: and More information on the topic is available here.



May 28, 2021 in Conferences and Call for Papers | Permalink | Comments (0)

Carrie Rosenbaum in Immigration in the 20th and 21st Centuries


Video Available

The latest installment in the United States Capitol Historical Society Speaker Series "Toward a More Perfect Union" focused of immigration.  The title of the talk was "Toward a More Perfect Union: Immigration in the 20th and 21st Centuries." 

The speaker was Carrie L. Rosenbaum, immigration attorney in private practice, law professor, and scholar.



May 28, 2021 in Current Affairs | Permalink | Comments (0)

DHS and DOJ Announce Dedicated Docket Process for More Efficient Immigration Hearings

Today, Secretary of Homeland Security Alejandro N. Mayorkas and Attorney General Merrick B. Garland announced "a new Dedicated Docket process to more expeditiously and fairly make decisions in immigration cases of families who arrive between ports of entry at the Southwest Border.  This new process should significantly decrease the amount of time it takes for migrants to have their cases adjudicated while still providing fair hearings for families seeking asylum at the border."  

The concluding paragraph reads as follows:

"Under the Dedicated Docket, EOIR’s immigration judges will work generally to issue a decision within 300 days of the initial master calendar hearing, subject to the unique circumstances of each case including allowing time for families to seek representation where needed. While the goal of this process is to decide cases expeditiously, fairness will not be compromised."

Click the link above for details.


May 28, 2021 in Current Affairs | Permalink | Comments (0)

At the Movies: Five Years North



Five Years North is a documentary with a fascinating set up.  As described on the film's website,

"Five Years North is the coming-of-age story of 16-year-old Luis, an undocumented Guatemalan boy who just arrived alone in New York City. While Luis balances school, work, and his mental health, Judy, a veteran ICE officer and first-generation Cuban immigrant, navigates new immigration priorities."

The film opens today in New York City.

Jordan Mintzer for the Hollywood Reporter catches the essence of Five Years North in the last paragraph of his review:

"That’s perhaps the main takeaway from this intimate tale of urban strife: Luis could be any guy delivering your food — the kind you don’t think twice about after closing the door — while Judy is just another public worker trying to pay the bills, albeit in a profession some would find morally compromising. They’re two out of millions of New Yorkers, but the more we get to know them, the more we see how these opposites — who exist on opposite sides of the law — are bound together by their mutual struggle to make it in the big city."


May 28, 2021 in Current Affairs, Film & Television | Permalink | Comments (0)

Immigration Article of the Day: Downsizing the Deportation State by Jennifer Lee Koh


Downsizing the Deportation State by Jennifer Lee Koh, Harvard Law & Policy Review, Forthcoming

JENNIFER LEE KOH, University of Washington School of Law, University of California, Irvine School of Law


The contemporary deportation state – referring to the federal administrative infrastructure for enforcing the immigration laws through deportation and detention –has grown significantly over the past several presidential administrations. During the Trump era, the deportation state engaged in spectacles of cruelty against immigrants and received encouragement from blatantly anti-immigrant rhetoric from the president. However, its overall growth also reflected an extension of past practice from prior administrations. In this Essay, I argue that the Biden Administration should not only pursue an immigration agenda that seeks to reverse Trump-era immigration policies and enact legislative immigration reform—which it has expressed a commitment to doing—but should also seek to downsize the deportation state. To do so, it should place particular attention on how agency funding, management of the bureaucracy, and relationships with subfederal and private entities might impact successive presidents’ capacity to engage in mass deportation and detention.


May 28, 2021 in Current Affairs, Immigration Law Clinics | Permalink | Comments (0)

Thursday, May 27, 2021

Convivir Colorado Summer Program

Convivir supports immigrant youth as they find power in their migrant experience and use it to enrich themselves and their communities. They work with students who are immigrants, refugees, or first generation Americans in mixed immigration status families from any nationality and with any type of immigration status. They are sponsoring a summer program for immigrants, refugees, and first generation youth in mixed status families.

Appy here to attend the summer program. You can also indicate an interest in serving as a volunteer, contractor, intern, guest speakers.


May 27, 2021 in Conferences and Call for Papers | Permalink | Comments (0)

Job Announcement: Seton Hall Law School Assistant Clinical Professor


Seton Hall Law School Job Announcement Assistant Clinical Professor for 2021-22 Immigrants’ Rights/International Human Rights Clinic

Seton Hall University School of Law has an opening for a full-time Assistant Clinical Professor to teach in its Center for Social Justice for the 2021-22 academic year. This is a one- year position, with the possibility of renewal dependent on funding. The Center for Social Justice is home to the Law School’s vibrant clinical program including the Civil Litigation and Practice Clinic; Equal Justice Clinic; Family Law Clinic; Immigrants’ Rights/International Human Rights Clinic; Impact Litigation Clinic; and Health Justice Clinic.

Duties and Responsibilities:

  • The Assistant Clinical Professor will work alongside the faculty member supervising the Immigrants’ Rights/International Human Rights Clinic. The clinic provides direct representation in matters including asylum and Convention Against Torture claims, human trafficking and VAWA cases, detained and non-detained cases before immigration judges, and appeals at the Board of Immigration Appeals and the Third Circuit.

  • The Clinic also houses the Detention and Deportation Defense Initiative, an innovative new universal representation project for detained immigrants. It is anticipated that the Assistant Clinical Professor will assist with the weekly seminar and supervise up to 8 students per semester in a mix of litigation, bond hearings and appellate work, mostly within the detained setting.

  • The Assistant Clinical Professor will also collaborate with immigration advocates to develop appropriate responses to immigration enforcement actions and policies in order to protect the interests of our clients.

Required Qualifications:

  • Applicants must have a J.D. We seek candidates with a strong academic record, excellent writing and oral communication skills, practice and/or teaching experience, Spanish language skills, and a commitment to public interest law and clinical legal education.

  • Preference will be given to applicants who have at least five (5) years of practice experience in the field of immigration law.

  • Admission to the New Jersey State Bar is preferred, but not required.

Applications will be reviewed on a rolling basis until the position is filled. Applications accepted online at

Seton Hall University is committed to programs of Equal Employment Opportunity (EEO) and the principles of affirmative action. Seton Hall Law School is located at the heart of downtown Newark. It is one block from Newark Penn Station (with trains and subway service to many parts of New Jersey and to New York City). Manhattan is a 23-minute train ride away.


May 27, 2021 in Jobs and Fellowships | Permalink | Comments (0)

Immigration Article of the Day: In Defense of Chain Migration  by Bill On Hing


In Defense of Chain Migration by Bill On Hing, Christianity and the Law of Migration, Routledge Press (2021) editors: Silas W. Allard and Raj R. Nadella.


The vast majority of immigrants to the United States enter through categories set forth in a statutory selection system that emphasizes family reunification. However, since the early 1980s, attacking those family immigration categories has become a popular political sport played every few years. The most recent version of the sport is embodied by the introduction of the RAISE Act and statements condemning so-called “chain migration” by President Trump. The assault on family immigration generally is framed in terms that would replace family categories with those that would enable “skilled” immigrants to immigrate instead. The President, like many others, derides the so-called “chain migration” system as enabling one person to bring in “32 people. . . . You come in and now you can bring your family and then you can bring your mother and your father, you can bring your grandmother.” The claim is that the family-based system allows entry to “virtually unlimited numbers of distant relatives.” Instead, critics of family migration argue that the system should focus more on “merit” rather than family, and assign points to prospective immigrants based on factors like age, education and English skills.

Critics of family immigration and I have different starting points when it comes to priorities in the admissions system. The so-called “merit” proponents claim that to help the economy, more jobs and skill-based criteria should be used. My position is that the nation and its employers would continue to do quite well economically by expanding the family numbers throughout all categories. Furthermore, we do well to look beyond economic values and to consider the values that are important to us as a nation in terms of human rights, moral obligations, and social responsibility.

Somehow those of us who favor not only maintaining but expanding family-based immigration opportunities are viewed as soft on immigration. However, the experiment that we call America is a test of our character and our willingness to believe that we can have a strong country that is caring and diverse. Showing compassion and fairness in our immigration policies is not a sign of weakness. Rather, those traits demonstrate a confidence in a strong rule of law and system of government, but understand that moral obligations and family reunification are essential elements of a civil society. While these traits of a civil society may benefit individuals, they benefit us as a common community as well. For when an individual and their relatives have been enabled to become contributing members of society, we all benefit—socially, psychically, and economically.

May 27, 2021 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Wednesday, May 26, 2021

Roma Among Asylum Seekers at US/Mexico Border

Dans, CC BY-SA 4.0, via Wikimedia Commons

Reuters reports that there has been a significant uptick in the number of Romani asylum seekers at the U.S.-Mexico border. Thus far in FY2021, Border Patrol has apprehended nearly ten times the number of these European migrants (2,217) than in all of FY2020 (266).

The Roma people have long faced discrimination in Europe. (See, e.g., this 2010 post regarding France's exclusion of Romani.) And the United States has seen prior upticks on Romani asylum seekers. (See, e.g., this 2016 post regarding an influx to California in 2016.)

The most recent arrivals are another reminder that the Southern border is not just a gateway for migrants from Mexico and the Northern Triangle.


May 26, 2021 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Legalizing Undocumented Work by Jennifer J. Lee


Legalizing Undocumented Work by Jennifer J. Lee, 42 Cardozo L. Rev. (forthcoming 2021)


Eight million undocumented workers live as a separate subclass of exploited workers in the United States. The federal prohibition on undocumented work creates the plight of the undocumented worker. Social movements for undocumented workers respond by focusing on unscrupulous employers or the economic benefits provided by essential workers. These approaches, however, can fail to contest the moral disapproval to undocumented immigrants that justifies outlawing their work based on the rule of law or fairness to native-born workers.

This Article proposes legalizing undocumented work separate and apart from immigration status. It responds to the moral disapproval by reframing the plight of undocumented workers as the subordination of a racial subclass of workers, which violates fundamental principles of equality and freedom. For workers who participate in and contribute to the law and economy of the American workplace, a separate caste of workers violates equality. Their inability to lawfully work also restricts their freedom to sell their own labor and work without coercion. Notably, these constraints on equality and freedom are being imposed on a primarily brown-collar workforce. At the same time, the United States has acquiesced to undocumented work, by turning a blind eye and actively profiting from such work through taxes, profits, and goods and services. A closer look at “illegality” reveals that its extension to the realm of work to justify exclusion of undocumented workers is problematic. Given the various growing social movements focused on anti-racial subordination, it is an opportune time to make such claims.

The legalization of undocumented work applies more broadly to all workers in contrast to the proposals for legalizing immigration status that are inevitably limited to “deserving” subgroups of workers. Yet legalizing undocumented work means that immigrants will continue to face deportation because they lack lawful immigration status. There are practical steps, such as anti-retaliation protections and prohibitions on worksite enforcement, which can further help disentangle work from migration. While the legalization of undocumented work is not a panacea for the challenges faced by low-wage workers, having lawful work status increases the ability of workers to access the wider job market, move freely between jobs, and exercise workplace rights. Such legalization too provides a first step for reexamining the restoration of social, economic, and political rights of immigrants that have otherwise been foreclosed because of “illegality.”


May 26, 2021 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Tuesday, May 25, 2021

No End in Sight: Prolonged and Punitive Immigration Detention in Louisiana

No End in Sight: Prolonged and Punitive Immigration Detention in Louisiana is a report authored by the Tulane Law School Immigrant Rights Clinic Faculty Directors (Profs Laila L. Hlass & Mary Yanik) along with six of their clinical students (Gabriela Cruz, Dee-Di Hsi, Trinidad Reyes, Taylor Sabatino, Diego Villalobos, Sara Wood).

The report details the groups' findings regarding habeas litigation pursued by detained migrants in Louisiana. It's a particularly important study because Louisiana holds the second highest number of immigrant detainees of any state. (Texas has the dubious distinction of being in first place.)

Here are some the report's key findings:

  • More than half of detained immigrants filing for habeas were Black immigrants. 
  • Almost 1 out of 4 detained immigrants filing for habeas were previously lawful permanent residents. 
  • On average, detained immigrants had been detained for nearly one year and one month at the time they filed a habeas petition.
  • These cases face frequent delays and take months or years to resolve. On average, habeas petitions take about six months from filing to case resolution.
  • Detained immigrants won court-ordered release from detention through habeas in only 5 cases during the study period. However, in 22% of cases (112 cases), ICE released the detained immigrant to their community during the case before the Court ruled on whether continued detention is unlawful. These voluntary administrative releases—“shadow wins” where the immigrant is released without court vindication—show up in the formal court record as losses. This is because the Court dismisses the case because there is no further legal remedy as the petitioner has already achieved their goal of release.
  • Though the filing fee for these cases is only $5, this fee presents a common obstacle to detained immigrants. In over 40% of cases, detained immigrants did not pay the initial fee. The Court denied 30% of fee waivers requested, and 45 cases were dismissed for failure to pay $5.
  • Detained immigrants who do not have the help of a lawyer must also file their petition on a specific court-issued habeas petition form according to local rules of the Court. The form is only in English, and it spans nine pages long. The Court dismissed 22 cases for failing to comply with an order to fill out the required form or revise the petition.
  • Over the study period, the Court nearly tripled the number of days that ICE is allotted to respond to allegations of unlawful detention. Those deadlines are sometimes extended even further with extension requests, which are always granted.
  • The vast majority (85%) of detained immigrants filed their habeas petitions without the help of a lawyer. More than 1 out of 4 detained immigrants represented by lawyers at filing were released from detention, whereas only 9% of those who filed unrepresented were released.

I highlighted the finding regarding "shadow wins" because it caught the attention of ProPublica: check out their coverage of the Tulane report.

And here are the authors' key recommendations:

  • Congress should restrict immigration detention, ban private immigration detention centers, and permit custody review before an immigration judge for every detained immigrant.
  • ICE should close detention centers, especially those that are remote and not accessible to attorneys, advocates, and detainees’ families.
  • The Court should consider shorter deadlines for ICE, represented by U.S. attorneys, to substantively respond to habeas petitions. Given that liberty is at stake in these cases, all deadlines should be set to the minimum reasonable time, and extensions should be limited to rare and exceptional instances. The Court should consider issuing orders quickly in these cases.
  • The Court should consider resolving claims expeditiously based on evidence submitted by each party after the petition, response, and any rebuttal. The Court should act quickly to use all available tools for fact-finding under the habeas statute. For any proceedings where a limited English proficient petitioner is brought to court, the Court should provide simultaneous interpretation by a court interpreter at no expense.
  • The Court should appoint counsel for unrepresented petitioners with regularity. The Court should award attorneys’ fees and costs to successful detained immigrants who win release under habeas.
  • All detained immigrants should have access to legal information about habeas corpus through Department of Justice’s Legal Orientation Program (LOP). Any detention center holding immigrants should contain a legal library with habeas corpus forms, relevant cases and other legal resources, and a guide to self- representation in multiple languages.
  • ICE should publicly report the number of people detained longer than 6 months at each detention center. In each custody review, ICE should give any detained immigrant who is denied release the form for a habeas corpus petition and a notice from legal service providers to seek further information.


May 25, 2021 in Data and Research | Permalink | Comments (0)