Thursday, September 30, 2021

JOTWELL trio of reviews on immigration scholarship

Immigration scholars are featured in the September, August, and July editions of  the prestigious Jotwell (Journal of Things We Like Lots).   



September 30, 2021 in Law Review Articles & Essays | Permalink | Comments (0)

Data Brief: Gaps in Health Services for Immigrants

A new report by UC Berkeley students Brisa Rodriguez and Stephanie Peng (Gaps in Health Services for Immigrants) maps healthcare facilities as well as the demand for healthcare across Arizona to identify the most pressing gaps in health services.  It is published in a  Berkeley Interdisciplinary Migration Initiative data brief. Their report finds that although federally-qualified health clinics are the only source of medical care for about 1 in 5 foreign-born residents in Arizona's metro areas, these immigrant-serving health clinics appear to remain concentrated in Tucson, a city with a legacy of political activism, relative to other mid-size cities and suburbs that are also home to thousands of immigrants.

Among the key findings:

  • Cities with the most demand: Phoenix, Tucson, Mesa
  • Cities with the highest access to health services: Scottsdale, Tucson
  • Cities with the lowest access to health services: Mesa, Tempe, Chandler, Avondale, Glendale. 

The brief is part of a larger BIMI project on Mapping Social Inequality.

BIMI map



September 30, 2021 in Data and Research | Permalink | Comments (0)

New Memo from DHS: Guidelines for the Enforcement of Civil Immigration Law

DHS just dropped a new memo: Guidelines for the Enforcement of Civil Immigration Law. It's 6 pages long. Here are some highlights:

  • There are three civil immigration priorities: threats to national security, threats to public safety, and threats to border security
  • Immigration enforcement shouldn't be a tool wielded by bad employers, bad landlords
  • "the guidance leaves the exercise of prosecutorial discretion to the judgment of our personnel" (this is on page 5).
  • This memo kicks in November 29, 2021.


September 30, 2021 in Current Affairs | Permalink | Comments (3)

DHS Announces Intention to Issue New Memo Terminating MPP

"Release Date: 
September 29, 2021

The Department of Homeland Security intends to issue in the coming weeks a new memorandum terminating the Migrant Protection Protocols (MPP).  Although the Department issued a June 2021 memorandum that terminated MPP, a Texas district court vacated that prior termination determination and issued an injunction that requires the Department to work in good faith to re-start MPP.  The Department has appealed that injunction.   

A new memorandum terminating MPP will not take effect until the current injunction is lifted by court order.  In issuing a new memorandum terminating MPP, the Department intends to address the concerns raised by the courts with respect to the prior memorandum. 

In the meantime, while the court injunction remains in effect, the Department has been working in good faith to re-start MPP in compliance with the order, and it will continue to do so.  To that end, the Department, working with the Department of State, is engaged in ongoing and high-level diplomatic discussions with Mexico.  Simultaneously, the Department has instituted an interagency Task Force to efficiently rebuild the infrastructure and reapportioning the staffing that will be needed to restart MPP once that concurrence has been obtained.  Among many other steps, the Task Force is updating policies and procedures to account for COVID-19 and preparing to put in place contracts to rebuild the soft-sided Immigration Hearing Facilities used for court proceedings associated with MPP.   

The Department remains committed to building a safe, orderly, and humane immigration system that upholds our laws and values.  The Department also continues to process individuals in accordance with U.S. law and our mission. "


September 30, 2021 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day, Growing Up in Authoritarian 1950s in East LA by Gerald P. López

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The Immigration Article of the Day is "Growing Up in Authoritarian 1950s in East LA" by Gerald P. López, published in the UCLA Law Review in June 2021. Here is the abstract:

By the 1950s, the criminal justice system had long combined with other systems, institutions,and individuals to target all the residents of East LA—particularly Mexicans—as criminals. In equating Mexicans with criminality, these networked forces and actors regarded and treated these residents as exceptions—as morally requiring and legally meriting authoritarian rather than accountability practices. These practices did not require invocation of the president’s emergency power and did not occur outside the rule of law. Instead, authoritarian practices targeting exceptions like the residents of 1950s East LA reflect routine choices made from (and always available) within the rule of law, made across eras and regions and colonial outposts of the United States, representing the paradigmatic instances of authoritarianism in a constitutional democracy. Contrary to time-honored wisdom, we cannot eliminate the availability of clashing choices within law. Authoritarian practices—every bit as much as accountability practices at the other end of the same continuum—are and shall remain legally legitimate action. Contrary to pacifying speeches, lectures, and sermons, we cannot eliminate fierce struggles over rival visions of the national community. Every discretionary choice each of us makes within networks of systems, institutions, and individuals expresses a view about how we wish to live in our neighborhoods, this country, and across the globe, including which people we feel justified in targeting as exceptions, often for racist reasons. Yet we can and should challenge and aim to obliterate widely hailed and deeply delusional orthodoxies about the criminal justice system, about networked authoritarian practices, about the rule of law itself. Those who insist we must remain loyal to these lies offer a horrific but familiar endorsement of life in 1950s East LA and of the current status quo. Living as we still do in the United States routinely degrades, devastates, and destroys certain groups of people. Living as we still do regularly benefits certain others, especially those within the networked systems targeting exceptions and the bipartisan mainstream enablers who rarely, if ever, put themselves on the line against authoritarian practices. “Enough,” as many people I knew growing up in 1950s East LA would say. “Enough.” Let’s unflinchingly face ourselves— and our networks, institutions, and systems (including the rule of law in a constitutional democracy). Let’s get on with discovering the possibilities and the limits of coexistence.


September 30, 2021 in Law Review Articles & Essays | Permalink | Comments (0)

Immigration Cases in the Supreme Court: The 2021 Term

The 2021 Term of the Supreme Court begins next Monday.  The Court currently has three new immigration cases on the docket for the 2021 Term:
Patel v. Garland, No. 20-979.  Argument:  12.6.2021
Issue: Whether 8 U.S.C. 1252(a)(2)(B)(i) preserves the jurisdiction of federal courts to review a determination that a noncitizen is ineligible for certain types of discretionary relief from removal.  The Eleventh Circuit held that the court had jurisdiction to review a legal conclusion but not a fact finding.
A pair of cases involve immigrant detention:
Johnson v. Arteaga-Martinez, No. 19-896   Argument not yet set.
Issue: Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge by clear and convincing evidence that the noncitizen is a flight risk or a danger to the community.
Garland v. Gonzalez, No. 20-322  Argument not yet set.
Issues: (1) Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge that the alien is a flight risk or a danger to the community; and (2) whether, under 8 U. S. C. § 1252(f)(1), the courts below had jurisdiction to grant classwide injunctive relief.


As described by Amy Howe on SCOTUSBlog,  the two immigrant detention cases:

"The justices granted review in Johnson v. Arteaga-Martinez and Garland v. Gonzalez. Both cases involve noncitizens who have been ordered deported but claim they are entitled to `withholding' protection – a form of humanitarian relief in which noncitizens cannot be deported to their home country because they may be tortured or persecuted there. The noncitizens argue that, after spending more than six months in immigration detention awaiting the resolution of their withholding claims, they are entitled to a hearing before an immigration judge to determine whether they can be released on bond. Two federal appeals courts agreed with the noncitizens."

The following case addresses non-immigration issues in a criminal case involving an asylee in the Boston marathon bombing case:
U.S. v. Tsarnaev (Argument 10/13/2021).  Issues: (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.
My best guess is that the Court will add a few more immigration cases to its docket to round out the 2021 Term.  The Court decided five immigration cases in the 2020 term and eight in the 2019 term.  Stay tuned!

September 30, 2021 in Current Affairs | Permalink | Comments (1)

MacArthur Foundation Fellows 2021

The MacArthur Foundation has announced the 25 visionaries who make up its 2021 class of Fellows. Among them are:

  • Alex Rivera. Filmmaker and Media Artist. One of his works (with partner Cristina Ibarra, below), The Infiltrators, I just watched a few months ago. It's a fantastic exploration into immigration detention.
  • Don Mee Choi. Poet and Translator. "Bearing witness to the effects of military violence and U.S. imperialism on the civilians of the Korean Peninsula."
  • Cristina Ibarra. Documentary Filmmaker. She focuses on "nuanced and compelling narratives about Latino families living in borderland communities." (She partnered with Alex Rivera, another MacArthur fellow, on the Infiltrators).
  • Jawole Willa Jo Zollar. Choreograph and Dance Entrepreneur "using the power of dance and artistic expression to celebrate the voices of Black women and promote civic engagement and community organizing. She 2011 work Visible focused on "the immigrant's search for home and sense of self."


September 30, 2021 in Current Affairs | Permalink | Comments (0)

At the Movies: No One Gets Out Alive (2021)


Here is a Netflix film for ImmigrationProf readers -- an immigration themed horror movie.

No One Gets Out Alive.  Here are the Netflix details on the film:

Desperate and without documentation, a woman from Mexico moves into a rundown Cleveland boardinghouse. Then the unsettling cries and eerie visions begin.
Click here for a review in The Guardian (United Kingdom).


September 30, 2021 in Current Affairs, Film & Television | Permalink | Comments (0)

Greyhound must stop allowing immigration sweeps, pay $2.2 million to settle lawsuit

AG Ferguson Head Shot 2018 Crop

Photo courtesy of the Washington Attorney General website

Earlier this week,

"Attorney General Bob Ferguson announced . . . that Greyhound Lines Inc. will pay $2.2 million to resolve his lawsuit over the bus line’s practice of allowing U.S. Customs & Border Protection (CBP) agents on its buses to conduct warrantless and suspicionless immigration sweeps when it didn’t have to. Greyhound failed to warn customers of the sweeps, misrepresented its role in allowing the sweeps to occur and subjected its passengers to discrimination based on race, skin color or national origin.

Ferguson will use the payment to provide restitution to those passengers who were detained, arrested, or deported after immigration agents boarded their bus at the Spokane Intermodal Center, and for partial reimbursement of his office’s litigation costs. The amount of restitution each individual receives will depend on the number of claims and the severity of harms suffered due to Greyhound’s conduct.

The consent decree, filed in Spokane County Superior Court on the eve of trial, requires Greyhound to enact a number of corporate reforms to end its unlawful conduct. For example, Greyhound must create a clear corporate policy denying CBP agents permission to board its buses in Washington without warrants or reasonable suspicion. The national bus line must also train its drivers and other employees on how to communicate that policy to CBP agents.

“My office first insisted that Greyhound make these corporate reforms in 2019,” Ferguson said. “If Greyhound had simply accepted our reasonable demand, they would have avoided a lawsuit. Now, on the eve of trial, Greyhound’s evasion has come to an end, and now it must pay $2 million for the harm it caused Washingtonians. Greyhound has an obligation to its customers — an obligation it cannot set aside so immigration agents can go on fishing expeditions aboard its buses.”

In addition to paying $2.2 million, Greyhound is also required to:

  • Create a clear corporate policy that denies CBP agents permission to board its buses without warrants or reasonable suspicion in the State of Washington
  • Provide training for its drivers and employees on how to communicate its corporate policy to CBP agents
  • Issue a public statement, at minimum in English and Spanish, clarifying that Greyhound does not consent to immigration agents boarding its buses without a warrant or reasonable suspicion. It must put this statement on its website and communicate it to federal immigration law enforcement agencies and the City of Spokane, which owns the Intermodal Center
  • Place stickers on or near the front door of its buses stating that it does not consent to immigration agents boarding its buses without a warrant or reasonable suspicion
  • Provide placards for its drivers to give to immigration agents stating that Greyhound does not consent to immigration agents boarding its buses to conduct warrantless or suspicionless searches
  • Provide and display adequate notice to its customers of the risks of warrantless and suspicionless searches in the State of Washington wherever it sells bus tickets
  • Implement a complaint procedure for passengers who want to complain about the presence of immigration agents on Greyhound buses or at Greyhound bus stations, and notify the Attorney General’s Office of any such complaints received
  • Provide semi-annual reports to the Attorney General’s Office, including reporting whether immigration agents have boarded Greyhound buses in the State of Washington"

Click the link above for further details from the press release.  The Associated Press report on the settlement is here.


September 30, 2021 in Current Affairs | Permalink | Comments (0)

Wednesday, September 29, 2021

Immigration Article of the Day: A History of Anti-Asian Animus in America by Denis Binder


Denis Binder (Chapman) is not an immprof. His teaching focus in Torts and Environmental Law.

Nonetheless, immprofs might take note his his latest article: A History of Anti-Asian Animus in America, 2020 Diversity & Social Justice Forum 46. Here's the abstract:

Chinese immigrants were greeted with racism as soon as they arrived in California in the late 1840’s. San Francisco and California led the West in discriminating against the Chinese and Japanese immigrants. The culmination was the internment of Japanese Americans in World War II. Congress enacted the Chinse Exclusion Act and the Japanese Exclusion Act.

Asian Americans faced discrimination in education, employment, housing, immigration, law enforcement, marriage, property rights, and voting. They still face discrimination in college admissions.


September 29, 2021 in Law Review Articles & Essays | Permalink | Comments (0)

Immigration Article of the Day: The Unexamined Law of Deportation by David Hausman

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The Immigration Article of the Day is "The Unexamined Law of Deportation" by David Hausman, forthcoming in the Georgetown Law Journal and now available on SSRN. Here is the abstract:

Prioritization by criminality, in which noncitizens who have been convicted of serious crimes are deported ahead of those with little or no criminal history, is the most consequential principle governing who is deported from the interior of the United States. That principle of internal administrative law has rarely been questioned. This Article argues that, intuitive as prioritization by criminality may appear, it is only rarely justifiable.

I show, empirically, that the interior immigration enforcement system is successful at such prioritization. Being convicted of a crime makes deportation at least a hundred times more likely. And I show that center-left attempts to reduce deportations over the last decade have sharpened this prioritization: both sanctuary policies and President Obama’s Priority Enforcement Program, which caused the two largest reductions in interior immigration enforcement in the last decade, prioritized deportations by criminality.

Because well under one percent of undocumented noncitizens are deported in any given year, some principle for prioritizing enforcement is needed—but criminality should not be the primary principle. First, the crime control rationales for punishing noncitizens more severely than citizens convicted of the same crime are surprisingly weak. Second, the immigration policy rationale for prioritization by criminality is strongest among recent entrants to the United States. The longer a noncitizen has lived in the United States, and the stronger his or her ties here, the less deportation resembles a retroactive admission decision and the more it resembles additional punishment. Finally, the relationship between ties and criminality is asymmetric: there are better arguments for deporting people with weak ties and no convictions than for deporting people with strong ties and serious convictions.

If noncitizens convicted of crimes were mostly recent entrants, then the current prioritization might make sense. But the limited existing evidence on deportees’ ties to the United States suggests that prioritization by criminality leads the government to target people with deep roots in this country. The result is that interior immigration enforcement functions more as a method of social control of noncitizen residents than as a tool of immigration policy.


September 29, 2021 in Law Review Articles & Essays | Permalink | Comments (0)

Report: Families of Missing Migrants: Their Search for Answers and the Impacts of Loss -- Lessons Across Four Countries


A report released today by the International Organization for Migration’s Global Migration Data Analysis Centre calls on governments to improve support for missing migrant families who are often forced to rely on smugglers and other informal networks in tracing loved ones. 

The Centre's Missing Migrants Project compiled the report based on research with 76 families of missing migrants in Ethiopia, Zimbabwe, Spain and the United Kingdom.  Entitled “Families of Missing Migrants: Their Search for Answers and the Impacts of Loss – Lessons across four countries”, the report's accompanying policy briefing proposes 10 recommendations for authorities, international organizations and other actors to improve the response to cases of missing migrants and support for their families. 

Read the Report here.




September 29, 2021 in Conferences and Call for Papers | Permalink | Comments (0)

Venezuelan migrants in Chile face fiery anti-immigration protests

A couple of years back, I visited Chile and lectured on immigration, an issue of popular concern there.  Many Chileans expressed concern with increased immigration to the country.  Such concern apparently has hot new levels.  The nation recently passed a new immigration law.

Reuters reports that Venezuelan migrants in "northern Chile have been shaken by a series of angry protests by locals against settler camps which have popped up in city squares and even beaches, a reflection of simmering tensions over migration in the region. . . . 

The marches . . ., gathered an estimated 5,000 Chileans with placards reading `No more migrants.' Protesters demanded that authorities take measures to stop the entry of migrants across Chile’s northern border."


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

The Clamor for Updating Registry Continues

For many years, Congress has discussed various forms of immigration reform.  With budget reconciliation out of the question, Democrats in Congress continue to look for possibilities.  Updating registry to provide a realistic path for legalization of undocumented immigrants has been discussed.  As Kit Johnson has blogged with respect to immigration reform Plan B, the clamor for updating registry continues.  See this article by Nolan Rappaport on The Hill.   

Immigration and Nationality Act § 249 provides for registry, a record of admission for lawful permanent residence for undocumented persons who entered the United States prior to January 1, 1972.  That is a long time ago and the number of noncitizens eligible for it decreases as time passes.  The date was last updated in 1986 and commentators have long said that the time is overdue for moving the registry date forward.  Background materials on registry can be found here and here.

Updating registry would be a quick fix and address one important aspect of immigration reform. As Rappaport notes, "there is a lot of room for compromise on a registry provision update. The current date limits registry to undocumented immigrants who have been here for 49 years. The Republicans should be willing to make that date more reasonable without demanding extreme border security or interior enforcement measures."


UPDATE (9/29 4:00 p.m. PST):  The Senate parliamentarian has rejected the inclusion of registry in a budget reconciliation bill. Hat tip to Nolan Rappaport!


September 29, 2021 in Current Affairs | Permalink | Comments (1)

Tuesday, September 28, 2021

Job Announcement: Center for Migration Studies

Research and Policy Analyst
The Center for Migration Studies of New York (CMS), an educational institute/think tank devoted to the study of international migration, seeks to hire a full-time research and policy analyst. The position will work closely with CMS’s Executive Director (ED) and Deputy Director and will conduct research and staff a technical support function. The research and policy analyst’s responsibilities will include responding to data requests, generating tabulations and data fact sheets, providing legal and policy research support, representing the agency in relevant stakeholder and working group meetings, and administrative responsibilities.  

Among other areas of responsibilities, the research and policy analyst will:

  • Conduct research and data collection, statistical demographic analysis, and evaluation and interpretation of results;
  • Maintain database of data and statistics related to CMS’s areas of focus for use in reports and dissemination to internal and external stakeholders;
  • Participate on advisory teams and respond to CMS’s partners data requests;
  • Conduct research on new or existing legislation, regulations, policies, and practices;
  • Support the delivery of knowledge and the dissemination of work products, including reports, briefs, blogs, presentations, policy briefings, academic conferences, and others;
  • Contribute to the development and design of marketing materials, fact-sheets, infographics, and summaries; and,
  • Contribute to the intellectual life and mission of CMS and otherwise assist the ED as necessary.

The candidate should have excellent writing and research skills, interest and experience in quantitative programming, and knowledge of immigration issues. Other qualifications include:

  • A Master’s degree in a relevant social science field, JD, or equivalent demonstrable expertise;
  • At least 3-5 years of relevant experience in research applied to social issues, particularly pertaining to migration in the Americas, through working in academia and/or within research organizations;
  • Close attention to detail;
  • Ability to prioritize and manage multiple projects simultaneously and follow through on issues in a timely manner;
  • Interested in advancing CMS’s mission;
  • Exceptional written and verbal communication skills, including ability to summarize and synthesize complex information accurately and concisely.
  • Experience presenting research results to diverse audiences, including academics, policymakers, and the general public;
  • Familiarity with US policies and immigrant groups would be an asset.
  • Ability to work cooperatively and supportively with Catholic immigrant-serving institutions.

Technical Qualifications:

  • Experience working with data from Census Bureau surveys such as the American Community Survey and an understanding of survey sampling and weighting. Familiarity with Census Bureau variables and methodologies is preferred.
  • High intermediate to advanced programming proficiency in STATA and an intermediate knowledge of Microsoft Excel.
  • Experience with analysis and/or making simple maps on R, Tableau, ArcGIS, or another statistical software is an asset.

The annual salary for this position is $67,500 - $72,500, commensurate with experience. CMS offers excellent benefits, including a generous health insurance plan, dental and vision coverage, and a tax-deferred annuity plan.  Proficiency in Spanish and other languages preferred.

The position is full-time and based in New York City. However, some telecommuting is allowed during the COVID-19 pandemic. Please submit a letter of interest by September 30, 2021, with a resume or curriculum vitae and original writing sample to Daniela Alulema, CMS’s Director of Programs, at Please also indicate your availability.

The position is open until filled and applications are accepted immediately. Due to the high volume of applications, CMS cannot return phone calls about the position, and regrettably, cannot notify all applicants of the status of their applications unless an interview is requested.


September 28, 2021 in Jobs and Fellowships | Permalink | Comments (0)

Webinar: Best Practices for Haitian TPS Applications - Oct 1, 2021

CGRS logo   

UC Hastings' Center for Gender and Refugee Studies will be hosting a webinar: Best Practices for Haitian TPS Applications.

This webinar will provide an in depth understanding of legal issues that commonly arise with TPS applications with the Haitian community, such as dual nationality, firm resettlement, and other potential bars. The panel of immigration lawyers will offer best practices for addressing these legal obstacles based on their extensive experience working with Haitian TPS applicants. This webinar is highly recommended for legal practitioners working on Haitian TPS cases..   

Date and Time: October 1, 2021, 12:00pm-1:30pm PDT/3:00-4:30 pm EDT

RSVP here. Attendees may submit questions in advance of the webinar; RSVP for the webinar will remain open until one hour before the start time.


Clarel Cyriaque, Esq.

Peterson St. Philippe, Managing Attorney, Catholic Charities Legal Services, Archdiocese of Miami, Inc.

Cassandra Suprin, Family Defense Program Director, Americans for Immigrant Justice

Christine Lin, Director of Training and Technical Assistance, Center for Gender & Refugee Studies


Gabrielle Apollon, Supervising Attorney and Co-Director, NYU Center for Human Rights and Global Justice, Haiti Mining Justice & International Accountability Project

MCLE Credit:

1.5 General California MCLE credit; pending approval for 1.5 General Florida MCLE Credit

This training will be recorded and the recording and materials will be emailed to everyone who registers for the webinar.



September 28, 2021 in Conferences and Call for Papers, Teaching Resources | Permalink | Comments (0)

Immigration "Plan B"

Last week, the Senate parliamentarian nixed the Democrats' plan to use budget reconciliation to pass immigration reform. Now, Democrats are pursuing "Plan B."

According to The Hill, the current plan involves changing the registry date.



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

Analyzing the Immigration Data



Government Executive has a podcast in which Dr. Austin Kocher, is an Assistant Research Professor in the Newhouse School of Public Communication and a researcher with the Transactional Research Access Clearinghouse, a research institute at Syracuse University discusses his work and immigration data.


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

Vermont Supreme Court Applies Exclusionary Rule in Roving Patrol Case


Vermont Supreme Court Building Photo Courtesy of Wikimedia

Bender's Immigration Bulletin on an important Vermont Supreme Court decision (Vermont v. Walker-Brazie), with a passionate dissent, applying the exclusionary rule in a state criminal prosecution based on evidence secured by U.S. border officers in a roving patrol along the northern U.S. border with Canada.  The court's holding was based on teh Vermont Constitution.


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

Immigration Article of the Day: The End of Entry Fiction by Eunice Lee


The End of Entry Fiction by Eunice Lee, North Carolina Law Review, Vol. 99, pp. 565-642, 2021


Although “entry fiction” emerged in immigration and constitutional law over a century ago, the doctrine has yet to account for present-day carceral and technological realities. Under entry fiction, “arriving” immigrants stopped at the border are deemed “unentered” and “not here” for constitutional due process purposes, even in detention centers deep within the United States. As a result, the Department of Homeland Security (“DHS”) uses its sole discretion to detain tens of thousands of arriving asylum seekers in its facilities without a bond hearing. Despite significant modern changes in immigration statutes and due process jurisprudence, the Supreme Court recently suggested, but did not decide, that individuals subject to entry fiction may continue to lack constitutional due process protections against detention. Both courts and the government have invoked sovereign power as the doctrine’s justification, asserting that detention is necessary to effect exclusion (removal) of individuals and that entry fiction appropriately protects the government’s power to detain.

While many scholars over the decades have offered trenchant critiques of the doctrine, no recent treatment evaluates entry fiction as legal fiction. This Article fills that gap, tracing entry fiction’s origins in law and jurisprudence to consider its operation in the present-day context. I engage in a close rereading of Chinese Exclusion- and McCarthy-era cases to uncover functionalist and humanitarian underpinnings of entry fiction, including an intention to minimize hardship to immigrants. I then reevaluate entry fiction in the present day. In particular, this Article explores DHS’s indiscriminate use of immigration detention and its breathtaking expansion of surveillance technology. Today, DHS both operates a mass detention regime and engages in ever-increasing surveillance, including real-time tracking of immigrants that allows deportation without physical detention. These current realities decouple entry fiction from sovereign purpose—rendering detention unnecessary for the sovereign power of exclusion—and engender decidedly antihumanitarian practices. I conclude that courts must put entry fiction to rest as a vestige of the past and recognize the constitutional due process rights of all persons who are present and here in U.S. immigration detention centers.


September 28, 2021 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)