Call for Papers: AILA Law Journal Symposium on Shaping Immigration Policy through the Federal Courts

Call for Papers: AILA Law Journal Symposium on Shaping Immigration Policy through the Federal Courts

AILA Doc. No. 23073105 | Dated July 31, 2023

The AILA Law Journal will host a symposium on March 21, 2024, organized under the auspices of AILA and the AILA Law Journal, in conjunction with the 2024 AILA Spring CLE Conference and Webcast in Washington, D.C. The topic of the symposium is “Shaping Immigration Policy through the Federal Courts,” and the AILA Law Journal Editorial Board invites proposals for papers to be featured at the symposium. The Spring 2024 issue of the AILA Law Journal will publish the papers presented at the symposium. Please read on for background information and submission guidelines.

As Congress remains deadlocked and unable to enact sweeping immigration reform, the federal judiciary has become a crucial site for the evolution of immigration law. President Biden, like his predecessors, has relied on executive actions to reshape key elements of the immigration system. President Biden has helped transform the lives of hundreds of thousands of immigrants through establishing enforcement priorities resulting in the dismissal of removal proceedings for thousands, fortifying Deferred Action for Childhood Arrivals (DACA), expanding humanitarian protection through Temporary Protected Status (TPS) and humanitarian parole, and establishing new parameters for skilled immigrants and entrepreneurs to take advantage of existing provisions to obtain immigration benefits.

These initiatives have been challenged in the courts with mixed results. The Supreme Court in United States v. Texas recently rejected a challenge by the states of Texas and Louisiana to President Biden’s enforcement priorities due to lack of standing. Still, it remains to be seen how the Supreme Court will rule on challenges to DACA and other initiatives of the Biden administration. The Court in United States v. Texas stated that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” Will this decision impact the ability of immigrant-friendly states like New York, California, or Hawaii to challenge the anti-immigration policies of a future president?

On the other side of the ledger, President Biden’s Circumvention of Lawful Pathways rule that replaces Title 42 has been challenged by asylum advocates in federal court, as it deprives asylum seekers of the ability to apply for asylum if they have transited through a third country or not presented themselves at a designated port of entry. At the same time, Texas argues that CBP One™ facilitates unlawful entry by those who may not qualify for asylum.

Lawsuits filed by noncitizens whose adjustment of status applications have been erroneously denied are dismissed in federal court due to lack of jurisdiction after Patel v. Garland. Other challenges in federal court continue under the Administrative Procedures Act, while courts give deference under Chevron to the immigration agency’s interpretation of a statute or bypass Chevron under the “major questions” doctrine. The D.C. Circuit Court of Appeals in Washtech v. DHS upheld the administration’s authority under Chevron deference to extend STEM Practical Training after a union of U.S. tech workers challenged the rule providing for extension of practical training to foreign students who have graduated with STEM degrees. The dissent sought to bypass Chevron deference by invoking the major questions doctrine. Relying on Chevron deference, the Obama administration successfully defended a challenge to broaden the Child Status Protection Act to include children who had aged out in Scialabba v. Osorio. In Wang v. Blinken, a decision that avoided Chevron altogether, the Biden administration successfully defended a challenge to the counting of derivative family members in the annual allocation of visa numbers. But challenges to the government’s interpretation of its own regulations have gained new vigor under Kisor v. Wilkie. With its grant of certiorari in Loper Bright Enterprises v. Raimondo, the Court is poised to pronounce the future of Chevron deference.

In the absence of reform in Congress, how can stakeholders use affirmative litigation in the federal courts to shape immigration policy in ways that benefit immigrants while also defending challenges aimed at invalidating beneficial immigration executive actions? How can immigration stakeholders engage with agencies to influence the rulemaking process and formation of agency policies in ways that benefit noncitizens and immigrants?

Invitation for Papers

The AILA Law Journal Symposium invites proposals for papers on immigration executive actions and the federal courts, including executive actions already undertaken and proposals for new executive actions, and in the course of rulemaking and agency policy formulation. Papers should also explore court challenges, or potential court challenges, to these actions as well as non-litigation options. In addition, papers may discuss the role of federal courts in addressing jurisdiction, standing, providing injunctive relief or vacatur, and in interpretating statutes and regulations. Please send a 300- to 500-word paper proposal to [email protected] by September 30, 2023. Selected participants will be expected to submit a draft of their paper by January 3, 2024, with final papers due by the March 21, 2024, symposium. Questions may be directed to [email protected] with the subject line “Symposium.”

Call for Papers: AILA Law Journal Symposium on Shaping Immigration Policy through the Federal Courts

AILA Doc. No. 23073105 | Dated July 31, 2023

The AILA Law Journal will host a symposium on March 21, 2024, organized under the auspices of AILA and the AILA Law Journal, in conjunction with the 2024 AILA Spring CLE Conference and Webcast in Washington, D.C. The topic of the symposium is “Shaping Immigration Policy through the Federal Courts,” and the AILA Law Journal Editorial Board invites proposals for papers to be featured at the symposium. The Spring 2024 issue of the AILA Law Journal will publish the papers presented at the symposium. Please read on for background information and submission guidelines.

As Congress remains deadlocked and unable to enact sweeping immigration reform, the federal judiciary has become a crucial site for the evolution of immigration law. President Biden, like his predecessors, has relied on executive actions to reshape key elements of the immigration system. President Biden has helped transform the lives of hundreds of thousands of immigrants through establishing enforcement priorities resulting in the dismissal of removal proceedings for thousands, fortifying Deferred Action for Childhood Arrivals (DACA), expanding humanitarian protection through Temporary Protected Status (TPS) and humanitarian parole, and establishing new parameters for skilled immigrants and entrepreneurs to take advantage of existing provisions to obtain immigration benefits.

These initiatives have been challenged in the courts with mixed results. The Supreme Court in United States v. Texas recently rejected a challenge by the states of Texas and Louisiana to President Biden’s enforcement priorities due to lack of standing. Still, it remains to be seen how the Supreme Court will rule on challenges to DACA and other initiatives of the Biden administration. The Court in United States v. Texas stated that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” Will this decision impact the ability of immigrant-friendly states like New York, California, or Hawaii to challenge the anti-immigration policies of a future president?

On the other side of the ledger, President Biden’s Circumvention of Lawful Pathways rule that replaces Title 42 has been challenged by asylum advocates in federal court, as it deprives asylum seekers of the ability to apply for asylum if they have transited through a third country or not presented themselves at a designated port of entry. At the same time, Texas argues that CBP One™ facilitates unlawful entry by those who may not qualify for asylum.

Lawsuits filed by noncitizens whose adjustment of status applications have been erroneously denied are dismissed in federal court due to lack of jurisdiction after Patel v. Garland. Other challenges in federal court continue under the Administrative Procedures Act, while courts give deference under Chevron to the immigration agency’s interpretation of a statute or bypass Chevron under the “major questions” doctrine. The D.C. Circuit Court of Appeals in Washtech v. DHS upheld the administration’s authority under Chevron deference to extend STEM Practical Training after a union of U.S. tech workers challenged the rule providing for extension of practical training to foreign students who have graduated with STEM degrees. The dissent sought to bypass Chevron deference by invoking the major questions doctrine. Relying on Chevron deference, the Obama administration successfully defended a challenge to broaden the Child Status Protection Act to include children who had aged out in Scialabba v. Osorio. In Wang v. Blinken, a decision that avoided Chevron altogether, the Biden administration successfully defended a challenge to the counting of derivative family members in the annual allocation of visa numbers. But challenges to the government’s interpretation of its own regulations have gained new vigor under Kisor v. Wilkie. With its grant of certiorari in Loper Bright Enterprises v. Raimondo, the Court is poised to pronounce the future of Chevron deference.

In the absence of reform in Congress, how can stakeholders use affirmative litigation in the federal courts to shape immigration policy in ways that benefit immigrants while also defending challenges aimed at invalidating beneficial immigration executive actions? How can immigration stakeholders engage with agencies to influence the rulemaking process and formation of agency policies in ways that benefit noncitizens and immigrants?

Invitation for Papers

The AILA Law Journal Symposium invites proposals for papers on immigration executive actions and the federal courts, including executive actions already undertaken and proposals for new executive actions, and in the course of rulemaking and agency policy formulation. Papers should also explore court challenges, or potential court challenges, to these actions as well as non-litigation options. In addition, papers may discuss the role of federal courts in addressing jurisdiction, standing, providing injunctive relief or vacatur, and in interpretating statutes and regulations. Please send a 300- to 500-word paper proposal to [email protected] by September 30, 2023. Selected participants will be expected to submit a draft of their paper by January 3, 2024, with final papers due by the March 21, 2024, symposium. Questions may be directed to [email protected] with the subject line “Symposium.”

KJ