Thursday, January 20, 2022

Peter Margulies: Ending the Remain in Mexico Program: Judging the Boundaries of Executive Discretion

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Peter Margulies on Lawfare uses the December decision in Texas v. Biden by the U.S. Court of Appeals for the Fifth Circuit, which rejected the Biden administration’s latest bid to end the “Remain in Mexico” program, as the starting point for analyzing the scope of executive power over immigration. The Department of Justice responded to the Fifth Circuit decision with a petition for certiorari to the U.S. Supreme Court, which could address the breadth of the executive's immigration power.

KJ

January 20, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Immigration Article of the Day: How Judicial Review Can Help Empower People to Vote with Their Feet by Ilya Somin

Ilya

How Judicial Review Can Help Empower People to Vote with Their Feet by Ilya Somin, George Mason Law Review, Forthcoming (Symposium on “Does the Will of the People Exist?”)

Abstract

For decades, critics of judicial review have argued that it inhibits the will of the people, expressed through laws and regulations enacted by democratically elected officials. Thus, they argue, it should be used sparingly, or perhaps even not at all. This critique implicitly assumes that the political freedom of the people is best expressed through ballot box voting. We elect government officials, and thereby decide what government policies they wish to live under. Judicial review must therefore be kept within strict bounds, if not eliminated entirely, in order to avoid infringing on democratic self-government. This Article challenges that assumption and instead suggest that political choice is often best expressed through foot voting, rather than ballot-box voting. That, in turn, strengthens the case for strong judicial review in a range of areas.

People can vote with their feet through international migration, by choosing what jurisdiction to live in within a federal system, and by making decisions in the private sector. All three types can be enhanced by judicial review. Instead of a singular collective “will of the people,” foot voting enables individual members of the public to pursue a wide range of policy preferences. As a result, it allows far more people to live under policies that they prefer, and reduces the disadvantages faced by minorities.

KJ

Part I of this Article summarizes the advantages of foot voting over ballot box voting as a mode of political choice. In particular, foot voting enables individuals to make decisions that are more likely to have a decisive impact in determining the policies they live and more likely to be well-informed. It also offers a wider range of choice to people with minority preferences. Part II provides a brief overview of the three types of foot voting. Part III explains how judicial review can empower foot voting within a federal system by enforcing structural constitutional limits on the scope of federal government power. Part IV describes how judicial review can enhance foot voting in both the public and private sector by enforcing individual rights that make foot voting more feasible and effective. Finally, Part V discusses how judicial review can enhance foot voting through international migration.

Foot voting is not the only factor that must be considered in determining the appropriate level of judicial review in a constitutional system. But it is a crucial issue that often gets overlooked in debates over the role of the judiciary in a democratic society.

January 20, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Wednesday, January 19, 2022

Immigration Article of the Day: Rising Up Without Pushing Down: Lessons Learned From The Suffragettes' Anti-Immigrant Rhetoric by Kit Johnson

Kit

Rising Up Without Pushing Down: Lessons Learned From The Suffragettes' Anti-Immigrant Rhetoric by Kit Johnson
94 St. John's Law Review 937 (2021)

Abstract

American suffragist Elizabeth Cady Stanton famously wrote: “We hold these truths to be self-evident; that all men and women are created equal.” Yet when suffragettes spoke of “all” men and women, they were clear about exceptions. Immigrants did not qualify. Indeed, in her own address at the First Women’s Rights Convention, held in Seneca Falls, New York, in July 1848, Stanton said that “to have . . . ignorant foreigners . . . fully recognized, while we ourselves are thrust out from all the rights that belong to citizens, it is too grossly insulting to the dignity of woman to be longer quietly submitted to.”

This Article begins with an exploration of the anti-immigrant rhetoric of the suffragettes, noting how their nativist approach helped to secure the ultimate passage of the Nineteenth Amendment. Next, this Article explores modern parallels to the suffragettes’ story, where nativist approaches propelled success for movements around issues, people, and political parties. Finally, this Article calls upon the modern women’s movement to take a different path: rising up without pushing down.

KJ

January 19, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Monday, January 17, 2022

Immigration Article of the Day: Transnational Legal Process: An Evolving Theory and Methodology by Regina Jefferies

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Regina Jefferies, Transnational Legal Process: An Evolving Theory and Methodology, 46 Brook. J. Int'l L. 311 (2021).

Abstract

Harold Koh introduced Transnational Legal Process in 1996 as a constructivist theory of international legal compliance which draws lessons from international legal theory and the discourse between international law and international relations scholarship. This article situates Transnational Legal Process (TLP) within the broader literature on international legal compliance and traces the theory’s evolution over the years, highlighting scholarship which addresses three critical theoretical limitations: (1) insufficient description of the actors and processes of norm internalization; (2) insufficient explanation of why States internalize certain norms; and (3) insufficient identification and description of norm-creation processes. This article uses the legal origins of TLP as orienting points to draw the theory into present debates on legal theory and methodology, before identifying Pierre Bourdieu’s concepts of “habitus” and “bureaucratic field”, as well as the empirical method of social network analysis, as providing fertile ground for future empirical and interdisciplinary work aimed at developing TLP as legal theory and methodology. This work fills a gap in the literature by synthesizing scholarship in disparate sub-fields of legal study that engage with TLP, but often do not speak to one another, and contributes to a more systematic approach to theory testing.

-KitJ

January 17, 2022 in Law Review Articles & Essays | Permalink | Comments (0)

Sunday, January 16, 2022

Immigration Article of the Day: The Racial Roots of the Federal Administrative State by Jonathan Weinberg

The Racial Roots of the Federal Administrative State by Jonathan Weinberg, 45 Administrative & Regulatory Law News #4 (Summer 2020), at 15

Abstract

This brief essay, part of a 2020 symposium on Race and Administrative Law, locates the roots of today’s administrative state in the 1882 Chinese Exclusion Act. The implementation of that law laid the foundations of nearly all of modern U.S. administrative law.

KJ

January 16, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Saturday, January 15, 2022

Immigration Article of the Day: The Economic Dimensions of Family Separation  by Stephen Lee, Duke Law Journal

Lee

The Economic Dimensions of Family Separation  by Stephen Lee, Duke Law Journal, Vol. 71, No. 4, 2022

Abstract

Migrants in the United States experience varying degrees of harm related to family separation. This article focuses on the economic dimensions of these harms by focusing on transnational remittances, a topic that has generated significant scholarly attention. Within this story, remitters are pitched as heroes and remittances are held up as a critical, market-based solution for solving global poverty. Of course, this picture is incomplete. This account ignores remittance-sending countries and provides only a narrow account of law. This Article focuses on anti-money laundering policies, an important set of U.S. laws that regulate the remittance economy. Examining remittances from this perspective shows that anti-money laundering and antimigration policies form a joint project that regulates the relationship between migrants and their family members. While antimigration laws inhibit migrant mobility, anti-money laundering laws create uneven opportunities for transferring wage earnings to family members left behind on their journey. Recognizing the connection between these areas of the law leads to the Article’s broader contribution: identifying different ways that the law exacerbates or mitigates the economic harms related to family separation. Specifically, anti-money laundering policies help structure the conditions in which migrants engage in expression of affinity across borders, thereby showing the intertwined nature of economic and physical harms within transnational families.

KJ

January 15, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Friday, January 14, 2022

Immigration Article of the Day: Work and Employment for DACA Recipients by Geoffrey Hereen, Yale Journal on Regulation Bulletin

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Work and Employment for DACA Recipients by Geoffrey Hereen, Yale Journal on Regulation Bulletin, Forthcoming

Abstract

Deferred Action for Childhood Arrivals (DACA) has brought job opportunities and a brighter future to hundreds of thousands of undocumented immigrant youth. Yet some contend that the employment authorization conferred upon DACA recipients renders the program illegal because it conflicts with a supposed purpose of the immigration statute to restrict employment authorization in order to protect domestic workers and deport undocumented immigrants. This essay explains that the statute provides unambiguous authority for employment authorization for DACA recipients, and that the government's recently proposed DACA regulations are lawful insofar as they allow employment authorization for DACA recipients. In addition, the essay offers a historical overview of the regulation of immigrant work and employment in the United States in order to refute the argument that employment authorization for DACA recipients is in conflict with the underlying purpose of the immigration statute. The essay describes how the regulation of employment authorization was informed by libertarian legal doctrine as well as the country’s heavy dependence on immigrant labor, resulting in a policy that restricts the employment of unauthorized workers without making unauthorized work itself illegal. The resulting statutory language grants the executive branch plenary authority to offer employment authorization to DACA recipients.

KJ

January 14, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Thursday, January 13, 2022

Immigration Article of the Day: Citizenship and Assimilation: Reversing the Tide of Cultural Protectionism at American Samoa by Jason Buhl

Barrry

Citizenship and Assimilation: Reversing the Tide of Cultural Protectionism at American Samoa by Jason Buhl, Barry University - Dwayne O. Andreas School of Law

Abstract

American Samoa is the only U.S. territory where residents have no claim to citizenship via birthright; instead, those born in the territory are granted 'U.S. national' status. This issue has recently been working its way through the federal courts. The U.S. District Court for the District of Utah ruled that American Samoans are entitled to birthright citizenship under the 14th Amendment in 2019. The D.C. Circuit reached the opposite conclusion in 2015, ruling that the question of citizenship in 'unincorporated' U.S. territories is left entirely to Congress under the Territories Clause of the U.S. Constitution. The extension of birthright citizenship via the 14th Amendment to American Samoa would bring both positive and negative outcomes. Supporters note that native islanders can't vote for the president, run for certain offices, or apply for certain jobs. On the other hand, thicker application of the U.S. Constitution could threaten several aspects of 'fa’a Samoa' – the Samoan way of life. Indeed, the American Samoan government was backed by the Obama Administration to resist the extension of birthright citizenship in the Tuaua litigation. Both perspectives can and should be satisfied. The United States is sophisticated enough to allow for unique patterns of territorial governance without also assimilating the local culture. While the extension of the full benefits of U.S. citizenship should be made available to those who want it on an individual basis, that decision should be streamlined but optional. Further, it should be conducted under the Territorial Clause, rather than the 14th Amendment, to allow the islands the flexibility to be governed according to the democratic wishes of locals who actually reside there. Nonetheless, American Samoa should have increased representation in Washington, D.C. beyond their non-voting U.S. Congressperson. Finally, the racist logic contained in the Insular Cases must be affirmatively condemned by the U.S. Supreme Court.

KJ

January 13, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Wednesday, January 12, 2022

Immigration Article of the Day: Escalating Jailhouse Immigration Enforcement: A Report on Detainers Issued by ICE Against Persons held by Local Law Enforcement Agencies in Georgia, North Carolina, and South Carolina from 2016-2018

Escalating Jailhouse Immigration Enforcement: A Report on Detainers Issued by ICE Against Persons held by Local Law Enforcement Agencies in Georgia, North Carolina, and South Carolina from 2016-2018 by Priya Sreenivasan, Jason A. Cade, & Azadeh Shahshahani

Abstract

In January 2017, former President Trump announced Executive Order 13768, in which he pledged to expand 287(g) agreements across the country, a program that deputizes state and local authorities to perform functions of immigration enforcement, and required the Department of Homeland Security to publish a list of counties that refused to honor U.S. Immigration and Customs Enforcement (ICE) detainers (also referred to as “ICE holds”). Through the increased use of 287(g) contracts and other forms of jailhouse immigration screening arrangements, local law enforcement agencies became increasingly involved with federal immigration enforcement during the Trump administration. Although numerous federal courts have ruled that detaining noncitizens solely pursuant to ICE holds violates the Fourth Amendment, ICE continues to use jailhouse screening and detainer requests to facilitate the apprehension, detention, and removal of immigrants across the country.­

This report analyzes the 35,916 ICE detainers that were issued between fiscal years 2016 and 2018 in Georgia, North Carolina, and South Carolina, as well as the state bills and local policies that foster cooperation between ICE and local law enforcement in these states. Between FY 2016 and FY 2018, the number of detainers issued by ICE doubled in North Carolina, nearly tripled in South Carolina, and nearly quadrupled in Georgia. At least half of these detainers (18,099) resulted in people being jailed in immigration detention facilities and the majority of detainers were issued to persons originating from Latin American countries. Almost 93% of ICE detainers were issued to local law enforcement agencies such as county jails, detention centers, or sheri’s departments, at a total cost of millions of dollars per year.

Local law enforcement agencies routinely jailed immigrants on behalf of ICE even in the absence of
formal agreements to collaborate in place. Only three of the top ten local law enforcement agencies
with the highest rates of detainer requests across the three states had active 287(g) agreements during the time period of the report. On average, individuals with detainers were held in local jails for a significant period of time, ranging from two weeks to one month. Individuals who were eventually transferred to ICE detention centers were held in jail for longer periods of time, ranging from an average of 19 days to 43 days. ­e impact of these ICE detainers on local communities was severe. Thousands of immigrants were detained as a direct result of these collaborations. According to the government’s own data, at least 189 of those for whom ICE issued detainers turned out to be not legally subject to removal proceedings, due to U.S. citizenship or other lawful immigration status. Further, the data also show that at least three individuals died while incarcerated subject to a detainer during the time period of this study.

Human rights abuses in ICE detention centers are well documented, and investigative reports have
increasingly revealed poor health conditions, abuse, and other problems within local jails. As the data in this report demonstrate, ICE’s collaboration with local law enforcement has also had a costly and detrimental impact on communities in these states. For these reasons, this report closes with specific recommendations, including calls to end local law enforcement agencies’ involvement in federal immigration enforcement and to eliminate immigrant detention.

KJ

January 12, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Tuesday, January 11, 2022

Immigration Article of the Day: Inheriting Citizenship  by Scott Titshaw, Stanford Journal of International Law

Titshaw

Inheriting Citizenship  by Scott Titshaw, Stanford Journal of International Law Vol. 58, Forthcoming

ABSTRACT

Most of us become citizens at birth based either on our birthplace or our parents’ citizenship status. Over thirty countries recognize birthplace citizenship, but inherited citizenship is nearly universal. Such universal legal rules are rare, and they are particularly remarkable in the context of citizenship, where state sovereignty is near its apex. This Article explores why inherited citizenship is necessary, even in nations recognizing birthplace citizenship. It surveys the history, definitions, purposes, current rules, politics, and global trends in this area and identifies three modern categories of birthright citizenship laws: primary inherited citizenship systems, dual inherited and birthplace systems, and hybrid birthright systems. It also examines foundations of property inheritance laws and family law concepts to illuminate the deep connections between doctrines of property, family, and citizenship inheritance. Hopefully, in the process, it will enlighten the ongoing American debate regarding birthplace citizenship, a discussion that has rarely considered the role of inherited citizenship, the other half of our dual birthright citizenship system.

KJ

January 11, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Monday, January 10, 2022

Immigration Article of the Day: "Cruelty Was the Point: Theories of Recovery for Family Separation and Detention Abuses  by Sarah Hill Rogerson

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Cruelty Was the Point: Theories of Recovery for Family Separation and Detention Abuses  by Sarah Hill Rogerson,  Nevada Law Journal, Vol. 21, No. 2, 2021

Abstract

Reports of widespread, systemic, and pervasive abuses by immigration authorities have magnified the life and death consequences of anti-immigrant policies under the Trump Administration. From family separation and zero-tolerance border enforcement, to indefinite, large-scale detention in widely varying conditions, the maltreatment and subsequent deaths of immigrants in the custody of the federal government has skyrocketed. Public outcry mounts as journalists and human rights organizations document the injuries and complaints of the victims, including surviving family members. Congressional inquiries and government watchdog agency investigations seek to identify the extent of the problem and the damage caused. Meanwhile, lawsuits filed on behalf of victims build on this momentum, asserting both well-settled and experimental constitutional and statutory claims attempting to hold the federal government accountable and compensate victims. This Article provides an analysis of several instructive cases in this burgeoning field of litigation and the legal theories on which they are based and considers the potential of this jurisprudential moment to meaningfully expand the landscape of viable claims and remedies for immigrant victims and their families.

KJ

January 10, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Sunday, January 9, 2022

Immigration Article of the Day: Increasing Access To Justice Via AI-Based Language Translation by Lance B. Eliot

Lance

Increasing Access To Justice Via AI-Based Language Translation by Lance B. Eliot

Abstract

Concerns about non-English speakers having a fair chance at access to justice in our country are a recurring outcry. The presumed solution is to try and field more interpreters. This though is costly, logistically complicated, and is unlikely to scale up properly. An alternative or perhaps a supplement is to leverage the use of AI-based language translation systems.

KJ

January 9, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Saturday, January 8, 2022

Immigration Article of the Day: Methods for Comparative Migration Law: Insights From the Social Sciences by Kevin Cope

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Methods for Comparative Migration Law: Insights From the Social Sciences by Kevin Cope, University of Virginia School of Law

Abstract 

The nascent field of comparative migration law can do more than classify different approaches to migration law; it is well-positioned to address important open questions about law’s impact on migrants, migration, and citizens. It can also help us better understand how and why countries enact certain immigration laws. To do so, researchers must draw on methods from the disciplines that have long studied migration institutions both comparatively and empirically. These social sciences offer particularly fertile grounds for methodological borrowing, given the well-developed data and empirical literatures that have emerged over the past few decades to better understand the causes and effects of migration, and the causal inference “credibility revolution.” Researchers should also consider the insights developed in comparative law generally about the appropriate objects of comparison. Such an interdisciplinary marriage of methods could allow researchers to tackle a series of new and emerging questions on the causes-and-effects of migration law.

KJ

January 8, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Friday, January 7, 2022

Excluding Non-Citizens from the Social Safety Net by Wendy E. Parmet

Wendy

Excluding Non-Citizens from the Social Safety Net by Wendy E. Parmet, Georgia Journal of International and Comparative Law, Vol. 49, No. 525, 2021

Abstract

This paper, based on a talk I gave at the University of Georgia’s conference on the Future of Global Healthcare Governance, examines the mechanisms through which the exclusion of noncitizen immigrants from the social safety net undermine public health, especially, but not only during the pandemic. The paper reviews the pandemic’s disparate on immigrants, and discusses how several different laws and policies, including the Personal Responsibility and Work Opportunity Reconciliation Act, the Affordable Care Act, and the Trump Administration’s public charge rule, have erected barriers to noncitizens’ access to health care and other critical components of the social safety net. The article concludes by discussing steps that the Biden Administration and Congress should take to reduce these barriers and improve public health.

KJ

January 7, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Undoing Discriminatory Borders: Special seminars and lectures. Monday, 10 January 2022, 3pm to 4.30pm

This seminar discusses a recent Symposium issue of AJIL Unbound on Undoing Discriminatory Borders which was co-edited by Professor Cathryn Costello and Dr Catherine Briddick.

“The distribution of migration opportunities globally is deeply unequal, with nationals of some generally wealthy, stable, states benefitting from far greater migration opportunities than those from poorer, or unstable ones. An examination of any individual state's migration controls also often reveals problematic patterns of disadvantage. Contemporary migration controls frequently disadvantage women, racial and religious groups, and those whose sexual orientation, gender-identity or family status departs from the nuclear hetero-norm. To many, it is unsurprising that discrimination is rife in migration laws and controls, given that these practices reflect nationalist, colonial, and postcolonial projects of racialized and gendered exclusion and subordination. And yet, with a few notable exceptions the question of the legality of discrimination at borders is underexplored.”
(Briddick, C. and C. Costello (2021). "Introduction to the Symposium on Undoing Discriminatory Borders." AJIL Unbound 2021, 115: 328)

This seminar discusses the circumstances in which these inequalities, within and across states, are legally discriminatory.

Download seminar poster

Speakers

Chair:

Professor Shreya Atrey (University of Oxford)

Speakers: 

Professor E. Tendayi Achiume (UCLA and UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance) - ‘Digital Racial Borders’

Professor Cathryn Costello (Hertie School and University of Oxford) - ‘Race Discrimination Effaced at the ICJ’

Dr Catherine Briddick (University of Oxford) - ‘When Does Migration Law Discriminate Against Women?’

Professor Anuscheh Farahat (Friedrich-Alexander-University Erlangen-Nürnberg) - ‘Discrimination Inside: Non-Discrimination as a Tool of Migrant Integration’

Professor Liav Orgad (WZB, EUI, IDC, STL) - ‘When is Immigration Selection Discriminatory?’

Professor Colm O’Cinneide (UCL) - ‘Why Challenging Discrimination at Borders is Challenging (and Often Futile)’

KJ

January 7, 2022 in Conferences and Call for Papers, Law Review Articles & Essays | Permalink | Comments (0)

Thursday, January 6, 2022

Immigration Article of the Day: Wong Kim Ark Rewritten  by Jonathan Weinberg

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Wong Kim Ark Rewritten  by Jonathan Weinberg, forthcoming in Feminist Judgments: Immigration Law Opinions Rewritten (Kathleen Kim, Kevin Lapp, & Jennifer Lee eds., Cambridge University Press, forthcoming 2022)

Abstract

This contribution to Feminist Judgments: Immigration Law Opinions Rewritten (Kathleen Kim, Kevin Lapp, & Jennifer Lee eds., Cambridge University Press, forthcoming 2022) reimagines the Supreme Court’s opinion in Wong Kim Ark v. United States. The Court in that 1898 case held that the child of Chinese immigrants, born in the United States, was a U.S. citizen. The rewritten opinion explains how the legal landscape of Wong Kim Ark was shaped not only by racism, but by white Americans’ beliefs about Chinese women’s propensities and morality, Chinese men’s conformance to appropriate gender roles, the right of Chinese merchants to connubial access to their wives, and the nature of Chinese families.

KJ

January 6, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Wednesday, January 5, 2022

Immigration Article of the Day: Tales of a Flow Stayed by Nothing: Menstruation in Immigration Detention  by Kit Johnson

Kit

Tales of a Flow Stayed by Nothing: Menstruation in Immigration Detention  by Kit Johnson, 42 Columbia Journal of Gender and Law Online 1 (2021)

Abstract

Most female migrants who are held in the U.S. civil immigration detention are of menstruating age. Yet many face difficulties in obtaining the products needed to manage their periods as well as related medical care.

The fact that the federal government has not consistently met their obligation to provide migrant women and girls within their charge with adequate period supplies and related medical care highlights the problematic way in which civil immigration detention, ostensibly designed not to punish, nevertheless impermissibly punishes female migrants.

KJ

January 5, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Tuesday, January 4, 2022

Immigration Article of the Day: Rejecting Citizenship  by Rose Cuison-Villazor (Michigan Law Review)

 

Rose

Rejecting Citizenship by Rose Cuison-Villazor, Michigan Law Review, Vol. 120, 2022

Abstract

In Pursuing Citizenship in the Enforcement Era, Professor Ming Chen examines the rise in citizenship applications and conducts an in-depth analysis of the reasons why LPRs naturalized. Chen critiques the federal government’s immigration enforcement regime, which led many immigrants, undocumented and documented alike, to feel vulnerable. Accordingly, Chen claims that lawful permanent residents (LPRs), or green-card holders, applied for formal citizenship in greater numbers than previous years. Notably, the Trump administration’s enforcement mechanism also impacted substantive citizenship and the ability of non-citizens to become better integrated to society.

No doubt, as Pursuing Citizenship illustrates, the desire for citizenship among immigrants eligible for citizenship is on the rise. However, Chen’s book tells only one side of the citizenship story. As this Review argues, the story regarding the pursuit of citizenship must be examined alongside the story of how individuals—citizens and non-citizens alike—are refusing citizenship.

This Review conducts such examination by drawing attention to those non-citizens who have rejected or are rejecting citizenship. As it explains, many LPRs who are eligible to become U.S. citizens do not, in fact, take the final step and apply for naturalization. Specifically, the Review aims to make four points. The first is to counter the view that citizenship is always beloved and chosen. To be sure, as Part I discusses, Pursuing Citizenship makes a strong case for why non-citizens choose to naturalize, particularly when an administration is engaged in heightened immigration enforcement. But, as the Review’s second point contends, contrary to the conventional wisdom, citizenship is not always desired or viewed as ideal. Part II describes individuals who find citizenship unnecessary, questionable, and undesirable. These include LPRs who choose not to naturalize, American Samoans who reject birthright citizenship, and U.S. citizens who abandon citizenship. The Review’s third point argues in Part III that the rejection of citizenship illuminates underappreciated critical views about how citizenship is acquired. Using tools borrowed from Critical Race Theory (CRT), the Review challenges the conventional view of citizenship as a means of inclusion and equality and shows how citizenship has served as a tool of oppression and subordination. Fourth and finally, this Review raises some questions that consider the normative and theoretical implications of the repudiation of citizenship. This includes building on the concept of unbundling citizenship, which I have explored elsewhere, to encourage revisiting what membership in the American polity should look like.

 

KJ

January 4, 2022 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Saturday, January 1, 2022

Immigration Article of the Day: Asylum Under Attack by Lindsay Harris

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Check out this new article by immprof Lindsay Muir Harris (UDC): Asylum Under Attack, 67 Loyola Law Review 1 (2021). Here's the abstract:

The U.S. asylum system has endured four years of systematic attack. The Trump Administration attempted to dismantle the United States’ system to protect asylum seekers through changes to case law, executive orders, presidential proclamations, internal agency guidance and sweeping regulatory changes, among other measures. The system largely ground to a halt after the Trump Administration co-opted the coronavirus public health crisis to effectively close the southern border to asylum seekers with its March 2020 Centers for Disease Control order. This catastrophic order was not even the last in a long line of the Trump Administration’s efforts since assuming power to obliterate asylum protection. Building on the actions from 2017 forward, even in its waning days, the Trump Administration proposed and finalized numerous sets of regulations to undermine and eviscerate asylum protection.

A combination of public outcry and litigation halted or limited some of the Trump Administration’s attempts to under-mine asylum protection. Other policies went into effect and some remain in effect under the Biden Administration, with dramatic results. By tracing the sustained series of policies, regulations, and other actions taken by the Trump Administration against asylum seekers, this article not only bears witness to the attacks on the asylum system, but also offers a roadmap of policies to be undone by the Biden-Harris Administration. Taking into account the public commitments made by President Biden during his campaign and post-election on asylum issues, this article outlines the immediate and long-term actions that the Biden-Harris Administration must take. Initial actions by President Biden, including an Executive Order addressing asylum issues and the U.S. Citizenship Act of 2021 introduced in Congress are promising, but the “COVID ban” on asylum seekers under Title 42 of the Public Health Act remains in effect. This article sets forth what is necessary to not only right the wrongs committed by the Trump Administration, but to provide meaningful asylum protection and to reassume the United States’ role as the global leader in refugee protection.

-KitJ

January 1, 2022 in Law Review Articles & Essays | Permalink | Comments (0)

Thursday, December 30, 2021

Immigration Article of the Day: We Broke It, We Own It: How To Meet The Climate Migration Future by Elizabeth Keyes

Check out this essay by immprof Liz Keyes (Baltimore) over at Alchemist: We Broke It, We Own It: How To Meet The Climate Migration Future.

Liz starts by acknowledging the problem of climate migration, which is: "already forcing people to seek new places to live." It is a problem that is going to impact a great many people -- as many as 143 million within coming decades according to one source she cites. As a result, "climate migration will be of a scale where governments have no choice but to act."

Liz then transitions to American history for an example of how to deal with climate migration. And it's one that hits close to home for this Okie -- the migration of Dust Bowl refugees from Oklahoma to California in the early 1930s. California resisted this migration, taking active steps to thwart it. But, ultimately, the migrants successfully integrated into the state.

Liz highlights the important role of the 1941 U.S. Supreme Court's decision of Edwards v. California, in which the court held that states could not prevent migration from other states. Even given the unique circumstances of the Dust Bowl migration, which had "staggering" costs (fiscal and social), those costs could not justify “attempts on the part of any single State to isolate itself from difficulties common to all of them."

That Supreme Court holding, Liz notes, has been incredibly important to protect internal migrants fleeing from climate-related events like Hurricane Katrina, California's wildfires, and Hurricane Maria.

She argues the reasoning of Edwards could also be brought to bear on the larger, international problem of climate migration.

It's a wonderful piece, and I won't ruin it by trying to summarize it moment for moment. I urge you to read the entirety.

-KitJ

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