Tuesday, May 7, 2019

Immigration Exceptionalism for Nick Parillo’s ACUS Report on Guidance

Over on Yale JREG’s Notice and Comment blog, there is an online symposium about federal agency guidance and the power to bind. The topic of guidance holds considerable relevance for immigration law scholars. Indeed, some of the most notable immigration decisions to reach the Supreme Court concerning DACA (Texas v US) and rescission of various immigration programs turn on debates about guidance.  

Two posts in the series seem especially relevant to ImmigrationProf Blog readers.

Jill Family writes in her post Immigration Law and a Second Look at the Practically Binding Effect: “Immigration law can serve as a useful lens to examine broad administrative law principles because the nature of regulation in immigration law is distinctive.  The regulated party is an individual noncitizen.  The regulation includes restrictions on fundamental life decisions such as where one will live and work.   While it is true that no two agencies are exactly alike and that the Administrative Procedure Act is meant to tolerate differences among agencies, the distance between immigration law and the mainstream allows immigration law to provide an interesting view to re-examine commonly held notions about administrative law.” 

In the past she has written that an agency by agency approach has greater appeal than a centralized directive that requires all agencies to attempt to fix their guidance document dilemmas in exactly the same way. Her new post gives us new reasons. First, we should not assume that all regulated parties are sophisticated entities that are deeply engaged with guidance documents given that many applicants for immigration benefits are not represented by counsel and would not even know that the guidance exists. Even a US citizen applying for a green card on behalf of a spouse may not know – it doesn’t help that the USCIS online policy manual section on Family-based immigration is not clickable and does not cross-reference guidance elsewhere on the website.

Second, and more importantly for the guidance debate, whereas administrative law scholars worry that there is too much inflexibility with ostensibly nonbinding guidance, immigrants worry more about too much agency flexibility. “In immigration law there are many examples of agency behavior where the agency does act flexibly.  The agency does not seem bound to a guidance document rule because agency heads change their minds or because front line adjudicators are not following the rule in a guidance document.  Borrowing Professor Parrillo’s term, there is no “practical protection.”  No wonder that immigration attorneys complain about this shifting ground problem. Following issuance of a Trump executive order and just before the window opened for H1-B petitions for FY 2018, USCIS rescinded existing guidance and announced new guidance that narrowed the availability of H-1B status for computer programmers. The new guidance “caught thousands of employers and hopeful beneficiaries unaware” as they had already prepared their applications.  Another example is a change to the Foreign Affairs Manual that gives consular officers more discretion to determine that applicants for admission should be excluded from the United States because they are likely to become a public charge. Other changes are never even written down.

In my contribution to the online symposium, A Worm’s Eye View of the Practical Effect of Guidance, I underscore additional examples of shifting immigration policies. Some result from regulated parties seeking to curry favor with regulatory agencies to achieve a desirable benefit or avoid a penalty. Others concern regulated entities - that is immigrants and those protecting them -- acting on the basis of competing values quite apart from self-interest.

While value-driven policy rescissions have been a source of great consternation for immigration lawyers confronted with diminishing protections for their clients, it is the inability to depart from policy worries administrative law scholars who study guidance as a form of policymaking. One reason for the difference is that in civil rights and immigration law, many instances of policy change represent agencies engaging in “unprincipled flexibility,” as opposed to engaging in “principled flexibility” that Parillo’s report encourages as a way to avoid being stymied by “inflexible” guidance. Agencies have treated guidance so “flexibly” that it functions as launch pads for policy volatility. DHS rescinded DACA and TPS for vulnerable immigrants with little explanation or justification. The DOJ repealed 24 civil rights guidances in a single day and the Attorney General has overruled BIA asylum decisions. Executive orders are frequently unaccompanied by any operational guidance, as with the travel ban and family separation. The reaction from regulatory parties has rarely been self-interested. Often immigrants and their attorneys have no choice but to comply with these rash guidances; sometimes sanctuary cities and networks resist on their behalf, defying DHS’s punitive immigration policies because of disagreement with immigration policy and disrespect for the regulators in the relationship. Incentives to comply do not guide them, and lawsuits do not scare them.

Thinking more about value-driven regulatory behaviors and policy volatility would contribute to our understanding of immigration policy. It would also equip us to pursue new and urgent questions about the current policy environment where policy change is not always principled.

-MHC

May 7, 2019 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Wednesday, April 24, 2019

Promoting Pereira

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This past summer, I wrote an essay about Pereira v. Sessions that was published in Columbia's Human Rights Law Review Online. It was just a few short pages, laying out the basics of the jurisdictional issues created by that SCOTUS decision.

HRLR gave me the opportunity to develop that short essay into a full length article for their print edition that has now been published. The essay remains the same, but it's now accompanied by a substantial Appendix that delves deeper into the jurisdiction issues.

The Appendix begins by laying out how the  major players responded to Pereira: DHS posted fake dates on NTAs and struggled to get access to the DOJ's scheduling system; Immigration courts split on its jurisdictional effect until the BIA stepped in to state that Pereria has no effect on subject matter jurisdiction; Federal district courts split on the jurisdictional effect of the case though no federal appellate court has found the decisions to have jurisdictional implications.

The Appendix goes on to discuss the future of Pereira litigation, including whether the BIA's interpretation of Pereria deserves Chevron or Auer deference (I think it doesn't), the merits of the BIA's decision (with which I take issue), and new arguments surrounding the fake date problem as well as aditional points raised by prof (but not immprof) Lonny Hoffman.

At this point, I feel a little bit like I am tilting at windmills. If I have my numbers right, the 11th, 10th, 9th 6th, 5th, and 2nd Circuits have all rejected the arguments I explore in this piece. Naturally, I think I still have it right. I have yet to convince a circuit court, unfortunately.

-KitJ

April 24, 2019 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Monday, April 15, 2019

Call for Papers--AALS 2020, Immigration Control and Environmental Regulation: Toward Justice?

The Section on Immigration Law of the Association of American Law Schools invites papers for presentation at its principal session during the 2020 AALS Annual Meeting in Washington, DC, which will take place January 2-5, 2020. This session has been scheduled for [TBD]. Please note that individuals presenting at the program are responsible for their own Annual Meeting registration fee and travel expenses.

The session theme is “Immigration Control and Environmental Regulation: Toward Justice?”.

Natural disasters and social conflicts spurred by deteriorating environmental conditions and climate change are driving people to move across borders. Economically disadvantaged communities, racial minorities and indigenous people are often in the first wave of displaced people in the world’s poorer countries. These same communities are also the most heavily impacted by pollution and environmental degradation in the places that they live and work in the United States. This panel will explore the issues of immigration and environmental regulation. How do environmental regulatory and deregulatory schemes in the U.S. impact immigrant communities? How have arguments about the effects of immigrants on the environment been used to restrict migration and the rights of migrants? How should existing domestic and international legal frameworks governing migration be revised to respond to environmentally motivated migration? How do (and how should) the rights of migrants figure into ongoing discussions and regulatory efforts around environmental justice at the domestic and international level? Do legislative proposals like the Green New Deal encompass and sufficiently address concerns of migrants?

Submission Guidelines: The deadline for submissions is August 15, 2019. We welcome submissions at any stage of development, although preference may be given to more fully developed papers over abstracts and paper proposals. Priority also will be given to individuals who have not recently presented a paper at the AALS Annual Meeting. Decisions will be made by mid-September 2019.

Please email submissions in Microsoft Word format to jefamily@widener.edu with the subject “AALS Submission.” In your email, please indicate whether you have previously presented your work at a AALS Annual Meeting, and if so when.

Inquiries: Please direct any questions or inquiries to Jill Family (jefamily@widener.edu) and Jennifer Chacón (chacon@law.ucla.edu).

-KitJ

April 15, 2019 in Law Review Articles & Essays | Permalink | Comments (0)

Wednesday, April 10, 2019

Immigration Article of the Day: Between Institutional Survival and Human Rights Protection: Adjudicating Landmark Cases of African Undocumented Migrants in Israel in a Comparative and International Context by Rivka Weill & Tally Kritzman-Amir

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Between Institutional Survival and Human Rights Protection: Adjudicating Landmark Cases of African Undocumented Migrants in Israel in a Comparative and International Context by Rivka Weill & Tally Kritzman-Amir, University of Pennsylvania Journal of International Law, 2019

Abstract

States compare asylum and immigration policies. The Israeli immigration and asylum regime influenced American law, and was also directly influenced by it. This Article offers the most comprehensive analysis to date of the Israeli case law on the rights of undocumented migrants, at the core of which is a series of cases on immigration detention. Three times within a two year period, the Israeli Supreme Court invalidated immigration detention laws and the legislature complied with increasing frustration. Our argument is that although the Court courageously protected the undocumented migrants’ rights, it also resorted to strategic ambiguity as a means of institutional survival in light of legislative threats to incorporate a general legislative override clause and executive attempts to “pack” the Court with conservative justices. This high stakes dialogue is unprecedented in the Israeli context and uncommon in comparative law. We argue that courts must not only protect the constitutional and international human rights of undocumented migrants, but also bring the political branches to accountability. They should force states to conduct refugee status determinations in a timely manner rather than be satisfied with temporary protection regimes. They should further recognize that rights may accumulate as a result of a prolonged presence of an undocumented migrant in a country. The article discusses the Israeli judicial techniques used to reduce the conflict with the representative branches, including the use of constitutional avoidance and comparative law, and juxtaposes them with the American approach evident in Zadvydas v Davis and Jennings vs. Rodriguez. The harsh implications of a policy that leaves people in an indeterminate state of mere protection from removal are manifest in the Israeli story and should serve as a warning to the US courts as they formulate their reaction to the recent asylum ban.

-KitJ

April 10, 2019 in Law Review Articles & Essays | Permalink | Comments (0)

Monday, April 8, 2019

Immigration Based on Credit Reports

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Back in September, I asked the following question: Should Credit Scores Impact Immigration?

That question was prompted by the Department of Homeland Security's proposed rule changes regarding inadmissibility on public charge grounds. One proposed change would be to allow USCIS to consider a noncitizen’s likelihood of becoming a public charge may be based on the individual’s “credit history and credit score.”

The development moves immigration vetting into the realm of what can be called “FICO-based migration” after the popular credit scoring product that is used by most U.S. lending institutions.

There are significant problems with utilizing indicia of credit worthiness to evaluate the financial health of noncitizens. For one, many countries around the world handle credit differently than the United States and may not have a credit scoring system at all. Immigrants, who may be financially healthy, may nonetheless not have a developed credit history or score. Another significant problem with the new regulation is that it reifies a credit system that scholars have established as having racial and ethnic biases.

I am going to be spending the summer exploring these ideas in a paper that will examine: (i) the proposed rule and the reasons why the government chose to include credit history and score as new evidence of an old inadmissibility ground: public charge, and (ii) problems with credit scores and history that may affect credit’s ability to be a useful tool for examining public charge inadmissibility. If any readers out there have thoughts about must-read scholarship in this area, please reach out!

-KitJ

April 8, 2019 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Saturday, March 30, 2019

Call For Papers: Emerging Immprofs @ BYU June 7 & 8

BYU_Law

The Works in Progress (WIP) committee for the 5th Biennial Emerging Immigration Scholars’ Conference is now accepting proposals for works-in-progress or incubator ideas. In addition to incubator workshops focused on a research idea, participants are invited to submit proposals for workshops to discuss a litigation or advocacy project that could benefit from group input.

The 2019 Conference will take place June 7 and 8, 2019, at Brigham Young University in beautiful Provo, Utah. If you wish to be considered for a works-in-progress or incubator session, please submit your proposal to EmergingImmWIP2019@gmail.com. Further, this year we are again seeking discussants who will read and comment on the works-in-progress or incubator ideas.

If you want to propose a work-in-progress by email: Please put “ImmProf WIP [Lastname]” as the subject line Please submit an abstract of no more than one page, with a title.

If you want to propose an incubator (for a scholarly or litigation/advocacy project) by email: Please put “Incubator [Lastname]” as the subject line Please submit a description of no more than one paragraph, with a title.

If you would be willing to be a discussant: Please email us if you wish/are willing to serve as a discussant with a list of your areas of expertise.

The deadline for submissions is Monday, April 8 at 12 noon (PT). We anticipate notifying accepted WIP or incubator proposals by April 14. Final papers will be due on May 17, 2019. We look forward to receiving your submissions!

Please feel free to contact any member of the WIP committee, or conference planning committee, with questions or concerns. More information will be coming soon about the conference and how to register.

Sincerely,

The WIP Committee:
Lauren Aronson (laronson@lsu.edu), Louisiana State University Law Center
Kate Evans (katee@uidaho.edu), University of Idaho School of Law

Other Members of the Planning Committee:
Sabrina Balgamwalla, Wayne State University Law School
Pooja Dadhania, California Western School of Law
Kit Johnson, University of Oklahoma College of Law
Carolina Núñez, Brigham Young University Law School
Shalini Ray, University of Alabama School of Law

-KitJ

March 30, 2019 in Law Review Articles & Essays | Permalink | Comments (0)

Thursday, March 14, 2019

Do Immigrants Threaten U.S. Public Safety?

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Authors Pia Orrenius & Madeline Zavodny

Do Immigrants Threaten U.S. Public Safety? is a new working paper from the Center for Growth and Opportunity at Utah State University.

Here is the summary:

Opponents of immigration often claim that immigrants, particularly those who are unauthorized, are more likely than US natives to commit crimes and that they pose a threat to public safety. There is little evidence to support these claims. In fact, research overwhelmingly indicates that immigrants are less likely than similar US natives to commit violent and property crimes, and that areas with more immigrants have similar or lower rates of violent and property crimes than areas with fewer immigrants. There are relatively few studies specifically of criminal behavior among unauthorized immigrants, but the limited research suggests that these immigrants also have a lower propensity to commit crime than their native-born peers, although possibly a higher propensity than legal immigrants. Evidence about legalization programs is consistent with these findings, indicating that a legalization program reduces crime rates. Meanwhile, increased border enforcement, which reduces unauthorized immigrant inflows, has mixed effects on crime rates. A large-scale legalization program, which is not currently under serious consideration, has more potential to improve public safety and security than several other policies that have recently been proposed or implemented.

-KitJ

March 14, 2019 in Law Review Articles & Essays | Permalink | Comments (0)

Tuesday, January 29, 2019

Call For Papers: Emerging Immprofs @ BYU June 7 & 8

BYU_Law

The Works in Progress (WIP) committee for the 2019 Emerging Immigration Scholars’ Conference is now accepting proposals for works-in-progress or incubator ideas. In addition to incubator workshops focused on a research idea, participants are invited to submit proposals for workshops to discuss a litigation or advocacy project that could benefit from group input.

The 2019 Conference will take place June 7 and 8, 2019, at Brigham Young University in beautiful Provo, Utah. If you wish to be considered for a works-in-progress or incubator session, please submit your proposal to EmergingImmWIP2019@gmail.com. Further, this year we are again seeking discussants who will read and comment on the works-in-progress or incubator ideas.

If you want to propose a work-in-progress by email: Please put “ImmProf WIP [Lastname]” as the subject line Please submit an abstract of no more than one page, with a title.

If you want to propose an incubator (for a scholarly or litigation/advocacy project) by email: Please put “Incubator [Lastname]” as the subject line Please submit a description of no more than one paragraph, with a title.

If you would be willing to be a discussant: Please email us by March 29 if you wish/are willing to serve as a discussant with a list of your areas of expertise.

The deadline for submissions is Friday, March 29 at 5pm (PT). We anticipate notifying accepted WIP or incubator proposals by April 14. Final papers will be due on May 17, 2019. We look forward to receiving your submissions!

Please feel free to contact any member of the WIP committee, or conference planning committee, with questions or concerns. More information will be coming soon about the conference and how to register.

Sincerely,

The WIP Committee:
Lauren Aronson (laronson@lsu.edu), Louisiana State University Law Center
Kate Evans (katee@uidaho.edu), University of Idaho School of Law

Other Members of the Planning Committee:
Sabrina Balgamwalla, Wayne State University Law School
Pooja Dadhania, California Western School of Law
Kit Johnson, University of Oklahoma College of Law
Carolina Núñez, Brigham Young University Law School
Shalini Ray, University of Alabama School of Law

-KitJ

January 29, 2019 in Law Review Articles & Essays, Teaching Resources | Permalink | Comments (0)

Tuesday, November 6, 2018

Call for Papers: AILA Law Journal

AILA

The brand-spanking-new AILA Law Journal has issued a call for papers. The journal is looking for lightly-cited papers in the range of 3,000 to 9,000 words. The topic, naturally, should be immigration law and policy.

The submission deadline is January 4, 2019. Proposed pieces should be sent, in Word format, to ailalawjournal@aila.org .

-KitJ

November 6, 2018 in Law Review Articles & Essays | Permalink | Comments (0)

Tuesday, October 16, 2018

Immigration Article of the Day: Who Needs DACA or the Dream Act? How the Ordinary Use of Executive Discretion Can Help (Some) Childhood Arrivals Become Citizens by Susan B. Dussault

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WHO NEEDS DACA OR THE DREAM ACT? HOW THE ORDINARY USE OF EXECUTIVE DISCRETION CAN HELP (SOME) CHILDHOOD ARRIVALS BECOME CITIZENS by Susan B. Dussault (Willamette), Lewis & Clark Law Review.

Over two million immigrants without legal status entered the country as children. These childhood arrivals have the constitutional right to attend public schools without charge, and billions of taxpayer dollars have been invested in their education. Offering these young people the opportunity to remain in the United States, use their education to contribute to the communities in which they have been raised, and become citizens would let the country realize its return on this investment. Yet thus far Congress, which has the exclusive power to create new paths to citizenship, has failed repeatedly to pass legislation that would enable childhood arrivals to earn some form of legal immigration status and eventually naturalize.

The Deferred Action for Childhood Arrivals program (DACA), which the Obama Administration launched in August 2012, partially addressed this issue by letting eligible childhood arrivals stay and work in the country for two-year renewable increments. In September 2017, the Trump Administration rescinded DACA, citing the Attorney General’s conclusion that it was an unconstitutional exercise of authority by the Executive Branch. Less than eight hours later, Trump stated that if Congress failed to legalize DACA within six months he would reconsider the issue.

If Congress fails to codify DACA or enact some form of the DREAM Act (which would let childhood arrivals earn permanent residence and eventually citizenship), it seems highly unlikely that the Trump Administration could, or would, reinstate DACA, given that its attorney general has declared the program unconstitutional. But there are other steps the Executive Branch could take to make it easier for childhood arrivals to legalize. Moreover, neither DACA nor the DREAM Act offers a complete solution: codifying DACA gives its recipients no legal status, and every iteration of the DREAM Act Congress has considered imposes requirements that disqualify many childhood arrivals. Therefore, regardless of what Congress may do, it is worth examining the unilateral and uncontroversial steps that the current administration (or a subsequent one) could take to help childhood arrivals become citizens. This Article identifies the discretion that the Executive Branch has with the military, cancellation of removal, parole, admissibility waivers, deferred action, and surplus immigration application fees. The Article then assesses the various ways the Executive Branch could employ that discretion to improve childhood arrivals’ access to the paths to permanent residence and citizenship created by Congress.

-KitJ

October 16, 2018 in Law Review Articles & Essays | Permalink | Comments (0)

Sunday, August 12, 2018

Immigration Article of the Day: Citizenship for Sale? in The Oxford Handbook of Citizenship (Oxford: Oxford University Press, 2017) by Ayelet Shachar

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Citizenship for Sale? in The Oxford Handbook of Citizenship (Oxford: Oxford University Press, 2017) by Ayelet Shachar 

Abstract

“There are some things that money can’t buy.” Is citizenship among them? In her contribution to the Oxford Handbook of Citizenship, Professor Shachar explores this question by highlighting the core legal and ethical puzzles associated with the surge in cash-for-passport programs. The spread of these new programs is one of the most significant developments in citizenship practice in the past few decades. It tests our deepest intuitions about the meaning and attributes of the relationship between the individual and the political community to which she belongs. This chapter identifies the main strategies employed by a growing number of states putting their visas and passports “for sale,” selectively opening their otherwise bolted gates of admission to the high-net-worth individuals of the world. Moving from the positive to the normative, the discussion then elaborates the main arguments in favor of, as well as against, citizenship-for-sale. Shachar draws attention to the distributive and political implications of these developments, both locally and globally, and identifies the deeper forces at work that contribute to the perpetual testing, blurring, and erosion of the state-market boundary regulating access to membership.

KJ

August 12, 2018 in Books, Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Saturday, August 11, 2018

Immigration Article of the Day: Exporting Murder: US Deportations & the Spread of Violence by Christian Ambrosius and David A. Leblang

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Exporting Murder: US Deportations & the Spread of Violence by Christian Ambrosius and David A. Leblang

Abstract

Existing literature on cross-national variation in violence has paid little attention to the transnational transmission of crime. One such channel are the forced returns of migrants with a criminal record in their countries of temporary residence. Responding to this research gap, we study the effect of US deportations of convicts on levels of violent crime in deportees’ countries of origin for a cross-country panel of up to 123 countries covering the years 2003 to 2015. We find a strong and robust effect of criminal deportations on homicide rates in countries of origin, that is to a large degree driven by deportations towards Latin America and the Caribbean. An additional inflow of ten deportees with a criminal history per 100,000 increases expected homicide rates by more than two. In addition to controlling for country specific fixed effects, we provide evidence on a causal effect using an instrumental variable approach, that exploits spatial and time variation in migrant populations’ exposure to state level immigration policies in the US.

KJ

August 11, 2018 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Friday, August 10, 2018

Immigration Article of the Day: The Law and Policy of Refugee Cities: Special Economic Zones for Migrants by Michael Castle-Miller

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The Law and Policy of Refugee Cities: Special Economic Zones for Migrants by Michael Castle-Miller, Chapman Law Review, Vol. 21, No. 2, 2018 

Abstract

Migration is quickly becoming one of the most pressing issues of our time. Conflict, persecution, natural disasters, and economic inequality are driving people from their homes in record numbers.

Meanwhile, traditional responses to mass migration are becoming increasingly inadequate. Recognizing this, some countries are exploring pragmatic pathways toward integrating migrants into economies. The special economic zone (“SEZ”) concept offers one potential path forward. SEZs are designated areas designed to promote development through a distinct policy and administrative framework. They can serve as vehicles for initiating beneficial policies when political obstacles stand in the way of nationwide reform.

Refugee cities would be a type of SEZ designed to facilitate migrant integration. They would be special-status jurisdictions in which displaced people — who would otherwise be barred from working — can be employed, start businesses, access finance, and rebuild their lives. Applying principles from SEZs, refugee cities could help countries benefit from migrants’ presence in a politically realistic manner. They could also deliver high-quality infrastructure, foreign direct investment, and improvements to the business environment.

Refugee cities would also serve as a pathway for countries to come into closer alignment with international law. Under the Convention and Protocol Relating to the Status of Refugees (“Refugee Convention” and “1967 Protocol,” respectively), refugees are entitled to relatively strong rights regarding property, employment, and entrepreneurship. However, most countries’ domestic legislation falls well short of these rights.

This article explores these gaps to show how refugee cities could fill them by creating designated areas in which refugee rights are respected and the policy benefits of migrant integration are achieved. It covers the background of the global migration situation, the evolution and role of SEZs in the world, the refugee-cities concept and its policy benefits, and the international and domestic law pertaining to refugees, including a special focus on Turkey.

KJ

August 10, 2018 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Tuesday, July 24, 2018

Jotwell: Fan on Koh's Shadow Removals

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Fan and Koh

At the Journal of Things We Like (JOTWELL), Mary Fan (U-dub) reviews Jennifer Lee Koh's recent articles When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement, __ Wash. U. L. Rev. __ (forthcoming) and Removal in the Shadows of Immigration Court, 90 S. Cal. L. Rev. 181 (2017).

Fan writes:

Koh’s articles are a fascinating and macabre education on removal proceedings in the “shadows of immigration court,” as she terms it. She powerfully illuminates how the vast majority of people removed from the United States never make it into an immigration court. Her work dispels the conventional assumption that removals proceed by formal order following adjudication by an immigration judge. She gives us a primer on the five main ways people are removed with extreme expedition today.

Those include: expedited removal at the border, reinstatement of removal, administrative removal, stipulated removal, and in absentia removal.

Fan concludes that Koh's "overview of the abbreviated approaches that sidestep an already notoriously underprotective process is important reading to understand the fast muddy slide into our present mire."

-KitJ

July 24, 2018 in Law Review Articles & Essays | Permalink | Comments (0)

Saturday, July 21, 2018

Conference Announcement: CSLSA Registration Now Open

Cslsa

The Central States Law Schools Association 2018 Scholarship Conference will be held on Friday, October 12 and Saturday, October 13 at the Texas A&M University School of Law in Fort Worth, Texas. Law faculty from across the country are invited to submit proposals to present papers or works in progress.

The conference is not subject specific, but usually includes panels on immigration, international law, and criminal law. From experience, I can report that CSLSA provides a friendly, intimate, and collegial setting in which to present scholarship. It's open to both junior and senior scholars.

You can click here to register. And registration is free! The deadline for submitting your work-in-progress abstract is September 1, 2018.  

I hope to see some of you at the conference this year!

-KitJ

July 21, 2018 in Law Review Articles & Essays | Permalink | Comments (0)

Tuesday, July 10, 2018

Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts

Waive

On June 21, 2018, the U.S. Supreme Court issued a bombshell opinion regarding immigration court procedure: Pereira v. Sessions.

On its face, the case is a boon for certain noncitizens seeking relief from deportation. Yet, as I explore in this just-posted essay to SSRN, Pereira’s implications are far greater.

Although the Court’s opinion never mentions jurisdiction, Pereira necessarily means that immigration courts lack subject-matter jurisdiction over virtually every case filed in the last three years, plus an unknown number of earlier-filed cases. Here's why.

The Court’s opinion in Pereira, authored by Justice Sonia Sotomayor, held that “A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a).’” Shockingly, “almost 100 percent” of cases filed in the last three years were initiated by notice-to-appear documents that omitted the time and place of the proceeding.

How does that relate to jurisdiction? Under the regulations establishing and delimiting the authority of immigration courts, 8 CFR 1003.14(a), “Jurisdiction vests … when a charging document is filed with the Immigration Court[.]” “Charging document” is defined by 8 CFR 1003.13 as the “written instrument which initiates a proceeding before an Immigration Judge … a Notice to Appear.”

If, as Pereira clearly states, a document isn’t a notice to appear if it doesn’t have a time and place on it, then it cannot be a charging document. And, without a valid charging document, jurisdiction never vests in the immigration court.

Since subject matter jurisdiction can never be waived, each case currently pending that was initiated by an NTA lacking a time-and-place designation must be dismissed.

In the final portion of the essay, I argue that immigration courts should recognize that re-filed cases demand an immigrant-centered approach. Noncitizens should have the chance to re-litigate issues lost in the first litigation—but should be permitted to keep their wins. The government, in contrast, should be bound by its losses. This approach protects noncitizens from bearing the burden of the government’s choice to wander from the law’s requirements.

-KitJ

July 10, 2018 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Friday, July 6, 2018

INA / USC Code Converter

Ever find yourself reading an INA-filled article/brief/case/blog on your computer with nary an INA supplement in sight? You'd like to look up the code on the internet but the easiest site, Cornell's Legal Information Institute, is keyed to the USC not the INA.

Messing Law Offices, P.L.C. has the answer for you: an INA to USC code converter. I've now got that baby bookmarked. Sweet.

-KitJ

July 6, 2018 in Current Affairs, Law Review Articles & Essays, Teaching Resources | Permalink | Comments (0)

Tuesday, June 26, 2018

Call For Papers: “New Voices in Immigration Law”

The Section on Immigration Law of the Association of American Law Schools invites papers and works in progress for its “New Voices in Immigration Law” works-in-progress session during the 2019 AALS Annual Meeting in New Orleans, LA, which will take place January 2-6, 2019. This session has been scheduled for Saturday, January 5, 2019, at 3:30pm. We particularly welcome submissions from individuals who have never presented an immigration law paper at the AALS Annual Meeting and from junior scholars. Submissions may address any aspect of immigration and citizenship law, and we are also open to receiving papers that explore these topics from alternative disciplines or perspectives. Please note that individuals presenting at the program are responsible for their own Annual Meeting registration fee and travel expenses.

Submission Guidelines: The deadline for submissions is August 15, 2018. Instead of a full-length paper, please submit a concept note of 5-15 double-spaced pages that contains a summary of the key ideas. If you have already written a full-length paper, please send an excerpt of the paper (not to exceed 15 double- spaced pages) with an explanatory introduction. Priority will be given to individuals who have never presented an immigration law paper at the AALS Annual Meeting and to junior scholars.

Please email submissions in Microsoft Word format to AALS2019ImmigrationLaw@kalhan.com (Subject: AALS 2019: New Voices in Immigration Law). In your email, please indicate whether you have previously presented your work at the AALS Annual Meeting, and if so when.

Inquiries: Please direct any questions or inquiries to Anil Kalhan (anil.kalhan@drexel.edu).

-KitJ

June 26, 2018 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Call For Papers: “Immigration Law Values”

The Section on Immigration Law of the Association of American Law Schools invites papers for presentation at its principal session during the 2019 AALS Annual Meeting in New Orleans, LA, which will take place January 2-6, 2019. This session has been scheduled for Saturday, January 5, 2019, at 10:30am. Please note that individuals presenting at the program are responsible for their own Annual Meeting registration fee and travel expenses.

The session theme is “Immigration Law Values.” The values implicated by immigration law are complex and difficult to define. This program will identify the fundamental values of contemporary immigration law and policy and examine immigration law values past, present, and future. The United States has long proclaimed to be a “nation of immigrants,” but immigration law and policy have always sent conflicting signals. While welcoming and valuing immigrants, the United States used a racially-based immigration policy until the 1950s. While overseeing a robust legal immigration system, Congress vastly expanded the categories of individuals potentially subject to expulsion and otherwise increased the harshness of the removal system in the 1990s. While immigration law has operated since the 19th century under constitutional principles that formally purport to give Congress sweeping power it does not have in most other contexts, courts have often flinched from giving full effect to those doctrinal principles.

The Trump presidency’s immigration agenda has sought to comprehensively dismantle mechanisms that welcome, value, and integrate immigrants in favor of a stance that more unequivocally insists that the United States does not, in fact, welcome or value immigrants at all. The administration’s actions call into question basic principles that many have believed to have long since been resolved and settled. For example, the Trump presidency’s discriminatory executive order banning the entry of millions of Muslims into the United States knocks off balance a long-accepted principle that immigration law should not discriminate on the basis of race or religion.

In addition to examining immigration values past and present, the program will explore whether there are values that might not currently be understood as settled principles in contemporary immigration law that should be. For example, is immigration law immoral if it causes or results in the separation of families? Does immigration adjudication in its current configuration fail to meet basic norms of fairness? What would make contemporary immigration law closer to realizing immigration ideals?

Submission Guidelines: The deadline for submissions is August 15, 2018. We welcome submissions at any stage of development, although preference may be given to more fully developed papers over abstracts and paper proposals. Priority also will be given to individuals who have not recently presented a paper at the AALS Annual Meeting. Decisions will be made by mid-September 2018.

Please email submissions in Microsoft Word format to AALS2019ImmigrationLaw@kalhan.com (Subject: AALS 2019: Immigration Law Values). In your email, please indicate whether you have previously presented your work at the AALS Annual Meeting, and if so when.

Inquiries: Please direct any questions or inquiries to Anil Kalhan (anil.kalhan@drexel.edu) and Jill Family (jefamily@widener.edu).

-KitJ

June 26, 2018 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Call For Papers: “Civil Rights, Liberty, and Immigration Control”

The Section on Immigration Law and Section on Civil Rights of the Association of American Law Schools invites papers for presentation at their cosponsored session during the 2019 AALS Annual Meeting in New Orleans, LA, which will take place January 2-6, 2019. This session has been scheduled for Sunday, January 6, 2019, at 10:30am. Please note that individuals presenting at the program are responsible for their own Annual Meeting registration fee and travel expenses.

The session theme is “Civil Rights, Liberty, and Immigration Control.” Recent events have highlighted the frequent conflict between individual liberty interests and the government’s migration control policies. The executive order banning the entry of Muslims into the United States has impinged on religious liberty, freedom to travel and the liberty interest in family. General heightened border security has undercut citizens’ liberty interest in family—particularly when the family members of U.S. citizens have been barred on nebulous or unspecified "security" rationales. Immigration detention, now greatly expanded, curtails bodily liberty. The recent detention of and denial of abortion access to noncitizen minors in government custody implicate overlapping liberty interests.

We seek papers that explore the doctrinal, practical and theoretical issues that arise at the crossroads of liberty and migration control. Papers might, for example, explore evolving constitutional conceptions of liberty, evaluate the exercise of plenary powers as it affects individuals’ liberty interests, or otherwise critically analyze how courts are assessing and weighing individual liberty interests in cases involving migration control.

Submission Guidelines: The deadline for submissions is August 15, 2018. We welcome submissions at any stage of development, although preference may be given to more fully developed papers over abstracts and paper proposals. Priority also will be given to individuals who have not recently presented a paper at the AALS Annual Meeting. Decisions will be made by mid-September 2018.

Please email submissions in Microsoft Word format to AALS2019ImmigrationLaw@kalhan.com (Subject: AALS 2019: Civil Rights, Liberty, and Immigration Control). In your email, please indicate whether you have previously presented your work at the AALS Annual Meeting.

Inquiries: Please direct any questions or inquiries to Kristina Campbell (kcampbell@udc.edu) and Jennifer Chacón (jchacon@law.uci.edu).

-KitJ

June 26, 2018 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)