Saturday, May 8, 2021
Immigration Article of the Day: Reversing Immigration Law's Adverse Impact on Health by Wendy Parmet
Reversing Immigration Law's Adverse Impact on Health by Wendy Parmet, in Burris, S., de Guia, S., Gable, L., Levin, D.E., Parmet, W.E., Terry, N.P. (Eds.) (2021). COVID-19 Policy Playbook: Legal Recommendations for a Safer, More Equitable Future. Boston: Public Health Law Watch
Immigration laws and policies have long served to magnify the social vulnerability of immigrants and members of their communities. These vulnerabilities have worked alongside the punitive, anti-immigration policies that the Trump administration pursued both before and during the pandemic to place immigrants and their communities at disproportionate risk for COVID-19. In addition, anti-immigrant policies during the pandemic helped to distort and undermine the nation’s response to the pandemic. In order to prevent an equally dismal response to the next public health crisis, we need to more fully understand the mechanisms through which immigration laws intersect with the social determinants of health to enhance vulnerability to pandemics. We also cannot simply repeal the Trump administration’s policies. Rather, we need to comprehensively reform immigration laws to end the punitive policies that heighten vulnerability to disease.
This paper was prepared as part of the COVID-19 Policy Playbook: Legal Recommendations for a Safer, More Equitable Future, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.
Wednesday, May 5, 2021
Monday, May 3, 2021
The Illinois Law Review has just published a symposium covering President Biden’s First 100 Days. Two of the contributions come from immprofs.
In Immigration Enforcement, Strategic Entrenchment, and the Dead Hand of the Trump Presidency, immprof Anil Kalhan (Drexel) explores the Texas-governor led lawsuit to thwart Acting Secretary of Homeland Security David Pekoske's order of an immediate, partial moratorium on deportation of certain noncitizens with final orders of removal for the first 100 days of the Biden presidency, pending a comprehensive review of all immigration enforcement policies and practices. U.S. District Judge Drew Tipton blocked the Biden administration from implementing its partial moratorium on a nationwide basis. This suit, Kalhan writes: "offer[s] a window into the methods that a federal judiciary aggressively packed with Trump appointees may use to become an eager, active collaborator in those partisan efforts to undermine the new administration’s policy agenda." What follows is a compelling and thorough takedown of the Tipton opinion.
In Restructuring Immigration Enforcement Federalism Pratheepan "Deep" Gulasekaram (Santa Clara) continues his excellent work on immigraiton federalism, focusing on " the possibilities the first 100 days of a Biden presidency holds for resetting the relationship between the federal government and states and localities vis-à-vis immigration enforcement and immigrant integration."
First, as he has already begun to do in his first 100 days, Biden can use the federal government’s litigation discretion to roll back Trump-era crackdowns on so-called “sanctuary cities”, and to curb the proliferation of state-level immigration enforcement. Second, he may, consistent with federal law and presidential authority, eliminate or scale-back existing administrative arrangements that incorporate states and localities into enforcement schemes. While both these changes are well-within Biden’s executive authority, presidential restructuring of enforcement federalism also faces formidable obstacles. Chief among them are the political economy of immigration enforcement that strongly incentivizes state and local integration into federal enforcement, and an immigration agency culture geared towards hyper-enforcement. This essay concludes by suggesting that Biden’s proposed immigration legislation, if enacted, and his administration’s relationship with integrationist-minded states, may offer a path to overcoming these challenges.
Sunday, May 2, 2021
Immigration Article of the Day: Entrance Fees: Self-Funded Agencies and the Economization of Immigration by Daimeon Shanks
This article examines the financing structure of the U.S. Citizenship and Immigration Services (USCIS), an executive branch administrative agency that is almost entirely funded by fees paid by applicants and petitioners for immigration benefits. This article interrogates the fundamental economic and normative justifications for the use of user fees in the immigration context to argue that the USCIS’s funding structure is both inapt and ineffective at implementing Congress’s immigration policies. Moreover, by effectively shielding the executive branch from budgetary oversight, these user fees fund operations that are misaligned with Congress’s intent for the USCIS, which frustrates the constitutional system of checks and balances based on separation of powers principles.
In short, the legal and economic rationales that have traditionally been used to justify user-fee funding for administrative agencies—to manage the availability of public goods, to control or promote externalities, to overcome information disparities, and to deter natural monopolies—all fail on their own terms as they do not reflect the realities of the immigration system. Two further justifications—notions of fairness and instrumental revenue enhancement—are more plausible conceptually and are thus more often invoked but are themselves fundamentally misaligned with the realities of the immigration and naturalization process.
Saturday, May 1, 2021
Immigration Article of the Day: The Political Branding of Us and Them: The Branding of Asian Immigrants in the Democratic and Republican Party Platforms and Supreme Court Opinions 1876-1924 by Ciara Torres-Spelliscy
The Political Branding of Us and Them: The Branding of Asian Immigrants in the Democratic and Republican Party Platforms and Supreme Court Opinions 1876-1924 by Ciara Torres-Spelliscy, New York University Law Review, Vol. 96, 2021
This piece builds on my work from 2019, when I explored how different aspects of American political life in the Trump era were being rebranded in the book Political Brands. Branding in politics is very similar to commercial branding: repeat a message ad infinitum until the intended audience accepts the message as true. Here, I examine the platforms of the Republican and Democratic parties starting in 1876 and ending in 1924. Over that time span, neither party held the moral high ground when it came to mischaracterizing Asian immigrants. Instead, there was a race to the bottom in determining who could vilify Asian immigrants more. These texts are significant because political platforms were written by elected elites. Meanwhile, the audience was incredibly broad. Platforms were often either printed in full in newspapers, or heavily excerpted in the media of their day. The full 1896 Republican platform was printed in the New York Times, as were the 1920 and the 1924 platforms. Moreover, the objective of a 4-year platform was to attract as many registered voters as possible, and to expand that party’s power in government. Thus, these texts had to be accessible to the average voter both in verbiage and tone. Political platforms are thus rich sources for examining how political branding evolved.
The political platforms over 48 years branded the Chinese through rhetorical caricatures as a threat to labor; as a threat to morals; as unassimilable; as diseased; and as invaders. Then some of these anti-Chinese brands showed up in the Supreme Court’s choice of language in legal decisions.
This piece focuses on two textual sources that are not typically considered together: the rhetoric in political platforms and Supreme Court opinions. I compare and contrast the portrayal of Asian immigrants in party platforms to the similar portrayal of Asian immigrants echoed in Supreme Court opinions. I argue that the casual racism of political parties is a harbinger of the Court’s unequal treatment towards objects of political racial hatred, all of which took place against a backdrop of incredible violence directed at Asian immigrants, which I largely won’t address in this piece because of space constraints. Suffice it to say that the violence experienced by Asian Americans in 2020-2021 had many historical antecedents.
Thursday, April 29, 2021
The two most frequently charged federal crimes are immigration crimes: the misdemeanor of entering the United States without inspection, and the felony of reentering the United States after deportation. Federal prosecutors charge tens of thousands of people with these two crimes each year. In 2019, these two crimes comprised a majority of all federal criminal cases. About 99% of the defendants in these cases are nationals of Mexico or other Latin American countries.
These two crimes were enacted into law through the Undesirable Aliens Act of 1929. The legislative history of that Act reveals that its authors were motivated by pseudoscientific racism. They sought to preserve the purity of the white race by preventing Latin American immigrants from settling permanently in the United States. And they spoke forthrightly about this motive. They described Latin American immigrants as “mongrelized,” “peons,” “degraded,” and “mixed blood.” They held hearings where experts in eugenics testified about Latin Americans’ undesirable racial characteristics. They gave speeches about the need to protect American blood from contamination. They described Latin American immigration as a “great race question” concerning invasion by “people essentially different from us in character, in social position, and otherwise.”
This Article thoroughly documents the legislative history of the Undesirable Aliens Act of 1929. It relies on primary sources—speeches, legislative reports, testimony, statements in the congressional record, private correspondences, eugenicist scholarship, and other writings by the men who conceived and enacted the law. The Article shows that this history brings the law into conflict with the Constitution’s Equal Protection Clause. While the crimes of unlawful entry and reentry are racially neutral on their faces, the story of their enactment reveals explicit racial animus against Latin American immigrants. Consequently, they are unconstitutional under the framework established by the Supreme Court in Arlington Heights v. Metropolitan Housing Development Corp. The Article also considers whether these crimes can be defended under Congress’s broad power to enact immigration laws, and whether their pro forma 1952 reenactment purged them of racial animus.
Monday, April 26, 2021
Regional disparities in immigration enforcement have existed for decades, yet they remain largely overlooked in immigration law scholarship. This Article theorizes that bottom-up pressure from states and localities, combined with top-down pressures and policies established by the President, produce these regional disparities. The Article then provides an empirical analysis demonstrating enormous variations in how Immigration and Customs Enforcement’s twenty-four field offices engage in federal enforcement around the United States. By analyzing data related to detainers, arrests, removals, and detention across these field offices, the Article demonstrates substantial differences between field offices located in sanctuary and anti-sanctuary regions, as well as variations within each of those groups. In order to promote more equitable and transparent enforcement, the Article offers recommendations regarding agency guidelines, rulemaking, performance metrics, and institutional designs, examining the strengths and limitations of these approaches.
Sunday, April 25, 2021
Immigration Article of the Day: The War Against Asian Sailors and Fishers by Gabriel Jack Chin and Sam Chew Chin
Beginning in the 1880s, maritime unions sought federal legislation to prevent Chinese, Japanese, Filipino, and Asian Indian sailors from serving as crew on U.S.-Flag vessels. This campaign succeeded in mandating citizenship requirements for crews which remain in the U.S. Code today. Similarly, federal and state laws limited the ability of Asians to fish, own fishing boats, or to serve on crews of fishing vessels. Few of these laws targeted Asians by name, but legislative history and contemporary media accounts make clear that racial exclusion motivated many facially neutral requirements such as literacy tests and restriction of jobs to citizens or those who had declared their intention to become citizens. As U.S. law restricted naturalization by race from 1790 to 1952, requiring citizenship had direct racial effects—white immigrants could be fishers or sailors, but not Asian immigrants. The expansiveness of exclusionary laws across time, geography, and level of government, its use of proxy categories to achieve racial discrimination, and yet its obscurity today, suggest the comprehensive nature of racial discrimination in the pre-Civil Rights era.
Friday, April 23, 2021
(Un)Equal Immigration Protection by Carrie Rosenbaum, 50 Sw. L. Rev. 232 (2021)
This article will contribute to immigration equal protection jurisprudential discussions by highlighting the way in which the plenary power in immigration equal protection cases creates a barrier parallel to the intent doctrine—both prohibit curtailment of government action resulting in racialized harm. The scant recognition of the double duty done by plenary power and the intent doctrine reflects the banality of what may appear as a mere redundancy at first glance. However, the insidiousness of the double-barrier all but ensures that equal protection challenges to facially race-neutral immigration laws with disparate impact will fail. Plenary power is effectively duplicative of the intent doctrine because the intent doctrine already results in great deference to lawmakers.
Tuesday, April 20, 2021
Crimmigration has rapidly become the dominant response to human mobility around the globe. It has emerged, ironically, in tandem with growing economic globalization. For capital, national borders have virtually disappeared, while the walls, virtual and literal, are growing higher for workers and others who need mobility to thrive, and even survive. Race, ethnicity, and personal wealth matter in who gains entry.
This conference will treat crimmigration and bordering holistically as systems nested within economy and society in subtle, and not-so-subtle, ways. In so doing, the conference calls attention to the various 'faces' and experiences of crimmigration and bordering across the globe as well as to a critical examination of the scholarship so far.
Deadline for panels/ individual papers: May 1st, 2021
Please indicate what you are submitting:
- A full or partly-formed panel|
- An individual paper based on finalized research
- Work in Progress
To apply, submit a (maximum) 500-word abstract, with 5 keywords and a tentative title.
For questions and/or inquiries please email to firstname.lastname@example.org
This website will be updated after May 1st with further details about the program, the speakers and the registration fee.
Monday, April 19, 2021
Immigration Article of the Day: Expanding the Geographies of ‘Sanctuary’ and the Deepening and Contentious Nature of Immigration Federalism: The Case of California’s SB 54 by William Arroacha
This article examines the concept and practice of sanctuary jurisdictions in the United States, including its secularization through its codification in state and local laws. It traces the political and legal battles that involve the contentious dynamics in the development and expansion of such jurisdictions. The article will highlight and examine California’s Senate Bill 54 (SB-54), also known as the California Values Act. SB-54 was the first state bill to establish a statewide sanctuary jurisdiction expanding the ‘geographies of sanctuary’ beyond cities and counties. It was a bill enacted in response to the most anti-immigrant policies in contemporary U.S. history under the Trump administration. I will argue that the expansion of ‘geographies of sanctuary’ through state laws fosters more inclusive immigration federalism, directly challenging the enforcement of today’s immigration laws considered by many as unfair and inhumane.
Sunday, April 18, 2021
United States law promises refugees they will not be deported until they receive fair, impartial review and determination of their asylum eligibility. In addition to addressing the difficult substantive issues under the Refugee Act of 1980, refugees also carry with them the medical consequences of persecution or fear of persecution, traveling from home for exile, and now, since the implementation of the Migrant Protection Protocols and other United States policies, long periods of waiting for adjudication under difficult circumstances. Some refugees’ illness experiences, moreover, preclude them from testifying and accurately representing their own interests during asylum adjudication proceedings. This article explains how health inequity compromises the capacity of refugees to successfully demonstrate their asylum eligibility, recounts federal policy changes that exacerbate their health and legal vulnerabilities, and suggests how the United States fails to meet international obligations to refugee-patients.
Saturday, April 17, 2021
Immigration Article of the Day: The Political Misrepresentation of Immigrants in the Census by Ming Hsu Chen
Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights, but based on their rights as current and future members of the political community. This is the second of two essays. The first essay focuses on voting restrictions impacting Asian American and Latino voters. The second essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 census. The essays critique the exclusion of immigrants from the political community because it compromises representational equality.
Friday, April 16, 2021
When scholars and lawmakers ask who should be allowed to cross borders, under what circumstances, on what ground, they often leave unexamined the historical formation of the border itself. National borders are taken for granted as the backdrop against which normative debates unfold. This Article seeks to intervene in contemporary debates about border crossing by bringing the border itself into the frame of normative consideration. It does so by exploring the colonial dimensions of the national border and calling attention to the ways in which national borders circumscribe and constrain the political imaginary. Focusing on the United States in particular, this Article seeks to defamiliarize the southern border by resituating it within a widened context of settler colonialism and hemispheric domination. Rather than offer a normative case for building a wall or opening borders, this Article asserts that meaningful engagement with the border question requires that we unsettle the border by critically examining the colonial processes and epistemic formations that naturalize and legitimate it.
Thursday, April 15, 2021
Throwback Thursday: U.S. Immigration Officers of Mexican Ancestry as Mexican Americans, Citizens, and Immigration Police by Josiah Heyman
Josiah Heyman is the Director of the Center for Inter-American and Border Studies (CIBS) as well as a Professor of Anthropology at the University of Texas at El Paso. He's the author of numerous articles and books about the U.S.-Mexico border.
I found his article U.S. Immigration Officers of Mexican Ancestry as Mexican Americans, Citizens, and Immigration Police, Current Anthropology, Vol. 43, No. 3 (June 2002), pp. 479-507, particularly helpful in the course of some of my own research (Women of Color in Immigration Enforcement, forthcoming in the Nevada L. J., which will be published later this month!).
Check out the abstract:
U.S. Immigration and Naturalization Service (INS) officers of Mexican ancestry do not identify with Mexican and other Latin American immigrants. Instead, they understand themselves as U.S. citizens who reject both domestic racism and ethnic loyalties that cross national borders. Their self-understandings emerge from processes that include U.S. citizenship ideology and social mobility into primary-labor-market jobs with stability, benefits, and progressive careers. These processes insulate them from the experience of immigrants in casual and insecure labor markets devoid of social benefits. Thus they differ from immigrants not only in being on opposite sides of the bureaucratic encounter but also in being at opposite poles of bureaucratized social citizenship. This suggests that a cause of opposition to immigration in advanced capitalist societies is that citizenship-based job and benefit systems restrict the scope of empathy.
Tuesday, April 13, 2021
Immigration Article of the Day: Pleading the Fifth in Immigration Court: A Regulatory Proposal by Tania N. Valdez
The Immigration Article of the Day is Pleading the Fifth in Immigration Court: A Regulatory Proposal by Tania N. Valdez. The article is forthcoming in Volume 98 of the Washington University Law Review.
Here is the Abstract:
Protections of noncitizens’ rights in immigration removal proceedings have remained minimal even as immigration enforcement has exponentially increased. Put differently, outside of immigration court, we treat noncitizens as if they are criminals, while inside it we fail to provide noncitizens the procedural safeguards normally afforded to those accused of crimes. An overlooked, but commonplace, problem in immigration court is the treatment of the constitutional right against self-incrimination. Two routine scenarios occur where noncitizens are asked to sacrifice their right against self-incrimination in immigration court. One involves testimony regarding conduct related to immigration status that may lead to prosecution for federal immigration violations, such as illegal entry, illegal reentry, or alien smuggling. The other involves testimony regarding any other potentially criminal activity, including when the noncitizen currently has pending charges in criminal court yet is expected to testify about the underlying facts during immigration court proceedings. In both of these circumstances, the immigration system puts noncitizens in the untenable position where they must either elect to waive the constitutional right not to self-incriminate and testify regardless of possible criminal consequences, or exercise their right to silence and risk the judge drawing an adverse inference that results in deportation.
The skewed incorporation of criminal norms into the immigration arena—a supposedly “civil” system—without a simultaneous expansion of procedures designed to protect and enforce noncitizens’ rights leads to disastrous results. Moreover, the lack of procedural fairness in removal proceedings exaggerates the imbalance of power between the federal government, with its immense resources, and the individuals it seeks to deport. Considering the so-called plenary powers granted to the executive and legislative branches of government, and attendant limited oversight by Article III courts, the courts are not likely to be the most efficient or far-reaching solution. Thus, this Article posits that, rather than utilizing the traditional judicial avenue for vindicating constitutional rights, federal agency regulatory rule-making is the best way forward. The Article then offers proposed regulatory language that is intended to provide a meaningful procedural vehicle through which noncitizens’ right against self-incrimination may be enforced. The proposed regulations provide that immigration judges must advise noncitizens of their right to remain silent, prohibit judges from drawing an adverse inference where noncitizens have pending criminal charges, clarify the procedures that must be followed in order to compel speech, and limit the government’s use of evidence obtained as a result of statutory or regulatory violations.
Monday, April 12, 2021
Immigration Article of the Day: Reagan's Cold War on Immigrants: Resistance and the Rise of a Detention Regime, 1981–1985 by Kristina Shull
The Immigration Article of the Day is by Kristina Shull, Reagan's Cold War on Immigrants: Resistance and the Rise of a Detention Regime, 1981–1985, Journal of American Ethnic History, Vol. 40, No. 2, published in 2021.
Here is the Abstract:
Through migrant and activist testimonies, media coverage, and government documents, this article explores the modes of resistance inside and outside of immigration detention that arose in response to new, more punitive detention policies enacted by the Reagan administration that specifically targeted Caribbean and Central American asylum-seekers in the early 1980s, and the modes of retaliation adopted by the administration in response. It argues migrant detention operates as a form of counter-insurgency, re-centering the geopolitics of asylum within the transnational scope of counter-insurgent warfare and its role in the rise of carceral trends more broadly. Reagan’s “Cold War on immigrants”—defined as a suite of new immigration enforcement measures that was adopted by the Reagan administration during its first term and buttressed the subsequent growth of the detention system—sparked mass resistance. Mounting public dissent against Reagan’s foreign and immigration policies, as evidenced by “inside-outside” and transnational activism, Jesse Jackson’s 1984 presidential campaign, and the Central America peace and Sanctuary movements, prompted the administration to wage a war against its opponents to maintain its immigration control and foreign policy aims. The contemporary US immigration detention system emerged, and continues, out of this dialectic of resistance and retaliation.
Thursday, April 8, 2021
Immigration Article of the Day: Rethinking Prosecutorial Discretion in Immigration Enforcement by Nicole Hallett
Prosecutorial discretion in immigration enforcement stands at a crossroads. It was the centerpiece of Obama’s immigration policy after comprehensive immigration reform failed. Under the Trump Administration, it was declared all but dead, replaced by an ethos of maximum enforcement. Biden has promised a return to the status quo ante, but the record of using prosecutorial discretion to accomplish humanitarian goals in immigration enforcement under Obama was, at best, mixed. Moreover, it is unclear whether Biden can depend on the availability of programs such as Deferred Action for Childhood Arrivals (“DACA”), Obama’s signature prosecutorial discretion program. Although the Supreme Court struck down the Trump Administration’s attempt to end DACA, it did so without deciding whether the program was lawful. Future legal challenges may leave the executive branch with even fewer options for reforming the immigration system without Congressional action. The Biden Administration will need to rethink how to use prosecutorial discretion to accomplish its immigration policy goals.
This Article argues that the experience of the Obama Administration revealed the clear shortcomings of using prosecutorial discretion in lieu of legislative reform to mitigate the harshest consequences of the current immigration system. Though it has, in some circumstances, led to positive individual outcomes, it has failed to provide the kind of systemic relief that was promised, both because of the limitations of prosecutorial discretion in general, and because of special characteristics of the immigration system that make it particularly ill-suited for the widespread use of discretion to accomplish humanitarian goals. Rather than simply reinstating Obama-era discretion policies, future administrations must implement reforms to the immigration system that would allow prosecutorial discretion to work better to advance the stated goal of these policies – injecting some humanity into an otherwise inhumane system.
Tuesday, April 6, 2021
Bringing Justice to Immigration Law: Jerome Hall Lecture at Indiana University’s Maurer School of Law
Last Friday, I delivered the Jerome Hall Lecture on April 2 at Indiana University’s Maurer School of Law. The paper presented (“Bringing Justice to Immigration Law.” ) soon will be published in the Northwestern University Law Review.
In the paper, qter mapping the discriminatory foundations of immigration law, I discuss the rise of a powerful immigrant rights movement, as well as the Trump administration’s staunch opposition to that movement. The lecture also analyzed the uncertain future of the quest to bring racial justice to immigration law.
Sunday, April 4, 2021
The United States has long excluded immigrants who are likely to become a “public charge.” But while the exclusion has remained unchanged, the nation has changed around it, further blurring its unclear meaning. As public benefits replaced poorhouses, Congress and the courts left the administrative state to reconcile public charge with evolving commitments to public welfare.
This Note seeks to identify the causes of public charge confusion by mapping the exclusion’s administrative history. A field guidance document from 1999 marks the only comprehensive effort to reconcile public charge with contemporary grants of benefits. Archived emails, memos, and drafts reveal the causes, scope, and character of the preceding interagency negotiations, as well as a yet-unidentified interagency relationship I term “zero-sum asymmetry,” whereby one agency completes its statutory mission at the expense of another’s. The guidance’s core compromise—a distinction between cash and supplemental benefits—mitigated but could not eliminate this dynamic. Reading the archived negotiations in light of public charge’s history, I offer a more compelling account of what public charge requires.