ImmigrationProf Blog

Immigration Article of the Day: Improving Lawyers & Lives: How Immigrant Justice Corps Built a Model for Quality Representation While Empowering Recent Law School and College Graduates and the Immigrant Communities Whom They Serve by Jojo Annobil & Eliz

Improving Lawyers & Lives: How Immigrant Justice Corps Built a Model for Quality Representation While Empowering Recent Law School and College Graduates and the Immigrant Communities Whom They Serve by Jojo Annobil & Elizabeth Gibson, Fordham Law Review (2023)

Abstract

The late Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit formed a study group in 2008 called the Study Group on Immigrant Representation to assess the scope of the problem and find a solution.  The study group determined that the representation crisis was an issue “of both quality and quantity” and that the two most important variables for a successful outcome in a case were having counsel and not being detained.  To address this need, the study group established two innovative programs:  the New York Immigrant Family Unity Project (NYIFUP), the first public defender program to provide universal representation to detained New Yorkers; and Immigrant Justice Corps (IJC), the first and only fellowship program exclusively dedicated to increasing representation to low-income immigrants and improving the immigration bar.

IJC, launched in 2014, recruits, trains, and mentors talented Justice Fellows (recent law graduates and law clerks) and exceptional Community Fellows (college graduates who become federally accredited legal representatives).  IJC then deploys the Justice and Community Fellows (together, the “Fellows”) in the immigration field to assist low-income immigrants in defending against deportation, seeking lawful status, or applying for citizenship.  The Fellows—the great majority of whom are bilingual or multilingual with lived experience of the immigration system—come from top law schools and colleges, and many have developed litigation skills in their schools’ immigration clinics, giving them a head start in mastering the law.

This Essay focuses on the work of IJC and discusses Judge Katzmann and the Study Group on Immigrant Representation’s efforts to find solutions to the representation crisis by developing innovative programs and tackling challenges along the way.

KJ

Immigration Article of the Day: Dignity. Reverence. Desecration by Duane Rudolph

Dignity. Reverence. Desecration  by Duane Rudolph, Seton Hall Law Review, Vol. 53, No. 1173, 2023

Abstract

This Article focuses on two cases from the Supreme Court of the United States dealing with sexual orientation—Bowers v. Hardwick (1989) and Boutilier v. Immigration and Naturalization Service (1967). Hardwick held that the Federal Constitution did not recognize a right to consensual intimacy among human beings of the same sex, and states could regulate the issue. Boutilier held that the federal government could order the deportation of non-heterosexual applicants for citizenship since they were deemed to have a “psychopathic personality, sexual deviate,” and their treatment as such did not offend the Federal Constitution.

The argument is that human dignity, as represented in Hardwick, Boutilier, and other landmark cases, is not only about the status of specific individuals and communities, but also about the reverence required by individuals and communities holding superior or supreme status. Those holding such status identify individuals and objects they revere and for whom (and which) they mandate reverence. Reverence, in this context, has two meanings—veneration and deference. Veneration and deference are selectively bestowed upon specific individuals, communities, and objects, and they are denied to others, especially those associated with the most vulnerable communities.

The absence or failure of dignity is not, as commentators often argue, humiliation, demeaning, or degradation of a human being, but desecration. Desecration is an experience, an attitude, and a response, which includes humiliation, demeaning, and degradation. Desecration is the unacceptable experience, by those holding superior or supreme status, of a perceived lack of reverence for hallowed individuals, objects, and ideals. Desecration is, further, an attitude and a response. As an attitude, desecration is the intuitive act of resistance by those assigned inferior status simply by being themselves. And as a response, desecration is what those possessing superior or supreme status do to those who, simply by existing as themselves, are deemed inferior.

KJ

Immigration Article of the Day: Border Enforcement as State-Created Danger by Jenny-Brooke-Condon & Lori A. Nessel

Border Enforcement as State-Created Danger by Jenny-Brooke-Condon & Lori A. Nessel, St. John's Law Review , Vol. 96, No. 4, 2022

Abstract

A woman seeks refuge at the U.S. border, but U.S. officials force her to wait for her asylum hearing in Mexico where a police officer later stalks and rapes her. A father and child suffer unbearable trauma after U.S. officials separate them under a policy aimed at deterring migration. A formerly healthy family loses a loved one to the coronavirus while forced to wait at an unsanitary, makeshift tent city in Mexico after fleeing for safety to the United States. For the people impacted by U.S. border policies, the southern border is a dangerous place—it is the site of rampant U.S.-created harm. Typically, legal and policy responses to refugee crises are framed by international and domestic legal obligations to provide safety and protect those fleeing persecution or humanitarian disasters. When states fail to meet migrants’ needs or thwart humanitarian processes, critiques logically focus on the government’s failure to meet its refugee, domestic law, and moral obligations. But this focus, though an essential part of countering the government’s illegal actions, insufficiently addresses the United States’ role in creating and inflicting harm.

Recently, however, in the context of the Trump Administration’s family separation policy, a district court recognized that the state-created danger theory of substantive due process protection may have a role to play in reckoning with the harm inflicted at the border—a development constitutional law scholars described as “groundbreaking.” The recognition of state-created danger theories in the family separation context thus raises the possibility of unlocking substantive due process protection in response to other forms of immigration enforcement that cause grievous and lasting harm.

Still, commentators have long lamented the state-created danger doctrine as narrow and impossible to meet. Nevertheless, over the last several decades, many state and federal courts have affirmed the doctrine, recognizing that the State has a duty not to expose people to conscious-shocking harm, even harm committed by third parties, if it is made possible or likely because of state action. The courts have recognized the theory as a possible constitutional restraint even if they have been reluctant to recognize circumstances qualifying as constitutional violations.

This Article draws upon this strand of substantive constitutional protection to help draw attention to and conceptualize new ways of challenging the United States’ state-created border harm. We argue that this body of law provides a strong theoretical foundation for holding government actors accountable for what one commentator described as a doctrine reserved “for truly egregious” government abuse, fitting match for excessive and punitive immigration enforcement that costs people their lives, safety, health, and security. At the very least, it is a starting place for broader normative conversations about the unlawful harm inflicted by the United States in the name of border control.

KJ

Immigration Article of the Day: Citizenship Outside the Courts by Catherine Y. Kim

Citizenship Outside the Courts by Catherine Y. Kim, 57 UC Davis Law Review (2023)

Abstract

The notion of citizenship lies at the core of our constitutional structure, determining possession of fundamental rights ranging from the rights to vote and hold public office to the right to enter and remain in the United States at all. Indeed, the entire constitutional project of self-governance rests on the premise of a defined group of “We the people.” Determining who qualifies as a citizen is thus central to our constitutional fabric. Prior literature has tacitly assumed that the federal judiciary has been the principal arbiter for deciding who qualifies for citizenship under our Constitution. This Article, however, demonstrates that political actors, rather than federal courts, have played the primary role in defining access to constitutional citizenship for members of historically marginalized groups, which raises significant normative implications.

This Article excavates records surrounding three pivotal episodes from our nation’s history: the contestation of citizenship for Black Americans in the early to mid-nineteenth century; the denial of citizenship to Chinese Americans during the Exclusion Era from 1882 to 1943; and the stripping of citizenship from American women who married noncitizens prior to 1922. In each case, members of historically marginalized groups seeking to assert their constitutional citizenship found little recourse in the federal courts. Political institutions, however, independently wrestled to determine their citizenship status, in the absence of — or even in defiance of — federal court opinions. The historical record tells a story of judicial abdication, which allowed political actors to both narrow and expand access to constitutional citizenship.

The histories unearthed in this Article raise an urgent fundamental normative question: To what extent should constitutional citizenship be determined by political actors? This Article argues that citizenship is unique among constitutional provisions in ways that generally cast doubt on the legitimacy of efforts — political or otherwise — to deny it to members of marginalized communities. Moreover, the histories uncovered in this Article show that political institutions are not inherently more or less likely than the federal judiciary to do so. The experiences of Black Americans, Chinese Americans, and married American women thus suggest that the road to a more inclusive citizenship requires involvement by both: federal courts must play an active role in policing the constitutional floor for citizenship, but the political branches must remain free to expand constitutional citizenship beyond that floor, which may, in turn, generate a new consensus on what that floor should be.View Full Article

KJ

Immigration Article of the Day: Automating Racialization in International Law by Priya S. Gupta

Automating Racialization in International Law by Priya S. Gupta, McGill SGI Research Papers in Business, Finance, Law and Society Research Paper

Abstract

From the continuation of colonial power structures in global economic development institutions, to immigration policies that favor applicants from white-majority European countries, to the use of counter-terrorism law to target primarily Muslim people, international law and its domestic analogues reflect and further inscribe racial distinctions and hierarchies. Racialization in international law occurs in the more visible areas of public decision-making but also in mundane, administrative practices. This essay argues that digital technologies are at the heart of automating processes of racialization in international law. Digital technological instruments effectively divide the global population, decision by decision, in adherence to the logics of racial hierarchy: they distribute social and material rights and privileges through financial, welfare, and immigration decisions while simultaneously deepening and entrenching state surveillance, policing, and violence.

International law enacts a double opacity which shields multiple automations of racialization from scrutiny and accountability: first, in its blindness to the systemic and mutually-reinforcing nature of racial disparity and relatedly, the use of proxies for race such as geography, facial features, or wealth; second, in its promulgation and protection of digital technology as a purportedly neutral arbiter of myriad public and private decisions, hiding bias in technical complexity, corporate secrecy, and intellectual property protection, and across jurisdictional lines.

KJ

Immigration Article of the Day: Refugee Detention As Constructive Refoulement" by Shana Tabak

Refugee Detention As Constructive Refoulement" by Shana Tabak (and here), Yale Journal of International Law, Vol. 48, No. 1, 2023

Abstract

The most fundamental obligation that states owe to refugees under the 1951 United Nations Convention Relating to the Status of Refugees is the commitment of non-refoulement. This commitment to “not force back” a refugee to a country where she may face serious harm to her life or liberty demands that states interrogate whether their treatment of refugees comports with their legal obligations toward these individuals. One urgent site for inquiry is the widespread practice of immigration detention. The practice of immigration detention raises human rights concerns, including the stripping of due process, the lack of individualized assessment, and the arbitrary deprivation of liberty.

In the United States, the detention of refugees presents an apparent contradiction: the state posture is one of respect for rule of law and its legal obligation of non-refoulement, yet perversely, the country detains refugees in such intolerable conditions and with such limited access to legal counsel that their chances at winning asylum are slim to none. The result is a pandemic of asylum denials and deportations of asylum-seekers. This Article identifies and describes this dissonance and offers a potential framework for thinking about a legal remedy.

Drawing on an analysis of the human rights violations in the United States’ practice of migrant detention, this Article presents a framework for a legal concept as yet untested in U.S. case law: constructive refoulement. Constructive refoulement arises when a state orchestrates material conditions so intolerable for an asylum-seeker that she has no choice but to return to the country from which she fled. This Article characterizes the refugee detention regime in the United States as anarchic, violative of due process, and morally corrupt. Such a characterization also demonstrates that the refugee detention regime breaches international and domestic law obligations. Ultimately, the United States’ practice of detain ing refugees frustrates the intent of asylum-seekers to pursue protection and thereby amounts to constructive refoulement in violation of international law.

KJ

Immigration Article of the Day: Temporary Protection in the European Union and the United States: Same Words, Vastly Different Meanings by Maryellen Fullerton

Temporary Protection in the European Union and the United States: Same Words, Vastly Different Meanings by Maryellen Fullerton, University of Pennsylvania Journal of Law and Public Affairs, forthcoming

Abstract

This Article examines the history and political context of temporary protection in the United States and the European Union, compares and contrasts key components of the different legislative frameworks, and assesses the effectiveness of the temporary protection programs. These programs typically provide an avenue of humanitarian relief to noncitizens by authorizing lawful residence for a time-limited period. When the Russian military invasion of Ukraine in 2022 forced a large portion of the population to flee in search of safety, countries neighboring Ukraine welcomed millions displaced by the attacks, as did countries around the globe. For the first time, the European Union activated the temporary protection legislation adopted in 2001. Across the Atlantic, the United States also activated temporary protection. No stranger to extending time-limited relief to individuals from homelands in crisis, the United States has authorized temporary protected status (TPS) thirty-four times since 1990.

The simultaneous activation of temporary protection in response to the war in Ukraine provides a case study of disparate conceptions of temporary protection. This analysis reveals that the same words – temporary protection – mask profound legal differences. Temporary protected status (TPS) in the United States is available only to individuals already present within US territory. In contrast, temporary protection operates as an admissions mechanism in the European Union, affording millions of displaced people access to and lawful residence in the EU.

The massive displacement from Ukraine has revealed the inadequacy of TPS in the United States. This has led the Biden administration to launch Uniting for Ukraine, a new humanitarian parole program that allows displaced Ukrainians to enter the United States for two years if they have a private US sponsor. The initial response to this program has been positive, with more than 200,000 Americans volunteering to serve as sponsors. The time is ripe for policymakers, congressional aides, and advocates to create legislation to normalize admissions to the United States in the face of humanitarian crises.

KJ

Immigration Article of the Day: Internal Revenue's External Borders by Shayak Sarkar

Internal Revenue's External Borders by Shayak Sarkar, California Law Review, Forthcoming

Abstract

The mandate of tax agencies seems clear: to secure revenue for the government and ensure taxpayer compliance. Yet for decades, the Internal Revenue Service (IRS) has regularly facilitated violent immigration enforcement. Scholars and the public have paid significant attention to the state and local policing of immigration law. But the role of tax bureaucrats as generals—no mere foot soldiers—has largely been overlooked.

This Article corrects that oversight. Building on emerging critiques of the tax system, I first describe tax-agency leadership in immigration raids, holding the dry mechanics of agency procedures against stark examples of IRS complicity in civil rights violations. I then raise several concerns about tax-agency involvement in immigration enforcement. After describing the tax-law origins of immigration raids’ constitutional exceptionalism, I assess residual constraints on tax-agency involvement: taxpayer privacy, regulatory suppression, and civil rights liability.

Finally, I propose reforms to better align tax-agency efforts with their revenue-generating mission and to protect immigrants caught in the crosshairs. Those reforms include redesigning criminal tax investigations, crafting interagency agreements, and providing immigration relief. The collaboration of such disparate agencies—here the IRS and Immigration and Customs Enforcement (ICE)—reminds us of administrative cooperation’s hidden costs.

KJ

Immigration Article of the Day: Inventing Deportation Arrests by Lindsay Nash

Inventing Deportation Arrests by Lindsay Nash, Michigan law Review 2023

Abstract

At the dawn of the federal deportation system, the nation’s top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power—then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests—was exercised with “great care and deliberation.” A century later, this extraordinary power is legally trivial and systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now have the power to solely determine whether deportation arrests are justified and, therefore, whether to subject over a hundred thousand people annually to the extended detention and bare process of our modern deportation system.

This deportation arrest regime—still anomalous in our law enforcement system— has been justified by the notion that immigration enforcement has always been different when it comes to arrest constraints and that the validity of the modern deportation arrest system is evidenced through its history. This Article investigates and ultimately challenges those justifications. It focuses on the advent of administrative arrest authority in the federal immigration scheme and explores how the once “extraordinary” and confined power to authorize deportation arrests became legally trivial and diffuse. It not only provides the first account of the invention and development of federal deportation arrest authority from its inception to the modern day, but also one that differs from and complicates the conventional account in critical ways. Specifically, it reveals an early system of deportation arrest procedures that, even at a time of virulent hostility toward immigrants and overtly racist immigration regulation, was designed to impose significantly greater checks on enforcement officers’ arrest authority and more robust independent review than does the modern immigration scheme. This Article also describes why that eventually changed, providing important insight on why we are where we are today.

Ultimately, this Article contests the conventional narrative that the modern deportation arrest regime is justified by its past and casts doubt on the near-unanimous case law that has relied on it. In so doing, it gives courts a reason to reconsider the constitutional validity of this scheme and provides historical support for calls to fundamentally transform the deportation arrest system.

KJ

Immigration Article of the Day: Storytelling and Magic: Meaning Making in Immigration Policing by Ana Aliverti

The Immigration Article of the Day is Storytelling and Magic: Meaning Making in Immigration Policing by Ana Aliverti, published in 2023 in the International Journal for Crime, Justice and Social Democracy.

The full article is available here.

Here is the abstract:

This article explores the place of storytelling and magic in immigration policing in the United Kingdom. ‘Immigration stories’ are important for grasping the role of narratives in migration policing. While aimed at rendering a complex social world legible, this form of knowledge reveals its limitations. Rather than producing a cognitive template to make sense of a boundless world, immigration enforcement practices show illegibility as a hallmark of the state. The work of immigration officers is dominated by hazardous and arbitrary practices and rules--which I call ‘immigration magic’--which often leave them devoid of power and control. As an exercise in southernising border criminology, I interrogate the received division of labour in theorising the state in the south and north, on the one hand, and state and society on the other. In doing so, I seek to lay this northern policing bureaucracy open to underexplored dimensions and angles, as frontline staff are tasked with re-spatialising state power.

IE

Immigration Article of the Day: Singing the Force of the Imagination: How to Wonder About the Emotional-Reportage in Immigration Advocacy by Joshua J. Schroeder

Singing the Force of the Imagination: How to Wonder About the Emotional-Reportage in Immigration Advocacy  by Joshua J. Schroeder, UC Law Journal of Race & Economic Justice, Forthcoming

Abstract

In the years leading up to July 4, 1776, Phillis Wheatley bid the imaginations of the American Revolutionaries to spring open by shouting: “Imagination! Who can sing thy force?” Wheatley defined the imagination as the leader of the mental train, and, according to Ciceronian principles, she demonstrated that the imagination is the singular facilitator of human action. Nevertheless, the concept of the imagination remains an underdeveloped topic in the legal field, even while it reigns over the decision making processes of all U.S. legislators, administrators, and judges.

For over two centuries Wheatley’s exposition of the imagination laid dormant in America, even while the “originalists” called for the legal application of such founding concepts. On September 21, 2023, however, the imagination properly invaded Professor Warren Binford’s opening event of the ongoing Testimony series at the University of Colorado, Anschutz: a multi-disciplinary art as advocacy symposium Advocating for Children in Migration. This event followed the publication of Hear My Voice/Escucha Mi Voz, a children’s book featuring statements of children held in migrant detention facilities compiled by Professor Binford. This book was illustrated by several artists, won several awards, and inspired yet still more artistic projects including popular, folk, and classical music, dance choreography, murals, other visual artworks, and even an episode of South Park.

Yet, even while these artistic bursts of inspiration began to grow, their impotence upon the legal and medical professionals at the symposium were manifest. The legal and medical panelists generally treated the artist panels as a political propaganda piece, or a form of therapy to treat the artists’ own grief, rather than as a legitimate muse to inspire legal and medical professionals to innovate solutions to the immigration crisis. The blindness of the professional class to the force of their own imaginations was obvious.

Human beings, imperfect as we are, rarely start out on key, but over time we can improve. Binford’s compilations, symposiums, and events could be a step toward the renewal of the American imagination in professional circles that may inspire us to innovate solutions to the immigration crisis. This article is dedicated to the observation of the stumbling starts of the American professional class toward their ultimate realization that they too are subject to the vivacious force of the imagination over the faultiness of Rationalism.

KJ

Immigration Article of the Day: Violence in the Administrative State by Emily Chertoff

Emily Cherthoff, an academic fellow at Columbia Law, places the Immigration and Customs Enforcement (ICE) agency in the context of dueling forces in the administrative: a clash between those wielding government authority to commit physical violence (e.g. police, military, detention) and those typified by bureaucratic processes such as standardized rules and information processing.

The article, Violence in the Administrative State, will appear in the California Law Review. The abstract reads:

 Drawing on an original, interview-based case study of an immigration enforcement agency and a review of six decades of social science literature, this Article offers a theory of physical violence in the administrative state that challenges foundational assumptions about administrative law. One-fifth of federal employees work for administrative agencies that police, fight wars, enforce immigration law, or incarcerate people – in other words, agencies that use force to execute the laws. These agencies are saturated with administrative law that obligates front-line administrators to confer due process, give notice, and behave non-arbitrarily. Yet this law often fails to constrain administrators, with unauthorized violence the result.

Conventional administrative law fails in these agencies because it has developed out of a model of the administrative state to which they do not conform. Most administrative law is designed for bureaucracy, whose hallmark is rational information processing using standardized rules and procedures. But the lower levels of these agencies belong to the domain of violence. They empower administrators to use physical violence in response to exigent circumstances – a different role, with different norms and decision-making techniques. Ordinarily designed to safeguard core rule of law values, when bureaucratic administrative law is applied to agencies in the domain of violence, it often masks, and at worst accelerates, unauthorized violence.

For administrative law to potentially address unauthorized violence, it would have to override individuals’ responses and alter agency culture, requiring it to take different forms and pursue different goals than bureaucratic administrative law usually does. Recognizing the domain of violence has practical and conceptual payoffs. It can help us understand how and whether law can check violence in the administrative state. And it opens up a universe of questions about the exceptional legal norms applied to agencies in this domain.

MHC

Immigration Article of the Day: Force Multiplier: An Intersectional Examination of One Immigrant Woman's Journey Through Multiple Systems of Oppression by Amelia Wilson

Force Multiplier: An Intersectional Examination of One Immigrant Woman's Journey Through Multiple Systems of Oppression by Amelia Wilson,  
Berkeley Journal of Gender, Law & Justice, Vol. 38, No. 1, 2023

Abstract

The immigrants’ rights movement can assume an intersectional and cooperative approach to dismantling co-constitutive systems of oppression that conspire to punish, exclude, and exploit disfavored groups. Racial justice must be at the center of the movement, but so too must we understand the devastating role that gender, disability, and documentation status play in marginalizing immigrants and their communities. This article examines one immigrant woman’s experiences in the Southeastern United States as she passed through the mental health care system, competency proceedings, criminal justice system, and the deportation pipeline to explicitly lay bare intertwining forms of systemic subjugation.

Mbeti Ndonga is a member of multiple disfavored groups. She is Black, living with serious mental health disabilities, and now undocumented following years as a permanent resident. She experienced an erosion of safety over time that resulted in her being twice detained in the notoriou s Irwin County Detention Center, once deported, and ultimately the victim of unconsented-to, harmful gynecological procedures by a doctor who is now at the center of a major federal investigation. A transversal investigation of her life as she interacted with multiple state and federal agencies reveals patterns of subordination that buttress one another and create a perpetual cycle of suffering. Mbeti’s experiences, while unique to her, are revealing of the injustices faced by the many similarly situated immigrants who share her positioning.

Just as oppression is intersectional, so can be the solution. Immigrant justice, racial justice, gender justice, and health justice share reform priorities that can serve one another. This article proposes four policy recommendations that unite these different movements’ purposes. They range from alterations to our immigration court system that address serious due process deficiencies as applied to persons with mental health disabilities to ending cooperative agreements between ICE and local law enforcement. The recommendations are concrete, achievable, and offer opportunities for enduring change that would benefit the lives of all noncitizens.

KJ

Jotwell: Stumpf Discusses Sayed

Juliet Stumpf reviews Faiza Sayed's article The Immigration Shadow Docket, 117 Nw. U. L. Rev. 893 (2023), on JOTWELL (the Journal of Things We Like (Lots)). Stumpf's comments--America's Secret Immigration Law--frame the conversation this way:

Faiza Sayed’s The Immigration Shadow Docket uncovers a nest of secret law in the Board of Immigration Appeals (BIA)’s practice of deciding almost 100% of its cases as unpublished, nonprecedential decisions. These decisions are available to government lawyers but not to immigrants or their lawyers[.]...

Sayed’s long list of concerns about the existence of the shadow docket is compelling. She notes the high stakes of BIA decisions when removal orders mean banishment from the United States. Because of the severe restrictions on federal court review and jurisdiction, the BIA is essentially the Supreme Court for most immigration cases. Lack of a right to appointed counsel, among other barriers, means that the odds are stacked against the indigent non-citizen in immigration court. Even with counsel, how well can an attorney represent a client when the law is inaccessible to her? How is the public to comply with the law, or advocate for changes in law, if the law itself is secret?

But her larger point is the takeaway here. Secret immigration law stunts the development of immigration law itself. The Board is tasked with providing guidance about the meaning of immigration law and effecting uniformity in immigration law nationally. This is an impossible task when only 30 of those 30,000 decisions are published. As Sayed concludes: “shadow docket decision-making defies important principles of administrative governance, including notice, justification, coherence, and procedural fairness, and undermines political accountability and judicial review.” (P. 898.)

-KitJ

Immigration Article of the Day: Misery, Melancholy, and Misfortune: A Migrant Case Study by Jayanth K. Khrishnan

Misery, Melancholy, and Misfortune: A Migrant Case Study by Jayanth K. Khrishnan, 41 Wisconsin International Law Journal, Forthcoming (2024)

Abstract

There is an ongoing crisis of despair involving migrants from abroad who are seeking refuge in one of the world’s longest-standing, post-World War II democracies – India. There are roughly 4.9 million noncitizen migrants in India, with most coming from Bangladesh, Myanmar, Nepal, Pakistan, and Sri Lanka. Because these migrants often live in the shadows, they are frequently deprived of their fundamental human rights.

On the one hand, it may seem surprising that this population remains so vulnerable. Albeit with notable exceptions, India’s Supreme Court has often been a leading institutional light in safeguarding the rights of many marginalized groups. Supreme Courts in other countries point to judgments from the Indian Supreme Court as a model for how to ensure that communities on the periphery are treated with dignity and due process. Furthermore, in periods of its progressive rights jurisprudence, the Court has been aided by a robust constitution and a vibrant civil society.

Yet when it comes to noncitizen migrants, there has been a dearth of sustained judicial support. Additionally, while there is certain, important bottom-up activism on behalf of these noncitizens, it has frankly not been enough to meet the cascade of needs that exist.

This project focuses on how institutional inadequacies, at both the governmental and societal levels, have left noncitizen migrants among some of the most isolated individuals within India. Namely, the absence of specialized and independent immigration courts, an outdated immigration statute, a lack of a strong immigration bar, insufficient legal education on immigration law, and little research on immigration doctrine are key reasons why migrants face such dire circumstances today. Otherwise put, India’s weak immigration infrastructure has sadly contributed to why noncitizen migrants have such difficulty accessing lawyers, the legal process, and ultimately justice within Indian society.

KJ

Jotwell: Family discusses Damon-Feng

Jill Family reviews Haiyun Damon-Feng's article Administrative Reliance, 73 Duke L.J. __ (forthcoming 2024), on JOTWELL (the Journal of Things We Like (Lots)). Family's comments--Making Judicial Review of Reliance More Reliable--frame the conversation this way:

In her article Administrative Reliance, Professor Damon-Feng dives into the reliance phenomenon in administrative law. One administration develops a policy, many rely on it, and then the next administration changes course. Should reliance interests matter when courts review the change of course? If so, how much, and why? Professor Damon-Feng concludes, based on her examination of the implicated values, that the Supreme Court should adopt a more purposeful and disciplined approach to considering reliance interests.

-KitJ

Immigration Article of the Day: Singing the Force of the Imagination: How to Wonder About the Emotional-Reportage in Immigration Advocacy by Joshua J. Schroeder

Singing the Force of the Imagination: How to Wonder About the Emotional-Reportage in Immigration Advocacy by Joshua J. Schroeder

Abstract

In the years leading up to July 4, 1776, Phillis Wheatley bid the imaginations of the American Revolutionaries to spring open by shouting: “Imagination! Who can sing thy force?” Wheatley defined the imagination as the leader of the mental train, and, according to Ciceronian principles, she demonstrated that the imagination is the singular facilitator of human action. Nevertheless, the concept of the imagination remains an underdeveloped topic in the legal field, even while it reigns over the decision making processes of all U.S. legislators, administrators, and judges.

For over two centuries Wheatley’s exposition of the imagination laid dormant in America, even while the “originalists” called for the legal application of such founding concepts. On September 21, 2023, however, the imagination properly invaded Professor Warren Binford’s opening event of the ongoing Testimony series at the University of Colorado, Anschutz: a multi-disciplinary art as advocacy symposium Advocating for Children in Migration. This event followed the publication of Hear My Voice/Escucha Mi Voz, a children’s book featuring statements of children held in migrant detention facilities compiled by Professor Binford. This book was illustrated by several artists, won several awards, and inspired yet still more artistic projects including popular, folk, and classical music, dance choreography, murals, other visual artworks, and even an episode of South Park.

Yet, even while these artistic bursts of inspiration began to grow, their impotence upon the legal and medical professionals at the symposium were manifest. The legal and medical panelists generally treated the artist panels as a political propaganda piece, or a form of therapy to treat the artists’ own grief, rather than as a legitimate muse to inspire legal and medical professionals to innovate solutions to the immigration crisis. The blindness of the professional class to the force of their own imaginations was obvious.

Human beings, imperfect as we are, rarely start out on key, but over time we can improve. Binford’s compilations, symposiums, and events could be a step toward the renewal of the American imagination in professional circles that may inspire us to innovate solutions to the immigration crisis. This article is dedicated to the observation of the stumbling starts of the American professional class toward their ultimate realization that they too are subject to the vivacious force of the imagination over the faultiness of Rationalism.

KJ

The Racism of Immigration Crime Prosecution

Immigration blogger Ingrid Eagly in "The Racism of Immigration Crime Prosecution," 109 Iowa L. Rev. Online 27 (2023) DOWNLOAD PDF comments on Eric Fish's article on r=the racist underpinnings of the two most common immigration crimes.  Here is an abstract of Ingrid's article:

 Abstract

Eric Fish’s Article, Race, History, and Immigration Crimes, explores the racist motivation behind the original 1929 enactment of the two most common federal immigration crimes, entry without permission and reentry after deportation. This Response engages with Fish’s archival work unearthing this unsettling history and examines how his research has informed a series of legal challenges seeking to strike down the modern federal border crossing law as violating the Equal Protection Clause of the Constitution. Focusing on the district court decision in United States v. Carrillo-Lopez that struck down the reentry law, and the subsequent Ninth Circuit reversal, this Response explores three central and recurring questions in the immigration law field: (1) the legacy of plenary power; (2) the significance of the blurry boundary between immigration law and other areas of law, such as the criminal law; and (3) the thorny problem of when taint from a discriminatory predecessor law continues to infect a modern law. The resolution these three key debates is central not only to the constitutionality of the illegal entry and reentry laws, but also to other areas of law that shape the lives of immigrants in the United States.

KJ

Immigration Article of the Day: The “Crisification” of Migration Law: Insights from the EU External Border" by Violeta Moreno-Lax

The “Crisification” of Migration Law: Insights from the EU External Border by Violeta Moreno-Lax, forthcoming in: Stella Burch Elias, Kevin Cope and Jill Goldenziel (eds), The Oxford Handbook of Comparative Immigration Law (Oxford: Oxford University Press, 2023)

Abstract

Migration has long been perceived and administered as a ‘crisis’ by (reluctant) countries of destination in the Global North, including the Member States of the European Union (EU). The ‘crisis’ framing allows for the characterisation of (unwanted) migration as an anomaly calling for the adoption of ‘exceptional’ (typically restrictive) measures, which eventually consolidate into standard policy, such as the routine fingerprinting of asylum applicants or the administrative detention of unauthorised migrants. The presentation of migration and asylum events as ‘crises’ serves to justify extraordinary responses that suspend the usual democratic processes of deliberation and contestation in favour of urgent mechanisms intended to quickly address and fix the situation. The ‘crisis’ narrative and its conceptualisation as an ‘exception’, rupturing the normal course of law- and policy-making, facilitate deterrence and coercion to become entrenched as structural and � �necessary’ features of the system of migration governance and border control. The strategy demands for attention to focus on the ‘here and now’ of crisis scenarios, adopting measures that typically curtail the rights and freedoms of people on the move. What is more, ‘crisification’ allows for a form of targeted exceptionalism that enables authorities to address specific situations. Differently from a state of emergency/exception, that generally applies on a blanket basis to the entire population, ‘crisis’ can be utilised to circumscribe restrictions and aim them at specific segments (like unauthorised migrants) for (in principle) a limited duration. ‘Crisis’ mobilises the resources of the state of emergency/exception, but in a selective, focused way.

Against this background, this paper uncovers how ‘crisification’ (as process and strategy) has permeated the EU migration and external borders acquis (and led to its securitisation) becoming a system of governance in its own right. I will argue that the violence characteristic of EU border controls, is a consequence of ‘crisification’, which produces very distinct corroding effects on the legal protections of refugees and migrants. Drawing on the 2016 EU-Turkey Statement and the reaction to the 2021 Belarus ‘crisis’ as illustrations, my main contention is that the presentation of migration and asylum events as ‘crises’ has been utilised in the EU not only to justify measures and practices outside the bounds of ‘normal’ politics but that it has also targeted and fundamentally transformed the legal order, allowing for legalised expansions of power and for contractions of pre-existing legal safeguards, leading to the re-configuration of the EU acquis in this field. The paper will demonstrate how invocations of ‘crisis’ enable the normalisation of legal and policy developments at odds with basic principles and international standards. Two complementary phenomena demonstrate the impact of ‘crisification’ on the bo rders/migration law system: The ‘softification’ of existing hard law obligations, on the one hand, which translates into the lowering (or negation) of the individual's legal safeguards, and the progressive hardening – or ‘lawification’ – of means and practices previously considered unacceptable, on the other hand. These two poles (the ‘softification’ of existing hard-law protections and the ‘lawification’ of violations) constitute the extremes of a continuum that is nurtured, enabled, and expanded by ‘crisification’ as a mode of governance. The final effect is an erosion of the existing standards that fundamentally transforms (and disfigures) the EU legal and policy framework regarding access control and border surveillance.

KJ

Immigration Article of the Day: How Recognition and Implementation of the Right to a Healthy Environment Can Advance the Human Rights of Migrants by Monica Iyer

How Recognition and Implementation of the Right to a Healthy Environment Can Advance the Human Rights of Migrants by Monica Iyer 

Abstract

The relationship between climate change and other forms of environmental degradation, on the one hand, and migration and displacement, on the other, is a human rights topic of critical and growing importance. However, the conversation around environment and migration has tended to focus on security thus far. The humanity and agency of those who may leave their homes due to climate and environmental impacts, and their status as rights-holders, are too often an afterthought, if not completely forgotten. Global recognition and implementation of the human right to a clean, healthy, and sustainable environment can contribute to adopting a more human rights-based approach to the intersection of environment and migration around the world. This article identifies and explores four ways in which the human right to a healthy environment may have relevance and value in the migration context: 1) addressing the circumstances that compel people to leave their homes; 2) countering the devastating human rights and environmental consequences of overly securitized migration governance; 3) contributing to the growing jurisprudence around climate change and environmental degradation as a basis for non-refoulement claims; and 4) fostering sustainable and human rights-based solidarity between migrants and environmentally-affected communities in destination countries.

KJ