ImmigrationProf Blog

Judicial Business: Statistics and Reports

There is a plethora of interesting statistical data available from the U.S. courts website. I'll admit that I was ignorant of this fabulous data set until recently. I learned about this resource from reading the footnotes from Ingrid Eagly's forthcoming paper The Movement to Decriminalize Border Crossing.

Data from this website was incredibly useful to me today. I covered the topic of crimmigration. While I teach a standalone crimmigration course, I include in my podium immigration course brief (one-class) coverage of 1325/1326/1324 and employment issues.

For example, the website includes this excellent chart about what crimes defendants are charged with in federal court:

As you can see, immigration crimes have been popular for a good five years, but they are now the most commonly charged crimes. As the website details:

The biggest numeric growth was in filings for defendants charged with immigration offenses, which increased by 7,478 (up 37 percent) to 27,916 filings and accounted for 32 percent of total criminal filings, making this the largest category of defendants prosecuted in the district courts. Defendants charged with improper reentry by an alien climbed 40 percent to 23,250, and those charged with improper entry by an alien rose 48 percent to 254. Immigration filings in the five southwestern border districts increased 39 percent to 21,781 and equaled 78 percent of national immigration defendant filings (up from 77 percent in 2017). Filings grew 66 percent in the Southern District of California, 65 percent in the Western District of Texas, 27 percent in the District of Arizona, 24 percent in the District of New Mexico, and 17 percent in the Southern District of Texas.

I also found this table instructive and used it in class, clipping it in this manner:

There's a lot to unpack here. For example, you can see that immigration offenses account for a smidge over 32% of criminal cases, that over 97% of defendants are convicted, and that of those convicted, over 99% plea guilty.

Perhaps you'll find this data useful for your next article or your next class.

-KitJ

YLJ announces winners of student essay competition on immigration

Congratulations to Zak New (my co-author and recent graduate from Colorado Law School) and Elizabeth Montana (Uinversity of Miami) on winning the Yale Law Journal's student essay competition. Their essays will appear in a special issue focused on emerging issues in immigration law in the Yale Law Journal Forum in early 2020.

The two winning Essays are:

Elizabeth Montano, The Rise and Fall of Administrative Closure in Immigration Courts

Elizabeth Montano’s Essay focuses on the laws surrounding immigration judges’ use of administrative closure, a case-management tool used to let individuals pursue more promising forms of relief. Elizabeth earned her J.D. summa cum laude from the University of Miami School of Law in May 2019. While at Miami Law, she served as the Editor-in-Chief of the University of Miami Law Review. In addition, she was a clinical student and a student fellow in the Immigration Clinic. Her clinical work earned her the 2018 CLEA Outstanding Clinical Student Award. Elizabeth was also one of ten recipients across the United States of the 2019 Law 360 Distinguished Legal Writing Award. Currently, Elizabeth works as an Associate Attorney at Kurzban, Kurzban, Tetzeli & Pratt, P.A., where she focuses on immigration-related litigation and deportation defense. She received her B.A. cum laude in Interpersonal and Organizational Communications from the University of Central Florida. Here are the abstracts:

Zachary R. New, Ending Citizenship for Service in Forever War

Zachary R. New’s Essay analyzes the recent policies that are causing a decline in U.S. citizenship for service, a tradition dating back to the Revolutionary War in which noncitizens earn their citizenship after serving in the U.S. military. Zachary earned his J.D. from the University of Colorado School of Law in 2019. While at Colorado Law, Zachary was a founding member and President of the Immigration Law and Policy Society. He spent a year volunteering for the Rocky Mountain Immigrant Advocacy Network. Through the Rocky Mountain Immigrant Advocacy Network, he traveled weekly to assist foreign nationals detained in Denver’s local ICE detention facility. His studies have focused primarily on immigration and naturalization. He has put those studies into practice, assisting foreign nationals with affirmative applications in corporate and family immigration, defending foreign nationals before the Executive Office for Immigration Review, and challenging agency decisions in federal court. Zachary now works at the Denver office of Joseph & Hall, P.C., where he focuses on corporate immigration and federal litigation.

MHC

Immigration Article of the Day: Is the Rescission of Deferred Action for Childhood Arrivals (DACA) Justified by the Results of Cost-Benefit Analysis by Carolina Arlota

Is the Rescission of Deferred Action for Childhood Arrivals (DACA) Justified by the Results of Cost-Benefit Analysis by Carolina Arlota, 29 Berkeley La Raza L.J. 93 (2019).

Abstract

On September 5, 2017, Attorney General Jeff Sessions announced the rescission of the Deferred Action for Childhood Arrivals program (“DACA”). The program was created in 2012 and it has been evaluated as an overall success. Members of both political parties and business leaders have criticized its rescission. In light of this controversy, what are the benefits and costs associated with the rescission of DACA? This article argues that the Trump Administration’s rescission of DACA is not justified based on three different accounts of a cost-benefit analysis. First, it evaluates the manner in which the Trump Administration’s decision was made, targeting how it was implemented (namely, its procedural terms), and how it increased litigation, uncertainty, and the lack of uniformity within immigration law generally. Second, it assesses the costs and benefits of the policy decision, focusing on the substantive effects of the rescission. Third, it examines the rescission using the normative approach of cost-benefit analysis, arguing that this method should not discount moral considerations.

The research presented in this article is timely because it targets a currently controversial topic that is subject to intense media coverage and litigation. Moreover, this article may influence such litigation because it provides novel arguments against the rescission of DACA. For example, the principles of administrative law applied to immigration may require agencies to consider costs. This remains to be examined by the courts. Similarly, the framework of this research may provide additional arguments based on its findings. From a theoretical perspective, this paper fills a void in the literature, as studies on the cost-benefit analysis of the DACA rescission have not yet been published. In addition, the framework chosen for this research contributes to cost- benefit analysis literature addressing a contemporary example of public policy that was enacted without the normative use of economics and that disregarded the cost- benefit analysis as a methodological tool for maximizing overall well-being. Thisarticle also advances a trending topic concerning cost-benefit analysis, namely, the incorporation of moral dimensions into cost-benefit analysis, including rights-based considerations.

This article is organized as follows: Part II presents an overview of the policy changes from the enactment of DACA to its rescission. Part III discusses the reasons that the rescission of DACA is not justified by the results of a cost-benefit analysis, focusing on its procedural terms (i.e., the manner in which the rescission was decided and implemented). Part IV assesses the costs and benefits of the rescission based on its substantive terms, including its quantitative and qualitative effects. In Part V, the results of the normative approach to the cost-benefit analysis reveal the moral considerations involved in the rescission. Part VI concludes that the rescission of DACA is not justified by the results of the cost-benefit analysis developed in this article.

-KitJ

Throwback Thursday: Stella Burch Elias

Talking about changes to the UK citizenship test has me thinking back on this great article from oh-so-long-ago: Stella Burch Elias, Testing Citizenship, 96 B.U. L. REV. 2093, 2136 (2017).

Here's the abstract:

In the last fifteen years, in the United States and elsewhere, there have been profound and remarkably rapid changes to long-established naturalization laws and regulations. In particular, aspiring citizens are now asked to pass increasingly rigorous language and knowledge tests to demonstrate that they can truly “belong” to the cultural mainstream in their new country. The political rhetoric accompanying these changes has focused heavily on concerns about national security and economic vitality in the context of the global recession. As U.S. scholars, lawmakers, and advocates consider how best to respond to renewed calls to overhaul American nationality laws, the recent experiences of other Western nations can shed light on the range of options that are potentially available. This Article therefore explores recent developments in the statutory and regulatory naturalization requirements in seven countries—the United States, Canada, the United Kingdom, the Netherlands, Germany, France, and Australia. This Article identifies potential options for reform to American nationality laws that are informed by recent developments here in the United States, as well as by the experiences of other mature democracies.

I found this article helpful in my work on Universities as Vehicles for Immigrant Integration, which talked about how American universities have the potential to serve as a “force multiplier” for the goals of immigrant integration that Professor Ming Hsu Chen identifies in her forthcoming book Pursuing Citizenship in the Enforcement Era. (Yes, I know, that's a reference inside a reference inside a reference.)

Stella's piece is an excellent comparative study that will get you thinking about what it takes to be an adopted citizen of a country.

-KitJ

Bringing Immigration into Civil Procedure (and Civ Pro into Immigration)

Professor Sinnar

I am one of those lucky immprofs who also gets to teach Civil Procedure. Woot. Woot. (That's an unironic woot for those unsure, a burst of genuine enthusiasm).

It's the start of the semester and I'm teaching my students about how to initiate a federal law suit -- with a complaint. And we're reading the complaint biggies from SCOTUS including those two modern (at least post-my-law-school-graduation) pleading Goliaths: Twombly and Iqbal.

I'm scanning around the internet, looking for a photo of Iqbal when I stumble upon an article by Professor Shirin Sinnar (Stanford): The Lost Story of Iqbal, 105 Georgetown Law Journal 379 (2017).

Readers, let me tell you, this article is the bomb.

Sinnar uncovers the story of the man behind the lawsuit. A man summarily described by SCOTUS as "a citizen of Pakistan and a Muslim" who, following 9/11, "was arrested in the United States on criminal charges and detained by federal officials."

Sinnar interviews Iqbal both in Pakistan and over Skype from the United States. She details his immigrant story, his detention story, and his post-deportation story. Each is utterly compelling.

For those immprofs who don't teach Civ Pro... don't tune this post out. Know that all of your students will have read Iqbal. So the case (and Sinnar's details that aren't apparent on the face of the case) can be a reference point when you're discussing issues of detention (criminal and civil) as well as national security/terrorism.

If nothing else, the piece has that photo I was searching for.

-KitJ

Immigration Article of the Day: Impeding or Accelerating Assimilation? Immigration Enforcement and Its Impact on Naturalization Patterns

Catalina Amuedo-Dorantes and Mary J. Lopez

Mary J. Lopez and Catalina Amuedo-Dorantes have published a new working paper with the Center for Growth and Opportuity at Utah State University. It's titled Impeding or Accelerating Assimilation? Immigration Enforcement and Its Impact on Naturalization Patterns.

Here is their abstract:

Naturalization bestows economic benefits to immigrants, their families, and communities through greater access to employment opportunities, higher earnings, and homeownership. It is the cornerstone of immigrant assimilation in the United States. Yet fewer than 720,000 of the estimated 8.5 million legal permanent residents eligible to naturalize do so on a yearly basis. Using data from the 2008–2016 American Community Survey, we analyze how the expansion of interior immigration enforcement affects naturalization patterns. We find that the intensification of interior enforcement curtails naturalization and, among those choosing to naturalize, delays it. Understanding how immigration policy influences naturalization decisions is important given its crucial role in migrant assimilation and its documented benefits.

Beyond the abstract, these key findings from the paper are worth highlighting:

• More intense immigration enforcement lowers the likelihood of naturalization by twelve percentage points.
• Among those who choose to naturalize, increased immigration enforcement delays the timing of naturalization by three months.
• These effects impact all migrants who could become citizens, including legal permanent residents.

-KitJ

Immigration Article of the Day: Introduction to the Symposium on Sanctuary Cities: A Brief Review of the Legal Landscape by Andrew F. Moore

Introduction to the Symposium on Sanctuary Cities: A Brief Review of the Legal Landscape by Andrew F. Moore, University of Detroit Mercy Law Review, Vol. 96, 2018

Abstract

This Introduction to the 2018 University of Detroit Mercy Law Review Symposium tries to set the stage by addressing three basic issues surrounding sanctuary cities: the extent to which the federal government can compel state and local assistance in immigration enforcement; the extent to which state and localities can choose to participate in immigration enforcement; and the extent to which states and local government can completely refuse to cooperate with such enforcement. These three topics involve important federalism questions that are currently working their way through the courts following President Trump's Executive Order to punish sanctuary jurisdictions.

In addition, this Introduction also discusses separation of powers problems that arise in the fight over sanctuary jurisdictions. With legislative gridlock over immigration policy, increasingly the courts have been used as a method for protecting or discouraging the adoption of sanctuary policies. One way to discourage sanctuary policies has been to allow private causes of action against localities that fail to adequately support immigration enforcement. These efforts raise important questions about the appropriate role of the courts in policy making that are encompassed in doctrines such as sovereign immunity and the public duty doctrine.

KJ

Immigration Article of the Day: Defending Refugees: A Case for Protective Procedural Safeguards in the Persecutor Bar Analysis by Charles Ellison

Defending Refugees: A Case for Protective Procedural Safeguards in the Persecutor Bar Analysis by Charles Ellison, Georgetown Immigration Law Review, Vol. 33, p. 213, 2019

Abstract

For refugees and asylum seekers, application of the so-called persecutor bar is tantamount to a death sentence. However, the Board of Immigration Appeals -- without any real deliberation--has arrived at an interpretation of a generic-relief, burdenshifting regulation to allow for application of the persecutor bar based upon very little evidence. Even mere membership in a group with a poor human rights record has been held sufficient to switch the burden of proof and apply the bar. While the recent holding of Matter of Negusie, 27 I&N Dec. 347 (June 28, 2018) can be read and understood largely as a victory for refugees on the question of the duress defense to the bar, that decision is under review by the AG. Additionally, more work is needed to solidify capacious procedural safeguards in the application of the bar ab initio before adjudicators even reach questions of duress. Safeguards are crucial because the current procedures allow adjudicators to apply the bar merely where there is possible assistance in persecution. Given the dearth of past scholarly attention devoted to procedural application of the persecutor bar, this article aims to contribute to this nascent, timely, and largely-untouched discussion. I argue here that it is only where the record contains a preponderance of the evidence to allow an adjudicator to find actual assistance in persecution -- and the applicant is given fair notice and opportunity to respond--that the statute, case law, and international law allow the persecutor bar to be applied.

KJ

Immigration Article of the Day: Nationality Bans by Tally Kritzman Amir and Jaya Ramji-Nogales

Nationality Bans by Tally Kritzman Amir and Jaya Ramji-Nogales, University of Illinois Law Review, Vol. 2019, No. 2, 2019

Abstract

This Article conducts a comparative analysis between the nationality bans that exist in both Israel and the United States. In exploring the similarities and differences between these two countries’ nationality bans, this Article critically evaluates the publicly projected rationales for the bans and argues that these bans promote blanket discrimination rather than effectuating their stated justifications. Furthermore, the comparison between these two nations’ approaches to nationality bans allows this Article to expose the damaging effects these types of bans can have beyond those directly involved in the immigration system while examining the potential threat of these temporary measures being prolonged.

KJ

Immigration Article of the Day: Private Prisons, Private Governance: Essay on Developments in Private-Sector Resistance to Privatized Immigration Detention by Danielle C. Jefferis

Private Prisons, Private Governance: Essay on Developments in Private-Sector Resistance to Privatized Immigration Detention by Danielle C. Jefferis, Northwestern Journal of Law and Social Policy, Forthcoming

Abstract

Two diametrically opposed events impacting America’s for-profit prison industry occurred within two weeks of each other early this year: On March 19, 2019, the U.S. Supreme Court announced its opinion in Nielsen v. Preap. In the case, a majority of the justices upheld a broad interpretation of the federal government’s immigration detention authority with respect to certain noncitizens in removal proceedings. In effect, the Court’s decision expanded the category of people subject to mandatory immigration-related confinement, a system of incarceration that currently confines more than 50,000 people per day in mostly private prisons and continues to expand, in part due to the increasingly broad authority under which federal immigration-enforcement authorities confine people. The decision marked a victory for the private-prison industry.

Less than two weeks before the Preap decision was announced, the industry experienced a significant loss, however. In an unprecedented move, JPMorgan Chase, one of the nation’s largest banks, announced it would no longer finance or invest in private prison corporations. Wells Fargo soon followed. Chase and Wells Fargo’s divestment from the private-prison industry represented a loss of millions of dollars of capital for the corporations managing and profiting from privatized immigration detention, and sends a compelling — and unusual — signal from Wall Street that a company’s conduct, not just its bottom line, matters. Stocks of the two largest private-prison companies took a drastic hit in the aftermath of the banks’ announcements.

For advocates of decarceration and more humane immigration-enforcement protocols, Chase’s divestment from the private-industry is one development in a series of examples of people and organizations disavowing an expectation of public governance and, instead, relying on private governance institutions to impose accountability and push for change. When the government fails to govern, people and groups may turn to private governance institutions to try to change the status quo. Private governance institutions, which may take limitless forms, are the means by which individuals, organizations, and communities aim to address the needs public governance failed to address. In other words, “private governance institutions provide governance without government.” Of the recent examples of private governance action in the field of private prisons, this Essay examines two: shareholder actions and divestment activities.

KJ

Immigration Article of the Day: The Militarization of Immigration Law: How America’s War on Terror Became a War on the Undocumented by Andrea Scoseria Katz

The Militarization of Immigration Law: How America’s War on Terror Became a War on the Undocumented by Andrea Scoseria Katz

Abstract

The draconian turn of U.S. immigration policy in recent years—ballooning budgets and the broadened reach of domestic enforcement agencies like Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP), the increasing legal precarity of the immigrant population, the massive strain placed on immigration courts and federal criminal dockets—has been thoroughly studied by immigration scholars, who point to important explanatory factors such as the War on Crime launched in the late 1960s and early 1970s, the nativist recrudescence of the 1990s, and failed attempts at system reform in 1965 and again in 1986. Such work, however, has rarely explored the link between immigration law and national security.

This article argues that the rise of terrorism has been one major driver of the immigration law crackdown. With statutes like the Anti-Terrorism and Effective Death Penalty Act of 1996 and the 2001 PATRIOT Act explicitly linking border control and crime by non-nationals with a larger fight against terrorism, immigration law and national security police came to share sources of statutory authority, patterns and techniques of enforcement, and, not least, common tropes and imagery (“enemy aliens,” “terrorist organizations,” and so forth).

I introduce the concept of policy militarization to explain this process. A militarized sphere of public policy is one increasingly defined in terms of war or crisis. The American preoccupation with terrorist attacks emerged after the 1993 World Trade Center bombing and the 1998 U.S. embassy bombings in Tanzania and Nairobi, but it was the events of September 11, 2001 that hurled the nation into a conflict lacking geographic borders, time horizons, or a clear enemy. “Everything became war,” says a former Pentagon official, to include control over the non-citizen population. As in war, militarized policy features a centralized and heightened administrative response. After the 9/11 Commission deemed “information silos” to blame for the failure to stop the attacks, the national security community spearheaded massive growth in intelligence-gathering agencies and increased data-sharing between them. Immigration agencies grew in size, picked up new tools and techniques imported from counterterrorism, and crucially, adapted their mission to the lens of ever-present foreign threat. Finally, at the level of the political branches, militarized policymaking becomes highly bureaucratic. Security experts take a lead role in designing policy, often at the expense of ordinary legislators and judges, producing a governing regime in which policy is made through administrative, not legislative channels. As a result, rights enforcement and the fixity of legal standards can wane. I call this a state of extralegality, because traditional sources of law cease to truly bind administration action, even though they may shape it. Critics of the administrative state, attuned to the phenomenon of legislative “rules” being replaced by administrative “standards,” may recognize this argument, albeit applied in a new context.

That war and threats of it can trigger the growth of the state is not a new insight. However, as the militarization of immigration shows, the same effects—delegation of responsibility, expansion of executive power, and dilution of legal standards—do not, in fact, require an actual war, but instead can be built on rhetorical foundations and the threatening specter of wars to come.

KJ

Yale Law Journal Forum Student Essay Competition

The Yale Law Journal has announced its third annual Student Essay Competition. The Competition is open to law students and recent graduates nationwide. Up to three winners will be awarded a $300 cash prize. Winning submissions will be published in the Yale Law Journal Forum, YLJ’s online component. All Forum Essays are fully searchable and available on LexisNexis, Westlaw, and our website. Information on the winning Essays from last year, and the Essays themselves, can be found on our website.

COMPETITION TOPIC:  EMERGING ISSUES IN IMMIGRATION LAW

The goal of this competition is for the next generation of legal scholars and practitioners to reflect on emerging legal problems and challenges. This year, submissions should focus on novel issues in immigration law, broadly understood. Possible topics include, but are not limited to: asylum, refugee, and human rights globally; the meaning of borders and citizenship; children and the immigration system; immigration-reform legislation; and the immigration-court system. We welcome topics in other related areas as well and hope to receive both clinical and academic submissions.

Eligibility and Submission Details

The competition is open to all current law students and recent graduates (JDs and LLMs from the Classes of 2015-2022) from any ABA-accredited law school. Each individual may submit only one previously unpublished Essay, and Essays may not be submitted to other law reviews during the competition period.

The deadline for submissions is September 1, 2019. Submissions must be no longer than 5,000 words, including footnotes. Essays must be submitted via the YLJ online submissions portal. Submissions should be uploaded in the “Yale Law Journal Forum Faculty & Practitioner Submission” category. A selection committee from Volume 129 of the Yale Law Journal will consider all submissions anonymously. Winners will be announced by October 18, 2019. Authors who submit winning Essays commit to publication in the Yale Law Journal Forum and agree to participate in our full editing process. This process involves both structural and substantive suggestions, as well as sourceciting for content and adherence to Bluebook style.

Please submit Essays as a Word document. Your submission should be titled “YLJ Essay Competition - [ESSAY TITLE]” and include a header with “YLJ Essay Competition” in the main text of your document. To ensure blind review, please do not include any identifying information, including name, class year, or institution, in the Essay’s body or metadata.

Disbursement of the cash prize to each winner is subject to any applicable tax reporting and withholding requirements.

Please direct questions about the Student Essay Competition to Managing Editors Josh Blecher-Cohen (josh.blecher-cohen@yale.edu) and Peter Kallis (peter.kallis@yale.edu). We look forward to reading your submissions!

KJ

Immigration Article of the Day: Immigration Adjudication Bankruptcy by Jill E. Family

Immigration Adjudication Bankruptcy by Jill E. Family,  University of Pennsylvania Journal of Constitutional Law, Vol. 21, No. 4, 2019

Abstract

The Trump Administration is pushing an adjudicatory system on the brink over the edge. The system designed to decide whether to remove (deport) individuals from the United States has longstanding problems that predate the Trump Administration. Those problems are being exasperated rather than improved. It is time to consider the notion of immigration adjudication bankruptcy. Immigration adjudication bankruptcy involves a declaration that the removal adjudication system is not satisfying the basic principles of administrative process: accuracy, acceptability, and efficiency. This Article, a part of a symposium on executive power and immigration law, raises questions about when bankruptcy should be declared and examines issues surrounding the restructuring of immigration removal adjudication.

KJ

Immigration Article of the Day: The Fourth Amendment Implications of "U.S. Imitation Judges" by Mary Holper

The Fourth Amendment Implications of "U.S. Imitation Judges"  by  Mary Holper, Minnesota Law Review, Vol. 104, (forthcoming)2020

Abstract

Scholars, immigration judges, attorneys, and congressional committees have been calling for a truly independent immigration adjudication system for decades, critiquing a system in which some judges describe themselves as “U.S. imitation judges.” This article examines the lack of truly independent immigration judges through the lens of the Fourth Amendment, which applies when a noncitizen is arrested for deportation. In 1975, the Supreme Court held in Gerstein v. Pugh that to continue detention after an initial arrest in the criminal context, the detached judgment of a neutral judge is necessary; a prosecutor’s finding of probable cause is insufficient to protect the important Fourth Amendment rights to be free from an unreasonable seizure. In contrast, in the immigration detention context, no such neutral judge has any role in the process. Every person who authorizes a noncitizen’s arrest and detention works for a law enforcement agency, causing one to wonder who exactly is exercising independent judgment over decisions concerning noncitizens’ physical freedom.

This article begins with an overview of the relevant Fourth Amendment law, which requires a neutral judge to review a law enforcement officer’s warrantless arrest in order to continue detention, and demonstrates why the Fourth Amendment applies to immigration arrests, although nominally “civil.” Thus, the lack of a truly neutral judge available to review DHS arrest decisions exposes the entire immigration detention system to a Fourth Amendment challenge. To resolve this issue, I propose that, in order to continue pretrial detention for deportation, federal magistrate judges, rather than immigration judges, must make a probable cause finding. This proposal resolves the Fourth Amendment violations that occur when the only supposedly “neutral” judge, who authorizes the jailing of a human being, is regularly critiqued as not so “neutral.” While others have effectively argued that the entire immigration adjudication system needs a judge who is untethered from a law enforcement agency, in this article I focus only on the initial decision to continue pretrial detention, as this is where, in the criminal pretrial context, the Fourth Amendment’s probable cause hearing requirement attaches.

KJ

Detainees Moved from Southern Border to NYC

The Gothamist reports that some 235 detained migrants have been moved from the southern border to NYC-area jails.

The story reminds me of this chart from Mark Noferi, Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings, 18 Mich. J. Race & Law 63, 75 (2012). It shows the likelihood that a detainee is going to be transferred -- more than 50% of detainees are transferred once, some 25% are transferred twice, and 10% of detainees are transferred three times.

-KitJ

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

Promoting Pereira

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

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

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

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

Immigration Based on Credit Reports

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