ImmigrationProf Blog

Immigration Article of the Day: Keeping Counsel by Natasha Phillips

Photo: Natasha Phillips, Linkedin

Natasha Lee is a 2022 graduate of the University of Michigan Law School. She recently published a Note with the Michigan Journal of Race and Law entitled Keeping Counsel: Challenging Immigration Detention Transfers as a Violation of the Right to Retained Counsel. 27 Mich. J. Race & L. 375 (2022). Check out the abstract:

In 2019 U.S. Immigration and Customs Enforcement (“ICE”) incarcerated nearly 500,000 individuals. More than half of the individuals detained by ICE were transferred between detention facilities, and roughly thirty percent of those transferred were moved between federal circuit court jurisdictions. Detention transfers are isolating, bewildering, and scary for the detained noncitizen and their family. They can devastate the noncitizen's legal defense by destroying an existing attorney-client relationship or the noncitizen's ability to obtain representation. Transfers also obstruct the noncitizen's ability to gather evidence and may prejudicially change governing case law. This Note describes the legal framework for transfers and their legal and non-legal impacts. It contends that transfers violate noncitizens' constitutional and statutory rights to retained counsel by obstructing the attorney-client relationship. Further, it argues that federal courts have jurisdiction to review right to counsel challenges to transfers under the Immigration and Nationality Act. Written with practitioners in mind, this Note canvasses the practical and legal difficulties of making such a challenge.

Congratulations on the publication, Natasha! I look forward to reading this piece.

-KitJ

Immigration Article of the Day: Refugeehood Reconsidered: the Central American Migration Crisis by Steven Macedo

Refugeehood Reconsidered: the Central American Migration Crisis by Steven Macedo

Abstract

“Who is a refugee?” This essay explores the lively debate on this question in ethics, political theory, and international law. The world now has more refugees than any time since World War II, and there may be no area of public policy in advanced Western states more fraught with deep moral and practical dilemmas. Are state persecution and alienage necessary conditions of refugeehood or is mortal peril sufficient, whatever its cause? The essay describes the various moral grounds relevant to claims for refugeehood, including general humanitarian duties, obligations arising from past and ongoing relations and commitments under international law, and the existence of the state system itself. Particular attention is paid to the Central American migration crisis, and the question of reparative obligations on the part of the U.S. arising from climate change and past state policies that have unjustly harmed sending countries. Further complicating the question of what we ought to do, even for progressive policymakers, is the looming threat of right-wing populist backlash.

KJ

Carly Goodman on St. Patrick's Day, in the Washington Post

Carly Goodman, author of "Dreamland: America's Immigration Lottery in an Age of Restriction" (UNC Press), has an excellent essay in Friday's Washington Post 'Made by History' series on St. Patrick's Day and its connection to immigration and the immigrant experience.

As Goodman writes:

But the pageantry and pride on display on St. Patrick’s Day speak to something more than a shared ethnic identity. They are tied to the Irish immigrant experience, which is a crucial part of Irish American culture. Irish Americans have long used St. Patrick’s Day parades to demand opportunities for immigration from their native land, and one of these campaigns even opened doors for immigrants from across the globe. Its success is a reminder that immigration doesn’t need to be a zero sum game, especially because the inclusion of diverse communities of immigrants has long been a boon for the United States.

You can read or listen to the full essay here.

IE

Immigration Article of the Day: Immigration Law and Slavery: Rethinking the Migration or Importation Clause by Geoffrey Heeren

Immigration Law and Slavery: Rethinking the Migration or Importation Clause by Geoffrey Heeren, Wisconsin Law Review, Vol. 2023, No. 4, 2023

Abstract

The traditional account of the origins of federal immigration law mostly glosses over its deep connection to slavery. An examination of that connection calls the constitutional foundation for immigration law into question, alters the calculus for judicial review of federal immigration action, reframes our understanding of federalism, and lays bare the nation’s exploitative dependence on immigrant labor. This article makes this paradigm shift by focusing on a long-neglected textual source for federal immigration power: the Migration or Importation Clause of Article I, Section 9, Clause 1 of the Constitution. Scholars have almost uniformly discounted the Migration or Importation Clause as a source for federal immigration power because of its connection to slavery. In sharp contrast, this article contends that the Migration or Importation Clause makes sense as a source for the federal immigration power because of its connection to slavery, which was deeply intertwined in the early Republic with immigration.

The history of the Constitutional Convention reveals that the framers specifically discussed slavery and immigration together and were aware that their chosen wording for the Migration or Importation Clause would apply to free immigrants. An originalist understanding of the Clause therefore supports a federal immigration power under the Commerce Clause, which was the presumptive basis for regulating the slave trade after the 1808 date set out in the Migration or Importation Clause.

The legacy of the Migration or Importation Clause continues to be felt in immigration law. Slavery was an atrocity that inflicted intergenerational harm on blacks; in contrast, immigrants have often enjoyed opportunities and passed on wealth. Nonetheless, the current structure of immigration law perpetuates nineteenth century labor norms for the millions of undocumented workers who under threat of deportation do much of the nation’s most difficult work for lower p ay and with fewer legal protections than documented workers. Reckoning with the ties between immigration law and slavery offers an opportunity to reflect on the failures of this system, and also reveals a redemptive path forward. In the face of an exploitative system, the strategies and logic of abolitionism offer hope for a better immigration future.

KJ

Immigration Article of the Day: A Lack of Uniformity, Compounded, in Immigration Law by Jill E. Family

A Lack of Uniformity, Compounded, in Immigration Law by Jill E. Family, Notre Dame Law Review, Vol. 98

Abstract

The Administrative Procedure Act is known for bringing standardization to federal agency behavior. The APA’s framework for adjudication, however, is lax and incomplete. It provides standards, but only meaningfully for formal adjudication, and Congress rarely requires agencies to follow the APA’s formal adjudication procedures. The APA, therefore, expressly allows for nonuniform adjudication in that it requires little of the informal adjudication that makes up the lion’s share of agency adjudication.

This lack of uniformity in adjudication is prominent in immigration law. When federal agencies adjudicate whether to remove (deport) an individual from the United States, those agencies act pursuant to the Immigration and Nationality Act (INA) and not the APA. The INA establishes removal adjudication before an immigration judge. The lack of uniformity is compounded in immigration law, however, because most removals are achieved not through the INA’s immigration judge proced ures but rather through various diversions from immigration court. These diversions provide fewer procedural protections and deviate from the supposed standard of a hearing before an immigration judge. In practice, there are no centralized, uniform procedures for removal adjudication. The INA theoretically provides a substitute North Star in place of the APA, but in practice the INA’s immigration court procedures only apply to a minority of cases.

This phenomenon in immigration law raises questions about the strength of the APA and the value of uniformity in administrative law. If the APA’s aim was to improve adjudication, it has failed in immigration law. The removal adjudication system is extremely dysfunctional. Removal adjudication does not have the constitutional-like, uniform standards it desperately needs.

KJ

Immigration Article of the Day: The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice by Jack Chin and Anna Ratner

The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice by Jack Chin and Anna Ratner, 20 Asian American Law Journal 17 (2022)

Abstract

For nearly a century, California law embodied a rabid anti-Asian policy, which included school segregation, discriminatory law enforcement, a prohibition on marriage with Whites, denial of voting rights, and imposition of many other hardships. The Alien Land Law was a California innovation, copied in over a dozen other states. The Alien Land Law, targeting Japanese but applying to Chinese, Koreans, South Asians, and others, denied the right to own land to noncitizens who were racially ineligible to naturalize, that is, who were not White or Black. After World War II, California’s policy abruptly reversed. Years before Brown v. Board of Education, California courts became leaders in ending Jim Crow. In 1951, the California legislature voluntarily voted to pay reparations to people whose land had been escheated under the Alien Land Law. This article describes the enactment and effect of the reparations laws. It also describes the surprisingly benevolent treatment by courts of lawsuit s undoing the secret trusts and other arrangements for land ownership intended to evade the Alien Land Law. But ultimately, the Alien Land Law precedent may be melancholy. California has not paid reparations to other groups who also have conclusive claims of mistreatment. Reparations in part were driven by geopolitical concerns arising from the Cold War and the hot war in Korea. In addition, anti-Asian immigration policy had succeeded in halting Japanese and other Asian immigration to the United States. Accordingly, one explanation for this remarkable act was that there was room for generosity to a handful of landowners with no concern that the overall racial arrangement might be compromised.

KJ

Immigration Article of the Day: Essentializing Cultures in U.S. Asylum Law by Jaclyn Kelley-Wilmer & Estelle McKee

Essentializing Cultures in U.S. Asylum Law by Jaclyn Kelley-Wilmer & Estelle McKee, Brooklyn Law Review, Forthcoming

Abstract

Asylum applicants must tell a story about their home country or culture that reduces and problematizes the culture. The requirements of asylum law demand that an applicant show why they will suffer persecution in their home country and that their government will not protect them from it. This legal framework prompts applicants to present a narrative in which their home culture plays the role of the ultimate antagonist, the force that propels the applicant’s persecutors to single them out for harm and renders their government passive –or even complicit—in the face of it.

Such a narrative necessarily reduces the applicant’s culture to its most negative and threatening features, eliminating complexity and flattening contours of positivity and joy. This essentialization of culture reinforces racism, stereotypes, and the narrative of Western moral superiority. And it harms all participants in the asylum system: applicants, advocates, and adjudicators. And once such a narra tive succeeds in persuading an adjudicator to grant asylum, its constricted depiction of the applicant’s culture becomes the predominant story of that culture. Case law validates and amplifies the essentialized story. New asylum applications replicate it.

The cultural concept of “machismo” exemplifies this cultural essentialization. In this piece, we trace the development of this concept as it ascends through agency and federal-court case law to become the predominant narrative for Central American asylum claims based on the persecution of women applicants. We closely examine these harms through a lens of racial and social justice to unpack the colonial context of essentialization and challenge its utility. Lastly, we turn to detailed solutions that can potentially mitigate this phenomenon.

KJ

Immigration Article of the Day: Punitive Legal Immigration by Pedro Gerson

Punitive Legal Immigration by Pedro Gerson, Kentucky Law Journal, Forthcoming

Abstract

The American immigration system is plagued with rules and regulations that deeply interfere with migrants’ lives and freedoms. Depending on their status, people that migrate lawfully may face restrictions or prohibitions on employment, travel, and even family separation. Moreover, certain kinds of legal immigrants may never acquire the entire bundle of rights of citizens even if they eventually attain citizenship. These are what I call the collateral consequences of legal immigration.

Much like in the criminal contexts, these collateral consequences have tremendous effects on the lives of those bearing them as well as their communities and the economy at large. Academic literature on immigration has largely ignored these costs. However, the collateral consequences of immigration affect such fundamental interests that it is time for a reassessment.

This paper is the first one to describe the collateral consequences of legal immigration and what gives rise to them. It then explores whether they should be conceived as administrative burdens, Pigouvian taxes, or punishment. This paper concludes that collateral consequences are best understood as punishment because neither the tax nor the burden framework accurately capture what these costs do nor how they are experienced. This theoretical discussion serves to establish the normative need to eliminate the collateral consequences of legal immigration. The paper concludes with some regulatory and legislative fixes to achieve this goal.

KJ

"Big Law's Immigration Advocates by Jayanth K. Krishnan, Megan Riley, & Vitor M. Dias" Generates Discussion

A previous Immigration Article of the Day (Big Law's Immigration Advocates by Jayanth K. Krishnan, Megan Riley, & Vitor M. Dias) is generating a fair amount of commentary on the ImmProf listserve.  One of the author's articles, Jay Krishnan (Indiana-Bloomington), among others, weighed in.

Here is the abstract of the article:

This study examines lawyers working in the federal appellate courts who represent immigrants seeking relief from deportation. By analyzing over 23,000 appellate cases during the Trump and Obama Administrations, the research here uncovers crucial findings. To begin, there was a statistically significant difference in the win rates of lawyers working pro bono and coming from the largest and most profitable, corporate “Big Law” firms compared to lawyers based in other, typically more specialized immigration practice settings. Specifically, during the Trump Administration, Big Law lawyers won at nearly three times higher a rate than non-Big Law lawyers in the federal appellate courts. During the Obama Administration, Big Law lawyers won over three times more often.

To supplement these quantitative results, interviews with Big Law and non-Big Law lawyers were conducted. As this study makes clear, it is not that those from Big Law firms are necessarily smarter or better at understanding immigration than non-Big Law practitioners. Indeed, there are certainly those lawyers in the latter cohort who do well in the appellate courts. Still, because of their enormous resource advantages, Big Law lawyers, on average, perform better because they have the luxury of selecting cases they believe are more likely to win. Additionally, Big Law firms have appellate specialists. They also have available personnel who can readily assist on these cases, as well as access to diverse research technologies and a keen familiarity with the federal courts’ norms – all of which are vital in preparing Big Law lawyers during the appeals process.

Of course, Big Law firms are only involved in a fraction of federal appellate deportation cases. Nevertheless, their relatively high win rate, and the reasons behind it, have serious implications for how immigrants who do not have this type of representation are able to obtain justice.

****

For additional discussion of the Article on Science Blog, click here.

KJ

Immigration Article of the Day: Making Protection Unexceptional: A Reconceptualization of the U.S. Asylum System by Denise L. Gilman

Making Protection Unexceptional: A Reconceptualization of the U.S. Asylum System by Denise L. Gilman

Abstract 

This Article posits that the United States treats asylum as exceptional, meaning that asylum is presumptively unavailable and is offered only in rare cases. This exceptionality conceit, combined with an exclusionary apparatus, creates a problematic cycle. The claims of asylum seekers arriving as part of wide-scale refugee flows are discounted, and restrictive policies are adopted to block these claims. When the claims mount anyway, the United States asserts “crisis” and deploys new exclusionary measures. The problems created by the asylum system are not addressed but instead deepen. The Article commends a turn away from policies that have led down the same paths once and again.

The Article first describes the development of the modern U.S. asylum system, highlighting data demonstrating that the system has exceptionality as a basic feature. In doing so, the Article reconsiders an assumption underlying much scholarship that the U.S. asylum system is fundamentally a generous one even if it has sometimes failed to live up to its promise. The Article then establishes that the emphasis on exceptionality has led to an exclusionary asylum process, which mostly takes place in the context of deportation proceedings and layers on additional procedural barriers. Next, the Article documents how the system places genuine refugees in danger while causing violence at the border. Further, embedded bias in the system, resulting from the focus on exceptionality, creates a legitimacy problem. The system discredits commonly-arising claims from neighboring nations, particularly Central America, while favoring asylum seekers from distant nations such as China. The system also violates international human rights and refugee law.

The Article concludes by offering suggestions for more stable, effective, and humane policies to address refugee arrivals in the United States. In addition to eliminating many existing substantive restrictions on asylum, the system should incorporate presumptions of asylum eligibility for applicants from designated nations or situations that are sending significant refugee flows. In addition, the United States should adopt a specialized non-adversarial asylum system for all cases, apart from the deportation system and with genuine independent review of denials of asylum.

KJ

Immigration Article of the Day: Bringing "Civil"ity into Immigration Law: Using the Federal Rules of Civil Procedure to Fix Immigration Adjudication by Richard Frankel

Bringing "Civil"ity into Immigration Law: Using the Federal Rules of Civil Procedure to Fix Immigration Adjudication by Richard Frankel, Vanderbilt Law Review, Forthcoming

Abstract

Government lawyers frequently argue, and courts have frequently held, that non-citizens in removal proceedings do not have the same rights as defendants in criminal proceedings. A common argument made to support this position is that removal proceedings are civil matters. Accordingly, a non-citizen facing deportation has fewer due process protections than a criminal defendant and deportation proceedings similarly provide fewer protections than criminal proceedings.

In many ways, however, the rules governing immigration proceedings differ markedly from those governing civil actions in court. Immigration proceedings suffer from arcane and hyper-technical procedures that impede immigrants from having their claims reviewed on the merits. Notably, the civil justice system was plagued by similar problems back in the early Twentieth Century. The response was to create the Federal Rules of Civil Procedure, which emphasized a preference for deciding cases on their merits rather than on procedural technicalities. The modern rules substantially simplified pleading rules and emphasized flexibility in order to foster the goals of fairness, efficiency, and decisions on the merits.

This article argues that the process which spawned the Federal Rules can offer valuable lessons for reforming immigration proceedings. The article identifies several examples where immigration rules differ from the Federal Rules in ways that inhibit decisions on the merits. It then proposes a fundamental re-examination of immigration court rules and practices with an eye toward promoting decisions based on substance rather than procedure as well as a structure for ongoing reform. Given the high stakes in removal proceedings, if society continues to treat immigration proceedings as civil matters, the least it can do is to incorporate those aspects of the Federal Rules that can best promote access to justice for non-citizens.

KJ

Immigration Article of the Day: Mass Surrender in Immigration Court by Michael Kagan

Mass Surrender in Immigration Court by Michael Kagan, 14 UC Irvine Law Review, Forthcoming

Abstract

In theory, the Department of Homeland Security bears the burden of proof when it seeks to deport a person from the United States. But the government rarely has to meet it. This Article presents original data from live observation in Immigration Court, documenting that almost all respondents in deportation proceedings admit and concede the charges against them, even when they have attorneys, without getting anything in return from the government. Focusing especially on the role of immigrant defense lawyers, the Article explores why this is happening. It critiques the legal standards of proof used in Immigration Court, while also exploring normative ambiguities about the role of immigration lawyers in deportation proceedings. Together, these factors are effectively depriving many immigrants of the vigorous legal defense that they deserve.

KJ

Immigration Article of the Day: The Second Amendment's 'People' Problem by Pratheepan Gulasekaram

The Second Amendment's 'People' Problem by Pratheepan Gulasekaram, Vanderbilt Law Review, Forthcoming

Abstract

The second amendment has a “people” problem. In 2008, Heller v. District of Columbia expanded the scope of the second amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited the “the people” of the second amendment to “law-abiding citizens.” In 2022, NYSRPA v. Bruen doubled-down on the amendment’s self-defense rationales, but once again framed the right as one possessed by “citizens.” In the period between the two Supreme Court cases, eight federal courts of appeals wrestled with the question whether the right to keep and bear arms is a citizen-only right. Although those courts proffered varying perspectives on the meaning of “the people,” they uniformly rejected challenges to the federal criminal ban on possession by unlawfully present persons and nonimmigrants. In addition to the federal criminal ban, the immigration code allows for deportation of all noncitizens, including permanent residents, for firearms-related violations. In combination, the Supreme Court’s rhetoric, lower federal court decisions, and federal criminal and immigration statutes excise noncitizens from the “the people” of the second amendment.

This Article is the first to examine the relationship between “the people,” immigration status, and the right to keep and bear arms, in the wake of both Heller and Bruen. My analysis argues that courts undertheorize the systemic effects of constricting “the people” to citizens, or more recently, countenance historical inquiries that yield incoherent results. Intratextual comparison of “the people” of the second amendment with “the people” of the first and fourth amendments fares no better. That appraisal also commands broader inclusiveness for the second amendment’s rightsholders than current jurisprudence permits. This Article concludes that a more coherent theory of second amendment rightsholders would necessarily include most noncitizens, at least when the right is grounded in self-defense from interpersonal violence. This conclusion casts doubt on current federal law that categorically criminalizes possession by certain groups of noncitizens, as well as deportation rules that banish all noncitizens for firearms violations. More capacious interpretations of the second amendment’s “the people” in turn, helps ensure noncitizens’ inclusion under other core constitutional protections.

KJ

Immigration Article of the Day: Resisting Employer Sanctions: A Strategy for Civil Disobedience by Bill Ong Hing

An article by ImmigrationProf blogger!

Resisting Employer Sanctions: A Strategy for Civil Disobedience by Bill Ong Hing, 33 Berkeley La Raza L.J. (2023) (forthcoming)

Abstract

The Deferred Action for Childhood Arrivals (DACA) program is on a death march in the federal courts. Ending DACA would mean that 600,000 individuals would lose their work permits. That means that about 22,000 DACA recipients would lose employment authorization every month for two years, roughly 1,000 per business day.

The Development, Relief, and Education for Alien Minors Act (DREAM Act) would resolve the situation for DACA recipients and other Dreamers by granting them lawful permanent residence status.

Businesses have been loud supporters of the DREAM Act. Statements of support from Google, Facebook, Apple, Cisco, Uber, Ikea, Adobe, Hilton, Best Buy, Levi Strauss, and many others are easy to find. In 2018, when DACA was under threat by the Trump administration, I urged supportive employers to stand behind their DACA employees if DACA was terminated and to engage in civil disobedience. I argued that giving in to the threat of employer sanctions would turn employers into a “weapon of oppression and dehumanization” and that defying employer sanctions would be the “right moral answer.”

This article is a follow up to my 2018 call for employer civil disobedience to support DACA recipients and the DREAM Act. I will describe efforts that businesses have engaged in to support the DREAM Act, as well as efforts that some have taken on to help their undocumented employees obtain lawful immigration status. I will also describe efforts by my students and me to convince corporate businesses to play a bigger role in support of the DREAM Act and DACA employees. Our efforts have included three different asks: 1) to do more to publicly support the passage of the DREAM Act; 2) to pay the legal fees necessary to have DACA employees screened by immigration lawyers to determine if a path to immigration status exists for an individual under existing law, and 3) to seriously reflect on what the employer will do if DACA is terminated and what civil disob edience or an alternative employment plan would look like.

I call on all employers to engage in civil disobedience if DACA is terminated. However, my focus here is on big business. I believe that the voice of big business can have great impact in the halls of Congress. I also know that big business has the resources to battle any attempt by the government to punish, plus these companies can afford the fines if any are imposed.

KJ

Immigration Article of the Day: NIMBYism at the Border by Haiyun Damon-Feng

Check out NIMBYism at the Border by  Haiyun Damon-Feng (and here) on the Harvard law Review Blog.  It begins:

"Asylum law has a major NIMBY problem, and the Biden Administration’s newly proposed asylum ban is poised to be an extreme manifestation of it.

NIMBY, or “Not In My Backyard,” refers to movements by land owners or residents opposing new development or use of the land or resources they view as within their domain. On February 21, 2023, the Department of Homeland Security and Department of Justice jointly proposed regulations that would allow for the rapid deportation of asylum seekers on the theory that if a person traveled through another country before arriving in the United States, then they are that other country’s problem. These regulations are a variation on previous Trump-era policies that have been deemed unlawful by federal courts in California and the District of Columbia, and many scholars and advocates, including myself, have argued that policies like the asylum ban violate the United States’ obligations under both domestic and international law."

KJ

Immigration Article of the Day: Recognizing the Right to Family Unity in Immigration Law

Photo: Eugene Lee, Linkedin

Eugene Lee is a J.D. Candidate at the University of Michigan Law School. He recently published a note with the Michigan Law Review entitled Recognizing the Right to Family Unity in Immigration Law. 121 Mich. L. Rev. 677 (2023). Check out the abstract:

The Trump Administration's travel ban and separation of families at the U.S.-Mexico border drew newfound attention to the constitutional due process right to family unity. But even before then, the right to family unity has had a substantial history. Rooted in the Supreme Court's line of privacy rights cases, the right to family unity is amorphous. This ambiguity has given rise to disagreement regarding not only legal doctrine surrounding the right but also whether the right even exists. This Note clarifies this disagreement by offering a historical account of the right to family unity and an overview of three categories of immigration cases in which litigants assert this right. Acknowledging that a substantive resolution of the problem of family separation in immigration will require legislative and executive intervention, this Note argues instead that courts should adopt two recommendations that would, as a matter of judicial process, more fully recognize the right. These measures would validate the dignitary interests of immigrant families and signal to the legislative and executive branches the constitutional implications of their longstanding inaction.

Congratulations on the publication, Eugene! I look forward to reading this piece.

-KitJ

Immigration Article of the Day: "Punitive Legal Immigration" by Pedro Gerson

The Immigration Article of the Day is: Punitive Legal Immigration by Pedro Gerson, forthcoming in the Kentucky Law Journal and available on SSRN.

Here is the abstract:

The American immigration system is plagued with rules and regulations that deeply interfere with migrants’ lives and freedoms. Depending on their status, people that migrate lawfully may face restrictions or prohibitions on employment, travel, and even family separation. Moreover, certain kinds of legal immigrants may never acquire the entire bundle of rights of citizens even if they eventually attain citizenship. These are what I call the collateral consequences of legal immigration.

Much like in the criminal contexts, these collateral consequences have tremendous effects on the lives of those bearing them as well as their communities and the economy at large. Academic literature on immigration has largely ignored these costs. However, the collateral consequences of immigration affect such fundamental interests that it is time for a reassessment.

This paper is the first one to describe the collateral consequences of legal immigration and what gives rise to them. It then explores whether they should be conceived as administrative burdens, Pigouvian taxes, or punishment. This paper concludes that collateral consequences are best understood as punishment because neither the tax nor the burden framework accurately capture what these costs do nor how they are experienced. This theoretical discussion serves to establish the normative need to eliminate the collateral consequences of legal immigration. The paper concludes with some regulatory and legislative fixes to achieve this goal.

IE

Immigration Article of the Day: Cascading Consequences of Sinking States by Melissa Sewart, Stanford Journal of International Law Forthcoming

Cascading Consequences of Sinking States by Melissa Sewart, Stanford Journal of International Law Forthcoming

Abstract

Sea-level rise due to climate change and the impacts on small island states is one of the most pressing emerging issues in international law. This article examines the phenomenon of sinking states – or low-lying island states that are at risk of the submergence of the entirety of their territory due to sea level rise. The existence of sinking states raises complex and profound questions related to statehood, nationality, and human rights, to which international law currently provides no answer.

This article addresses the cascading consequences of sinking states. It evaluates proposals for addressing the phenomenon and analyzes the future implications of these potential solutions. The cascading consequences of sinking states include undermining of the principles of the sovereign equality of states and the right to self-determination, redefining statehood in a manner that may unjustly exclude other similarly situated nations and peoples, an exacerbation of humanitarian crises related to climate change, and the undermining of the international legal order.

This article is the first to examine what sinking states and the cascading consequences of their existence reveal about cracks in the foundation of international law. They reveal weaknesses in the state-centric model of international law and the peril of the retrenchment from the progressive development of a more just legal framework.

Sinking states serve as a metaphor for international law and the whole of humanity. If we fail to meet the urgency of the moment with a radical new vision for our collective security, we risk our own potential demise.

KJ

Immigration Article of the Day: Ukrainian Refugees, Race, and International Law's Choice Between Order and Justice by Melissa Jackson Sow

Ukrainian Refugees, Race, and International Law's Choice Between Order and Justice by Melissa Jackson Sow, 116 (4) American Journal of International Law Unbound (2022) doi:10.1017/ajil.2022.56

Abstract

\The resurgence of racist rhetoric and policies concerning people fleeing the war in Ukraine serves as a reminder that the ostensible goals of the 1951 Convention Relating to the Status of Refugees and 1967 Protocol are regularly eschewed by states making decisions about how to allocate grants of asylum. This Essay makes the claim that racial tiering of protection-seekers demonstrates that states use international refugee law to negotiate their national whiteness contracts and to secure racially hegemonic geopolitical ordering.

KJ

Immigration Article of the Day: What's the Matter with Franco? by Amelia Wilson

What's the Matter with Franco? by Amelia Wilson

Abstract

The 2013 class action lawsuit Franco-Gonzalez v. Holder in the Central District of California was the single most important advancement in the rights of noncitizens with mental health disabilities facing deportation. The court’s decision in that case brought much needed protections in the form of government-appointed counsel, bond hearings, and other procedural safeguards to a uniquely vulnerable population. To date, no other immigrant group has won this right. Amplifying Franco’s importance was that, for the first time, immigration judges had a standardized, precise test for evaluating mental competence—and supportive tools such as forensic competency evaluations to assist them where a person’s mental condition was unclear. Immigration enforcement and detention apparatuses, for their part, were ordered to engage in mental health information-gathering, mental health screenings, record keeping, and reporting.

Ten years after Franco, however, the case and its namesake federal program are failing tens of thousands of immigrants with serious mental health challenges. These individuals are excluded from Franco’s ambit for various reasons: some fall outside the case’s narrowly defined scope, while others are trapped in the shadowy extra-legal universe of removal proceedings where many noncitizens find themselves. Still other noncitizens fall squarely within Franco’s reach but endure extremely prolonged detention times as a direct result of the mental competency process Franco created. Poor training of immigration judges and identification failures by DHS compound the problems.

This article is the first scholarly piece to criticize Franco. It is also the first to conduct a deep, nuanced analysis of Franco: both the limits of the court’s decision, and the failings of the federal program created to implement Franco’s mandates. The analysis includes a granular examination of internal government documents obtained from two Freedom of Information Act requests that reveal how the competency “conveyor belt” intersects with detention periods. Finally, this article offers two possible solutions that would ameliorate some of Franco’s harms in attainable ways while offering immediate gains for noncitizens with mental health disabilities.

KJ