Monday, May 20, 2024

Immigration Article of the Day: Fetch the Bolt Cutters: Reflections on Racial Capitalism and the NAFTA/USMCA by J. Benton Heath 

Fetch the Bolt Cutters: Reflections on Racial Capitalism and the NAFTA/USMCA by J. Benton Heath, Brooklyn Journal of International Law, Forthcoming

Abstract

From the pecan orchards of West Texas, this paper offers a reflection on the utility of racial capitalism as an organizing frame for understanding international trade and trade agreements. The paper is also a tribute to other scholars in this field, whose work long precedes my own. It is an expanded version of a presentation given for an symposium at Brooklyn Law School in October 2023 on Promises and Challenges for the Future of North American Trade, and it is written for readers who may be unfamiliar with this body of work.

KJ

May 20, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Sunday, May 19, 2024

Immigration Article of the Day: Name, Image, and Likeness Deals and Immigration Consequences for International Student-Athletes  by Eric E. Johnson & Kit Johnson

Name, Image, and Likeness Deals and Immigration Consequences for International Student-Athletes  by Eric E. Johnson & Kit Johnson, 76 Oklahoma Law Review 15 (2023)

Abstract

International student-athletes are being sidelined from deals that would allow them to reap financial benefits from licensing their name, image, and likeness (“NIL”). The calls to sideline these students are not coming from the NCAA or even the federal agencies in charge of immigration. The calls are coming from overly cautious universities, attorneys, and academics who incorrectly see NIL licensing as work or employment that is incompatible with the visa obligations of international student-athletes. This Article argues that international athletes can license their NIL without violating their visa terms.

KJ

May 19, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Saturday, May 18, 2024

Immigration Article of the Day: The Perennial Eclipse: Race, Immigration, and How Latinx Count in American Politics by Rachel F. Moran

Rachel Moran

The Perennial Eclipse: Race, Immigration, and How Latinx Count in American Politics by Rachel F. Moran, Houston Law Review, Vol. 61, No. 4, 2024, pp. 719-54.

Abstract

In 2016, the U.S. Supreme Court decided Evenwel v. Abbott, a case challenging the use of total population in state legislative apportionment as a violation of the Equal Protection Clause. The plaintiffs sued Texas, alleging that the State impermissibly diluted their voting power because they lived in areas with a high proportion of voting-age citizens. When total population was used to draw district lines, the plaintiffs had to compete with more voters to get their desired electoral outcomes than was true for voters in districts with low proportions of voting-age citizens. The Court rejected the argument, finding that states enjoy the discretion to choose among different population bases, including total population.

Since the Evenwel decision, there has been ongoing interest at both the federal and state levels in using alternatives such as citizen voting-age population (CVAP) to apportion representation. So far, the lack of accurate data on citizenship status has stymied these efforts. Even so, the issues in Evenwel deserve more attention than they have received. The choice about how to count when redistricting can have significant ramifications for both partisan power and minority voices. The litigation reveals the ways in which demographic change, especially the rise of immigrant populations, has tested the efficacy of a voting rights jurisprudence that largely focuses on citizens.

After describing the lawsuit and its aftermath, this Article turns to CVAP’s potential impact on political representation. The discussion first draws on the work of law professors Joseph Fishkin and Ilya Somin, both of whom conclude that alternative forms of representation significantly mitigate the shortcomings of the formal electoral process. Professor Fishkin focuses on virtual representation of those unable to vote, while Professor Somin emphasizes foot voting to express individual preferences. This Article suggests the limits of these strategies, especially for the undocumented, and then examines the issues from the perspective of immigrant integration. While most immigrants who are legally present in the United States eventually will be eligible to cast a ballot, those without legal status remain disenfranchised no matter how long they reside in and contribute to their communities.

For that reason, it is important to address how a switch to CVAP will affect the political representation of minority communities with substantial numbers of immigrants. This Article’s concluding section shows how this change might violate Section 2 of the Voting Rights Act if adopted in Texas. Redrawn maps could result in voter denial if large districts in areas with high proportions of noncitizens depress minority turnout. Under a totality of the circumstances test, altered district lines would be particularly vulnerable because of Texas’s history of electoral discrimination, ongoing racial and ethnic disparities, and continuing polarization. The shift could also lead to impermissible voter dilution. Empirical data reveals that Texans remain deeply divided along both partisan and racial lines. Using CVAP instead of total population would strengthen non-Hispanic white and Republican representation while weakening Latinx and Democratic representation. Those effects would be pronounced and, therefore, should be subject to the most exacting judicial scrutiny. Otherwise, a purportedly race-neutral choice about population count could be manipulated to suppress minority voters’ influence. By considering how the exclusion of those ineligible to vote will harm the minority electorate, courts can retool and revitalize Section 2 jurisprudence to meet the challenges of a changing demography.

KJ

May 18, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Friday, May 17, 2024

Immigration Article of the Day: The California Way: An Analysis of California’s Immigrant-Friendly Changes to its Criminal Laws by Evangeline Abriel

Evangeline Abriel

The California Way: An Analysis of California’s Immigrant-Friendly Changes to its Criminal Laws by Evangeline Abriel,   Howard Law Journal, Vol. 66, No. 3, 2023

Abstract

Immigration falls exclusively within the federal government’s purview, and states are generally prohibited from legislating in the area of immigration. At the same time, however, a large number of individuals are subject to deportation, denial of admission, and denial of immigration benefits based upon convictions of state crimes, over which states generally have exclusive authority. At a time when both the federal government and some states seem determined to expand the immigration consequences of even relatively minor criminal con-
duct, is there anything states can do to protect their noncitizen residents? Surprisingly, yes, quite a bit. California, for example, considers the term “Californian” to cover all of its residents, whether they are citizens, lawful permanent residents, or present without lawful status. This approach has led the state to enact a series of changes to its criminal statutes to reduce, in thoughtful and innovative ways, the immigration effect of some criminal conduct. Because the California Legislature is not the final authority in determining whether a
criminal history will result in immigration consequences, its changes are only as effective as their implementation by California courts and recognition by the federal immigration authorities.

KJ

May 17, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Thursday, May 16, 2024

Immigration Article of the Day: Decent Work for Displaced People: Lessons from the Experiences of Venezuelan Migrant and Refugee Workers in Colombia and Brazil by Jennifer Gordon

FLS Faculty Gordon, Jennifer 240x240 SM

Decent Work for Displaced People: Lessons from the Experiences of Venezuelan Migrant and Refugee Workers in Colombia and Brazil by Jennifer Gordon,   
International Labour Organization Research Brief

Abstract

This paper explores lessons from the mass migration of Venezuelans for efforts to advance decent work for migrants and refugees. Over the past decade, 7.7 million Venezuelans have fled their home country--the world’s largest modern movement of human beings across borders, surpassing both Ukrainian and Syrian refugees. Most live elsewhere in Latin America and the Caribbean. Although the response has been mixed, many host governments in the region have offered Venezuelans temporary legal status. Colombia and Brazil, for example, have now granted residence permits to almost all Venezuelan migrants and refugees, including the right to work and rights as workers. But how much difference does a work permit make in an economy that is substantially informal even for local workers? Reviewing the literature to date, the paper concludes that although the permits have brought meaningful benefits, many Venezuelans still labor under considerably worse conditions than their local counterparts. It then turns to the question of how to address this gap. To improve migrant and refugee working conditions in Colombia and Brazil, it argues, will require efforts to enforce workplace rights and increase worker representation at the bottom of the labor market, including in the informal economy. Almost a decade into the diaspora, some displaced Venezuelans are coming together to this end, with the support of civil society, trade unions, and their own associations. The paper presents case studies of emerging Venezuelan worker organizing efforts in Colombia and Brazil. It concludes that support for such initiatives is an essential part of a policy that seeks to incorporate migrants and refugees in host labor markets on decent work terms, both for the newcomers and for the local workers alongside whom they labor.

KJ

May 16, 2024 in Conferences and Call for Papers, Law Review Articles & Essays | Permalink | Comments (0)

Friday, May 10, 2024

Immigration Article of the Day: Immigraft by Jayesh Rathod & Anne Schaufele

Immigraft by immprofs Jayesh Rathod (American) & Anne Schaufele (UDC), 2024:2 Wisconsin Law Review 465, is an essay that explores the "unjust (often illegal) charging and retention of fees/payments by US immigration agencies." LOVE the title, my friends. Very, very clever.

Check out the abstract:

Pursuing the American dream is a costly endeavor. From the initial journey to the United States, to navigating the complicated immigration system, to labor exploitation, to scams targeting recent arrivals, immigrants pay heavily into the formal and informal sectors. As explored in this Essay, however, their pay-out does not stop there: the U.S. Department of Homeland Security (DHS) also charges and retains funds in unjustified ways, resulting in tens of millions of dollars transferred from the pockets of vulnerable immigrants and their families to the sprawling immigration bureaucracy. This Essay introduces the term immigraft to capture this phenomenon, defined as the unjust transfer of funds from individuals to the state in the context of efforts to obtain immigration benefits or relief from the state.

This Essay highlights four examples of immigraft in the U.S. immigration system, describing how sub-agencies of DHS have illegally and/or unjustly retained funds in the context of biometric services fees, humanitarian parole applications filed by Afghan nationals, immigration bond for noncitizens in removal proceedings, and administrative appeals filed due to obvious agency mistakes. This Essay concludes by exploring theoretical implications of immigraft, including the normalization of extraction of value from noncitizens and its corrosive effect on the relationship among citizens, noncitizens, and the state. By way of a path forward, this Essay also offers practical recommendations to address immigraft through executive action and congressional oversight.

-KitJ

May 10, 2024 in Law Review Articles & Essays | Permalink | Comments (0)

Thursday, May 9, 2024

Immigration Article of the Day: Aligning United States Law with International Norms Would Remove Major Barriers to Protection in Gender Claims by Karen Musalo

Headshot of Karen Musalo

Our Immigration Article of the Day is Aligning United States Law with International Norms Would Remove Major Barriers to Protection in Gender Claims by Karen Musalo, International Journal of Refugee Law (2024).  Here is the abstract:

The protection of women and girls fleeing gender-based harms has been controversial in the United States (US), with advances followed by setbacks. The US interpretation of particular social group and its nexus analysis, both of which diverge from guidance by the United Nations High Commissioner for Refugees (UNHCR), is the most significant barrier to protection. It has become almost impossible for women and girls to rely upon the particular social group ground because of current requirements that social groups not only be defined by immutable or fundamental characteristics, but also be socially distinct and have particularity. Establishing nexus is also a significant obstacle, with the US requirement of proof of the persecutor’s intent. In the first month of his administration, President Biden issued an executive order on migration, which raised hopes that these obstacles to protection would be removed. The order committed to protecting survivors of domestic violence and to issuing regulations that would make the US interpretation of particular social group consistent with international standards. The target date for the regulations was November 2021, but they have yet to issue. This article examines how the evolution of the US interpretation of particular social group and nexus has diverged from UNHCR recommendations. It shows how protection has been denied in gender cases involving the most egregious of harms. The article concludes by providing recommendations for realignment with international standards, which set a benchmark for evaluating the promised Biden administration regulations on the issue.

The article is highlighted on Immigration Courtside.

KJ

May 9, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Monday, May 6, 2024

International Students, Protests, Free Speech, and Consequences

Screenshot 2024-05-06 at 5.05.23 PM
The USCIS SEVIS Data Mapping Tool identifies international student populations in the U.S.; This map uses April 2024 data.

A few days ago, WaPo reported on the "higher stakes" for international students who engage in pro-Palestinian campus protests. As the paper noted, if an international student is expelled (and Vanderbilt, for one, has expelled student protestors), that would lead to termination of their visa and, thus, end their authorization to remain lawfully in the United States. Even lesser disciplinary action, such as a suspension (which Cornell has done and Columbia is threatening), can lead to visa termination if the student "can no longer maintain a full course of study."

International students who don't engage in protests but take to social media to voice their opinions on the Israeli-Palestinian conflict may also face "higher stakes" for engaging in even these efforts. I spoke with my university paper, the OU Daily, about these issues. The concern is whether the student "endorses or espouses terrorist activity" with their posts. See INA § 212(a)(3)(B)(i)(IV).

Immprof Michael Kagan (UNLV) has considered these issues before. Check out his articles: (1) Do Immigrants Have Freedom of Speech?, 6 Cal. L. Rev. Circuit 84 (2015); (2) When Immigrants Speak: The Precarious Status of Non-Citizen Speech Under the First Amendment, 57 B B.C. L. Rev. 1327 (2016); (3) Regulatory Constitutional Law: Protecting Immigrant Free Speech without Relying on the First Amendment, 56 Ga. L. Rev. 1417 (2022).

I, for one, encourage international students to rely on their U.S. citizen allies in this moment and to allow those allies to take on the mantle of social media advocacy and in-person protests. The stakes are simply too high for international students.

-KitJ

May 6, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Sunday, May 5, 2024

Immigration Article of the Day: Protecting the Vulnerable in the Twenty-First Century: An International Perspective by Justice Susan Glazebrook

Protecting the Vulnerable in the Twenty-First Century:  An International Perspective by Justice Susan GlazebrookNew Zealand Supreme Court

Abstract

While the Refugee Convention has been the main mechanism for protecting those fleeing harm in the twentieth century, this paper seeks to assess whether that instrument adequately deals with twenty-first century issues. In particular, it will assess the extent to which the Refugee Convention operates to protect women and children. The paper will examine that issue under four main headings: violence against women; refugee camps; climate change migrants; and victims of environmental disasters.

KJ

May 5, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (1)

Saturday, May 4, 2024

Immigration Article of the Day: A Fast Track to Refuge, or a Pathway to Nowhere? Designing Successful Priority 2 Group Designations by Betsy Fisher

Betsy L. Fisher

A Fast Track to Refuge, or a Pathway to Nowhere? Designing Successful Priority 2 Group Designations by Betsy Fisher, 5 AILA Law Journal 211 (2023)

Abstract

Priority 2, or P-2, group designations, offer the promise of efficient refugee resettlement processing for groups of refugees that share common characteristics. But many P-2 groups—most of all, those designated for the Iraqi Direct Access Program—have failed to advance efficient resettlement for their members. This article identifies the traits required for successful P-2 designations: having easily identifiable members, offering a benefit that other referral mechanisms do not, facilitating access to refugee processing, providing accurate information about processing, and operating for a reasonable period. In many cases, other programs and methods of referral, including encouraging individual referrals of a targeted group, will achieve better access to refugee resettlement.

KJ

May 4, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Friday, May 3, 2024

Immigration Article of the Day: Manufactured State Immigration Emergencies as State Vigilantism  by Kate Huddleston

Manufactured State Immigration Emergencies as State Vigilantism  by Kate Huddleston, Texas A&M Law Review Arguendo, Forthcoming

Abstract

President Trump shattered norms when he declared a national emergency at the U.S.–Mexico border to build a border wall. State governors have now followed that lead in taking up what Justice Jackson, dissenting in Korematsu v. United States (1944), called the “loaded weapon” of emergency—like Trump, in the context of the border. The governors of Texas, Arizona, and Florida have all issued state declarations of emergency based on (1) migration and (2) the Biden administration’s purported failure to engage in immigration enforcement. These state emergency declarations have not been studied or even identified in legal literature as a state mirror to Trump’s federal declaration, even though they are as norms-shattering as the Trump declaration was both facially and in implementation. In justifying the emergency declarations, the governors have used xenophobia and the logic of self-help from international law. In other words, this is state vigilantism: claiming that because the federal government is not using its power to protect states’ residents, the states are unilaterally exercising it themselves under state emergency authority. This state vigilantism is sweeping, extraordinary, and contrary to the Supremacy Clause—particularly in Texas, which has implemented a parallel system of state immigration enforcement and has deployed National Guard soldiers along the border with instructions to force migrants into Mexico. It is also continuous with the erosion of norms begun with Trump’s border wall “emergency.” In addition to the reforms that scholars suggested following Trump’s declaration, to combat state vigilantism, I propose that the federal government not only focus on Supremacy Clause litigation but also exercise its civil rights enforcement authority and that state legislatures and judges limit the scope of state emergency declarations, to exclude policy disagreements with the federal government.

KJ

May 3, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Thursday, May 2, 2024

Immigration Article of the Day: Second-Wave DREAMers by Nina Rabin

Second-Wave DREAMers by Nina Rabin, Yale Law & Policy Review, Vol. 42, No. 107, 2023

Abstract

This Article compares and contrasts two waves of child migrants that have shaped the U.S. immigration policy agenda and debate over the past twenty years, in order to draw lessons about how public schools and policymakers can best serve today’s immigrant students. The first wave of undocumented children, who arrived in the two decades after 1986 and are often referred to as DREAMers, experienced schools as a place of refuge, where they could spend their formative years without distinctions drawn based on immigration status. This experience was the result of the Supreme Court’s decision in Plyler v. Doe, 457 U.S. 202 (1982), which held that immigration status has no place in the context of K-12 education. In sharp contrast, immigrant children arriving since 2014 do not experience schools as a place of refuge. This Article describes these recent newcomer children as “second-wave DREAMers.”

Unlike “first-wave” DREAMers, recent child migrants tend to arrive at an older age, separated from family, and immediately after experiencing trauma both in their home country and in their protracted migration journeys. Importantly, most of today’s child migrants are entangled with immigration enforcement from the moment of their arrival. This stands in striking contrast to the previous generation of immigrant children, who largely arrived as small children with their families and lived undetected by the immigration bureaucracy until the creation of the Deferred Action for Childhood Arrivals Program. As a result of the current controversy over unaccompanied minors and asylum-seeking families, much of the advocacy and media surrounding recently arrived child migrants focuses on their treatment at the border and in immigration court. But their growing numbers in school classrooms and communities calls for additional focus on their lives beyond the border—and requires a new, modernized reading of Plyler. Drawing lessons from the vibrancy of the DREAMer movement but also its devastating inconclusiveness, schools must take a different approach to this new generation of child migrants. This approach can be conceptualized as shifts along three key axes of the Plyler decision: from assimilation to inclusion, from formally equal to equitable education, and from innocence to collective responsibility. These shifts are not simply rhetorical; they result in pragmatic and specific programs and policies, which if implemented systematically would formulate a central role for schools in creating a path toward full social integration of today’s immigrant children.

KJ

May 2, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Monday, April 29, 2024

Immigration Article of the Day: Standing on Our Own Two Feet: Disability Justice as a Frame for Reimagining Our Ableist Immigration System byNermeen Arastu & Qudsiya Naqui

Standing on Our Own Two Feet: Disability Justice as a Frame for Reimagining Our Ableist Immigration System byNermeen Arastu & Qudsiya Naqui,  UCLA Law Review (2024)

Abstract

Ableism forms the scaffolding of our immigration laws, policies, and practices, but the operation of this pervasive form of exclusion has been grossly unacknowledged and understudied until now. In 1882, Congress first codified the exclusion of defective bodies by declaring that, “any lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge,” was unworthy of admission onto U.S. shores. These ability-based hierarchies remain in today’s immigration system which rewards productivity, educational attainment, and high-skilled labor with regularized immigration status, an array of public benefits, work authorization, and other advantages. We argue that immigration legal and policy frameworks must be reimagined in order to decouple the process of migration from this system of body valuation.

This Article is the first to argue that dismantling ableism must be a core imperative of the movement for immigration abolition, and that the principles of disability justice can serve as a tool for identifying the radical changes necessary to achieve this transformation.

We begin by interrogating abolitionist scholarship. We observe the limited acknowledgment of the role that ableism has played in erecting systems of oppression and the consequent absence of anti-ableist strategies to achieve a vision of abolition that eliminates the categorization and stratification of bodies. We then look more closely at the immigration system and the ways in which it creates categories of exclusion based on perceptions of worth and productivity. We also illuminate how ableism has fueled the erection of access barriers for disabled immigrants, and the resulting disempowerment of these individuals as they navigate complex immigration procedures. We contend that decoupling migration from ableism and advancing access as a pathway to power and self-determination for immigrant communities must become a part of the abolitionist vision. This approach encourages the exploration of new solutions drawn from the lessons of the disability rights and disability justice movements.

We then explore three specific ways in which ableism operates in the modern immigration system. We posit that ableism: (1) undergirds the construction of disabled immigrants as unworthy burdens; (2) robs disabled immigrants of agency and self-determination; and (3) invisibilizes the experiences of disabled immigrants navigating immigration processes and the advocacy ecosystem. We look to the ten principles of disability justice to propose transformative solutions to address these systemic problems. We argue that accounting for ableism as an intrinsic and formative component of the existing immigration system will augment existing eff orts to achieve change. We hope that this reframing is only the beginning for new lines of scholarly and empirical exploration. Our goal is to reimagine migration for disabled people, and, in turn, for all bodies that cross borders.

KJ

April 29, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Saturday, April 27, 2024

Immigration Article of the Day: The Theater of Refuge by Arlene Amarante

Arlene Amarante

The Theater of Refuge by Arlene Amarante, 13 Tennessee Journal of Race, Gender, & Social Justice 1, available at: https://ir.law.utk.edu/rgsj/vol13/iss1/2

Abstract

At present, there are millions of mostly nonwhite men, women, and children who seek refuge and will not find it under asylum law. This is a calculated outcome and not an oversight. Asylum law functions as a theatrical production that masks the systematic exclusion of the global south under the guise of humanitarianism. The United Nations High Commissioner for Refugees (“UNHCR”) promulgates the internationally recognized definition of refugee, which was crafted to resettle displaced Europeans in the aftermath of the Second World War. The definition has never been meaningfully extended beyond the European context to include the general right to seek asylum as a member of the human family.

Like much of international law, asylum law was orchestrated by the global north to maintain the benefits of wealth and mobility that emanated from the colonial era. Exclusionary practices that reflect historical imbalances between the global north and south have long been normalized. As such, an asylum-seeker from the global south will likely be unsuccessful because their exclusion has been predetermined. Even though the United States bears responsibility for the conditions that necessitate migration, the exclusion persists.

Thus, the asylum regime is a performative façade that legitimizes the concerted exclusion of persons in need of refuge in ways that mirror colonial-era relationships among nations. By revealing the systemic biases in asylum law, this article calls for the acknowledgment and repudiation of the theater of refuge.

KJ

April 27, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (1)

Friday, April 26, 2024

Immigration Article of the Day: Resisting Mass Immigrant Prosecutions by Eric Fish

Eric Fish

Resisting Mass Immigrant Prosecutions by Eric Fish, Yale Law Journal, Forthcoming

Abstract

Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This has mostly happened through a federal program called “Operation Streamline.” In that program, immigrants are convicted without any semblance of due process. They are charged with the crime of entering the United States, have a brief conversation with a defense lawyer, plead guilty in a mass plea hearing with up to one hundred defendants at once, and receive their sentence—all in a single court appearance. In 2018, this program encountered its first organized resistance. In that year the Trump Administration tried to bring Operation Streamline to California for the first time. There, immigrant defendants and their lawyers did not acquiesce to a norm of immediate guilty pleas. Instead, they fought their cases by securing release on bond, raising objections, taking their cases to trial, and appealing their convictions. This unexpected resistance prevented federal prosecutors from processing dozens of cases per day. In 2021, something similar happened in Texas. Governor Greg Abbott created a state law version of Operation Streamline called “Operation Lone Star.” Immigrant defendants and their lawyers have resisted this program as well, securing release on bond and fighting through motions, writs, and trials.


This Article documents, analyzes, and draws lessons from these immigrants’ defiance. It does so using court records, transcripts, and firsthand accounts. In the process this Article uncovers the institutional logic of these mass immigrant prosecution systems, which have become a major feature of U.S. immigration policy. It shows how these systems prioritize efficiency above all else, resulting in inferior jail conditions, summary court proceedings, and coerced guilty pleas. In particular, it critiques the role defense lawyers typically play in these systems. Defense lawyers are expected to facilitate these prosecutions by coaching their clients to plead guilty quickly. Their presence gives the proceedings a false legitimacy, as these systems are designed to prevent lawyers from providing competent counsel. As this Article argues, defense lawyers should instead undermine these systems by helping defendants assert their rights and litigate. Indeed, immigrant defendants have powerful incentives to fight their cases if their lawyers will help them. The battles in San Diego and Texas reveal several effective strategies for immigrant defendants to resist mass criminalization through collective litigation. These include pushing for bail, going to trial, taking legal issues up on appeal, forcing prosecutors and judges to spend time on each case, and coordinating with outside groups like bail funds, immigration organizations, activists, and the media.

KJ

April 26, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Thursday, April 25, 2024

Immigration Article of the Day: Immigration Law After Relentless by Nancy Morawetz

Immigration Law After Relentless by Nancy Morawetz, New York University Law Review Online, Vol. 99, 2024

Abstract

With the Supreme Court’s decisions on the future of Chevron deference set to be issued by the end of this Term, the Solicitor General (SG) is laying the groundwork for treating the decisions as irrelevant for immigration law. In recent cases, the SG has argued that section 1103(a)(1) of the Immigration and Nationality Act provides a free-standing basis for deference by the judiciary due to a phrase that the Attorney General’s views are “controlling.” This Essay shows that the SG’s argument is deeply flawed. Building on textual critiques, this Essay shows that for one hundred years, Congress has considered how to manage multiple executive departments administering immigration laws. From 1924 until 1952, Congress did not preclude intra-branch disagreements, and in at least one case such disagreements were presented to the Supreme Court. In 1952, Congress acted to have the executive speak with one voice and placed that power with the Attorney General in section 1103(a)(1). Until recently, the SG recognized that section 1103(a)(1) was nothing more than a method for resolving intra-branch conflicts. The SG’s new effort to turn section 1103(a)(1) into a separate basis for judicial deference to agency views has no basis in the text or history of the provision. The SG’s view is so meritless that it should be abandoned before it leads to a new wave of circuit conflicts about deference in immigration cases in the wake of the Supreme Court’s resolution of Chevron’s future this Term.

KJ

April 25, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Monday, April 15, 2024

Immigration Article of the Day: Postmodern Identity and the Structure of Immigration Control by Daniel Morales

Daniel  Morales

Postmodern Identity and the Structure of Immigration Control"by Daniel Morales, 
Baumgärtel M, Miellet S, eds. Theorizing Local Migration Law and Governance. Cambridge University Press; 2022.
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Abstract

In this chapter, I use the United States as a case study to argue that even the relative consensus and relative cohesion of the postwar period in the United States cannot be recovered. National identity cannot be put back in the bottle. Deeper, postmodern currents in human identity construction render the effort to resurrect the old, more unified national identities Sisyphean. And if those national identities cannot be resurrected, it is not at all clear that trying to bring such identities back to life – especially using immigration law – is a good idea. Any homogenized national identity imposed from on high at this point in human development, especially in the United States, will fail to satisfy a large portion of many nation’s populations, potentially furthering internal conflict, rather than ameliorating it. Because immigra- tion law participates significantly in this identity construction work, it ought to become less centralized and homogenized to accommodate this pluralist reality. Migration governance structures should be decentralized to reflect and reinforce the pluralism of identity that thrives within nation-states and the global solidarities that are emerging between them.

KJ

April 15, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Tuesday, April 9, 2024

Immigration Article of the Day: Forced Migration and Violent Crime: Evidence from the Venezuelan Exodus to Brazil by Renan Chicarelli Marques, 

Renan  Chicarelli Marques

Forced Migration and Violent Crime: Evidence from the Venezuelan Exodus to Brazil by Renan Chicarelli Marques

Abstract

Does increased exposure to forced migration affect violent crime rates in developing host countries? To answer this question, we exploit the unprecedented inflow of Venezuelans to Brazil. Contrary to fears propagated by the anti-immigration rhetoric, our two-stage least squares estimates reveal that the sudden influx of refugees did not affect violent crime in which natives were victimized. In fact, our results suggest that forced migration only increased violent crime involving Venezuelan victims. Victimization of migrants seems to have increased at a slower pace than their presence in the host country. Yet, it was concentrated among young males between the ages of 15 and 39 living in the border region of Brazil with Venezuela. Evaluating the causal impacts of forced migration in a developing context is crucial to providing governments and international agencies with rigorous evidence to support policy decisions. In absence of the latter, public perception can play a key role as host populations may pressure authorities for anti-immigration policies based solely on perceptions. Moreover, violence hinders migration’s documented long-term benefits by imposing high economic and social costs.

KJ

April 9, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Monday, April 8, 2024

Immigration Article of the Day: Postmodern Identity and the Structure of Immigration Control by Daniel J. Morales

Daniel  Morales

Postmodern Identity and the Structure of Immigration Control by Daniel J. Morales,  1. Baumgärtel M, Miellet S, eds. Theorizing Local Migration Law and Governance. Cambridge University Press; 2022.

Abstract

In this chapter, I use the United States as a case study to argue that even the relative consensus and relative cohesion of the postwar period in the United States cannot be recovered. National identity cannot be put back in the bottle. Deeper, postmodern currents in human identity construction render the effort to resurrect the old, more unified national identities Sisyphean. And if those national identities cannot be resurrected, it is not at all clear that trying to bring such identities back to life – especially using immigration law – is a good idea. Any homogenized national identity imposed from on high at this point in human development, especially in the United States, will fail to satisfy a large portion of many nation’s populations, potentially furthering internal conflict, rather than ameliorating it. Because immigration law participates significantly in this identity construction work, it ought to become less centralized and homogenized to accommodate this pluralist reality. Migration governance structures should be decentralized to reflect and reinforce the pluralism of identity that thrives within nation-states and the global solidarities that are emerging between them.

KJ

April 8, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Sunday, April 7, 2024

Immigration Article of the Day: A New Perspective on Capital Migration: Social Security, Taxation, and Noncitizen Farmworkers by Shayak Sarkar

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A New Perspective on Capital Migration: Social Security, Taxation, and Noncitizen Farmworkers by Shayak Sarkar, in TAXATION, CITIZENSHIP, & DEMOCRACY IN THE 21ST CENTURY (eds. Reuven Avi-Yonah & Yvette Lind, Edward Elgar) (Forthcoming 2024)

Abstract

This Chapter describes capital migration in migrant farmworkers’ lives. First, I note the law’s general recognition of intertwined migrations of people and capital—for example, Congress facilitates capital investment by permitting intracompany employee transfers. Second, and most significantly, I describe this idea of capital migration through our farmlands rather than firms. Capital flows—namely Social Security benefits—are denied to a very narrow class of immigrant workers: foreign workers in American agriculture. I narrate the legislative history of the exclusion, which persists even as both citizen workers in agriculture and most migrant workers outside agriculture face no such exclusion. Third and finally, I consider the exclusion’s consequences. In the absence of employer payroll taxes, migrant workers provide cheaper labor than citizens. This disparity disadvantages both migrant and local workers, militating for the exclusion’s end.

KJ

April 7, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)