Tuesday, July 27, 2021
Immigration Article of the Day: Texas and the Dangers of State Immigration Enforcement by Geoffrey A. Hoffman
Texas has been in the news a lot lately (see, for example, here) on immigration matters. This is what Geoff Hoffman says about that.
Texas and the Dangers of State Immigration Enforcement Geoffrey A. Hoffman, Yale Journal on Regulation Notice & Comment (July 27, 2021). The first paragraph lays out the basic argument:
"In a series of bold actions, Texas has attempted to continue where the Trump administration left off in terms of immigration enforcement. These attempts recently have included threats to build a border wall, the devotion of space in state jails to immigration violators, and the use of the arrest power against immigrants under the theory of trespass. The relationship between state, municipal, or local enforcement and the federal government’s authority to do so is legally complex. But one thing is clear, the states do not have the power to enforce immigration law in the expansive ways Texas is attempting. To allow the use of state power in this way is to give tacit permission to a state’s illicit activities and should be reigned in by the federal government."
Monday, July 26, 2021
Immigration Article of the Day: Represented But Unequal: The Contingent Effect of Legal Representation in Removal Proceedings by Emily Ryo and Ian Peacock
The Immigration Article of the Day is Represented But Unequal: The Contingent Effect of Legal Representation in Removal Proceedings by Emily Ryo and Ian Peacock, forthcoming in the Law & Society Review and available on SSRN.
Here is the Abstract:
Substantial research and policymaking have focused on the importance of lawyers in ensuring access to civil justice. But do lawyers matter more in cases decided by certain types of judges than others? Do lawyers matter more in certain political, legal, and organizational contexts than others? We explore these questions by investigating removal proceedings in the United States—a court process in which immigration judges decide whether to admit noncitizens into the United States or deport them. Drawing on over 1.9 million removal proceedings decided between 1998 and 2020, we examine whether the representation effect (the increased probability of a favorable outcome associated with legal representation) depends on judge characteristics and contextual factors. We find that the representation effect is larger among female (than male) judges and among more experienced judges. In addition, the representation effect is larger during Democratic presidential administrations, in immigration courts located in the Ninth Circuit, and in times of increasing caseload. These findings suggest that the representation effect depends on who the judge is and their decisional environment, and that increasing noncitzens’ access to counsel—even of high quality—might be insufficient under current circumstances to ensure fair and consistent outcomes in immigration courts.
Saturday, July 24, 2021
Family separation is a practice rooted in U.S. history. In order to comprehensively examine the most recent execution of separating children from their parents under the Trump Administration’s “zero tolerance” policy, one must follow and understand this history. That is what this Article does. Examining the separation histories of enslaved, Indigenous, and immigrant families, it offers critical context of a reoccurring practice that has had devastating effects largely on communities of color, and across generations. By contextualizing the separation of migrant families crossing the U.S.-Mexico border under zero tolerance, this Article identifies narratives from colonial times to the present that consistently rely on racism, xenophobia, and paternalism to justify a practice that otherwise is extreme in its inhumanity.
These justification narratives are juxtaposed with counter-stories that resist and challenge the separation of families, including by humanizing those impacted and articulating the profound harm it causes to children, parents, and communities. These stories have been told through first-hand narratives, Congressional testimonies, research studies, media reports, and facts and allegations in lawsuits. Narratives describing the harm caused by separating families are a powerful element of putting the practices to an end. The historical record suggests that these narratives have typically gained potency in specific socio-political contexts that rendered them compelling enough to overcome the justifications for specific family separation policies.
Although these practices were brought to an end, systemic reform has been elusive. In the case of Indigenous family separation, legislation enacted to cease the practice failed to bring about substantial change, and has been diluted by persistent legal challenges. Historical family separation practices against enslaved and immigrant families have been replaced with systems that separate families for prolonged times or permanently. These include the present-day U.S. criminal legal and immigration systems, where the government separates children from their parents on a substantial scale as a collateral consequence of mass incarceration and widespread detention and deportation, with little to no scrutiny. The outrage that ended zero tolerance has not extended to these ongoing examples of family separation. In order to meaningfully address these practices, counter-stories urging the valuation of family integrity must be aligned with a societal will to challenge systems that, through racialized justifications, continue to separate mostly marginalized children from their parents.
Friday, July 23, 2021
Immigration Article of the Day: The Danger of Dissent: A Century of Targeting Immigrants by Lenni Benson
Introduction and article discussing 2019 Symposium on the anniversary of the Department of Justice raids that targeted immigrant activists. The article also discusses the contemporary attacks on immigrants who are seeking reforms or are critics of government.
Monday, July 12, 2021
Symposium Issue: Unwanted Citizens of EU Member States and Their Forced Returns within the European Union
A special issue of the Central and Eastern European Migration Review has just been published. It is titled “Unwanted Citizens of EU Member States and Their Forced Returns within the European Union” and includes many articles that will be of interest to the ImmigrationProf community.
The issue was published in open access and is available here.
Friday, July 2, 2021
Citizenship Studies special issue (vol 25, issue 02): Decarceral Futures: Bridging Migrant and Prison Justice towards an Abolitionist Future
Citizenship Studies has just published our special issue (vol 25, issue 02) entitled "Decarceral Futures: Bridging Migrant and Prison Justice towards an Abolitionist Future."
A range of contributors interrogate a "carceral abolitionism" position to citizenship studies, with immigration detention as the key case study.
Here is the Table of Contents for our issue:
Decarceral Futures: Bridging Immigration and Prison Justice towards an Abolitionist Future
Sharry Aiken & Stephanie J. Silverman
Mutual aid as abolitionist praxis
Simone Weil Davis & Rachel Fayter
States and human immobilization: bridging the conceptual separation of slavery, immigration controls, and mass incarceration
Crisis, capital accumulation, and the ‘Crimmigration’ fix in the aftermath of the global slump
Held at the gates of Europe: barriers to abolishing immigration detention in Turkey
Esra S. Kaytaz
Substituting immigration detention centres with ‘open prisons’ in Indonesia: alternatives to detention as the continuum of unfreedom
ICE comes to Tennessee: violence work and abolition in the Appalachian South
Migrant justice as reproductive justice: birthright citizenship and the politics of immigration detention for pregnant women in Canada
Salina Abji & Lindsay Larios
Immigration status and policing in Canada: current problems, activist strategies and abolitionist visions
Curated hostilities and the story of Abdoul Abdi: relational securitization in the settler colonial racial state
Monday, June 28, 2021
Immigration Article of the Day: Terrorism and the Inherent Right to Self-Defense in Immigration Law by Faiza W. Sayed
The Immigration Article of the Day, just published in Volume 109 of the California Law Review, is "Terrorism and the Inherent Right to Self-Defense in Immigration Law" by Faiza W. Sayed.
Here's the abstract:
The Immigration and Nationality Act (INA) deems an individual inadmissible to the United States for having engaged in terrorist activity. Both “engaged in terrorist activity” and “terrorist activity” are terms of art that are broadly defined under the INA to include activity that courts, scholars, and advocates agree stretches the definition of terrorism. An individual found inadmissible on terrorism-related grounds is barred from nearly all forms of immigration relief, including adjustment of status to lawful permanent resident, refugee status, asylum, withholding of removal, and cancellation of removal. These INA provisions, meant to exclude terrorists from accessing immigration relief, have been perversely interpreted to deny relief to individuals who have taken actions in self-defense, although state and federal courts, state constitutions, and scholars alike describe self-defense as a right so fundamental as to be inherent. There is no principled reason to deny noncitizens the right to present a self-defense justification with respect to acts that may otherwise qualify as terrorist activity in the immigration context. In fact, when properly interpreted, the INA as currently written already excludes force used in self-defense from the definition of terrorist activity; the challenge lies in the fact that the current exclusion is too burdensome for adjudicators to apply properly and too narrow to shield all individuals who have taken actions in self-defense from being denied immigration relief. Given this perplexing state of affairs, Congress should adopt reforms to ensure that the government does not deny immigration relief to individuals who have exercised the most basic of rights—that of self-preservation. These reforms can accomplish two desired immigration law goals: excluding terrorists and providing protection to individuals fleeing persecution.
Monday, June 21, 2021
Immigration Article of the Day: Migrant Protection Protocols and the Death of Asylum by Austin Kocher
Migrant Protection Protocols and the Death of Asylum by Austin Kocher, Journal of Latin American Geography
From January 2019 to January 2021, a Trump-era policy known as the Migrant Protection Protocols (MPP) forced asylum seekers arriving at the U.S.-Mexico border to wait for their hearings in dangerous parts of northern Mexico. MPP had disastrous consequences: very few migrants in MPP had a meaningful chance to request asylum compared to other asylum seekers, and the forced migrants waiting in Mexico faced pervasive violence. President Biden suspended new enrollments in the program on his first day in office and, by late February 2021, migrants who were living in the refugee camp that emerged as a result of MPP in Matamoros, Mexico, began to enter the United States to pursue their asylum claims. As the MPP program—also known as Remain in Mexico—appears to come to a close, this essay examines key aspects of the program through the perspective of ontological, political, and physical death that Alison Mountz theorizes in her recent book The Death of Asylum. Drawing on Mountz’s work, I view MPP as symptomatic of a concerted though spatially uneven assault across the developed world on both the institutions and operations of asylum as a practice as well as on asylum seekers themselves.
Sunday, June 20, 2021
Immigration Article of the Day: White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States by Elena A. Baylis
Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have a federal law prohibiting crimes against humanity. This Article first applies international law to define crimes against humanity and assess the risk of crimes against humanity occurring within the United States. It then turns to domestic law to evaluate the potential for a federal law or other federal measures to protect against crimes against humanity, including the political obstacles, the likelihood that any future legislation will depart significantly from international law, and the implications for effectiveness.
Saturday, June 19, 2021
In February 2019, the media reported that the Office of Refugee Resettlement (ORR)—an agency within the U.S. Department of Health and Human Services (HHS) charged with the care and custody of unaccompanied immigrant children—was using minors’ admissions of prior gang affiliation during confidential therapy sessions as the sole criteria for “stepping up” children from low-security shelters to more restrictive and punitive detention facilities. ORR was also then sharing the therapy notes with the Department of Homeland Security (DHS) to use them against children in deportation proceedings. The newspaper article that broke the story noted that while the information sharing between HHS and DHS was “technically legal,” it was “a profound violation of patient confidentiality.” This article argues that these practices are not “technically legal” at all. They are illegal because they violate basic best interests principles now enshrined in the William Wilberforce Trafficking Victims Protection Recovery Act of 2008 (TVPRA), and, in some instances, they may violate Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (Title II), federal anti-discrimination laws designed to protect people with disabilities.
The best interests approach “is a dynamic concept that requires an assessment appropriate to the specific context,” and stepping up a child to a more restrictive setting based solely on prior gang affiliation is inconsistent with the procedural aspects of the best interests standard. Moreover, using gang affiliation revealed in therapy sessions as the sole criteria for sending a child to a more restrictive setting may also violate federal anti-discrimination statutes designed to protect children with disabilities. For instance, Section 504 and Title II’s regulations prohibit recipients of federal funds and public entities, respectively, from using “criteria or methods of administration . . . that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” Because confidentiality is required for therapy to succeed, this policy may unintentionally have the effect of substantially impairing unaccompanied minors from receiving the intended therapeutic benefits of the therapy session. Although gang affiliation is disability neutral on its face, it has a disparate impact on unaccompanied minors with psychosocial disabilities because there is a correlation between gang affiliation and emotional and behavioral disorders.
Friday, June 18, 2021
Immigration Article of the Day: Trump’s Policy of Putting Kids in Cages: Six Dead, Thousands Separated From Parents, Making America Great Again? by David R. Katner
For the first time in history, the U.S. executive branch enacted an immigration policy designed to inflict such pain and trauma on children and their families so as to dissuade families from Latin America from coming to the U.S. seeking asylum. With six children dead and thousands separated from their families, we continue to learn more about the atrocities inflicted on these migrants seeking a better life. Women were subjected to nonconsensual hysterectomies, families were tortured, and the toxic stress inflicted may require years to resolve. This article seeks accountability for the intentional acts imposed by the U.S. government in the form of possible legal remedies. This policy marks the lowest point in U.S. immigration policy, a country with origins rooted in reliance on migrants from every part of the world to make the nation a better place.
Monday, June 14, 2021
Immigration Article of the Day: The DACA decision: Department of Homeland Security v. Regents of the University of California and its implications by Brian Wolfman
The Trump Administration's effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court's decision, and its potential legal implications.
The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences on many of DACA’s hundreds of thousands of beneficiaries. Some commentators noted, however, that the Supreme Court’s ruling it is not a major legal landmark—that it involves only the application of settled administrative-law principles. I largely agree with that view. Nonetheless, the decision’s administrative-law holdings are interesting, and the Court’s ruling contains several of what I view as “extras”—little nuances that may impact the law over time and that should interest administrative-law nerds.
Sunday, June 13, 2021
Immigrant Article of the Day: Missing Immigrants in the Rhetoric of Sanctuary by Ava (formerly Andrew) Ayers
The idea of sanctuary for undocumented immigrants started among activists and was soon adopted by governments. In this process, the idea changed. This Article follows sanctuary’s changing moral content by studying the reasons that states and localities give when they adopt “sanctuary” policies limiting their cooperation with federal immigration enforcement. One might expect policymakers’ statements to imply concern for the well-being of noncitizens, particularly those who face deportation. We might even expect sanctuaries’ rhetoric to imply that undocumented people should be welcomed as members of the communities in which they reside. In fact, many jurisdictions carefully avoid saying either of those things. This Article examines the implications of these unexpected silences.
Saturday, June 12, 2021
Today, immigrant individuals toiling with their citizen colleagues in insecure employment that Guy Standing describes as the post-industrial precariat make up the vanguard of the struggle to protect labor rights.Government officials have honored care workers as essential service employees in the COVID-19 pandemic even as they continue to lack many basic labor protections. Immigrant care workers on the frontlines in the service and health care sectors face occupational illness and death with minimal safeguards provided by employers. This paper argues that labor movement activists of the immigrant community are motivated by the well-being of the mixed-citizenship communities where they have laid down roots. Their exemplary citizenship is exhibited by their willingness to assume the risks that come with labor organizing, including wage losses, termination of employment, and threats of deportation, for the benefit of a mixed citizenship status community of workers. In the process, they are overcoming the racial, gender, occupational, and national origins exclusions of traditional “business unions,” which only recently included immigrants and care workers in their ranks.
Friday, June 4, 2021
The Spring 2021 issue of Daedalus, the Journal of the American Academy of Arts and Sciences, is titled "Immigration, Nativism & Race" in the United States. It features many wonderful contributions of interest to the immigrationprof community.
Articles include "The Racialization of 'Illegality'" by Cecilia Menjivar, "Criminalizing Migration by César Cuauhtémoc García Hernández, "Asian Americans, Affirmative Action & the Rise in Anti-Asian Hate" by Jennifer Lee, "The Bipartisan Origins of White Nationalism" by Douglas S. Massey, and much more. The full volume is available here.
Sunday, May 30, 2021
Immigration Article of the Day: The unintended consequences of US immigration enforcement policies by Emily Ryo
Thursday, May 27, 2021
The vast majority of immigrants to the United States enter through categories set forth in a statutory selection system that emphasizes family reunification. However, since the early 1980s, attacking those family immigration categories has become a popular political sport played every few years. The most recent version of the sport is embodied by the introduction of the RAISE Act and statements condemning so-called “chain migration” by President Trump. The assault on family immigration generally is framed in terms that would replace family categories with those that would enable “skilled” immigrants to immigrate instead. The President, like many others, derides the so-called “chain migration” system as enabling one person to bring in “32 people. . . . You come in and now you can bring your family and then you can bring your mother and your father, you can bring your grandmother.” The claim is that the family-based system allows entry to “virtually unlimited numbers of distant relatives.” Instead, critics of family migration argue that the system should focus more on “merit” rather than family, and assign points to prospective immigrants based on factors like age, education and English skills.
Critics of family immigration and I have different starting points when it comes to priorities in the admissions system. The so-called “merit” proponents claim that to help the economy, more jobs and skill-based criteria should be used. My position is that the nation and its employers would continue to do quite well economically by expanding the family numbers throughout all categories. Furthermore, we do well to look beyond economic values and to consider the values that are important to us as a nation in terms of human rights, moral obligations, and social responsibility.
Somehow those of us who favor not only maintaining but expanding family-based immigration opportunities are viewed as soft on immigration. However, the experiment that we call America is a test of our character and our willingness to believe that we can have a strong country that is caring and diverse. Showing compassion and fairness in our immigration policies is not a sign of weakness. Rather, those traits demonstrate a confidence in a strong rule of law and system of government, but understand that moral obligations and family reunification are essential elements of a civil society. While these traits of a civil society may benefit individuals, they benefit us as a common community as well. For when an individual and their relatives have been enabled to become contributing members of society, we all benefit—socially, psychically, and economically.
Wednesday, May 26, 2021
Eight million undocumented workers live as a separate subclass of exploited workers in the United States. The federal prohibition on undocumented work creates the plight of the undocumented worker. Social movements for undocumented workers respond by focusing on unscrupulous employers or the economic benefits provided by essential workers. These approaches, however, can fail to contest the moral disapproval to undocumented immigrants that justifies outlawing their work based on the rule of law or fairness to native-born workers.
This Article proposes legalizing undocumented work separate and apart from immigration status. It responds to the moral disapproval by reframing the plight of undocumented workers as the subordination of a racial subclass of workers, which violates fundamental principles of equality and freedom. For workers who participate in and contribute to the law and economy of the American workplace, a separate caste of workers violates equality. Their inability to lawfully work also restricts their freedom to sell their own labor and work without coercion. Notably, these constraints on equality and freedom are being imposed on a primarily brown-collar workforce. At the same time, the United States has acquiesced to undocumented work, by turning a blind eye and actively profiting from such work through taxes, profits, and goods and services. A closer look at “illegality” reveals that its extension to the realm of work to justify exclusion of undocumented workers is problematic. Given the various growing social movements focused on anti-racial subordination, it is an opportune time to make such claims.
The legalization of undocumented work applies more broadly to all workers in contrast to the proposals for legalizing immigration status that are inevitably limited to “deserving” subgroups of workers. Yet legalizing undocumented work means that immigrants will continue to face deportation because they lack lawful immigration status. There are practical steps, such as anti-retaliation protections and prohibitions on worksite enforcement, which can further help disentangle work from migration. While the legalization of undocumented work is not a panacea for the challenges faced by low-wage workers, having lawful work status increases the ability of workers to access the wider job market, move freely between jobs, and exercise workplace rights. Such legalization too provides a first step for reexamining the restoration of social, economic, and political rights of immigrants that have otherwise been foreclosed because of “illegality.”
Wednesday, May 19, 2021
Immigration Article of the Day: Michele Goodwin & Erwin Chemerinsky, Trump Administration: Immigration, Racism & Covid-19
Michele Goodwin (University of California, Irvine School of Law) & Erwin Chemerinsky (University of California, Berkeley - School of Law) have posted Trump Administration: Immigration, Racism & Covid-19 (University of Pennsylvania Law Review, Vol. 169, No. 2, 2021) on SSRN. Here is the abstract:
Two of the most important issues defining the Trump Administration were the President’s response to the COVID-19 pandemic and the Administration’s dealing with immigration issues. These have been regarded, in the popular press and in the scholarly literature, as unrelated. But there is a key common feature in the Trump Administration’s response: racism and xenophobia has shaped both the handling of the public health crisis and immigration issues. Understanding the underlying basis for the Trump Administration’s reaction to both issues helps to clarify the fallacies, indeed the tragedies in its actions, and the legal errors that have been made.
Monday, May 17, 2021
The Immigration Article of the Day is Critical Interviewing, forthcoming in the Utah Law Review, by Professors Laila Hlass and Lindsay Muir Harris. Here is the abstract:
Critical lawyering—also at times called rebellious, community and movement lawyering—attempts to further social justice alongside impacted communities. While much has been written about the contours of this form of lawyering and case examples illustrating core principles, little has been written about the mechanics of teaching critical lawyering skills. This Article seeks to expand critical lawyering theory, and in doing so provides an example of a pedagogical approach to teaching what we term “critical interviewing.” Critical interviewing means using an intersectional lens to collaborate with clients, communities, interviewing partners, and interpreters in a legal interview. Critical interviewers identify and take into account historical and structural biases, privileges, and the role they play in the attorney-client relationship.
This Article urges law professors and legal professionals to operationalize critical legal theories into practice, and ultimately to develop experiential pedagogies to teach these critical lawyering skills. This call to developing new pedagogies is particularly urgent in the wake of nationwide uprisings in response to the killing of George Floyd and others, as well as corresponding law schools’ commitments to identify and dismantle institutional racism. In this Article, we first set forth the contours of the canonical client interviewing pedagogy. Second, we outline the tenets of critical lawyering—a lawyering practice animated by critical legal theories. Next, we advance the pedagogy of critical interviewing, building upon client-centered lawyering texts. We describe one methodology of teaching critical interviewing: the Legal Interviewing and Language Access films. Ideally positioned to use with virtual learning, these videos raise a multitude of issues, including addressing bias and collaborating with clinic partners, interpreters, and clients. Finally, the Article considers areas ripe for further exploration within critical interviewing, concluding with a call for engagement with new pedagogical tools to teach critical interviewing, along with other aspects of critical lawyering.