ImmigrationProf Blog

Michigan J. Race & Law Special issue: War on Terror

A series of articles in the Michigan Journal of Race and the Law address the myriad harmful impacts of the "War on Terror" and its aftermath on Muslims in the United States. Here is the full list of articles available for download: https://repository.law.umich.edu/mjrl/vol27/iss1/

Origin Stories: Critical Race Theory Encounters the War on Terror

Natsu Taylor Saito

State Sponsored Radicalization

Sahar F. Aziz

Material Support Prosecutions and their Inherent Selectivity

Wadie E. Said

American Informant

Ramzi Kassem

The Ban and its Enduring Bandwidth

Khaled Ali Beydoun

The World of Private Terrorism Litigation

Maryam Jamshidi

A Religious Double Standard: Post-9/11 Challenges to Muslims’ Religious Land Usage

Asma T. Uddin

9/11 Impacts on Muslims in Prison

SpearIt

 

MHC

Immigration Article of the Day: Impact of Forensic Medical Evaluations on Immigration Relief Grant Rates and Correlates of Outcomes in the United States

Impact of Forensic Medical Evaluations on Immigration Relief Grant Rates and Correlates of Outcomes in the United States, Journal of Forensic and Legal Medicine, 2021.  The authors:

HOLLY G. ATKINSON, City University of New York (CUNY) - School of Medicine
KATARZYNA WYKA, City University of New York (CUNY) - Center for Systems and Community Design
KATHRYN HAMPTON, Physicians for Human Rights
CHRISTIAN L. SENO, CUNY School of Law
ELIZABETH T. YIM, City University of New York (CUNY) - School of Medicine
DEBORAH OTTENHEIMER, Gotham Health
NERMEEN ARASTU, CUNY School of Law

Abstract

The purpose of this study was to investigate the impact of forensic medical evaluations on grant rates for applicants seeking immigration relief in the United States (U.S.) and to identify significant correlates of grant success. We conducted a retrospective analysis of 2584 cases initiated by Physicians for Human Rights between 2008 and 2018 that included forensic medical evaluations, and found that 81.6% of applicants for various forms of immigration relief were granted relief, as compared to the national asylum grant rate of 42.4%. Among the study’s cohort, the majority (73.7%) of positive outcomes were grants of asylum. A multivariable regression analysis revealed that age, continent of origin, history of sexual or gender-based violence, gang violence, LGB sexual orientation, and being detained by the U.S. government at the time of evaluation request were statistically associated with case outcomes. Forensic physical evaluation was more strongly associated with a positive outcome than forensic psychological evaluation. Our findings strengthen and expand prior evidence that forensic medical evaluations can have a substantial positive impact on an applicant’s immigration relief claim. Given the growing applicant pool in the U.S., there is an urgent need for more trained clinicians to conduct forensic medical evaluations as well as to educate adjudicators, immigration lawyers, and policy makers about the traumatic nature of the life-altering events that applicants for immigration relief experience.

KJ

Immigration Article of the Day: Immigration and the Economic Freedom of Natives by Ilya Somin

Immigration and the Economic Freedom of Natives  by Ilya Somin, Public Affairs Quarterly (Symposium on “The Moral, Empirical, and Constitutional Foundations of Immigration Law and Policy”) Forthcoming

Abstract

Much of the debate over the justice of immigration restrictions properly focuses on their impact on would-be migrants. For their part, restrictionists often focus on the potentially harmful effects of immigration on residents of receiving countries. This article cuts across this longstanding debate by focusing on ways in which immigration restrictions inflict harm on natives, specifically by undermining their economic liberty. The idea that such effects exist is far from a new one. But this article examines them in greater detail, and illustrates their truly massive scale. It covers both the libertarian “negative” view of economic freedom, and the more “positive” version advanced by left-liberal political theorists.

Part I focuses on libertarian approaches to economic freedom. It shows that migration restrictions severely restrict the negative economic liberty of natives, probably more than any other government policy enacted by liberal democracies. That is true both on libertarian views that value such freedom for its own sake, and those that assign value to it for more instrumental reasons, such as promoting human autonomy and enabling individuals to realize their personal goals and projects.

In Part II, I take up left-liberal “positive” theories of economic freedom, which primarily focus on enhancing individuals’ access to important goods and services, and enabling them to have the resources necessary to live an autonomous life. Some also focus on expanding human capacities generally, or give special emphasis to enhancing the economic prospects of the poor. Here too, migration restrictions impose severe costs on natives. To the extent migration can sometimes harm the economic prospects of natives, the issue is better dealt with by “keyhole solutions” that address specific problems by means other than restricting migration.

Finally, Part III describes how to address situations where potentially harmful side effects of migration might undermine either negative or positive economic liberty of natives, without actually restricting migration. I have addressed such issues in greater detail in previous work, and here provide only a short summary of my approach and its relevance for economic liberty issues.

KJ

Symposium on Dred Scott and Asian Americans

Professor Jack Chin has an article that ImmigrationProf blog readers may find of interest. Published with several commentaries (including one by me) by the University of Pennsylvania Journal of Constitutional Law, the article is entitled "Dred Scott and Asian Americans."  Read Full Article

Here is the abstract of the article:

"Chief Justice Taney’s 1857 opinion in Dred Scott v. Sandford is justly infamous for its holdings that African Americans could never be citizens, that Congress was powerless to prohibit slavery in the territories, and for its proclamation that persons of African ancestry “had no rights which the white man was bound to respect.”  For all of the interest in and attention to Dred Scott, however, no scholar has previously analyzed United States v. Dow, an 1840 decision of Chief Justice Taney in a circuit court trial which is apparently the first federal decision to articulate a broad theoretical basis for white supremacy.  Dow identified whites as the “master” race, and the opinion explained that only those of European origin were either welcomed or allowed to be members of the political community in the American colonies.  Non-whites such as members of Dow’s race, Taney explained, could be reduced to slavery, and therefore their rights continued to be subject to absolute legislative discretion.  Dow, however, was not a person of African descent—he was Malay, from the Philippines.  Chief Justice Taney’s employment in Dow of legal reasoning which he would later apply in Dred Scott suggests that Dred Scott should be regarded as pertinent to all people of color, not only African Americans.  This understanding of Dred Scott helps explain the revival of Taney’s reputation during the Jim Crow era after Reconstruction.  Courts declined to invalidate restrictions with respect to a broad range of civil rights on citizens and immigrants of African, Indian, Asian, and Mexican ancestry to which whites were not subject.  Indeed, whites could not be subject to them, unless it is conceivable that under the U.S. Constitution, the law could provide, for example, that all races would be ineligible to testify or vote because of their race.  Accordingly, even after Reconstruction—just as Dred Scott and Dow contemplated—the white race remained the master race, in the sense that members of that race were the exclusive holders of truly inalienable rights."

Jack's article and the symposium contributions are well worth reading.  As the title of my contribution suggests ("Dred Scott and Asian Americans: Was Chief Justice Taney the First Critical Race Theorist?"), I had fun commenting on Jack's insightful article.

KJ

Immigration Article of the Day: Opening the Pandemic Portal to Re-Imagine Paid Sick Leave for Immigrant Workers by Shefali Milczarek-Desai

Opening the Pandemic Portal to Re-Imagine Paid Sick Leave for Immigrant Workers by Shefali Milczarek-Desai, 111 Calif. L. Rev. __ (forthcoming 2023)

ABSTRACT

The Covid-19 pandemic has spotlighted the crisis low wage immigrant and migrant (“im/migrant”) workers face when caught between the century-long collision between immigration enforcement and workers' rights. Im/migrant workers toil in key industries from health care to food production that are now associated with laudable buzzwords such as “frontline” and “essential” but that conceal jobs that pay little, are dangerous to health and safety, and have high rates of legal violations. Im/migrant workers, however, are unlikely to benefit from employment and labor law protections, including paid sick leave. This has proven deadly during the pandemic. When im/migrants show up to work ill, they endanger not only themselves but risk transmission to co-workers, customers, patients, and the public at large. This has been starkly illustrated in nursing homes, which are heavily reliant on im/migrant labor and have been the locus of nearly one-third of all coronavirus deaths. The pandemic presents an opportunity to analyze why and how existing paid sick leave laws fail im/migrant workers. It also is a portal to re-imagine paid sick time in a way that will benefit im/migrant workers and by extension a nation facing labor shortages and high worker turnover as demand for goods and services rises.

This article is the first to scrutinize paid sick leave laws through the lenses of critical race, movement, and health law theories. It argues that existing paid sick leave laws fail im/migrant workers because they ignore these workers’ social and economic situations and singularly focus on workers’ rights rather than collective well-being. Drawing from critical race, movement, and health law frameworks, this article situates paid sick leave within a public health matrix based on mutual aid. It argues that when paid sick leave laws are drafted and enforced in a manner that is informed by workers’ lived experiences and contextualized within a broader public health conversation, employment and labor protections can better safeguard im/migrant workers and the health and safety of the entire nation while reducing the tensions between immigration enforcement and workers’ rights.

KJ

Michigan Journal of Race and Law Symposium on the Imapcts of the "War on Terror"

The Michigan Journal of Race and the Law has published an issue analyzing the harmful impacts of the "War on Terror" on Muslims in the United States.    Here is the full list of articles available for download here.

PDF

Origin Stories: Critical Race Theory Encounters the War on Terror

Natsu Taylor Saito

 

PDF

State Sponsored Radicalization

Sahar F. Aziz

 

PDF

Material Support Prosecutions and their Inherent Selectivity

Wadie E. Said

 

PDF

American Informant

Ramzi Kassem

 

PDF

The Ban and its Enduring Bandwidth

Khaled Ali Beydoun

 

PDF

The World of Private Terrorism Litigation

Maryam Jamshidi

 

PDF

A Religious Double Standard: Post-9/11 Challenges to Muslims’ Religious Land Usage

Asma T. Uddin

 

PDF

9/11 Impacts on Muslims in Prison

SpearIt

 

KJ

Immigration Article of the Day: Due Process in Removal Proceedings After Thuraissigiam by Diana G. Li

The Immigration Article of the Day is "Due Process in Removal Proceedings After Thuraissigiam" by Diana G. Li, published in April 2022 in the Stanford Law Review.

Here is the Abstract:

It is well established that Congress wields plenary power over the admission of noncitizens at the border. But when the government removes noncitizens who have already entered the country, including those who did so without lawful admission, the
boundaries of its power are less clear. The Supreme Court confronted this issue in Department of Homeland Security v. Thuraissigiam. There, the Court rejected an asylum seeker’s attempt to challenge his removal proceedings under both the Suspension Clause
and the Due Process Clause. While scholars have focused on the Suspension Clause
holding, this Note focuses on the Due Process portion of the opinion, which held that
Thuraissigiam had no procedural due process rights because he had made it only twenty-five yards inside the border. Beyond that core holding, the opinion also implied two additional principles: first, that whether a noncitizen facing removal can claim procedural due process rights may depend on the existence of “established connections” with the United States, and second, that those due process rights are contingent on lawful admission.

This Note argues that lower courts should limit Thuraissigiam’s holding to its facts and avoid giving legal force to those two principles, which were arguably dicta. Courts should not read Thuraissigiam as an invitation to subject noncitizens’ constitutional rights to nebulous ties-based tests or to pin those rights to the ever-changing statutes and regulations that govern admission. Instead, courts should affirm the longstanding principle that all noncitizens who have successfully entered the United States enjoy procedural due process rights in their removal proceedings, regardless of whether they obtained lawful admission. In addition to preserving the fundamental constitutional rights of noncitizens already within our borders, this position reconciles Thuraissigiam with Supreme Court precedent, which has generally recognized that those noncitizens are entitled to procedural due process rights with respect to their removal.

IE

Counties that provided 'sanctuary' to undocumented immigrants saw falling crime rates, study finds

Marta Ascherio

One argument for limited local police involvement in immigration enforcement is public safety -- that immigrants will more likely trust police and cooperate in crime prevention if they do not believe that they may get removed if they talk with police.  KUT, Austin Texas's NPR station, reports on a recent study that supports the public safety argument for sanctuary cities.   The study shows that counties that adopted certain sanctuary policies related to undocumented immigrants around 2014 saw a drop in both property and violent crime

In 2013, U.S. Immigration and Customs Enforcement implemented a “Secure Communities” tool to notify ICE's Law Enforcement Support Center when anyone fingerprinted by local law enforcement matched the biometric information of someone who could be deported.

Counties that didn’t cooperate with ICE’s requests to detain undocumented immigrants or notify the agency upon their release from custody were considered “sanctuary counties” in a paper by Marta Ascherio.  The paper is entitled "Do sanctuary policies increase crime? Contrary evidence from a county-level investigation in the United States." Here is the abstract:

"Immigration and Customs Enforcement (ICE) has rolled out a series of programs that leverage local and state resources to detain and deport undocumented immigrants. There is little understanding, however, about the public safety consequences of mobilizing local police to enforce immigration law. I use ICE administrative records, Uniform Crime Reports, and American Community Survey population estimates to investigate whether and under what circumstances local immigration enforcement is associated with property crime and violent crime. Results show that crime trends in sanctuary and non-sanctuary counties were not significantly different in the first decade of the 2000s. However, after the proliferation of sanctuary practices around 2014, both property crime and violent crime decreased more in sanctuary counties than non-sanctuary counties, net of other predictors of crime. Further, a pooled cross-sectional analysis of 2013–2016 data shows that sanctuary practices strengthen the inverse relationship between proportion foreign-born Latino and property crime, and reverse the positive relationship between proportion native-born Latino and property crime. I theorize that this occurs because sanctuary practices encourage immigrant political integration, have positive spillover effects to non-immigrant Latinx communities, and increase social harmony."

The study shows a drop in crime in sanctuary counties.

Hat tip to Lexis Nexis Immigration Law.

KJ

Immigration Article of the Day: "Migration and the Demand for Transnational Justice" by Leslie Johns, Maximo Langer, and Margaret E. Peters

The Immigration Article of the Day is "Migration and the Demand for Transnational Justice" by Leslie Johns, Maximo Langer, and Margaret E. Peters, published in the American Political Science Review and available here.

Here is the abstract:

Domestic courts sometimes prosecute foreign nationals for severe crimes—like crimes against humanity, genocide, torture, and war crimes—committed on foreign territory against foreign nationals. We argue that migrants can serve as agents of transnational justice. When migrants move across borders, as both economic migrants and refugees, they often pressure local governments to conduct criminal investigations and trials for crimes that occurred in their sending state. We also examine the effect of explanatory variables that have been identified by prior scholars, including the magnitude of atrocities in the sending state, the responsiveness of the receiving state to political pressure, and the various economic and political costs of prosecutions. We test our argument using the first multivariate statistical analysis of universal jurisdiction cases, focusing on multiple stages of prosecutions. We conclude that transnational justice is a justice remittance in which migrants provide accountability and remedies for crimes in their sending states.

IE

American Sociological Association International Migration Awards

Congratulations to the winners of the ASA International Migration section awards!

 

2022 Aristide Zolberg Distinguished Student Scholar Award    

Co-Winners: 

Francisco Lara-García, "Components of Context: Respecifying the Role of Context in Migration Research.”

Jiaqi Liu, “From ‘Sea Turtles’ to ‘Grassroots Ambassadors’: The Chinese Politics of Outbound Student Migration.” 

 

2022 Louis Wirth Best Article Award

Co-Winners: 

Rhacel Salazar Parreñas, 2021. "Discipline and Empower: The State Governance of Migrant Domestic Workers." American Sociological Review 86(6): 1043-1065. 

Hajar Yazdiha, 2021. "Toward a Du Boisian Framwork of Immigrant Incorporation: Racialized Contexts, Relational Identities, and Muslim American Collective Action." Social Problems 68(2): 300-320.   

 

2022 Thomas & Znaniecki Best Book Award

Winner:  

Rebecca Hamlin. 2021. Crossing - How We Label and React to People on the Move. Stanford, CA: Stanford University Press.

Honorable Mention:  

Emine Fidan Elcioglu. 2020.  Divided by the Wall: Progressive and Conservative Immigration Politics at the U.S. Mexico Border. Oakland, CA: University of California Press.

 

2022 Award for Public Sociology in International Migration 

Co-Winners: 

Jennifer Lee, Columbia University

Anthony Ocampo, California State Polytechnic University 

 

2022 Distinguished Career Award    

Phil Kasinitz, CUNY Graduate Center

MHC

Immigration Article of the Day: Immigration, Government Terror, and the Rule of Law by Paul Gowder

In Immigration, Government Terror, and the Rule of Law, 107 Iowa L. Rev. Online 94 (2022), Paul Gowder responds to immprof Stella Burch Elias' earlier work Law as a Tool of Terror.

Paul reads Stella's article in light of his own prior work concluding that "the concept of terror plays a central role in our understanding of the meaning and moral worth of the political and legal ideal known as 'the rule of law.'" He goes on to argue that:

This theoretical importance suggests that Elias’s article can be put to use beyond its intended purposes, in a kind of two-way conceptual synthesis: filling out the theory of terror by drawing on the ways in which Elias illustrates terror using immigration policy, as well as filling out Elias’s critique of immigration policy by connecting it to a broader account of what terror is and why it is wrong.

Paul's Iowa Law Review piece begins that task.

-KitJ

Immigration Article of the Day: Immigration's Law's Boundary Problem: Determining the Scope of Executive Discretion by Peter Margulies

Immigration's Law's Boundary Problem: Determining the Scope of Executive Discretion by Peter Margulies, forthcoming Hastings Law Journal

Abstract

In immigration law, executive discretion has become contested terrain. This uncertainty is rooted in historical practice: courts, officials, and scholars have rarely distinguished between regulatory discretion, which facilitates exclusion and removal of noncitizens, and protective discretion, which safeguards noncitizens' reliance interests. Moreover, courts have long discerned an internal-external divide in discretion, deferring to executive measures that excluded noncitizens abroad, while reducing deference for measures concerning noncitizens who have already entered the United States. Immigration law needs a cohesive framework for executive discretion. This Article suggests a stewardship model to fill that gap.

Recent developments have emphasized the need for a coherent model of discretion. The Trump administration altered the landscape of executive discretion, seizing every chance to make the law harsher. The Biden administration's efforts to correct this imbalance have been only partially successful.

For example, the Biden administration has issued a proposed rule supporting the Deferred Action for Childhood Arrivals (DACA) program and has sought to end the Trump administration's "Remain in Mexico" program, which subjects tens of thousands of asylum seekers to peril. However, for over a year President Biden retained the Title 42 program, which precluded asylum in the name of preventing the introduction of COVID-19. The new administration resisted efforts to end Title 42, even though that program undercuts asylum and does not perform its ostensible public health mission. Only an unfavorable court decision in 2022 spurred efforts to terminate Title 42. At that point, another court enjoined Title 42's termination, illustrating yet again the confused state of executive discretion.

A workable approach to executive discretion requires cutting through the confusion and returning to first principles. To achieve these goals, the stewardship model highlights three factors: discretion's fit with the statutory framework; protection of reliance interests; and avoidance of adverse impacts on foreign relations. The Article applies these values to DACA, Title 42, and the "Remain in Mexico" program.

KJ

Immigration Article of the Day: Migrant Justice Now by Leti Volpp

Migrant Justice Now by Leti Volpp, University of Colorado Law Review, Vol. 92, No. 4, 2021

Abstract

This essay, written for a symposium on the idea of critique in legal theory, juxtaposes the immigration plan of President Joe Biden’s presidential campaign with the “Migrant Justice Platform,” a document created by a coalition of immigrant rights activists recommending ways to overhaul the U.S. immigration system. I read both documents closely to parse where they diverge in terms of substantive recommendations, examine what normative assumptions underlie those recommendations, and show how the Migrant Justice Platform functions as a critique of the Biden Plan. At the same time, the Migrant Justice Platform is not itself immune from critique. In puzzling out why the Platform articulates challenges to the Biden Plan from within the framework of maintaining immigration law, I conclude that it retains a pragmatic underpinning that both narrows what it can imagine, and fuels its demand.

KJ

 

 

Immigration Article of the Day: Race, Immigration Law, and Christianity: Reflections and Tensions Raised by United States v. Wong Kim Ark by Jennifer Lee Koh

Hat tip to Dean Paul Caron's TaxProf blog for bringing a great immigration article, authored by a former blogger for the ImmigrationProf blog, to my attention.

Jennifer Lee Koh, Race, Immigration Law, and Christianity: Reflections and Tensions Raised by United States v. Wong Kim Ark:, 23 Political Theology (forthcoming 2022)

Abstract

In 1898, the United States Supreme Court held that the Fourteenth Amendment of the U.S. Constitution guarantees citizenship to the children of immigrants born on U.S. soil. The case, United States v. Wong Kim Ark, involved the son of Chinese immigrants who was born in and had spent the vast majority of his life in the U.S. Immigration officials denied his claim to citizenship when he attempted to return to the country after a trip to China. Its direct legal holding—that birthright citizenship is a constitutional right—continues to have salience for immigration law debates and discourse today.

This Essay, written for a joint symposium between the JOURNAL OF LAW AND RELIGION and POLITICAL THEOLOGY on Wong Kim Ark and James Baldwin’s 1955 essay, Equal in Paris, reflects upon several themes—and tensions—present in the case and echoed in contemporary society. The Essay first explores the influence of race in the development of immigration law, along with the simultaneous discomfort with race as a basis for legal rights and remedies. The second theme, raised by Wong Kim Ark’s holding and subsequent history, is the necessity and shortcomings of law as a source of protection, particularly in the context of bureaucratic systems with the power to incarcerate. Finally, the conclusion briefly highlights ways in which Christianity might serve as a source of both despair and hope for the future.

KJ

Immigration Article of the Day: The Right to Remain by Timothy E. Lynch

The Right to Remain by Timothy E. Lynch, Washington International Law Journal (2022)

Abstract

Article 12.4 of the International Covenant on Civil and Political Rights (ICCPR) states, “No one shall be arbitrarily deprived of the right to enter his own country.” Citizens clearly enjoy Article 12.4 rights, but this article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR’s preparatory works and the jurisprudence of the Human Rights Committee, this article demonstrates that Article 12.4 also forbids States from deporting long-term resident noncitizens—both documented and undocumented—except under the rarest circumstances. As a result, the ICCPR right to remain in one’s own country is a right that should be particularly valuable to the many people in the world who have lived in, and established a relationship with, a country which is not their country of citizenship—including lawful permanent residents, long-term refugees, Dreamers and other long-term undocumented residents, and people born in countries without birthright citizenship. These people cannot be deported from the countries they call home.

KJ

Immigration Article of the Day: Access to a Doctor, Access to Justice? An Empirical Study on the Impact of Forensic Medical Examinations in Preventing Deportations by Nermeen Arastu

Access to a Doctor, Access to Justice? An Empirical Study on the Impact of Forensic Medical Examinations in Preventing Deportations by Nermeen Arastu

Abstract

Year after year, the United States has remained the world’s largest recipient of humanitarian-based immigration applications. Those seeking protection here must navigate a backlogged and increasingly restrictive system, oftentimes without access to counsel.

Most individuals applying for humanitarian relief must prove that they survived egregious past harms or fear future harms if the United States were to deport them. In turn, immigration judges and Department of Homeland Security adjudicators act as gatekeepers, making daily decisions about whose pain and suffering is devastating enough to justify granting them status in the United States.

For immigrants privileged enough to gain access to them, forensic medical evaluators can play a crucial role in immigration outcomes by documenting narratives of harm, bolstering credibility, and persuading adjudicators to grant relief. However, despite the exponential growth in medical-legal collaborations and requests for forensic medical evaluations in support of immigrants, there is little data about if and how forensic medical evidence impacts adjudicator decision making.

The empirical study discussed in this Article—the largest-of-its-kind quantitative study of over 2,500 cases in which Physicians for Human Rights (“PHR”) facilitated medical evaluations on behalf of immigrants—found that 81.6% of individuals who received a forensic medical evaluation between 2008 and 2018 experienced some form of a positive immigration outcome. In comparison, immigration adjudicators only granted relief to asylum seekers an estimated 42.4% of the time.

The significant impact of forensic medical evaluations in contributing to a favorable immigration outcome raises questions about whether adjudicators are holding immigrants to overly-stringent evidentiary standards by constructively creating norms that require immigrants to gain access to health professionals with the requisite training to evaluate them. To the extent such evaluations become essential to the successful outcome of the legal case, access to a medical evaluator may indeed translate into access to justice.

KJ

Immigration Article of the Day: No Migration Without Taxation: State Exit Taxes by Andrew D. Appleby

No Migration Without Taxation: State Exit Taxes by Andrew D. Appleby Harvard Journal on Legislation

Abstract

The movement of people and the movement of money are often discrete. As such, governments can address the effects of each separately. Because residence provides a general jurisdictional basis for state personal income taxation, however, money often moves with people. States must disentangle the two to prevent tax base erosion and improve distributional equity, particularly with many high-net-worth individuals migrating to states with more favorable tax regimes. A state exit tax may be the answer.

This Article begins by examining exit tax theory and advancing novel applications of theories that support subnational exit taxation, both domestically and internationally. With a robust theoretical and technical foundation, this Article turns to state and local exit tax design. This discussion examines constitutional constraints to address specific tax base migration challenges—focusing on the justifications, distributional impact, and optimal exit tax design features to address each situation.

If a state has a solid theoretical foundation and incorporates proper design principles, as this Article provides, an exit tax can effectively mitigate tax base migration while aligning with prevailing policy goals and avoiding constitutional infirmities.

KJ

 

Immigration Article of the Day: Regulated Immigrants: An Administrative Law Failure by Jill E. Family

The Immigration Article of the Day is "Regulated Immigrants: An Administrative Law Failure" by Jill E. Family, forthcoming in the Howard Law Journal and available on SSRN here.

Here is the abstract:

Congress’ grandest reform of administrative law recently celebrated its 75th birthday. The Administrative Procedure Act (APA) is regarded mostly as a success that set the stage for modern federal governance. This article uncovers a major flaw. The APA has failed to establish a deportation system that satisfies administrative law process values.

In retrospect, this failure is not surprising given that Congress never fully integrated immigration law into administrative law. The unique nature of regulating immigrants was not a driving force in the creation of the APA. Instead, the APA was molded by concerns about the New Deal and the increasing power of the federal government over industry. The regulation of human beings by deciding some of life’s most basic questions, including whether someone could live with immediate family members, simply was not the focus of reformers. Even once enacted, the APA never had much of a chance to shape deportation adjudication. Shortly after the APA’s enactment, Congress exempted deportation adjudication from the APA and created a parallel administrative law universe. This alternative structure has resulted in an adjudication system that is inefficient, unacceptable, and only questionably accurate.

Even if the APA applied to deportation proceedings, that would not fix what ails the system. Administrative law, as currently formulated, lacks the right doctrines to regulate the regulation of immigrants. New principles are necessary. To develop these new doctrines, we need to divorce immigration law from the administrative law debates that are charged with arguments about the power of the federal government to regulate the economy. The construction of new principles should be guided by the extreme power imbalance between the government and the regulated parties in immigration law, the effect of the regulation on fundamental issues of human existence, the prominent role of detention in civil immigration adjudication, and the lack of decisional independence for immigration adjudicators.

IE

Live'ish from Loyola LA's ILSTW 2022: Papers To Keep A Watch Out For

Yesterday was the first full day of conferencing at the biennial (though much delayed) immprof conference (ILSTW 2022). I attended WIP sessions for a number of very fascinating pieces. Check it out:

Ahilan Arulanantham, Towards a Theory of Preventative Detention. In this piece, Ahilan explores the history of preventative detention practices, including quarantines, civil commitments, pre-trial, national security and immigration. He notes that, historically, preventative detention was not acceptable to deter crime. Given that, he argues that preventative detention today should be limited to situations "where the conduct it seeks to prevent cannot be punished under criminal law." That is, it should not be based on "public safety," which so frequently is the modern explanation for immigration detention.

Paulina Arnold, How Immigration Detention Became Exceptional. Paulina, like Ahilan, is interested in immigration detention. She presents historical evidence that the detention of immigrants was "a central part of civil incarceration at its inception." Among her fascinating factual nuggets is this: "in the St. Louis Workhouse in 1855, at a time when immigrants represented 13% of Missouri's population, they comprised 90% of the workhouse population." Paulina's work moves through 19th century civil incarceration, through the birth of immigration detention, to the dramatic reduction of civil incarceration (that somehow missed immigration), to immigration detention today. She presents constitutional law arguments regarding "civil carceral law."

Alina Das discussed an early idea -- exploring whether the Accardi doctrine (that agencies must follow their own rules when acting) could help individuals in detention vindicate more of their rights. This paper offers real promise given the litany of "rights" that immigrants in detention are supposed to have yet are prohibited from accessing.

Emily Torstveit Ngara, Cruel and Unusual Penalty? The Use of Punitive Solitary in Civil Immigration Detention. Emily has been long interested in the regular use of solitary confinement in immigration detention to both "protect" (as in the case of trans and LGBTQ migrants) and to punish for disciplinary infractions. This piece will explore the latter context, looking at the practices, harms, and legal challenges to solitary confinement.

Eunice Lee, Immigration in the Shadow of Death. Eunice is exploring the United States' "tolerance of undue risk of mortality" throughout the immigration system, including: border wall deaths, desert crossing deaths, cross border shootings, detention deaths, deaths resulting from Title 42 expulsions, and deportation to death. Individually, you might be aware of each of these areas but putting them all together sharply highlights, as Eunice writes, the "core assumption that immigrant lives matter less than citizens' lives."

Ana Pottratz Acosta, An Examination of Public Benefit Enrollment Data from Minnesota as Evidence of Public Charge Chilling Effect Within Immigrant Communities. In this empirical piece, Ana will examine enrollment data for means tested public benefits programs in Minnesota to see if decreased enrollment followed the publication of draft and final public charge regulations. Empiricists -- reach out and give Ana the skinny on this type of work! 

Alan Hyde, Our Immigration Narrative: What and How. Alan is sitting on a self-proclaimed "unpublishable book" (I disagree about this characterization) that calls for the creation of a vision for immigration law that might help shape future litigation and legislation.

***

If you're interested in these papers, I highly recommend that you reach out to the authors. I'm sure they've love to brainstorm with you and hear ideas & comments!

-KitJ

Immigration Article of the Day: Transforming Deportation Defense: Lessons Learned from the Nation’s First Public Defender Program for Detained Immigrants by Talia Peleg and Ruben Loyo

The Immigration Article of the Day is "Transforming Deportation Defense: Lessons Learned from the Nation’s First Public Defender Program for Detained Immigrants" by Talia Peleg and Ruben Loyo, published in the The City University of New York Law Review and posted on SSRN here. 

Here is the abstract:

The unprecedented pace of deportations in recent years has led to increased investment, at the local level, in the provision of high volume legal services to immigrants facing deportation. Each investment in greater legal representation of noncitizens offers unique opportunities to raise the bar in a practice area that has been plagued by low quality representation and to experiment with institutional design as the immigration system slowly but surely moves toward a civil Gideon system. This paper takes a look at questions of institutional design and attorney practice norms within the context of the New York Immigrant Family Unity Project (“NYIFUP”), the nation’s first public defender program for detained indigent immigrants. Drawing from the experiences of the authors of this paper—former attorneys at Brooklyn Defender Services who were among the first attorneys to represent immigrants as part of NYIFUP—the paper argues that to maximize meaningful relief to detained immigrants facing removal, immigration defense attorneys must embrace not only zealousness in litigation but also an interdisciplinary and collaborative approach to litigation.

IE