Thursday, February 25, 2021
Immigration Article of the Day: Tried and (Inherently) Prejudiced: Disposing of the Prejudice Requirement for Lack of Counsel in Removal Proceedings by Ayissa Maldonado
Every year, hundreds of thousands of immigrants appear before the immigration courts in removal proceedings. Removal proceedings have long been scrutinized when it comes to ensuring immigrants who go through the immigration courts are afforded their rights—with good reason. Over the past few years, the immigration courts have been facing an existential crisis and have been dysfunctional, compromising the effectiveness of the court system. As a result, immigration judges often prioritize efficiency over ensuring noncitizens are afforded their rights and afforded a meaningful day in court. Among these rights this process has jeopardized includes the statutory right to counsel.
Although noncitizens have a statutory right to counsel in immigration courts, the government has no obligation to provide an attorney to those who cannot afford one. The problem is that immigration judges are denying the statutory right to counsel in removal proceedings; therefore, the noncitizens are appearing before immigration judges without a crucial procedural safeguard. Noncitizens who have counsel are more likely to seek relief from removal and actually win their case; therefore, it is important to recognize the distinctiveness of this right. The current system is inadequate and fails to give these noncitizens a fair and meaningful hearing.
As a result, the federal circuit courts are split as to whether the courts should require a noncitizen to show that they were prejudiced by lack of counsel in removal proceedings. This Comment argues that the federal circuit courts should not require prejudice when the immigrant has been denied their right to counsel because, under the Accardi Doctrine, an agency must abide by its own regulations when those regulations pertain to a party’s rights. The consequences of removal are similar in severity to those in criminal law; therefore, it needs to be ensured that immigrants have the right to counsel if they have not expressly waived it in order to effectuate a meaningful hearing. Not only are the consequences of removal severe, but immigration system is already inherently prejudicial to the immigrant such that proving prejudice would be a waste of resources. Immigration laws are complex and filled with subjective standards, the impartiality of the immigration courts has been questioned, and the immigration courts have become increasingly weaponized over the past few years. Therefore, the federal circuit courts should not require an immigrant to show that lack of counsel prejudiced their proceedings.
Wednesday, February 24, 2021
Immigration Article of the Day: Capital Controls as Migrant Controls by Shayak Sarkar, California Law Review, Forthcoming
The disparate treatment of capital and labor reflects one of globalization’s central asymmetries: the law often allows financial capital, but not people, to move freely across borders. Yet scholars have largely neglected the intersection of these two regimes, the legal restrictions on migrants’ capital, particularly when the migrants themselves are deemed illegal. These restrictions on migrants’ capital abound even while migratory capital generally faces few such restrictions. As such, capital controls may operate as migrant controls.
This Article canvasses established and emerging examples of capital controls as migrant controls and the pressing legal questions these controls raise. Capital is guarded when remittances are taxed, particularly when the taxation is explicitly conditioned on immigration status. Capital is expelled when capital receipts, such as Social Security benefits, are made contingent on departure and non-residency. And capital is marginalized when financial laws require particular identity and immigration documents on penalty of exclusion from key financial services.
As I describe, such taxation, receipt contingencies, and identity requirements often distinguish on the basis of immigration status and implicate core questions in constitutional and immigration law. These questions include the scope of traditional state powers such as taxation; how such controls create unconstitutional choices and conditions; and how statutory and administrative ambiguities in banking law may marginalize migrants. More generally, these controls contribute to our understanding of who—Congress, federal agencies, municipalities and states, or social movements outside the law—controls, and who may legally control, American migration.
Tuesday, February 23, 2021
Immigration Article of the Day: Statelessness as Rhetoric: The Case for Revisioning Statelessness in Our Statist World by Francis Tom Temprosa
This article argues that the definition of statelessness in international law should be changed. When the international statelessness regime was instituted, the ultimate goal was the full protection of unprotected persons who are not refugees. Yet, in our statist world, the definition of statelessness—as embodied in the 1954 Convention relating to the Status of Stateless Persons—has become rhetoric. Contrary to the claim that the definition is merely declaratory of a status, this article contends that the definition lends itself to having features and facets of a discretionary design of rhetoric. It does more than accord States with discretion. It also allows them to constitute and ordain who is stateless and therefore entitled to the benefits of the statelessness regime in international law—which ensures protection and rights. Principally combining insights from critical rhetoric as theory, this article also posits that ideologies animate and persist in the determinations of statelessness: 'formalism' and 'discretionism'. The definition, instead of being an emancipatory tool of international law, entrenches and reifies State power over citizenship matters.
Drawing on an analysis of the legal definitions of statelessness all over the world and different cases of stateless status determination, this article is the first to directly question and critically engage with the definition of statelessness in international law, theorizing on the definition in rhetoric and building the case for why it should be changed. It develops the connection between the definition of statelessness to ideographs, ideologies, and categories in order to analyze statelessness determinations. Existing literature on categories, labels, and definitions in the social sciences, refugee studies, and migration studies are incorporated in an interdisciplinary analysis.
This article thereafter proposes that the definition be 'revisioned'. A two- pronged protection framework that recalibrates the definition is suggested. The first prong turns the attention of the definition from formal protection to substantive and functional protection. A determiner of stateless status is allowed to look beyond mere formal protection, encouraging the piercing of the veil of citizenship in certain cases and placing nondiscrimination as a core tenet. The definition should also be tied to the right to nationality. The second prong reorients State responsibilities and duties in statelessness determinations, limiting the discretion of the State and assigning more duties to the international community as a whole. It takes into account the goal-oriented dimensions of the 1954 Convention relating to the Status of Stateless Persons and recommends ways forward to reimagine the concept of statelessness. If a State is allowed to consider who its citizens are and are not, as well as who is entitled to rights under the treaty on statelessness, then the State is more than a determiner of status; it is the giver of status, rights, and even life. The definition has to respond to this reality.
Monday, February 22, 2021
Immigration Article of the Day: The Political (Mis)representation of Immigrants in Voting by Ming Hsu Chen and Hunter Knapp
Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights, but on the basis of the rights of semi-citizenship. By placing naturalization backlogs, voting restrictions, and reapportionment battles in the historical context of voter suppression, it provides a descriptive and normative account of the political misrepresentation of immigrants.
Sunday, February 21, 2021
Immigration Article of the Day: The Right to Kill: How Congress Can Solve the Problem Presented in Hernandez V. Mesa by David Rice
Sergio Hernandez was shot and killed by a Border Patrol agent in 2010. At the time of the shooting, Hernandez was standing on the Mexican side of the border while the agent was standing in United States territory. The Supreme Court of the United States recently decided in Hernandez v. Mesa that it would not extend the Bivens doctrine to include cross-border shootings and allow the Hernandez family to bring a civil action against the Border Patrol agent. The Supreme Court argued that it was up to the political branches, specifically Congress, to address this issue of cross-border shootings. Due to this holding, Mexican citizens currently have no avenues to bring claims in the event of any future cross-border disputes against Border Patrol agents.
This inability to bring a claim, when a cross-border shooting occurs, denies those affected the opportunity to receive any restitution when a Border Patrol agent takes the life of an innocent person. The legislation proposed in this Comment aims to solve this inability to bring an action when a cross-border shooting occurs. The legislation will amend 42 U.S.C. §1983 in two important ways. First, it changes the original language of §1983 to include federal agents. Next, it looks to the location of the agent accused of a constitutional violation instead of focusing on the location where the harmed individual was at the time of the violation.
This proposed legislation will allow for innocent citizens of Mexico appropriate access to the American judicial system to address the issue of cross-border shootings.
Saturday, February 20, 2021
Immigration Article of the Day: Migrant-Family Separation and the Diverging Normative Force of International Law and Constitutional Law by Kevin L. Cope and Charles Crabtree
A growing experimental literature suggests that international law appears to have a larger impact on public opinion than constitutional law. We develop a theory to explain these seemingly counter-intuitive results. First, in studies that explore the impact of constitutional law, respondents may be “unsuccessfully treated.” Second, constitutional law treatments can trigger a backlash effect through defensive processing of information on constitutionality. To test our theory, we simultaneously test the normative effect of international law and law in relation to the policy of separating migrant families at the U.S. border. We fielded nationwide survey experiments in July 2018 and November 2020, asking respondents whether they supported the policy. Consistent with our theory, we find that telling people that the policy is unconstitutional increases support for the policy, but only when the issue was receiving heavy media coverage, and that international law has no comparable effect on public opinion.
Friday, February 19, 2021
Expedited Call for Papers
The Rutgers Race & the Law Review invites submissions for Articles and Essays to be published in its Spring Volume 22.2 Edition (Spring 2021 publication). The Race & the Law Review analyzes the intersection of race and the law, and the complexities that arise in the relationship between the two. We are looking for thought-provoking, topical submissions that challenge legal discussions by bringing race to the forefront. By focusing on issues that impact people of color both nationally or internationally, the Race & the Law Review seeks to discuss varying political ideologies or philosophies that emphasize racial impact. Submissions will go through an expedited review and editing process in order to be published later in the spring. The Race & the Law Review will work with authors to ensure the same quality of publication despite the expedited process.
Please submit final drafts of Articles or Essays to email@example.com no later than Friday, March 5. Exclusive submissions will be given first priority. Acceptances will be emailed on or before March 15. Please reach out to firstname.lastname@example.org if you have any questions.
Immigration Article of the Day, The Immigrant Struggle for Effective Counsel: An Empirical Assessment by Jayanth K. Krishnan
The Immigration Article of the Day is The Immigrant Struggle for Effective Counsel: An Empirical Assessment by Jayanth K. Krishnan, forthcoming in the University of Illinois Law Review (2021/2022). The full article is available for download on SSRN.
Here is the abstract:
Monday, February 15, 2021
In An Invisible Border Wall and the Dangers of Internal Agency Control, Jill Family explores the Trump policies that created barriers to legal migration, arguing that it represents a collapse of internal administrative law allowed for unchecked executive branch power. She calls for courts to provide a check on agency behavior and makes these suggestions in a Yale JREG blog.
To strengthen internal administrative law, the Biden administration should adopt guiding principles for USCIS adjudication through a notice and comment regulation. Here are suggested guiding principles for USCIS:
- USCIS’s adjudicatory standards, procedures, and interpretations of law should be formulated and applied to promote values of clarity, predictability, timeliness, fidelity to existing law, and equal treatment.
- USCIS’s adjudicatory standards, procedures, and interpretations of law should be formulated with an eye to increase the protection of human rights.
- USCIS’s exercises of discretion should promote clarity, predictability, equal treatment, and human rights.
- The formulation of USCIS policies should be open and transparent, with clear policy rationales adopted.
- USCIS insists on fidelity to its statutory mission and competence in its operations.
Formalizing these principles through notice and comment rulemaking will not guarantee that USCIS would resist the impulses of a future president insistent on ignoring rule of law values. Such a regulation, however, would stand as an additional line of defense and would help to illuminate the intentions of a future president who wishes to operate in contradiction to these principles.
Friday, January 22, 2021
This week the Biden administration proposed a Citizenship Act of 2021 (KitJ blogged here) that would, among other changes, replace the term “illegal alien” with “noncitizen” in the Immigration and Nationality Act.
Many immigration scholars and supporters have long chafed at the INA's terminology. Empirical evidence supports their instincts that words matter: labels impact institutional and decisions and societal thinking. Julian M. Rucker, Mary C. Murphy, and Victor D. Quintanilla published an empirical paper (The immigrant labeling effect: the role of imimgrant group labels in prejudice against noncitizens, Group Processes & Intergroup Relations (2019)) investigating how prejudice, punitive behavioral intentions, and support for punitive immigration policies shift when immigrant labels included “illegal alien” vs. “noncitizen.”
The paper abstract reads:
Five experiments (N = 2,251) and a meta-analysis examine how group labels shape Americans’ levels of prejudice, behavioral intentions, and policy preferences toward immigrants living in the US without authorization. These studies extend research documenting how the perceived negativity of group labels (e.g., those describing gay people) affects people’s downstream attitudes. To this end, Study 1 examines the perceived negativity of the five most commonly used labels to describe unauthorized immigrants. Study 2 found that relatively negative (vs. neutral) labels (e.g., illegal aliens vs. noncitizens) engendered more prejudice, punitive behavioral intentions, and greater support for punitive policies. Study 3 replicates these effects and examines the role of familiarity. People who personally knew members of the group were more positive towards them overall, but were nevertheless susceptible to the labels’ influence. Studies 4 and 5 provide additional replications and explore prejudice as a mediator of behavioral intentions and policy preferences.
Sunday, January 17, 2021
Immigration Article of the Day: The Tortured Woman: Defying the Gendered Conventions of the Convention Against Torture by Linda Kelly
Check out Linda Kelly's article The Tortured Woman: Defying the Gendered Conventions of the Convention Against Torture in American University Washington College of Law's Human Rights Brief (Vol. 24, Issue 2, Winter 2020). Here is her introduction:
In the last few years, asylum advocacy for women has made some great strides — and has had some significant setbacks. Terrific attention has been paid to the ongoing, twenty-year struggle of domestic violence survivors to win asylum. The hard-won victory of female genital mutilation (FGM) claims for asylees has also been widely celebrated. However, little attention is paid to women’s claims pursuant to the Convention against Torture (CAT).
There are both practical and legal reasons for the difference in interest between asylum and CAT claims. As a practical matter, asylum has more benefits. Asylum puts the recipient on the road to residency and allows her to petition for family members. By contrast, CAT relief is a strictly limited benefit for the recipient, who can be subject to detention for the duration of status. As a legal matter, asylum is also easier to win. Asylum’s “reasonable fear of persecution” is much lower than CAT’s “would be tortured” analysis.
The fights, wins, and losses of female asylees deserve all the support they get — and more. Nevertheless, CAT remains an important tool for women. There are many women who are not eligible for asylum due to prior criminal or immigration records. Ongoing challenges to what qualifies as a valid particular social group for gender violence asylum claims and possible new, severe restrictions on all asylum claims further contribute to the need to fully appreciate and litigate CAT claims.
CAT requires that a claimant prove she “will more likely than not be tortured with the consent or acquiescence of a public official if removed to her native country.” This standard breaks down in four significant criteria for the success of a CAT claim: torture, government action or acquiescence, relocation, and future harm. This Article systematically evaluates the CAT standards from a gendered perspective. When they are put in context with the overarching historical struggle of women to fight gender violence, Professor Catherine MacKinnon’s blunt question arises: “Are Women Human?”
While gender challenges persist, existing CAT regulations can be tools to defy them. Uncovering CAT’s gender conventions, this Article proposes a new perspective on CAT standards of torture, state acquiescence, and relocation. Such proposals rely on key, positive 2020 U.S. Circuit Court CAT decisions while remaining rooted in feminist norms.
Part I of this Article introduces the basic definition of torture. Addressing the “what” and “why,” it considers what acts of domestic violence, rape, and sexual assault qualify as torture and whether why they occur is being fully considered. Part II follows by critiquing whether “who” perpetrates such acts of torture can fit the standard of government actor or acquiescence. Part III then moves to relocation, proposing that the standard can readily encompass safety issues unique to gender violence. Finally, Part IV brings the variables together to properly calculate the risk a torture victim will face upon return and asks how gender violence changes the calculus.
Friday, January 8, 2021
Immigration Article of the Day: Entry Denied: COVID-19, Race, Migration, and Global Health by Matiangai Sirleaf
Entry Denied: COVID-19, Race, Migration, and Global Health by Matiangai Sirleaf, 2 Frontiers in Human Dynamics 599157 (2020).
This essay uses the novel coronavirus pandemic as an entry point to explore the intersections between race, migration, and global health. The pandemic is simultaneously reviving stereotypical colonial imaginations about disease directionality, but also challenging racialized hierarchies of diseases. This essay illuminates how the racialization of diseases is reflected in historic and ongoing United States’ migration law and policy as well as the global health law regime. By demonstrating the close relationship between often separately treated areas, the essay clarifies underlying currents in global health and migration law and policy that stem from fears of the racialized other. Rendering these intersections visible creates avenues for rethinking and reshaping both theory and praxis toward anti-subordination efforts.
Thursday, January 7, 2021
It was more than a little surreal to begin our New Voices in Immigration Law session on Wednesday at 4:15PM Eastern, smack in the middle of "Coup Wednesday," as one attendee called it. Nonetheless, it was a wonderful and welcome distraction from the craziness of the world for us to come together and support junior colleagues as they try to actively change the world for the better!
First, we discussed Eliminating Fugitive (Alien) Disentitlement by Tania N. Valdez (Denver). This paper describes how the fugitive disentitlement doctrine migrated from criminal proceedings to civil immigration proceedings, works through the justifications raised for allowing this migration, and ultimately argues that the doctrine should not extend to the immigration context. I have to give props to Tania for introducing me to a doctrine that I had no idea existed and certainly would never have guessed was being applied to migrants IN CUSTODY. (Yeah, you're hooked now, aren't you!)
Second, we discussed Unenforced Split-Enforcement in Immigration Agencies by Beth K. Zilberman. This paper analyzes USCIS’s shift in mission away from the “service” of fair and efficient adjudication of immigration and citizenship applications towards enforcement of draconian immigration laws that make millions of people vulnerable to deportation. Her piece uses an administrative law framework (which brought cheers from the imm/admin law geeks in the room), specifically the institutional and agency design choices that have enabled and encouraged USCIS to contravene congressional separation of enforcement functions. Beth, too, deserves mad props. I wrote all over the margins of her paper while reading it: "MUST address this in next Immigration course!" I routinely describe USCIS to my students as the "service" branch without qualification. Beth's paper made me (and attendee Stella Burch Elias who raised a very similar point despite not seeing my very insightful margin notes) realize that we must provide a more nuanced description in the future.
All in all, a great event. There's nowhere else I'd rather have spent a coup.
Keep your eyes peeled for when these two excellent papers make it into a law review journal near you!
Monday, January 4, 2021
Immigration Article of the Day: Labor Unions and Undocumented Immigrants by Els de Graauw and Shannon Gleeson
Labor Unions and Undocumented Immigrants: Local Perspectives on Transversal Solidarity During DACA and DAPA, Critical Sociology, (December 2021). https://doi.org/10.1177/0896920520980123.
Abstract. National labor unions in the United States have formally supported undocumented immigrants since 2000. However, drawing on 69 interviews conducted between 2012 and 2016 with union and immigrant rights leaders, this article offers a locally grounded account of how union solidarity with undocumented immigrants has varied notably across the country. We explore how unions in San Francisco and Houston have engaged with Obama-era immigration initiatives that provided historic relief to some undocumented immigrants. We find that San Francisco’s progressive political context and dense infrastructure of immigrant organizations have enabled the city’s historically powerful unions to build deep institutional solidarity with immigrant communities during the Deferred Action for Childhood Arrivals (DACA ) and Deferred Action for Parents of Americans (DAPA ) programs. Meanwhile, Houston’s politically divided context and much sparser infrastructure of immigrant organizations made it necessary for the city’s historically weaker unions to build solidarity with immigrant communities through more disparate channels.
Thursday, December 24, 2020
Immigration Article of the Day, A New Beginning: Early Refugee Integration in the United States, by Van C. Tran and Francisco Lara-García
Today's immigration article of the day is A New Beginning: Early Refugee Integration in the United States, The Russell Sage Foundation Journal of the Social Sciences, November 2020, 6 (3) 117-149, by Professor Van C. Tran and Francisco Lara-García.
Wednesday, December 23, 2020
Immigration Article of the Day, The Value of Citizenship and Service to the Nation by Cara Wong & Jonathan Bonaguro
Today's immigration article of the day is The Value of Citizenship and Service to the Nation, The Russell Sage Foundation Journal of the Social Sciences, November 2020, 6 (3) 96-116, by Professor
Tuesday, December 22, 2020
Immigration Article of the Day, Help Wanted: Employer Demand for Less-Skilled Temporary Foreign Worker Visas in an Era of Declining Unauthorized Immigration by Pia M. Orrenius & Madeline Zavodny
Today's immigration article of the day is Help Wanted: Employer Demand for Less-Skilled Temporary Foreign Worker Visas in an Era of Declining Unauthorized Immigration, The Russell Sage Foundation Journal of the Social Sciences, November 2020, , by Pia M. Orrenius, Vice president and senior economist at the Federal Reserve Bank of Dallas, and Professor Madeline Zavodny.
Monday, December 21, 2020
Immigration Article of the Day, The Preferences of Political Elites and Humanitarian Immigration to the United States, by Banks Miller, Jennifer S. Holmes & Linda Camp Keith
Today's immigration article of the day is The Preferences of Political Elites and Humanitarian Immigration to the United States, The Russell Sage Foundation Journal of the Social Sciences, November 2020, , by Professors Banks Miller, Jennifer S. Holmes, and Linda Camp Keith.
Sunday, December 20, 2020
Immigration Article of the Day, Do Employer-Sponsored Immigrants Fare Better in Labor Markets Than Family-Sponsored Immigrants? by Julia Gelatt
Today's immigration article of the day is Do Employer-Sponsored Immigrants Fare Better in Labor Markets Than Family-Sponsored Immigrants?, The Russell Sage Foundation Journal of the Social Sciences, November 2020, 6 (3) 70-93, by Julia Gelatt, Senior Policy Analyst at the Migration Policy Institute.
Saturday, December 19, 2020
Immigration Article of the Day, Temporary Migrant Workers or Immigrants? The Question for U.S. Labor Migration by Daniel Costa
Today's immigration article of the day is Temporary Migrant Workers or Immigrants? The Question for U.S. Labor Migration, The Russell Sage Foundation Journal of the Social Sciences, November 2020, , by Daniel Costa, Director of Immigration Law and Policy Research at the Economic Policy Institute.