ImmigrationProf Blog

Immigration Article of the Day: Immigration Law's Arbitrariness Problem by Shalina Bhargava Ray

Immigration Law's Arbitrariness Problem by Shalina Bhargava Ray, Columbia Law Review, Vol. 121, No. 7 (forthcoming 2021)

Abstract

Despite deportation’s devastating effects, the Immigration and Nationality Act (INA) specifies deportation as the penalty for nearly every immigration law violation. Critics have regularly decried the INA’s lack of proportionality, contending that the penalty often does not fit the offense. The immigration bureaucracy’s implementation of the INA, however, involves a spectrum of penalties short of deportation. Using tools such as administrative closure, orders of supervision, and deferred action, agency bureaucrats decide whom to deport and who stays, and on what terms, on a purely ad hoc basis. In this so-called shadow system, immigrants, their advocates, and the broader public lack basic information about what penalties are being imposed and why.

This Article argues for reframing the problem of immigration law’s disproportionality as a problem of insufficient justification, one remediable only by building the infrastructure for reason-giving in the immigration bureaucracy. Deportation strikes many as disproportionate because the government often lacks satisfactory reasons for imposing such a drastic penalty. But in the system of shadow sanctions today, the government not only fails to offer good reasons: it fails to offer any at all. As a result, the system of shadow sanctions represents a classic case of an arbitrary exercise of government power. Looking to examples of procedural innovation across the administrative state, this Article backs prudential reforms to create immigration law’s missing reason-giving infrastructure. With it in place, the public can demand better reasons, or proportionality. But the first step is addressing immigration law’s arbitrariness problem.

KJ

Immigration Article of the Day: Are People in Federal Territories Part of “We the People of the United States”? by Gary Lawson and Guy I. Seidman

Are People in Federal Territories Part of “We the People of the United States”?  by Gary Lawson and Guy I. Seidman
9 Texas A&M Law Review (forthcoming 2022)

Abstract

In 1820, a unanimous Supreme Court proclaimed: “The United States is the name given to our great republic, which is composed of states and territories.” While that key point is simple, and perhaps even obvious, the constitutional implications of such a construction of “the United States” as including federal territories are potentially far reaching. In particular, the Constitution’s Preamble announces that the Constitution is authored by “We the People of the United States” and that the document is designed to “secure the Blessings of Liberty” to the author and its “Posterity.” If inhabitants of federal territory are among “We the People of the United States,” then federal actors owe them (and their “Posterity”) the same fiduciary duties owed to people in the States. There is no definitive answer as a matter of original meaning as to the scope of “We the People of the United States,” but the presumptive meaning of “the United States” in 1788 included federal territory, so the presumptive meaning of “the People of the United States” would similarly include people in federal territory. While there are strong textual and contextual arguments for excluding territorial inhabitants from “We the People,” there are also countervailing textual and contextual arguments for their inclusion. In the end, the answer may depend on something beyond the reach of interpretative theory: How strong is the presumption in favor of inclusion that can be drawn from pre-1788 understandings and practices? If territorial inhabitants are indeed among “We the People of the United States,” then federal action towards the territories must conform to fiduciary norms, including the key norm of impartiality with respect to multiple beneficiaries, which would require very strong reasons for disfavoring territorial inhabitants in comparison to state inhabitants.

KJ

Immigration Article of the Day: "Discretion and Disobedience in the Chinese Exclusion Era" by Shoba Sivaprasad Wadhia

Discretion and Disobedience in the Chinese Exclusion Era  by Shoba Sivaprasad Wadhia, Asian American Law Journal (forthcoming 2022)

Abstract

It has long been understood that limited government resources are a key reason for why the Executive Branch uses prosecutorial discretion to refrain from arresting, detaining, or deporting a noncitizen or groups of noncitizens. A second theory driving prosecutorial discretion is humanitarian. Noncitizens with specific equities that include economic contributions to the United States, long term residence in the United States, service as a primary breadwinner or caregiver to an American family, or presence in the United States as a survivor of sexual assault are among the reasons the government have used to apply prosecutorial discretion to protect individuals or groups of people. A final reason prosecutorial discretion might persist is as a stop gap to anticipated future legislation. These rationales for prosecutorial discretion are well documented in domestic immigration history, but this article is the first to trace these rationales to the Chinese Exclusion era and reveal what may be the greatest untold story about prosecutorial discretion in immigration law.

This article examines the use of prosecutorial discretion to protect Chinese nationals subject to deportation following a foundational nineteenth century Supreme Court immigration law case known as Fong Yue Ting. This article provides a historical precedent for the protection of a category of people as well as deeper history of prosecutorial discretion in immigration. This article also sharpens the policy argument to protect political activists through prosecutorial discretion and forces consideration for how modern immigration policy should respond to historical exclusions and racialized laws. Finally, this article provides a foundation for policymakers and government to consider a prosecutorial discretion policy for those engaged in civil disobedience; and to study how changes in how racial disparities in immigration enforcement and non-enforcement are measured.

KJ

Immigration Article of the Day: Introduction to the Symposium on COVID-19, Global Mobility and International Law by Thomas Gammeltoft-Hansen, Tenday Achiume, & Thomas Spijkerbber

Photo courtesy of United Nations

Introduction to the Symposium on COVID-19, Global Mobility and International Law  by Thomas Gammeltoft-Hansen, Tendayi Achiume, & Thomas Spijkerbber, American Journal of International Law Unbound, Vol. 114, 2020

Abstract

As a result of the COVID-19 pandemic, international mobility all but ground to a halt by the second quarter of 2020. Airline traffic dropped more than 70 percent, and thousands of grounded airplanes filled up the runways. All over the world, travel restrictions and quarantine measures are still in place at the time of this writing, and cross-border mobility remains largely shut down for all but the most essential forms of travel. Although some countries partially relaxed travel restrictions over the summer, there can be no question that the pandemic has fundamentally reconfigured global mobility and migration, even if only temporarily. Amidst these shifts, this symposium documents and reflects critically on the implications of the COVID-19 pandemic for mobility and migration across international borders, on pertinent governance structures, and on the field of global migration and mobility law more broadly. A key hypothesis motivating the symposium is that COVID-19 has both laid bare and exacerbated the discriminatory and flawed nature of current international rules related to migration and global mobility.

KJ

Immigration Article of the Day: Revelation Out of Rupture: Building Human Rights from the Bottom Up by Daniel I. Morales

Revelation Out of Rupture: Building Human Rights from the Bottom Up  by Daniel I. Morales, 35 Maryland Journal of International Law  127 (2021)

(Shortest) Abstract (Ever?)

In this contribution to a symposium I make the case for building international human rights norms from the bottom up.

KJ

Immigration Article of the Day: The "Impractical and Anomalous" Consequences of Territorial Inequity by Jayanth K. Krishnan

The "Impractical and Anomalous" Consequences of Territorial Inequity  by Jayanth K. Krishnan, 36 Georgetown Immigration Law Journal (2022, Forthcoming)

Abstract

Located in the South Pacific Ocean, American Samoa is one of five populated “unincorporated territories” of the United States. It is unique, though, as those born there are not recognized as American citizens upon birth and instead are deemed “noncitizen U.S. nationals.” They enjoy some, but not all, constitutional protections. Two federal appellate courts – the D.C. Circuit (in 2015) and the Tenth Circuit (in 2021) – have ruled that this classification does not violate the Fourteenth Amendment’s Citizenship Clause. In fact, both courts have stated that it would be “impractical” and “anomalous” to extend birthright citizenship to the American Samoan community.

Drawing upon a powerful dissent in the Tenth Circuit case, this study argues that what is actually impractical and anomalous is excluding American Samoans from this constitutional entitlement. But there is also a crucial administrative basis for supporting this claim, which to-date has received scant attention. For three decades, beginning in 1947, the Board of Immigration Appeals (BIA) – the expert adjudicative agency for immigration matters – delivered a series of precedent-setting judgments that gradually expanded the rights of American Samoans. These decisions were issued namely as a way of curing what otherwise would have been impractical, anomalous, and unjust actions taken by the government. This finding is surprising because the BIA has generally been viewed as hostile to noncitizens overall.

One theory for why the BIA sided with these “discrete and insular” claimants is that the agency’s expertise was not as vulnerable to external pressure then as it is today. Assuming that these cases were decided more squarely on the merits, this study suggests that it may well be worthwhile for the federal courts to consider what might be gleaned from these past judgments when reflecting on whether American Samoans are indeed birthright citizens.

KJ

Professor Bob Chang Reflects on "Towards an Asian American Legal Scholarship"

Prof. Robert S. Chang will be speaking virtually on Monday, Oct. 4, at 12:15 PM EST at Rutgers Law School. He will be reflecting on his 1993 piece, "Towards an Asian American Legal Scholarship," and discussing some of his recent work.  Register here. 

Professor Chang is Executive Director of the Fred T. Korematsu Center for Law and Equality. He has also previously served as Associate Dean for Research and Faculty Development. He writes primarily in the area of race and interethnic relations, and is the author of "Disoriented: Asian Americans, Law and the Nation-State" (NYU Press 1999) and many articles, essays, and book chapters on Critical Race Theory, LatCrit Theory, and Asian American Legal Studies. His essay, Towards an Asian American Legal Scholarship, is one that anchors Asian American Jurisprudence classes and that inspired me to be come a law professor. 

His talk is part of an Asian Americans, Pacific Islander and the Law Initiative started by Suzanne Kim and Rose Cuisson Villazor at Rutgers Law School through the Center for Immigration Law, Policy and Justice. 

MHC

JOTWELL trio of reviews on immigration scholarship

Immigration scholars are featured in the September, August, and July editions of  the prestigious Jotwell (Journal of Things We Like Lots).   

• Jaya Ramji-Nogales reviews Ama Ruth Francis, Global Southerners in the North, 93 Temp. L. Rev. 689 (2021) (September 2021)
• Juliet Stumpf reviews Shayak Sarkar, Capital Controls as Migrant Controls, 109 Cal. L. R. 799 (2021) (August 2021)
• Angela Banks reviews Kevin Johnson, Bringing Racial Justice to Immigration Law, 116 Nw. U.L. Rev. 1 (2021) (July 2021)

 

MHC

Immigration Article of the Day, Growing Up in Authoritarian 1950s in East LA by Gerald P. López

The Immigration Article of the Day is "Growing Up in Authoritarian 1950s in East LA" by Gerald P. López, published in the UCLA Law Review in June 2021. Here is the abstract:

By the 1950s, the criminal justice system had long combined with other systems, institutions,and individuals to target all the residents of East LA—particularly Mexicans—as criminals. In equating Mexicans with criminality, these networked forces and actors regarded and treated these residents as exceptions—as morally requiring and legally meriting authoritarian rather than accountability practices. These practices did not require invocation of the president’s emergency power and did not occur outside the rule of law. Instead, authoritarian practices targeting exceptions like the residents of 1950s East LA reflect routine choices made from (and always available) within the rule of law, made across eras and regions and colonial outposts of the United States, representing the paradigmatic instances of authoritarianism in a constitutional democracy. Contrary to time-honored wisdom, we cannot eliminate the availability of clashing choices within law. Authoritarian practices—every bit as much as accountability practices at the other end of the same continuum—are and shall remain legally legitimate action. Contrary to pacifying speeches, lectures, and sermons, we cannot eliminate fierce struggles over rival visions of the national community. Every discretionary choice each of us makes within networks of systems, institutions, and individuals expresses a view about how we wish to live in our neighborhoods, this country, and across the globe, including which people we feel justified in targeting as exceptions, often for racist reasons. Yet we can and should challenge and aim to obliterate widely hailed and deeply delusional orthodoxies about the criminal justice system, about networked authoritarian practices, about the rule of law itself. Those who insist we must remain loyal to these lies offer a horrific but familiar endorsement of life in 1950s East LA and of the current status quo. Living as we still do in the United States routinely degrades, devastates, and destroys certain groups of people. Living as we still do regularly benefits certain others, especially those within the networked systems targeting exceptions and the bipartisan mainstream enablers who rarely, if ever, put themselves on the line against authoritarian practices. “Enough,” as many people I knew growing up in 1950s East LA would say. “Enough.” Let’s unflinchingly face ourselves— and our networks, institutions, and systems (including the rule of law in a constitutional democracy). Let’s get on with discovering the possibilities and the limits of coexistence.

IE

Immigration Article of the Day: A History of Anti-Asian Animus in America by Denis Binder

Denis Binder (Chapman) is not an immprof. His teaching focus in Torts and Environmental Law.

Nonetheless, immprofs might take note his his latest article: A History of Anti-Asian Animus in America, 2020 Diversity & Social Justice Forum 46. Here's the abstract:

Chinese immigrants were greeted with racism as soon as they arrived in California in the late 1840’s. San Francisco and California led the West in discriminating against the Chinese and Japanese immigrants. The culmination was the internment of Japanese Americans in World War II. Congress enacted the Chinse Exclusion Act and the Japanese Exclusion Act.

Asian Americans faced discrimination in education, employment, housing, immigration, law enforcement, marriage, property rights, and voting. They still face discrimination in college admissions.

-KitJ

Immigration Article of the Day: The End of Entry Fiction by Eunice Lee

The End of Entry Fiction by Eunice Lee, North Carolina Law Review, Vol. 99, pp. 565-642, 2021

Abstract

Although “entry fiction” emerged in immigration and constitutional law over a century ago, the doctrine has yet to account for present-day carceral and technological realities. Under entry fiction, “arriving” immigrants stopped at the border are deemed “unentered” and “not here” for constitutional due process purposes, even in detention centers deep within the United States. As a result, the Department of Homeland Security (“DHS”) uses its sole discretion to detain tens of thousands of arriving asylum seekers in its facilities without a bond hearing. Despite significant modern changes in immigration statutes and due process jurisprudence, the Supreme Court recently suggested, but did not decide, that individuals subject to entry fiction may continue to lack constitutional due process protections against detention. Both courts and the government have invoked sovereign power as the doctrine’s justification, asserting that detention is necessary to effect exclusion (removal) of individuals and that entry fiction appropriately protects the government’s power to detain.

While many scholars over the decades have offered trenchant critiques of the doctrine, no recent treatment evaluates entry fiction as legal fiction. This Article fills that gap, tracing entry fiction’s origins in law and jurisprudence to consider its operation in the present-day context. I engage in a close rereading of Chinese Exclusion- and McCarthy-era cases to uncover functionalist and humanitarian underpinnings of entry fiction, including an intention to minimize hardship to immigrants. I then reevaluate entry fiction in the present day. In particular, this Article explores DHS’s indiscriminate use of immigration detention and its breathtaking expansion of surveillance technology. Today, DHS both operates a mass detention regime and engages in ever-increasing surveillance, including real-time tracking of immigrants that allows deportation without physical detention. These current realities decouple entry fiction from sovereign purpose—rendering detention unnecessary for the sovereign power of exclusion—and engender decidedly antihumanitarian practices. I conclude that courts must put entry fiction to rest as a vestige of the past and recognize the constitutional due process rights of all persons who are present and here in U.S. immigration detention centers.

KJ

Immigration Article of the Day: The Call for the Progressive Prosecutor to End the Deportation Pipeline by Talia Peleg

The Call for the Progressive Prosecutor to End the Deportation Pipeline by Talia Peleg, Georgetown Immigration Law Journal, Forthcoming

Abstract

“Progressive prosecutors” seek to redefine the role of the prosecutor and question the purpose of the criminal legal system, ushering in the need to reexamine the scope and substance of their duties toward all, but particularly immigrant defendants, seeing as they suffer outsized punishment for most criminal offenses. Ten years ago, Padilla v. Kentucky broke ground in finally recognizing that defense counsel is constitutionally obligated to advise immigrants of the clear risks of deportation associated with a plea. Nevertheless, immigrants ensnared in the criminal legal system have since faced deportation at ever-increasing rates. Given the entwinement of immigration and criminal law, organizers and scholars have recognized that local prosecutors serve as gatekeepers to the federal criminal removal system. Yet, prosecutors around the country wildly differ in their treatment of immigrant defendants, at times ignoring or misusing this gatekeeping role.

In the last decade, new prosecutorial goals — ensuring fairness and equity, promoting community integrity, tackling disproportionate treatment of Black and brown communities in policing and incarceration, addressing root causes of crime — have gained increasing popularity, by some. Decriminalization and decarceration have been tools utilized to meet these goals. The specific goals strived for by self-described progressive prosecutors require an examination of their treatment of non-citizens given the prosecutor’s outsized role in determining immigration consequences and application of an immigrant’s rights lens to current practices. Their policies toward immigrant defendants to date have been tepid and at times, harmful.

Yet, careful study reveals “progressive prosecutors” have expansive obligations to immigrant defendants — rooted in the progressive prosecution movement’s own rhetoric about the appropriate role of the prosecutor and the underlying purposes of the criminal legal system, prosecutorial ethical and professional standards, and Supreme Court jurisprudence. The progressive prosecutor’s duty is simple — to utilize their powers to avoid the double punishment of criminal sentence and deportation. This means ensuring that policy choices that purport to support communities of color and poor communities do not neglect immigrant defendants, thereby creating disproportionate consequences for this population.

Due to the immigration consequences that might flow from any contact with the criminal legal system, progressive prosecutors need not only look at their role in plea negotiations, but beyond. A progressive prosecutor’s work then is to first, understand her role as gatekeeper to the federal deportation machine and second, act to stop feeding it. This Article proposes a series of guidelines and policy recommendations prosecutors can institute toward these ends, including institutional changes as well as the adoption of specific practices that consider immigration consequences at all stages of criminal proceedings – arrest, conviction, sentencing and beyond. This might include the creation of an immigrant integrity unit to audit and revamp all areas of practice to establish policies like the expanded use of declination, the encouragement of pre-arrest diversion and a prohibition on information sharing with ICE.

“Progressive federalism” suggests that by taking these kinds of actions, progressive prosecutors will move closer to securing proportionate outcomes for immigrants in the criminal legal system. While federal immigration reform remains stymied, adoption of a robust immigration agenda by the local prosecutor will simultaneously begin to disentangle the criminal and immigration systems and influence immigration enforcement policy on a national level.

KJ

Immigration Article of the Day: A Domestic Reign of Terror: Donald Trump’s Family Separation Policy by Ediberto Roman and Ernesto Sagas

A Domestic Reign of Terror: Donald Trump’s Family Separation Policy by Ediberto Roman and Ernesto Sagas, 24 Harvard Latinx Law Review 65 (2021).

Abstract

Family separation has the dubious distinction of being the most odious measure amongst Donald Trump’s draconian anti-immigrant immigration policies. The policy was introduced by the Trump administration as a way to broadly deter would-be immigrants and asylum seekers by instilling in them the fear of being separated from their children. After its implementation, thousands of immigrant children were taken away from their parents and sent to detention centers where they spent months alone and afraid, being physically and sometimes sexually abused, and in some highly publicized cases, dying while in custody. This article details the legal implementation of the policy, its moral failings, and its political ramifications. The authors argue that Trump’s family separation policy is not only immoral, but essentially unAmerican, and ought to be firmly rejected by those who defend human rights, the welfare of children, and the most basic norms of decency.

KJ

Immigration Article of the Day: Borders by Consent: A Proposal for Reducing Two Kinds of Violence in Immigration Practice by Richard Delgado and Jean Stefancic

Borders by Consent: A Proposal for Reducing Two Kinds of Violence in Immigration Practice by Richard Delgado and Jean Stefancic, 52 Ariz. St. L.J. 337 (2020)

Abstract

We describe a new consensual theory of borders and immigration that reverses Peter Schuck’s and Rogers Smith’s notion of citizenship by consent and posits that borders are legitimate—and make sense—only if they are products of consent on the part of both countries on opposite sides of them. Our approach, in turn, leads to differential borders that address the many sovereignty and federalist concerns inherent in border design by a close examination of the policies that different borders—for example, the one between California and Mexico—need to serve in light of the populations living nearby. We build on our work on border laws as examples of Jacques Derrida’s originary violence. We assert that laws that exhibit a high degree of originary violence lead, almost ineluctably, to actual violence and cruelty, such as that perpetrated by Donald Trump’s child-separation policy, and that consensual and relatively open borders are the most promising way to minimize both forms of violence, originary and actual.

KJ

Immigration Article of the Day: Trafficking and the Shallow State by Julie Dahlstrom

Trafficking and the Shallow State  by Julie Dahlstrom, 12 UC Irvine Law Review __ (2021 Forthcoming)

Abstract

More than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also began to climb. For example, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications adjudicated in fiscal year 2020, compared with just 28.12% in fiscal year 2015. These developments came as former President Donald J. Trump, like many presidents before him, proclaimed a deep commitment to end the “epidemic” of human trafficking and to protect “innocent” victims.

Though scholars have critiqued the general protection framework for immigrant victims of trafficking, this Article unearths an understudied problem: the often-unseen role of the “shallow state.” In contrast to the much-discussed “deep state” of career bureaucrats, this Article suggests that low-level administrative actors adjudicating humanitarian immigration cases have subtly worked to undermine protections for immigrant victims of trafficking. This Article demonstrates how administrative actors, through a range of tactics, including delay, rejection, and heightened stakes, have contorted the T visa application process to make it more difficult for immigrant victims to navigate. The Article explores how these actions—often diffuse and obscured—have been hard to identify and subject to judicial review. It warns that these bureaucratic tendencies have resulted in declining approval rates with the potential to erode protections for immigrant victims of trafficking for years to come. It, thus, prescribes not only greater attention to such practices but also administrative and judicial remedies.

KJ

Immigration Article of the Day: Toward a Race-Conscious Critique of Mental Health-Related Exclusionary Immigration Laws by Monika Batra Kashyap

Toward a Race-Conscious Critique of Mental Health-Related Exclusionary Immigration Laws by Monika Batra Kashyap, Michigan Journal of Race & Law, Vol. 26, 2021

Abstract

This Article employs the emergent analytical framework of Dis/ability Critical Race Theory (DisCrit) to offer a race-conscious critique of a set of immigration laws that have been left out of the story of race-based immigrant exclusion in the United States—namely, the laws that exclude immigrants based on mental health-related grounds. By centering the influence of the white supremacist, racist and ableist ideologies of the eugenics movement in shaping mental health-related exclusionary immigration laws, this Article locates the roots of these restrictive laws in the desire to protect the purity and homogeneity of the white Anglo Saxon race against the threat of racially inferior, undesirable, and unassimilable immigrants. Moreover, by using a DisCrit framework to critique today’s mental health-related exclusionary law, INA § 212(a)(1)(A)(iii), this Article reveals how this law carries forward the white supremacist, racist, and ableist ideologies of eugenics into the present in order to shape ideas of citizenship and belonging. The ultimate goal of the Article is to broaden the conceptualization of race-based immigrant exclusion to encompass mental health-related immigrant exclusion, while demonstrating the utility of DisCrit as an exploratory analytical tool to examine the intersections of race and disability within immigration law.

KJ

Guest Post: How Federal Courts Are Waking Up to Constitutional Claims in Immigration Cases by Geoffrey A. Hoffman

How Federal Courts Are Waking Up to Constitutional Claims in Immigration Cases by Geoffrey A. Hoffman

Recently, district court decisions have charted a bold new course for constitutional claims in the context of immigration-related federal court litigation. Although people have made claims for years, emanating for example from equal protection, the first amendment, the fourth amendment, and due process, this latest trend is something new and exciting. It can be described as “large-scale,” or a systemic indictment of the rules, policies, and practices of the immigration system writ large. We are at a crucial juncture. This is not par for the course but a new direction for the federal courts. Below I discuss the evidence for this new and important trend.

First, consider Chief District Judge Miranda Du’s groundbreaking decision in US v. Carillo-Lopez, a 1326 “illegal reentry” case.  Most of the time to fight these cases, the defendant’s options are severely limited. Under the statute a defense to prosecution may involve some sort of attack on the underlying prior order of removal or deportation. See 8 USC 1326(d). Unfortunately to succeed the immigrant has to prove they exhausted all previous administrative remedies, they were deprived of judicial review, and that the order was fundamentally unfair. In the Carillo-Lopez case, a different approach was used ...  and successfully!

Judge Du’s 43 page opinion held that the entire statute, 8 USC 1326 not only had a disparate impact, but was itself racially motivated. Most importantly, the 1952 act was found to be motivated by discriminatory intent. That racial animus motivated prior immigration acts of Congress should be clear to all and very well-documented. But the government has often relied on the 1952 act as cleansing the law of its discriminatory historical predecessors. Judge Du, relying on contemporaneous historical evidence, and expert testimony, and the veto at the time even by President Truman, who recognized the injustice and “inhumane aspects of our immigration procedures.” See p. 20 of the Judge’s Order.  By dismissing the indictment against the defendant, Judge Du has indicted the immigration system and its racist origins in a moving, well-reasoned judicial opinion of great importance.

Consider also a second instance of this systemic movement, where constitutional protections were seriously considered and not short-shrifted, in support of asylum seekers. The second example is Al Otro Lado, et al v. Mayorkas, in which District Judge Bashant in California addresses the constitutionality of systematically denying asylum seekers access to the asylum process at ports of entry (“POEs”) along the U.S.-Mexico border. In that case, the judge granted plaintiffs’ motion for summary judgment on the following grounds:  the practices of “metering” at the border violated the APA, sections 706(1) and (2), the Fifth Amendment’s Due Process Clause, as well as the Alien Tort Statute (28 USC 1350).  The judge left open for further briefing what remedies to apply given the violation of APA, and also the effect of Title 42 (the statute allowing for the turning away of hundreds of thousands under the rationale of public health and the supposed threat of COVID-19 from migrants).

Title 42 is the subject of my third example. Although not yet a final decision, the District Court in Huisha-Huisha v. Mayorkas examined the claims of asylum seeker family units who were summarily returned without any judicial or administrative recourse. The court granted injunctive relief and certified the class recognizing the importance of immigrants’ rights and system-wide injustice. Plaintiffs brought their action under the APA, and other public health-related statutory authority, including the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), 8 U.S.C. § 1231 note; and the Public Health Service Act of 1944, 42 U.S.C § 201, et seq. Importantly, Judge Sullivan from the D.C. District Court granted certification and recognized that “[t]he public’s interest in providing due process for non-citizens to ensure that they are not removed to a country where they will be persecuted is an extremely weighty one.” Id. at pp. 52-53 (citing Devitri v. Cronen, 289 F. Supp. 3d 287, 297 (D. Mass. 2018).

A couple of further points to make about these new and exemplary decisions. They stand in stark contrast to the Supreme Court’s glaring 5-4 decision recently allowing for the reinstatement of MPP. The Supreme Court has not been protective of asylum seekers’ rights (not just its treatment of MPP) and the lower courts have had to step in. This process of lower courts’ stepping in is one which will intensify a “race to the courthouse” approach and unfortunately degrades the Supreme Court’s claim to both relevance and legitimacy.  Litigants on both sides of the issue - think of Texas and others who for example have found sympathetic judges through their forum shopping in the states’ attacks on Biden’s priorities among other issues -  will now be motivated to find protection from trial judges. The district courts have shown they are willing to listen and willing to act - both with sensitivity to the constitutional rights of immigrants and also in must be remembered in favor of states’ rights claims against the rights of immigrants.

The parallel that can be drawn to the abortion issue is also worthy of mention. Just as the MPP decision was 5-4 and along party lines, the Supreme Court allowed the new Texas law on abortion to proceed. In particular in the Whole Woman’s Health case, the majority noted, defensively, “this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” The pronouncement abdicates responsibility for any Constitutional inquiry and examination by the high court. The inquiry now has to be done at the District Court level, but in the meantime clearly unconstitutional legislation and policies are able to proceed unencumbered. The parties are left to whatever remedies the lower courts, including circuit courts, can deliver. (To that point, think of the Fifth Circuit’s recent partial grant of relief in the prosecutorial discretion case, allowing - for the moment - President Biden’s enforcement priorities to be largely implemented with important limitations for mandatory detention and people with final orders).

Finally, this trend will not just be attributable to the judges and their willingness to grant relief when they see injustice. It is also, more importantly, attributable to advocates’ willingness to bring these constitutional and complex cases in the first place. It is a tall order indeed to bring a case arguing the entire system is corrupt and faulty. It will require, as we saw in the section 1326 context, expert assistance to help the court and other parties understand the racial motivations behind much of our immigration laws and policies. It also requires that we think more broadly about how to address the disastrous systemic-wide failures of our current systems. We need to think more broadly about how to challenge, for example, the utterly broken immigration court docketing system, with a million-plus backlog, as well as the USCIS asylum process administrative backlog, among other types of adjudication processes. Perhaps the next federal case to be brought in keeping with this trend recognizing the due process and other rights of immigrants will tackle these issues.

Geoffrey A. Hoffman (Institution for identification only)

 

KJ

Immigration Article of the Day: Unequal Access: Wealth as Barrier and Accelerator to Citizenship by Ayelet Stachar

Unequal Access: Wealth as Barrier and Accelerator to Citizenship by Ayelet Stachar, Citizenship Studies 25 (2021), 543-563

Abstract

Combining insights from the history of ideas with contemporary legal analysis, this article both highlights and problematizes what we may call sorting strategies – restrictive closure and selective openness – which rely on “varieties of affluence” (income, wealth, equity, credit, and the like) in shaping possibilities for entry, settlement, and naturalization. By emphasizing the growing significance of income barriers and thresholds on the one hand, and fast-tracked investment-based entryways on the other, this article investigates the role of affluence as both accelerator and barrier to citizenship, contributing to the varied toolbox used by governments to advance goals that may at times appear contradictory; these tools both restrict and relax the requirements of access to membership at the same time. These new developments represent different facets of the same trend. Without explicitly stating as much, programs that turn wealth into a core criterion for admission conceptually reignite an older, exclusive, and exclusionary vision according to which individuals must hold property (in land, resources, or in relation to one’s “dependents,” including women, slaves, and children) in order to qualify as a citizen. While such a trajectory is no stranger to ancient models, it raises profound challenges to modernist accounts of political membership that place equality at their core.

KJ

Immigration Article of the Day: Special Education No Man's Land by Adrian Alvarez

Special Education No Man's Land by Adrian Alvarez, St. John's Law Review (Forthcoming)

Abstract

Unaccompanied minors with disabilities are being harmed because the federal regime that cares for them fails to consider how their disabilities may affect their needs while in custody. Although there are several ways in which disabled children are harmed by this regime, this Article focuses on the government’s failures in providing appropriate educational services to unaccompanied minors with disabilities while in Office of Refugee Resettlement-funded shelters (“ORR shelters”). Specifically, ORR does not require its shelters to provide unaccompanied minors with disabilities special education and related services under the Individuals with Disabilities Education Act (“IDEA”). Additionally, states provide no educational services to children in ORR shelters, including services under the IDEA. Since at least 2003, the U.S. Department of Education (“ED”) has issued letters explaining that neither state nor local school districts are required to extend the IDEA’s substantive and procedural protections to children with disabilities in federal prisons. This practice would appear to cover children in ORR custody. If this is a correct interpretation of the statute, then there is an entire class of children with disabilities in federal custody who are living in a special education no man’s land. Although this Article focuses on unaccompanied children in ORR custody, the ED’s statutory interpretation affects children with disabilities in the custody of other federal agencies, including Immigration and Customs Enforcement (“ICE”), the Federal Bureau of Prisons (“BOP”), and the U.S. Marshals Service.

Although it is clear that the IDEA protects non-citizens once they enroll in public schools, this Article seeks to answer whether unaccompanied minors in ORR shelters are entitled to the IDEA’s substantive and procedural rights while in government custody. It argues that while the plain language of the statute would require states—but not federal agencies—to provide their residents with the IDEA’s protections while in federal custody, it is at best unclear as to whether unaccompanied minors are state residents for the IDEA’s purposes while in ORR shelters. However, because unaccompanied minors with disabilities will have better outcomes if they are provided IDEA-related services once they arrive in this country, Congress should amend the IDEA to explicitly extend its protections to unaccompanied minors in ORR shelters.

KJ

Immigration Article of the Day: Fragile Immigration Legality Collapses in the Trump Era by Jillian Blake

Fragile Immigration Legality Collapses in the Trump Era  by Jillian Blake, Southern California Interdisciplinary Law Journal, Vol. 30, No. 1, 2021

Abstract

People often think of immigration legality in black and white terms—immigrants are “documented” or “undocumented”; they are present “legally” or “illegally.” There has long been, however, a significant gray area of quasi-legality in the U.S. immigration system. This gray area expanded for decades due to diverging policies of the executive and legislative branches, which each play a role in the formation of immigration policy. The presidency of Donald Trump and its anti-immigration agenda exposed the vulnerability of this class of quasi-status immigrants who were long lawfully present in the country, but for whom Congress had not established a pathway to secure permanent legal status. Those with quasi-statuses included those with Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), and others. Most of these immigrants had work permits, and many had U.S. citizen family members and had permanently settled in the United States. They were, nevertheless, subject to unpredictable enforcement and removal (deportation) by the Executive. This Article explains the rise of quasi-status immigration and how the Trump administration was able to exploit it. It also offers solutions for the Biden administration and Congress to help remedy the system.

KJ