ImmigrationProf Blog

Immigration Article of the Day: Legal Order at the Border by Evan J. Criddle

Legal Order at the Border by Evan J. Criddle, UC Davis Law Review, Vol. 56, forthcoming 2023

Abstract

For generations, the United States has grappled with high levels of illegal immigration across the U.S.-Mexico border. This Article offers a novel theoretical framework to explain why legal order remains elusive at the border. Drawing inspiration from Lon Fuller’s “interactional view of law,” I argue that immigration law cannot attract compliance unless it is general, public, prospective, clear, consistent, and stable; obedience with its rules is feasible; and the law’s enforcement is congruent with the rules as enacted. The flagrant violation of any one of these principles could frustrate the development of a functional legal order. Remarkably, U.S. immigration law violates all of these principles in its treatment of asylum seekers. As the number of asylum seekers pursuing entry to the United States has risen sharply in recent years, these legality deficits have become increasingly salient. No wonder, then, that even the most aggressive deterrent measures — from mass prosecution to family separation to the construction of steel border walls — have failed to solve the United States’ border crisis. The United States faces an urgent dilemma: it may preserve the Immigration and Nationality Act (“INA”) in its current form, denying protection to too many forced migrants and reserving broad discretion to the Executive Branch, or it may establish a functional legal order at the border. It cannot have both.

If lawmakers were serious about establishing legal order at the border, there are measures they could take to strengthen the system’s structural integrity. They could eliminate the Attorney General’s discretionary authority over asylum. They could clarify ambiguities in the INA to promote greater consistency, stability, and congruence in immigration adjudication and enforcement. They could extend protection to all forced migrants who face death, rape, or other serious harm abroad, including victims of gang violence and gender-based violence. In short, they could enact laws that asylum seekers could rationally obey. To the extent that lawmakers are unwilling to take these steps, it is fair to question their commitment to establishing a functional legal order at the border.

KJ

Immigration Article of the Day: In Defense of Deportation Defense by Michael Kagan

In Defense of Deportation Defense by Michael Kagan, UC Davis Law Review, Vol. 56, 2022

Abstract

Recent years have seen growing momentum toward expanding public funding for legal defense of immigrants fighting deportation. Yet, some recent scholarship argues that government-funded deportation defense carries the risk of legitimizing and entrenching an unsalvageable immigration enforcement system that should simply be abolished. As a result, immigrant rights advocates might hesitate to support deportation defense. This Essay argues that such hesitation would be a mistake. Legal defense is the most feasible means available right now to stop many deportations, and expanding deportation defense resources will strengthen the immigrant rights movement locally and nationally. Expanding deportation defense should be a high priority for local and national immigrant rights advocates over the short- and medium-term future.

KJ

Harvard Law Review's Take on the Immigration Decisions from the Supreme Court's 2021 Term

The Harvard law Review Supreme Court 2021 term issue is out.  The Review's leading cases from thE Term include virtually all of the immigration cases from the Term.

Egbert v. Boule
By the Harvard Law Review
The Bivens remedy permits individuals to sue federal officials for money damages directly under the Constitution. But over four decades, the Supreme Court has cut back its remedy in every case to make it to the Court. Last term, in Egbert v. Boule, the Supreme Court extended that streak, holding that it would not extend the Bivens remedy to a seizure conducted by a CBP Officer near the border. Much of the commentary on the case has focused on its parsimonious reading of what counts as a “new context” for extending Bivens and on the majority’s restrictive redefinition of the Court’s prior precedent. This Comment argues that an alternative holding in the decision—that the CBP grievance process was an adequate “alternative remedy”—is likely to have severe ramifications. Because most, if not all, federal law enforcement agencies have comparable grievance processes, this holding could foreclose the expansion of Bivens to most any federal law enforcement officials.

Garland v. Aleman Gonzalez
By the Harvard Law Review
More than eighty percent of detained immigrants do not have lawyers. Class actions have long proven to be an effective way to challenge conditions of detention, which can stretch on indefinitely. In Garland v. Aleman Gonzalez, however, the Supreme Court held that a jurisdiction-stripping provision of the Immigration and Nationality Act forbids lower federal courts from enjoining the operation of certain immigration laws on a classwide basis — even when these laws are improperly interpreted by the executive branch. In the wake of this decision, alternative paths to large-scale relief for detained immigrants may still exist, including classwide declaratory relief, APA vacatur, and mass actions. In practice, all pale in comparison to the remedy of a classwide injunction, offering another example of how the Court has undermined substantive rights through jurisdictional rulings.

Patel v. Garland
By the Harvard Law Review
Can limits on judicial review exist within a “regime of law and . . . constitutional government?” Just ask noncitizens, millions of whom are deportable at the stroke of a bureaucrat’s pen. Last Term, in Patel v. Garland, the Supreme Court held that one such provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) — which bars review of “any judgment” of an immigration official “regarding the granting” of discretionary relief — forecloses judicial review of even the threshold determination of whether a noncitizen is eligible to receive such relief. Although Patel holds that IIRIRA precludes judicial review of merely factual questions, it need not and should not be read to preclude review of fact-related judgments that are so egregiously mistaken as to violate the Due Process Clause.

Biden v. Texas
By the Harvard Law Review
When the Biden Administration attempted to end a Trump-era immigration program, a district court enjoined it using an aggressive form of arbitrariness review and the Supreme Court declined to stay the injunction. The Court’s shadow docket order indicated that after DHS v. Regents of the University of California, muscular arbitrary and capricious review is the new normal, a worrying development for advocates of administrative flexibility. The Biden Administration then withdraw its first attempt to cancel the Trump-era program and issued a new action. The Court then signed off, refusing to make it harder for an agency to take new action that reaches the same result as an enjoined prior action. In an era of muscular arbitrariness review, the ability of agencies to take such action without additional hurdles is an important, if small, consolation prize.

KJ

Immigration Article of the Day: Imperialist Immigration Reform by Cori Alonso-Yoder

Imperialist Immigration Reform by Cori Alonso-Yoder, Fordham Law Review, Forthcoming

Abstract

For decades one of the most challenging domestic policy matters has been the passage of immigration reform. Dogged by controversial notions of what makes for a desirable immigrant and debates about enforcement and amnesty, elected officials have largely given up on achieving comprehensive bipartisan immigration solutions. The lack of federal action has led to an outdated and impractical legal framework with state and local lawmakers unable to step into the breach. Well over one hundred years ago, the U.S. Supreme Court firmly stated that the U.S. immigration system is within the sole constitutional authority of the federal government to regulate.

Yet there is one place within the United States that has embraced an alternative to this reality. Though it has been under the control of the federal government for nearly eighty years, the Commonwealth of the Northern Mariana Islands (CNMI) remains exempt from federal immigration law. As a territory of the United States, the CNMI has controlled its own system of immigration with little federal interference. At the time of this writing, Congress has approved a transition period further delaying the application of federal immigration law in the CNMI until 2029. This extension was made by possible through bipartisan legislation signed into law by President Trump in 2018. Not only did Trump sign legislation giving continued federal employment authorization to the CNMI’s otherwise undocumented workers, in 2019 Trump also approved a bill to give permanent resident status to over one thousand individuals facing deportation from the CNMI. Both actions fly in the face of Trump’s domestic immigration policy.

This essay argues that this imperialist immigration reform reveals as much about what is not happening in the rest of the United States as it does about immigration policy in the CNMI. Numerous scholars have pointed to the racist roots of U.S. immigration policy typified by the 1882 Chinese Exclusion Act. I suggest that the parallel system of immigration in the CNMI is the exception that proves the rule of racism in U.S. immigration law. The population of the CNMI is overwhelmingly Asian and Pacific Islander with a white population totaling less than two percent. By looking at demographics, history, and constitutional law, including the law governing U.S. territories in the Insular Cases, I argue that the immigration policy of the CNMI demonstrates the federal government’s alternative approach when protection of “white spaces” is taken out of the legislative equation.

Gi talo’ halom tasi In the middle of the ocean
Nai gaige tano’-hu. Is where my land is
Ayun ai sempre hu That is where I
Soda melago’-hu… Will find what I’m searching for…
(Chamorro version) (English version)

- CNMI National Anthem

KJ

Immigration Article of the Day: Migration and the Demand for Transnational Justice by Leslie Johnsop, Maximo Kanger, & Margaret E. Peters

Leslie Johns

Margaret E. Peters

Migration and the Demand for Transnational Justice by Leslie Johns, Maximo Kanger, & Margaret E. Peters, American Political Science Review, Volume 116 , Issue 4 , November 2022 , pp. 1184 - 1207 

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.

KJ

Immigration Article of the Day: Immigration Detention as a Violation of Transgender Detainees’ Substantive Due Process Rights by Emily Torstveit Ngara

Immigration Detention as a Violation of Transgender Detainees’ Substantive Due Process Rights by Emily Torstveit Ngara, 26 Lewis & Clark L. Rev. 749 (2022)

Abstract

Noncitizens in immigration proceedings are often subject to civil detention pending a final decision on their case. Transgender individuals in immigration detention are at high risk for physical and sexual assault, cruel and degrading treatment, denial of necessary medical care, and protective isolation. The well-documented harms caused to transgender individuals in detention violate Fifth Amendment substantive due process. This Article documents the harms of immigration detention specific to the transgender community, reviews substantive due process jurisprudence in the civil detention context, and analogizes Eighth Amendment claims for transgender prisoners to substantive due process claims. Immigration detention is predicated on the government’s interest in noncitizens appearing for their hearings. The Article concludes by exploring alternatives to detention that are effective enough to safeguard the government’s interest while promoting the fair application of our immigration laws and safeguarding the rights of transgender noncitizens.

KJ

Immigration Article of the Day: The Moral and Legal Obligation to Provide Justice and Restitution to Forcibly Separated Families by Francesco Arreaga

The Moral and Legal Obligation to Provide Justice and Restitution to Forcibly Separated Families by Francesco Arreaga, Georgetown Immigration Law Review 2022

Abstract

This article portrays the Department of Justice's role in forcibly separating families through the Zero Tolerance Policy, the judiciary’s instrumental decision to halt this policy, and the gut-wrenching experiences that parents and children endured. The article describes how the family separation policy constituted torture and crimes against humanity and concludes by urging members of Congress to provide justice to families that were harmed.

KJ

 

Immigration Article of the Day: The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem" by Philip G. Schrag, Jatya Ramji-Nogales, & Andrew I. Schoenholtz

The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem"  by Philip G. Schrag, Jaya Ramji-Nogales, & Andrew I. Schoenholtz, Forthcoming, Howard Law Journal, Vol. 66, No. 3, 2023

Abstract

In 2022, the Biden administration implemented what the New York Times has described as potentially “the most sweeping change to the asylum process in a quarter-century.” This new adjudication system creates unrealistically short deadlines for asylum seekers who arrive over the southern border, the vast majority of whom are people of color. Rather than providing a fair opportunity for those seeking safety to explain and corroborate their persecution claims, the new system imposes unreasonably speedy time frames to enable swift adjudications. Asylum seekers must obtain representation very quickly even though the government does not fund counsel and not enough lawyers offer free or low-cost representation. Moreover, the immigration statute requires that asylum seekers must corroborate their claims with extrinsic evidence if the adjudicator thinks that such evidence is available – a nearly impossible task in the time frames provided by the new rule. As a result, the new rule clashes with every state’s Rules of Professional Conduct 1.1 and 1.3, imposing duties of competence and diligence in every case that a lawyer undertakes. It will be extremely difficult for lawyers to provide competent and diligent representation under the new, excessively short deadlines. For immigration lawyers, the new rule exacerbates a challenge that they share with public defenders and other lawyers working within dysfunctional systems: how to provide even the most basic level of procedural due process for their clients, most of whom are people of color.

This article begins by describing the regular asylum process. It then summarizes the history of expedited removal, a screening system that limits access to that process for asylum seekers who arrive at the southern U.S. border without visas. It then explains and assesses the Biden administration’s first and second versions of the new asylum rule, highlighting the major flaw that will make the current version an unfairly formidable hurdle for asylum seekers subject to it. The article concludes by setting out a way for the Biden administration to create a more fair, accurate and efficient border asylum adjudication system and ensure that the U.S. can comply with domestic and international refugee law.

KJ

Immigration Article of the Day: The Immigration Implications of Presidential Pot Pardons by Jason A. Cade

The Immigration Implications of Presidential Pot Pardons by Jason A. Cade  

Abstract

This essay examines the immigration implications of President Joe Biden's Proclamation on October 6, 2022, which pardons most federal and D.C. offenders—including lawful permanent residents—who have committed the offense of simple marijuana possession. When used this way, the Art. II clemency power serves a communitarian, forward-looking function—in this case by giving legal effect to a societal recalibration of what constitutes appropriate punishment for marijuana possession and a growing awareness of the racially disproportionate impact that arrests and prosecutions for this crime tend to produce.

With respect to the impact of pardons on efforts to avoid deportation or to gain lawful admission to the United States, however, ambiguities lurking in the Immigration & Nationality Act (INA) raise unsettled complications. Through most of the nation’s history, both gubernatorial and presidential pardons effectively negated the effect of the pardoned crime for immigration purposes. Toward the end of the twentieth century, however, Congress muddied the waters by amending key provisions of the INA. These amendments, in turn, led the Board of Immigration Appeals (BIA) to infer legislative intent to make pardons ineffective in the immigration context, except with respect to four specifically-enumerated removal categories—which do not included controlled substance offenses. While the Supreme Court has not yet assessed these rulings, lower federal courts have deferred to the agency's interpretation.

All of the immigrant pardon cases to reach the courts thus far, however, have concerned state prosecutions and gubernatorial pardons, such that governing federal law has been given preemptive effect. Presidential pardons, on the other hand, raise a specialized separation-of-powers problem in light of long-undisturbed precedent interpreting the Article II pardon power as immune from congressional constraint. According to the analysis I offer, a lawful permanent resident with a pardoned federal marijuana possession conviction facing deportation should ultimately prevail in light of the broad scope of the presidential pardon power. But the constitutional question need not be fully resolved. At the end of the day, I argue, there are reasons to doubt Congress in fact intended what the BIA has inferred, and a reasonable alternative construction would give effect to President Biden's drug-possession pardons while prudently avoiding the constitutional danger zone animated by the BIA’s statutory interpretation.

The essay concludes with a set of considerations to which policymakers should attend as they contemplate the adoption of reformatory programs that impact immigration rules. Although the Biden Proclamation too-tightly cabins which noncitizens fall within its reach, it is a step in the right directions and may well foreshadow additional reforms, including future moves by legislative and executive branches at both federal and state levels.

KJ

NIL and International Student Athletes

On October 14, the Oklahoma Law Review hosted as symposium on Name, Image, and Likeness in College Athletics. I spoke, along with Professor Eric E. Johnson (yup, a relation) regarding the opportunities available for international student athletes to enter NIL deals.

You can see our (very brief) comments in the video below starting at 2:08:23 and ending at 2:18:48. Here's the short version:

Academics and attorneys have counseled that F-visa international student athletes are largely prohibited from benefiting from NIL income because of the visa's restrictions on employment. To the contrary, NIL income is not incompatible with F-visa status.

NIL is about the right of publicity and licensing. That is, if someone uses an athlete's name, image, or likeness without authorization, the athlete could sue for violation of their right of publicity. But if the entity that used the athlete's NIL had a license with the athlete, that license would serve as an affirmative defense to the right of publicity claim. In other words, payments made pursuant to an NIL license (if structured appropriately) are license income and not employment.

Those who have argued that F-visa international student athletes are prohibited from benefiting from NIL income because of the visa's restrictions on employment, often cite Wettasinghe v. INS 702 F.2d 641 (6th Cir. 1983). Yet that case rested on regulations--changed 11 days after the opinion--that prohibited F-visa students from working off campus "for an employer or independently." The "or independently" language is no longer in the regulations. The case also predates IRCA, which, in 1986, defined the term "employment" to specifically exclude independent contracting. Finally, the Wettasinghe case predates CCNV v. Reid, 490 U.S. 730 (1989), in which SCOTUS said that if "employment" is undefined in a statute, it means the common-law agency conception, not independent contractor labor.

There is vast gap between "employment" and "licensing income." The fact that people have been blanketly excluding international student athletes from NIL deals because of F-visa prohibitions on employment is unwarranted. That said, USCIS hasn't weighed in on this issue. And the downside of engaging in activity that the government might eventually hold to be incompatible with nature of the visa is deportation. So it's understandable why folks might be overly cautious in this space.

Our paper will be published by the OLR in 2023.

-KitJ

Immigration Article of the Day: How Crime-Based Deportations Undermine State Sovereignty and Community Rehabilitation by Linus Chan & Caleb Harrison

How Crime-Based Deportations Undermine State Sovereignty and Community Rehabilitation by Linus Chan & Caleb Harrison, AILA Law Journal / October 2019, Vol. 1, No. 2, pp. 263–278, 2019

Abstract

This article argues that federal immigration law undermines state criminal justice systems by eroding or eliminating key rehabilitative features of state criminal justice systems. Many states, and Minnesota in particular, delay or dismiss lengthy prison sentences and felony convictions in order to incentivize offenders to rehabilitate. Despite clear state intention to provide alternative dispositions to conviction, federal immigration law considers these dispositions as 'convictions' for immigration purposes. Consequently, state offenders face immigration consequences that they otherwise would not, and state rehabilitative tools become weaker for all residents, citizen and noncitizen alike.

KJ

JOTWELL Angela Banks on Kit Johnson

Y'all. I've never been Jotwell'd before! And by Angela Banks no less! I shall use all the exclamation points to indicate my astonishment and excitement!!!!!!

It's particularly meaningful to me that Angela chose to engage with my essay on Women of Color in Immigration Enforcement, 21 Nev. L.J. 997 (2021). It's a piece that has its genesis in the personal -- in a way, it's about one of my oldest and dearest friends. It's also about the many, many women of color who I've met over the years that I led Hofstra's Immigration Law and Border Enforcement summer program (started by Rose Cuison Villazor and still going strong under the leadership of Alexander Holtzman!) as well as those I've met on other immigration-related field trips and service activities.

And now, back to Angela.

Angela takes my descriptive work about the demographics of immigration enforcement officers -- where the majority of female officers are women of color -- and situates it within the on-the-ground realities of immigration enforcement today. She starts with a description of the September 2021 efforts of Haitian migrants to cross into Texas and the images of mounted agents attempting to push them back.

She writes:

In light of the images seen by the world in the Fall of 2021, Johnson’s call for increased scholarly attention to the growing number of women of color within immigration enforcement is timely. In addition to the question she identifies for further research, I would add the following: with regard to community effects, what are the strategies and techniques used by female officers that enable them to de-escalate situations successfully? To what extent can this lead to new forms of training that could have organizational effects? Additional organizational effects to explore would be, does an increase in the number of women and/or women of color within an enforcement agency change other aspects of the culture?

-KitJ

Immigration Article of the Day: Speculative Immigration Policy by Matthew Boaz

Speculative Immigration Policy by Matthew Boaz 

Abstract

This Article considers how speculative fiction was wielded by the Trump administration to implement destructive U.S. immigration policy. It analyzes the thematic elements from a particular apocalyptic novel, traces those themes through actual policy implemented by the president, and considers the harm effected by such policies. This Article proposes that the harmful outcomes are not due to the use of speculative fiction, but rather the failure to consider the speculative voices of those who have been historically marginalized within the U.S. This Article argues that alternative speculative visions could serve as a platform for radical imagination about future U.S. immigration policies. In doing so, it offers a safe space for policymakers and others to consider ideas that might be far outside their normal political or social circles. For instance, speculative fiction creates an opportunity to engage with ideas that might otherwise be ‘third rails,’ such as the abolition of various policing forces, critiques of sovereignty, and open borders. Speculative fiction can, therefore, provide a secure realm within which one can be free to explore ideas that they might otherwise feel prohibited from considering. Here, this Article proposes that engaging with speculative fiction written by authors from marginalized backgrounds can help to shift both individual and institutional perceptions about what is possible.

First, this Article analyzes the use of Jean Raspail’s “The Camp of the Saints” by the Trump administration as an ideological foundation for its harmful immigration policies. This xenophobic apocalyptic speculative fiction novel envisions the demise of Western civilization at the hands of mass migration. Second, this Article promotes the idea that speculative fiction can be useful and generative for imagining new immigration policies in the U.S. Specifically, this Article claims that the experience of the coronavirus epidemic created a nation-wide (if not world-wide) sense of apocalypse. Such a collective experience provides an opportunity for universal reconsideration of historical policy norms, particularly those involving immigration. Last, this Article notes that it is essential that these alternative visions be sourced from “oppositional storytellers,” to use Richard Delgado’s phrase. Examples abound: W.E.B. DuBois’ “The Comet,” the legal scholar Derrick Bell’s “The Space Traders” and other, more literary authors, such as Octavia Butler. This Article offers additional visions, such as Waubgeshig Rice's "Moon of the Crusted Snow" and Omar El Akkad’s “American War” as examples for reframing conceptions of ‘apocalypse’ from the viewpoint of the marginalized in Western culture. This Article concludes that, while notions of abolition and other taboo progressive policy proposals may seem apocalyptic to some, this fear is based in fear of the unknown. By crafting specific speculative visions, these authors (and others) can make clear that such radical imagination in crafting humane policies can produce a knowable future that is both manifest and necessary.

KJ

Immigration Article of the Day: A Child-Centered Approach to Representing Children in Immigration Legal Systems by Laila Hlass & Lindsay Muir Harris

A Child-Centred Approach to Representing Children in Immigration Legal Systems by Laila Hlass & Lindsay Muir Harris

Abstract

As the number of accompanied and unaccompanied child immigrants migrating has increased, U.S. based non-profit organizations have developed practices specializing in representing immigrant children. Alongside this growing area of practice, scholars have written about the need for children to access lawyers in immigration proceedings, as well as how to incorporate best interest principles into immigration proceedings. However, little has been written specifically about how lawyers for immigrant children can best adopt a child-centered approach in their representation.

Children have different abilities than adults, impacted by their developmental stage, trauma history, and other experiences they have had relating to their identity. This impacts how they tell their histories, which is a critical part of seeking status and protection in immigration legal systems. Child-centered approaches are strength-based practices which promote participation and protection of young people, and necessarily challenge discrimination children face. We argue that child-centered representation must integrate critical lawyering, which includes anti-racism and trauma-centered lawyering practices to address immigrant children’s particular needs, promoting their participation, protection and anti-discrimination. Critical lawyering involves using an intersectional lens to collaborate with clients, communities, and colleagues “with an eye toward interrogating privilege differentials in these relationships and accounting for existing historical and structural biases.” Trauma-centered lawyering recognizes and accounts for the role that trauma plays in the lawyer-client relationship. A child-centered approach in representation should be integrated into every stage of lawyering for immigrant children, including all stages of representation such as interviewing, counseling, developing case theory, preparing applications, appearing in court, and direct examination. Ultimately, a child-centered approach utilizes core tenets of critical lawyering to zealously advocate for and ensure that children’s wishes are understood and communicated to decision-makers. This means ensuring children truly understand their rights and that they are meaningfully participating in their legal cases at every stage, free from external factors that a child may view as coercive.

KJ

Immigration Article of the Day: Framing and Contesting Unauthorized Work by Angela D. Morrison

Framing and Contesting Unauthorized Work by Angela D. Morrison, Georgetown Immigration Law Review, Vol. 36, No. 2, 2022,

Abstract

Unauthorized workers face precarity in the workplace and the threat of forced expulsion from their communities. Some of the reasons for that precarity result from how the law frames unauthorized workers. The law views unauthorized workers as lacking full human or civil rights, as “unauthorized,” to the exclusion of their other identities. The legal system also creates a binary that views unauthorized workers as either criminals who are complicit in their exploitation or passive victims for employers to exploit. This Article draws on social movement literature to theorize the processes that result in this framing and to explore how immigrant social movements have contested that framing. That contestation has led to less precarity and greater social membership for unauthorized workers.

First, this Article demonstrates that the law relies on a moral deservedness frame that has contributed to unauthorized work’s precarity and made unauthorized workers’ social membership more tenuous. Second, the Article argues that by contesting the law’s moral deservedness frame, movement actors have decreased workplace precarity and increased social membership. They have called on frames that center on workers’ human and civil rights, and their identities as family members and workers. Movement actors have worked around and through the law to empower unauthorized workers to engage in claims-making and organize worker co-operatives that provide workplace protections. They also have engaged in direct action and acts of civil disobedience that have led to greater mobilization and participation in the movement. Finally, immigrant rights organizations have changed the law by lobbying for policy changes and changes to state laws that benefit unauthorized workers. Besides reducing precarity, the contestation itself can become a source of social membership for unauthorized workers. In effect, the contestation allows unauthorized workers to exercise their political voices.

KJ

Immigration Article of the Day: Detention Abolition and the Violence of Digital Cages by Sarah Sherman-Stokes

Detention Abolition and the Violence of Digital Cages by Sarah Sherman-Stokes

 

Abstract

The United States has a long history of devastating immigration enforcement and surveillance. Today, in addition to more than 34,000 people held in immigration detention, Immigration and Customs Enforcement (“ICE”) surveils an astounding 296,000 people under its “Alternatives to Detention” program. The number of people subjected to this surveillance has grown dramatically in the last two decades, from just 1,339 in 2005. ICE’s rapidly expanding Alternatives to Detention program is marked by “digital cages,” consisting of GPS-outfitted ankle shackles and invasive phone and location tracking. Government officials and some immigrant advocates have categorized these digital cages as a humane “reform”; ostensibly an effort to decrease the number of people behind bars. This article challenges that framework, illuminating how digital cages disperse the violence of immigration enforcement and surveillance more broadly, and more insidiously, ensnaring hundreds of thousands more immigrants, families and communities.

This article argues that the increasing digitization of immigration enforcement and surveillance is part of a growing, and expansive, geography of violence. Building upon deportation abolition literature situating immigration detention as a form of violence, this article posits that rather than mitigate violence, digital cages create a “violence of invisibility” that is equally, if not more, dangerous. Digital cages, masquerading as a more palatable version of enforcement and surveillance, create devastating harms that are hidden in plain sight, while duping us into thinking them more humane. This article concludes by arguing that digital cages are a “reformist reform” that merely make more efficient the kind of oppressive and racialized violence that has long informed the United States’ immigration enforcement regime. If we truly seek an end to this violence, this article argues for abolition - not just of detention, but of the digital cages next in line to replace detention.

KJ

New Immigration Article: Kevin R. Johnson, TEACHING SOCIAL JUSTICE IN THE IMMIGRATION LAW SURVEY COURSE

TEACHING SOCIAL JUSTICE IN THE IMMIGRATION LAW SURVEY COURSE by Kevin R. Johnson, St. Louis University Law Journal (symposium), Forthcoming 2022

Abstract

This article makes the case for integrating racial and social justice into the teaching of the immigration law survey course. Part I briefly highlights the social justice implications of the operation of the U.S. immigration laws and their enforcement. Part II reviews benefits from teaching the immigration law survey course through a social justice lens. Such an approach is especially appropriate because immigration law and policy profoundly impacts vulnerable immigrants of color. Part III identifies a casebook that takes a social justice approach to teaching the immigration law survey course.

KJ

Immigration Article of the Day: Beyond Emissions: Migration, Prisons, and the Green New Deal by Wyatt Sassman and Danielle C. Jefferis

Beyond Emissions: Migration, Prisons, and the Green New Deal by Wyatt Sassman and Danielle C. Jefferis, 51 Environmental Law 161 (2021)

Abstract

The Green New Deal is a bold resolution that asks us to envision climate policy beyond emissions reductions and pollution controls. The proposal seeks to reduce environmental impacts, including by dramatically reducing carbon emissions, while supporting domestic manufacturing, unionized labor, sustainable agriculture, and social equity. The Biden Administration has expressed support for the Green New Deal as “a crucial framework for meeting the climate challenges we face,” and the proposal has influenced the Administration’s early actions to reduce carbon emissions. How can the Green New Deal’s framework guide climate policy beyond emissions reductions, and who should be a part of this conversation?

Using examples from immigration law and policy, this Article envisions what climate policy beyond emissions looks like in two key areas: climate migration and immigration detention. Rightfully so, the Green New Deal makes several gestures toward the impact its proposals would have on immigration policy and migrant communities. The Green New Deal identifies that climate change will cause—indeed, already has caused—mass migration, labels climate change as a national security threat, and recognizes that climate change will disproportionately impact migrant communities. And it expressly sets out to stop and prevent further oppression of migrant communities. As a framework, the Green New Deal demands attention to the intersection of climate and immigration policy and meaningful commitment to reforms in the areas of immigration law that the Green New Deal impacts.

We argue that failure to consider the role of immigration reform in climate policy risks undermining the Green New Deal’s goal of aligning environmental and economic policy with racial, social, and economic equality, as well as its specific goals focused on migrant communities. To address the impact of climate change on mass migration and vulnerable communities, immigration reform should be understood as a key element of climate policy guided by the Green New Deal. We start that conversation by offering proposals that integrate key immigration reforms into a climate policy that looks beyond borders and beyond prisons.

KJ

Immigration Article of the Day: Why Does the Federal Government Get a Pass? Applying Best Practices in Child Protection to the Circumstances of Migrant Children and Families by Randi Mandelbaum

Why Does the Federal Government Get a Pass? Applying Best Practices in Child Protection to the Circumstances of Migrant Children and Families by Randi Mandelbaum, American University Law Review, Vol. 71, 2022

Abstract

For too long, the United States has had a separate child-caring system for migrant children and families that operates alongside our domestic child welfare systems. The latter is a robust system focused on the principles of safety, wellbeing, and permanency; while the former flouts constitutional protections, separates children from parents, and perpetuates a system that is detaining children, warehousing them in large jail-like settings at worst, and sheltering them in large congregate care facilities at best. Children are being harmed, some irreparably.

Yet, if our child welfare laws reflect what we know to be proper standards for caring for vulnerable and traumatized children, why is it that these same protections are not afforded to migrant children and families? Why does the federal government get a pass? Does the fact that we are addressing the needs of migrant children and families alter the responsibilities of the agencies charged with caring for the children? What laws exist to hold the federal government accountable? And what would change if child protection principles were relied upon to guide the circumstances and care of migrant children in the United States? This Article seeks to answer these questions and to fully explore the application of child welfare principles in the immigration context, both in terms of family separation policies as well as the care and custody of migrant children.

It must be acknowledged that there are serious concerns with how our domestic foster care systems function, particularly their racist underpinnings, the disproportionate number of children and families of color involved within these systems, and the disparate outcome for children and families of color, especially Black and Native American children and families. Yet, we also must recognize that best practices in child protection, along with constitutional protections and international laws and norms, provide a necessary roadmap for ensuring that the basic rights and needs of migrant children and families are met. For when the government steps into the role of “parent” or caregiver, it must be held accountable for ensuring the well-being and protection of those in its custody whether they are a citizen or non-citizen. Accordingly, it is hoped that this Article is the beginning of a dialogue on why the federal government must cease flouting its own rules and policies and how it can begin to transform its policies to ensure that children are with family whenever possible, and if not, that they are well cared for and their needs met.

KJ

Immigration Article of the Day: Advancing Protections for the Mentally Ill in Removal Proceedings: Lessons Learned from the Criminal Justice System by Gkykeria Teji

Advancing Protections for the Mentally Ill in Removal Proceedings: Lessons Learned from the Criminal Justice System by Gkykeria Teji

Abstract

By their nature, removal proceedings are not criminal but rather civil, though an attempt toward an accurate categorization of removal proceedings (civil vs. criminal) can be a complex issue. Although noncitizens placed in removal proceedings have access to due process, their safeguards in immigration removal cases when a respondent is mentally ill are inadequate. For instance, one’s mental illness in criminal proceedings might lead to the acquittal of the charges against them by being deemed incompetent. However, an individual in immigration removal proceedings suffering from a mental health condition, even if deemed incompetent, is still required to proceed with a trial. Furthermore, a defendant in criminal proceedings (whether they are a U.S. citizen or noncitizen) has access to free counsel and bail regardless of the severity of the offense they allegedly committed. Antithetically, although noncitizens have a constitutional right to counsel, the government does not provide free counsel (public defender) if they cannot afford a private attorney. Nor is bond readily available to them.

The right to counsel, questions of competency, eligibility for bond hearings, and one’s inherent right to dignified treatment, among others, are issues that merit scholarly research and discussion. This study aims to conduct thorough research of the legal framework pertaining to the removal proceedings of mentally ill noncitizens. The study further aims to explore the legal authorities (statutes, precedential decisions, and secondary sources) currently in place; and study/compare similar procedures in other legal fields, such as the criminal justice system. Finally, the author provides recommendations for modifying the U.S. immigration removal proceedings in such a way as to enhance due process protections for mentally ill individuals. Specifically, the author makes recommendations based on a comparison of aspects of the criminal justice system related to the treatment of individuals with mental health illnesses. Given the problem’s complexities and its continually evolving nature, the study provides legal tools for a meaningful analysis of the issue at hand.

KJ