Law Commons^™

Immigration As Commerce: A New Look At The Federal Immigration Power And The Constitution, Jennifer Gordon

Indiana Law Journal

When the United States government sets immigration law and policy, how much attention must it pay to constitutional rights? This question has been much debated since President Donald Trump issued a series of immigration-related executive orders in his first week in office, including a bar on entry by citizens of a set of majority-Muslim countries, but it was controversial long before then. In important part, the answer depends on what the Constitution says about the scope and limits of the power of the federal government over immigration. Therein lies the tale. On this subject, the country’s founding documents say very …

Child Separation In The Courts, Deborah Pearlstein

Faculty Online Publications

Developments in the ongoing child separation crisis have come so quickly in the past week it is nearly impossible even for experts to keep track. Donald Trump’s executive order requiring an end to the child separation policy, his administration’s subsequent announcement that it would halt its “zero-tolerance” policy of prosecuting the misdemeanor offense of illegal entry, the California federal court’s Tuesday decision halting further separation and requiring currently separated families be reunified — all of these are positive developments for those concerned about the catastrophic effects of the policy on children and families. But the legal battle here is far …

Trump’S Travel Ban At The Supreme Court: Deference Joined By Nudges Toward Civility, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Death By Fifty Cuts: Exporting Lunn V. Commonwealth To Maine And The Prospects For Waging A Frontal Assault On The Ice Detainer System In State Courts, Sean Turley

Maine Law Review

As long as the future of federal immigration policy remains unsettled and the use of ICE detainers to capture and deport suspected noncitizens remains widespread, practitioners should focus their attention on waging a frontal assault against the legality of ICE detainers on state law grounds by arguing that they constitute warrantless arrests that are prohibited by state statute. The recent Massachusetts Supreme Judicial Court decision in Lunn v. Commonwealth provides a model for how to wage such an attack—not only in states with similar common law and statutory frameworks that are unlikely to resolve the issue legislatively, like Maine, but …

Leveraging Social Science Expertise In Immigration Policymaking, Ming H. Chen

NULR Online

The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes …

A Particularly Serious Exception To The Categorical Approach, Fatma E. Marouf

Fatma Marouf

A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet, the Board of Immigration Appeals has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examination of the elements with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offenses are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious crime determination to promote …

Alternatives To Immigration Detention, Fatma E. Marouf

Fatma Marouf

The United States places over 440,000 people each year in immigration detention, far more than any other country in the world. This Article argues that there are compelling humanitarian and financial reasons to utilize more alternatives to detention. It examines the strengths and limitations of existing alternatives, including the need to develop more community-based case management programs and to rely less on electronic monitoring. The Article then sets forth several legal arguments under the Constitution, Rehabilitation Act, and international human rights law for requiring greater consideration of alternatives to detention.

Alienage Classifications And The Denial Of Health Care To Dreamers, Fatma E. Marouf

Fatma Marouf

In the Affordable Care Act (“ACA”), passed in 2010, Congress provided that only “lawfully present” individuals could obtain insurance through the Marketplaces established under the Act. Congress left it to the Department of Health and Human Services (“HHS”) to define who is “lawfully present.” Initially, HHS included all individuals with deferred action status, which is an authorized period of stay but not a legal status. After President Obama announced a new policy of Deferred Action for Childhood Arrivals (“DACA”) in June 2012, however, HHS amended its regulation specifically to exclude DACA recipients from the definition of “lawfully present.” The revised …

The School To Deportation Pipeline, Laila L. Hlass

Georgia State University Law Review

The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes.

Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves in …

15th Diversity Symposium Dinner 4-27-2018, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Is Citizenship Still Relevant? State Sovereignty, Migration, And Sanctuary Cities In A Globalizing World, Melissa J. Lauro

Student Publications

This paper argues that sanctuary cities and sanctuary policies in the United States are a manifestation of the conflicts resulting from processes of globalization, which have changed traditional notions of citizenship, state sovereignty, and state security, as well as fostered a cultural backlash and identity politics within the U.S.

Federalism And The State Police Power: Why Immigration And Customs Enforcement Must Stay Away From State Courthouses, George Bach

Faculty Scholarship

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This presence has had an adverse effect on domestic violence victims who are immigrants, as they fear encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about the …

Providing A Solution For Immigrant Detainees Held Under The Mandatory Detention Statute, Kristine Toma

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Damaged Bodies, Damaged Lives: Immigrant Worker Injuries As Dignity Takings, Rachel Nadas, Jayesh Rathod

Chicago-Kent Law Review

Government data consistently affirms that foreign-born workers in the U.S. experience high rates of on-the-job illness and injury. This article explores whether—and under what circumstances—these occupational harms suffered by immigrant workers constitute a dignity taking. The article argues that some injuries suffered by foreign-born workers are indirect takings by the state due to the government’s lackluster oversight and limited penalties for violations of occupational safety and health laws. Using a framework of the body as property, the article then explores when work-related injury constitutes an infringement upon a property right. The article contends that the government’s weak enforcement apparatus, coupled …

Getting It Righted: Access To Counsel In Rapid Removals, Stephen Manning, Kari Hong

Marquette Law Review

None

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

Faculty Scholarship

Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn …

The Network For Justice: Pursuing A Latinx Civil Rights Agenda, Luz E. Herrera, Pilar M. Hernández-Escontrías

Faculty Scholarship

This article explores the need to develop a Latinx-focused network that advances law and policy. The Network for Justice is necessary to build upon the existing infrastructure in the legal sector to support the rapidly changing demographic profile of the United States. Latinxs are no longer a small or regionally concentrated population and cannot be discounted as a foreign population. Latinxs reside in every state in our nation and, in some communities, comprise a majority of the population. The goal of the Network for Justice is to facilitate and support local and statewide efforts to connect community advocates to formal …

Travel Ban Update: Fourth Circuit Affirms Injunction As Supreme Court Awaits Argument, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Workers, Families, And Immigration Policies, Shannon Gleeson

Shannon Gleeson

[Excerpt] Unauthorized immigration to the US has a long and varied history shaped by a number of shifts in immigration policy. Of the global immigrant stock, 10–15 % is estimated to be undocumented (20–30 million; International Organization for Migration 2008). Today, undocumented immigrants comprise roughly 40 % of the immigrant flow to the US. Although immigrants often come to this country as a result of complex factors that were initiated or supported by the US—including free trade agreements and wars that devastated immigrants’ home countries and their national economies—once they become unauthorized, they find themselves in extremely vulnerable positions. Besides …

On Moral Grounds: Denouncing The Board's Framework For Identifying Crimes Of Moral Turpitude, Frank George

Akron Law Review

Though admissibility and deportability decisions often hinge on whether a noncitizen has committed a crime involving moral turpitude (CIMT), the Immigration and Nationality Act (INA) neither defines “moral turpitude” nor establishes a framework with which to apply this language. As a result, courts have historically developed inconsistent applications of the act’s moral turpitude provisions. This Article explores the creation, collapse, and recreation of a uniform framework for the identification of CIMTs. After several circuit courts refused to give deference to the previous framework, the Board of Immigration Appeals (BIA) appropriately came to the following conclusion: the language of the INA …

The Overlooked Significance Of Arizona's New Immigration Law, Rick Su

Rick Su

The current debate over Arizona's new immigration statute, S.B. 1070, has largely focused on the extent to which it “empowers” or “allows” state and local law enforcement officials to enforce federal immigration laws. Yet, in doing so, the conversation thus far overlooks the most significant part of the new statute: the extent to which Arizona mandates local immigration enforcement by attacking local control. The fact is the new Arizona law does little to adjust the federalist balance with respect to immigration enforcement. What it does, however, is threaten to radically alter the state-local relationship by eliminating local discretion, undermining the …

Urban Politics And The Assimilation Of Immigrant Voters, Rick Su

Rick Su

Despite the growing strength of immigrant voters in the U.S., immigrants continue to participate at the polls in much lower rates than not only native voters, but also immigrants in the past. What accounts for this disparity? Looking beyond the characteristics of the immigrants themselves, this essay argues that a major reason lies in the different political structure that immigrants face upon their arrival, especially at the local level. Tracing the evolution of big city politics alongside, and in response to, the three major waves of foreign immigration to the U.S., this essay outlines three competing models of immigrant political …

The States Of Immigration, Rick Su

Rick Su

Immigration is a national issue and a federal responsibility — so why are states so actively involved? Their legal authority over immigration is questionable. Their institutional capacity to regulate it is limited. Even the legal actions that states take sometimes seem pointless from a regulatory perspective. Why do they enact legislation that essentially copies existing federal law? Why do they pursue regulations that are likely to be enjoined or struck down by courts? Why do they give so little priority to the immigration laws that do survive?

This Article sheds light on this seemingly irrational behavior. It argues that state …

My Grandfather Was An Illegal Immigrant: Guest Opinion, Daniel Pollack-Pelzner

Faculty Publications

In this opinion piece originally published in the Oregonian, Daniel Pollack-Pelzner reflects on his grandfather's immigration status in light of the Trump administration's decision to end temporary protection for 200,000 Salvadoran immigrants who came to the United States without documentation.

The Perpetual “Invasion”: Past As Prologue In Constitutional Immigration Law, Matthew Lindsay

All Faculty Scholarship

Donald Trump ascended to the presidency largely on the promise to protect the American people—their physical and financial security, their culture and language, even the integrity of their electoral system—against an invading foreign menace. Only extraordinary defensive measures, including “extreme vetting” of would-be immigrants, a ban on Muslims entering the United States, and a 2,000-mile-long wall along the nation’s southern border could repel the encroaching hordes. If candidate Trump’s scapegoating of unauthorized migrants and refugees was disarmingly effective, it was also eerily familiar to those of us who study the history of immigration law and policy. Indeed, the trope of …

Learning In "Baby Jail": Lessons From Law Student Engagement In Family Detention Centers, Lindsay M. Harris

Journal Articles

Between 2014 and 2017, more than 40 law schools and likely well over 1000 law students engaged in learning within immigration family detention centers. The Trump Administration’s “zero tolerance” policy and implementation of wide-scale family separation in 2018 led to increased involvement by professors and students in the constantly shifting landscape of immigration detention. As the detention of immigrant families becomes increasingly entrenched, this article hits the pause button and assesses the benefits and challenges of the various approaches to, and proposes some principles for, law student engagement in this crisis lawyering in immigration detention centers, for families, and beyond.

Contemporary Family Detention And Legal Advocacy, Lindsay M. Harris

Journal Articles

This essay explores the contemporary practice of detaining immigrant women and children — the vast majority of whom are fleeing violence in their home countries and seeking protection in the United States — and the response by a diverse coalition of legal advocates. In spite of heroic advocacy, both within and outside the detention centers from the courts to the media to the White House, family detention continues. By charting the evolution of family detention from the time the Obama Administration resurrected the practice in 2014 and responsive advocacy efforts, this essay maps the multiple levels at which sustained advocacy …

Dreamcatcher: How California Can Protect Its Daca Recipients’ Work Authorization, Eddie Corona, Kyle Heitmann

Immigration Law & Policy Practicum Projects

This memorandum details the legal means by which the State of California may enact work authorization for DACA recipients in the event the program is rescinded. Using similar, previous state-level initiatives as inspiration, this memo examines the parameters constraining possible legislative action. Because work authorization is federally regulated, these constraints include preemption and supremacy clause limitations on state and local lawmaking. This means that, if DACA is rescinded, California could pass a law allowing former recipients to continue working. However, because of the Supremacy Clause, California would need permission from the federal government to implement the bill. After explaining the …

Immigration Enforcement And The Future Of Discretion, Shoba Wadhia

Journal Articles

No abstract provided.

Sr. Estelle: When In Rome, Ashley Massey

Ask a Sister: Interview Wisdom from Catholic Women Religious

This is a two page excerpt from an interview conducted with Sister Estelle in December 2017. She worked for twelve years in Europe representing her Union, but now that she is back in the States, she focuses on vocational work and helping people find out where they belong.