Immigration Law Commons^™

Legal Order At The Border, Evan J. Criddle

Faculty Publications

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 …

Decitizenizing Asian Pacific American Women, Shoba Sivaprasad Wadhia, Margaret Hu

Faculty Publications

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws …

The Case Against Prosecuting Refugees, Evan J. Criddle

Faculty Publications

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Digital Internment, Margaret Hu

Faculty Publications

In Korematsu, Hirabayashi, and the Second Monster, Eric L. Muller explores whether Korematsu v. United States is dead post-Trump v. Hawaii, and whether by failing to strike down Hirabayashi v. United States, the “mother” of Korematsu and a “second monster” lives on. This brief response Essay contends that answering these questions first demands grasping how Trump v. Hawaiifailed to fully address the program implemented by the Muslim Ban–Travel Ban: Extreme Vetting. Extreme Vetting can be characterized as a form of “digital internment” through a complex web of cybersurveillance, administrative-imposed restraints, and “identity-management” rationales that are …

Crimmigration-Counterterrorism, Margaret Hu

Faculty Publications

The discriminatory effects that may stem from biometric ID cybersurveillance and other algorithmically-driven screening technologies can be better understood through the analytical prism of “crimmigrationcounterterrorism”: the conflation of crime, immigration, and counterterrorism policy. The historical genesis for this phenomenon can be traced back to multiple migration law developments, including the Chinese Exclusion Act of 1882. To implement stricter immigration controls at the border and interior, both the federal and state governments developed immigration enforcement schemes that depended upon both biometric identification documents and immigration screening protocols. This Article uses contemporary attempts to implement an expanded regime of “extreme vetting” to …

Algorithmic Jim Crow, Margaret Hu

Faculty Publications

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …

Members Only: Undocumented Students & In-State Tuition, Angela M. Banks

Faculty Publications

No abstract provided.

The Normative & Historical Cases For Proportional Deportation, Angela M. Banks

Faculty Publications

Is citizenship status a legitimate basis for allocating rights in the United States?

In immigration law the right to remain in the United States is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in the United States regardless of their actions. Noncitizens’ right to remain is less secure because they can be deported if convicted of specific criminal offenses. This Article contends that citizenship is not a legitimate basis for allocating the right to remain. This Article offers normative and historical arguments for a right to remain for noncitizens. This right should be granted to …

Closing The Schoolhouse Doors: State Efforts To Limit K-12 Education For Unauthorized Migrant School Children, Angela M. Banks

Faculty Publications

No abstract provided.

Reverse-Commandeering, Margaret Hu

Faculty Publications

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anticommandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration …

The Curious Relationship Between "Self-Deportation" Policies And Naturalization Rates, Angela M. Banks

Faculty Publications

Governor Mitt Romney has stated that the country’s immigration problems can be solved through “self-deportation.” Arizona, Alabama, Georgia, South Carolina, and Virginia agree. For example, K–12 public schools in Alabama are required to ascertain the immigration status of all enrolling students. Police officers in Arizona, Alabama, Georgia, South Carolina, and Virginia check the immigration status of all individuals booked into jail. These “self-deportation” laws and policies, also known as immigration enforcement through attrition, are designed to discourage and deter unauthorized migration. Yet these policies are having a broader impact; they are creating a hostile context of reception for immigrants regardless …

Enabling Refugee And Idp Law And Policy: Implications Of The U.N. Disability Convention On The Rights Of Persons With Disabilities, Michael Ashley Stein, Janet E. Lord

Faculty Publications

No abstract provided.

Deporting Families: Poliltical Question Or Legal Issue?, Angela M. Banks

Faculty Publications

Last year 245,424 noncitizens were removed from the United States, and courts played virtually no role in ensuring that these decisions did not violate individual substantive rights like freedom of speech, substantive due process, or retroactivity. Had these individuals been deported from a European country, domestic and regional courts would have reviewed the decisions to ensure compatibility with these types of rights. Numerous international law scholars and immigration scholars seek to minimize the gap between the legal processes offered in the United States and Europe for noncitizens challenging deportation orders. Many of these scholars contend that greater recognition of international …

Proportional Deportation, Angela M. Banks

Faculty Publications

No abstract provided.

Sovereignty, Deference, And Deportation: Allocating And Enforcing Immigrants' Rights In The United States And Europe, Angela M. Banks

Faculty Publications

No abstract provided.

Constitutional Displacement, Timothy Zick

Faculty Publications

This Article examines the intersection between territory and constitutional liberty. Territoriality, as defined by Robert Sack, is the attempt to affect, influence, or control people, phenomena, and relationships by delimiting and asserting control over a geographic area. Territoriality affects constitutional liberty in profound ways. These effects have been apparent in certain infamous historical episodes, including the territoriality of racial segregation, the geographic exclusion and internment of Japanese-Americans during World War II, early state migratory exclusions, and isolation of the sick and mentally ill. Today, governments are resorting to territorial restrictions in an increasing number of circumstances, including detention of enemy …

Ain't?, Susan Grover

Faculty Publications

No abstract provided.

Zoe Baird, Betrayal And Fragmentation, Susan Grover

Faculty Publications

No abstract provided.