Immigration Law Commons^™

Department Of Homeland Security V. Regents Of The University Of California And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The Trump Administration's effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court's decision, and its potential legal implications.

The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences for many of DACA’s hundreds of thousands …

The Case For Chevron Deference To Immigration Adjudications, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower—to show that “this case against Chevron has * * * its greatest force when it comes to immigration.”

The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general and …

“Something There Is That Doesn’T Love A Wall:” A Reflection On The Constitutional Vulnerabilities Of The Southwest Border Wall, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Interring The Immigration Rule Of Lenity, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The immigration rule of lenity has haunted immigration jurisprudence since its initial iteration in 1947. But as with any spectral entity, its existence is more ephemeral than real. The rule was meant to be a tie-breaker of sorts, a canon that where a provision of the immigration laws was ambiguous, the courts should impose the more lenient construction. It has never, however, been the dispositive basis for a holding of the Supreme Court. Rather, to the extent it has been referenced, it has been trotted out only as a rhetorical device to sanction a decision reached on other grounds. Even …

Robert F. Kennedy And The Attorney General's Referral Authority: A Blueprint For The Biden Administration, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

For nearly four years, the Trump Administration’s use of the Attorney General’s referral authority has been criticized by the legal left on both substantive and procedural grounds. With the advent of the Biden Administration, however, use of the authority for liberal ends deserves serious consideration. To conclude otherwise would be throwing the baby out with the bath water. This article argues that the referral authority can be used for liberal constructions of the immigration laws, and that the perfect model for the incoming administration is former Attorney General Robert Kennedy and his use of the authority for just such ends. …

The Promise And Challenge Of Humanitarian Protection In The United States: Making Temporary Protected Status Work As A Safe Haven, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

The humanitarian program Congress created in 1990 to allow war refugees and those affected by significant natural disasters to live and work legally in the United States has only partially achieved its goals. More than 400,000 individuals have received temporary protected status (TPS). In many cases, the crisis ended, along with temporary protection. However, in about half of the designated nationalities—including the largest groups—conflict and instability continued, making this humanitarian protection program anything but temporary. Unfortunately, Congress did not provide the Department of Homeland Security (DHS) with the tools it needed to address such long-term crises. That was purposeful—Congress worried …

Self-Deportation Nation, K-Sue Park

Georgetown Law Faculty Publications and Other Works

“Self-deportation” is a concept to explain the removal strategy of making life so unbearable for a group that its members will leave a place. The term is strongly associated with recent state and municipal attempts to “attack every aspect of an illegal alien’s life,” including the ability to find employment and housing, drive a vehicle, make contracts, and attend school. However, self-deportation has a longer history, one that predates and made possible the establishment of the United States. As this Article shows, American colonists pursued this indirect approach to remove native peoples as a prerequisite for establishing and growing their …

Presidential Immigration Policies Endangering Health And Well-Being?, Lawrence O. Gostin, Katharina Ó Cathaoir

Georgetown Law Faculty Publications and Other Works

Since assuming office, President Trump has issued a series of executive orders transforming United States immigration policy. From building a border wall to banning entry to the US based on nationality, these executive orders are likely to profoundly impact health and wellbeing. Are these actions legal, ethical, and what are the likely effects on US health care?

The implications of the proposed expansion of the border wall between Mexico and the US, new rules on deportation and detention, and the proposed ban on immigration from certain Muslim-majority countries are discussed. These actions run contrary to available evidence on protecting the …

Immigration, Criminalization, And Disobedience, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

This symposium essay explores two contending visions of immigration justice: one focused on expanding procedural rights for immigrants, and a second associated with a movement of immigrant youth who have come out en masse as “undocumented and unafraid,” issuing a fundamental challenge to immigration restrictionism. As immigration enforcement in the United States increasingly relies on criminal prosecution and detention, advocates for reform have increasingly turned to constitutional criminal procedure, seeking greater procedural protections for immigrants. But this essay argues that this focus on enhanced procedural protections is woefully incomplete as a vision of immigration justice. Although a right to counsel, …

Forced Migration, The Human Face Of A Health Crisis, Lawrence O. Gostin, Anna E. Roberts

Georgetown Law Faculty Publications and Other Works

Nearly 60 million refugees, asylum-seekers and internally displaced persons (IDPs) fled their homes in 2014, predominately from war-torn Syria, Afghanistan and Somalia. The global response to assisting this vulnerable group has been wholly incommensurate with the need given the profound health hazards faced by forced migrants at each stage of their journey. The majority of forced migrants are housed in lower-income countries that do not have the infrastructure to assist the significant numbers of individuals who are crossing their borders and the humanitarian organizations who seek to assist in the response are grossly underfunded and under-resourced.

Countries have varying responsibilities …

Arrests As Regulation, Eisha Jain

Georgetown Law Faculty Publications and Other Works

For some arrested individuals, the most important consequences of their arrest arise outside the criminal justice system. Arrests alone—regardless of whether they result in conviction—can lead to a range of consequences, including deportation, eviction, license suspension, custody disruption, or adverse employment actions. But even as courts, scholars, and others have drawn needed attention to the civil consequences of criminal convictions, they have paid relatively little attention to the consequences of arrests in their own right. This article aims to fill that gap by providing an account of how arrests are systemically used outside the criminal justice system. Noncriminal justice actors …

The New Refugees And The Old Treaty: Persecutors And Persecuted In The Twenty-First Century, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

When the fledgling U.N. negotiated a treat to protect refugees after the Second World War, member states focused on Europe as well as on events causing forced migration that occurred prior to 1951. No one imagined that cross-border escape from persecution would become a global phenomenon and remain one more than sixty years later, or that this human rights treaty would be needed in the twenty-first century. In fact, as increased numbers of asylum seekers from developing countries reached the most developed regions of the world during the last thirty years, critics have questioned the merits of this treaty and …

The Difference Prevention Makes: Regulating Preventive Justice, David Cole

Georgetown Law Faculty Publications and Other Works

Since the terrorist attacks of September 11, 2001, the United States and many other countries have adopted a ‘‘paradigm of prevention,’’ employing a range of measures in an attempt to prevent future terrorist attacks. This includes the use of pre textual charges for preventive detention, the expansion of criminal liability to prohibit conduct that precedes terrorism, and expansion of surveillance at home and abroad. Politicians and government officials often speak of prevention as if it is an unqualified good. Everyone wants to prevent the next terrorist attack, after all. And many preventive initiatives, especially where they are not coercive and …

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …

Judulang V. Holder And The Future Of 212(C) Relief, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

On December 12, 2011, the Supreme Court issued a unanimous decision in Judulang v. Holder, a case addressing the Board of Immigration Appeals’ use of the comparable grounds approach for determining eligibility for relief under former section 212(c) of the Immigration and Nationality Act. The Court held that this approach was arbitrary and capricious under the Administrative Procedure Act, and remanded for the agency to determine a new way for determining the eligibility of deportable aliens for 212(c) relief. The purpose of this article is to place the Court’s decision in its proper historical context and to chart the …

The U.S. Criminal-Immigration Convergence And Its Possible Undoing, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

The intensifying convergence of U.S. criminal law and immigration law poses fundamental structural problems. This convergence--which manifests in the criminal prosecution of immigration law violators, in deportation of criminal law violators, and in a growing immigration enforcement and detention apparatus--distorts criminal law incentives and drains enforcement resources, misguides immigration regulation, and undermines efforts to implement alternative immigration regulatory frameworks. This article offers an account, informed by social psychological and literary theory, of why this convergence persists notwithstanding these problems, as well as how the convergence (and inherently associated problems) might be undone. The U.S. criminal-immigration convergence holds powerful sway, despite …

Health Care And The Illegal Immigrant, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The question of whether illegal immigrants should be entitled to some form of health coverage in the United States sits at the uneasy intersection of two contentious debates: health reform and immigration reform. Befitting this place, the rhetoric surrounding the issue has been exponentially heightened by the multiplying effects of combining two vitriolic debates. On one side, it is argued that the United States has a moral obligation to provide health care to all those within its borders needing such assistance. On the other, it is argued with equal force that those illegally present in this country should not be …

Developing The Substantive Best Interests Of Child Migrants: A Call For Action, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

This Article attempts to accomplish two goals. First, it provides an overview of what is known and unknown about international child migrants. While this Conference will focus to some degree on child migrants in the United States, this Article shows how significant this phenomenon is around the world. Therefore, this Article provides data and points out the research gaps surrounding this issue.

Equally significant is the lack of legal and policy tools available for governments to respond well and in accordance with the Convention on the Rights of the Child ("CRC") to the children themselves. First, informed by social science …

The Removability Of Non-Citizen Parents And The Best Interests Of Citizen Children: How To Balance Competing Imperatives In The Context Of Removal Proceedings?, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The massive influx of illegal immigrants over the preceding decades has combined with the United States’ jus soli citizenship regime to produce a growing class of removable aliens: non-citizen parents of United States citizen children. The removability of parents obviously places the citizen children in the unfortunate position of having to leave their country of citizenship behind to accompany the parents, or arrange for living situations within the United States, perhaps with a relative, but be separated from their parents. The compelling interests raised by the removability of parents in such circumstances have given rise to distinct forms of relief …

“To Remand, Or Not To Remand”: Ventura’S Ordinary Remand Rule And The Evolving Jurisprudence Of Futility, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

It is a foundational principle of administrative law that a reviewing court should not dispose of a petition for review or appeal on grounds not relied upon by the agency, and should not reach issues in the first instance not addressed administratively. In such circumstances, there is a strong presumption that the reviewing court should remand the case to the agency for further proceedings rather than reach out to decide the disputed issues. The United States Supreme Court explicitly extended operation of the “ordinary remand rule” to the immigration context in its 2002 decision in INS v. Ventura. Notwithstanding subsequent …

Rejecting Refugees: Homeland Security's Administration Of The One-Year Bar To Asylum, Andrew I. Schoenholtz, Philip G. Schrag, Jaya Ramji-Nogales, James P. Dombach

Georgetown Law Faculty Publications and Other Works

Since 1980, the Refugee Act has offered asylum to people who flee to the United States to escape persecution in their homeland. In 1996, however, Congress amended the law to bar asylum – regardless of the merit of the underlying claim – for any applicant who fails to apply within one year of entering the United States, unless the applicant qualifies for one of two exceptions to the rule.

In the years since the bar was established, anecdotal reports have suggested that genuine refugees, with strong merits claims to asylum, have been rejected solely because of the deadline. Many scholars …

Asylum In A Different Voice: Judging Immigration Claims And Gender, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

An extensive statistical study of disparities in asylum adjudication throughout the United States reveals gross disparities in rates of asylum grants by region of country, experience of adjudicators, prior employment, and other factors. One of the most robust findings was one of gender disparities in adjudication rates. If the adjudicator of claims for asylum was female there was a 44% greater likelihood that asylum would be granted. This chapter in the book reporting these findings reflects on this significant finding of gender differences in judging and discusses, in light of the author's prior work on gender differences in lawyering, whether …

Improving Immigration Adjudications Through Competent Counsel, Andrew I. Schoenholtz, Hamutal Bernstein

Georgetown Law Faculty Publications and Other Works

The immigration adjudication system in the United States is in serious need of reform. While much attention has focused on one of the principal adjudicators, the Immigration Judges, recent research conducted by Philip Schrag, Jaya Ramji-Nogales, and Andrew Schoenholtz has shown that policymakers and adjudicators should be examining all levels of decision making. This includes not only decisions at the Immigration Court level but also at the Asylum Office, the Board of Immigration Appeals and the Circuit Courts. In Refugee Roulette: Disparities in Asylum Adjudication, the authors found a troubling degree of inconsistency at all levels that track individual …

Refugee Roulette: Disparities In Asylum Adjudication, Andrew I. Schoenholtz, Jaya Ramji-Nogales, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This study analyzes databases of merits decisions from all four levels of the asylum adjudication process: 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4215 decisions of the U.S. Courts of Appeal during 2004 and 2005. The analysis reveals significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country. In many cases, the most important moment in an asylum …

The Idea Of Humanity: Human Rights And Immigrants' Rights, David Cole

Georgetown Law Faculty Publications and Other Works

This essay asks whether international human rights arguments are likely to be effective in advancing immigrants' rights in the United States. There are certainly reasons to be pessimistic. Despite its history as a nation of immigrants and the ever-increasing diversity of its populace, the United States remains a deeply parochial and nationalist culture. International human rights arguments are often seen as the advocates' last refuge. In the absence of an international forum that can hold the United States accountable, and in the face of Congressional directives that the international human rights treaties it has ratified are not self-executing, international human …

Refugee Protection In The United States Post-September 11, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

The U.S. refugee resettlement program, was the first refugee protection casualty of the terrorist attacks. American officials perceived resettlement as being particularly vulnerable to security problems. That was not the case with the other major U.S. refugee protection program, the asylum system. That system was effectively revamped in 1995 to address a variety of abuses, in part connected to individuals involved in the 1993 World Trade Center bombing. Yet, even though official attention did not focus on asylum, subtle, significant changes have occurred. This article delineates and assesses these changes by closely examining data and developments at all levels of …

Arthur C. Helton 1949-2003, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

Through his advocacy, teaching and scholarship, Arthur Helton enabled some of the most vulnerable people on earth, as well as those who work to advance their rights, to ensure that governments strive to live up to their legal and moral obligations to protect and assist the displaced.

Their Liberties, Our Security: Democracy And Double Standards, David Cole

Georgetown Law Faculty Publications and Other Works

Some maintain that a "double standard" for citizens and noncitizens is perfectly justified. The attacks of September 11 were perpetrated by nineteen Arab noncitizens, and we have reason to believe that other Arab noncitizens are associated with the attackers and will seek to attack again. Citizens, it is said, are presumptively loyal; noncitizens are not. Thus, it is not irrational to focus on Arab noncitizens. Moreover, on a normative level, if citizens and noncitizens were treated identically, citizenship itself might be rendered meaningless. The very essence of war involves the drawing of lines in the sand between citizens of our …

The State Of Asylum Representation: Ideas For Change, Andrew I. Schoenholtz, Jonathan Jacobs

Georgetown Law Faculty Publications and Other Works

The plight of refugees-those who flee persecution-touches a chord with Americans, who have supported both a substantial overseas resettlement program and a fair system for asylum seekers. U.S. laws provide a seemingly full opportunity for asylum applicants to explain their fear or actual experience of persecution. In fact, the U.S. offers an extensive process of interviews, hearings, and appeals to ensure that bona fide refugees are not sent back to their persecutors. The substantive law, too, has been developed considerably through administrative and judicial precedents. But how meaningful is a process that, no matter how extensive and developed, leaves asylum …

In Aid Of Removal: Due Process Limits On Immigration Detention, David Cole

Georgetown Law Faculty Publications and Other Works

In this Article, I seek to demonstrate the radical consequences that taking due process seriously would have for immigration detention as currently practiced. Part I lays out the general principles that apply to civil preventive detention, which establish that substantive due process is violated without an individualized showing after a fair adversarial hearing that there is something to prevent, namely danger to the community or flight. Part II applies this general framework to immigration detention. It first demonstrates, by a review of Supreme Court decisions, that the Court has applied the same due process principles to immigration detention that it …