Law Commons^™

Immigration Detention Abolition And The Violence Of Digital Cages, Sarah R. Sherman-Stokes

Faculty Scholarship

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”; …

A Comparative Perspective On Safe Third And First Country Of Asylum Policies In The United Kingdom And North America: Legal Norms, Principles And Lessons Learned, Susan M. Akram, Elizabeth Ruddick

Faculty Scholarship

Wealthy refugee-receiving countries across the global north have recently been experimenting with systems that they believe will allow them lawfully to remove or turn back asylum-seekers reaching their borders, without considering their claims for international protection. These include the Trump administration's Asylum Cooperation Agreements (ACAs), the United Kingdom's Nationality and Borders Act, and the recent amendments to Denmark's Aliens Act that will allow asylum-seekers to be transferred to third countries for processing. Although these systems have many important differences, they rest on a shared premise that neither the Refugee Convention nor international, regional or domestic human rights laws prohibit such …

Empathic Solidarity On The Frontline, Julie A. Dahlstrom

Faculty Scholarship

Jacqueline Bhabha's important article, The Imperative of Sustaining (Rather Than Destroying) Frontline Empathic Solidarity for Distress Migrants, highlights the pivotal role that "frontline communities" now play in international migration. Bhabha explores how frontline communities frequently lack the infrastructure, political will, and resources to respond adequately to "distress migrants." Yet, she unearths the potential of "empathic solidarity" to counteract bias and, more optimistically, provide a "welcoming and humanizing experience" to migrants. Indeed, in this hopeful, ambitious article, Bhabha posits that empathic solidarity can play a significant generative role for migrants' rights.

Title 42, Asylum, And Politicising Public Health, Michael Ulrich, Sondra S. Crosby

Faculty Scholarship

President Biden has continued the controversial immigration policy of the Trump era known as Title 42, which has caused harm and suffering to scores of asylum seekers under the guise of public health.1 The Centers for Disease Control and Prevention (CDC) ordered the policy in March 2020 with the stated purpose of limiting the spread of the coronavirus into the U.S.; though, CDC and public health officials have admitted this policy has no scientific basis and there is no evidence it has protected the public.2,3 Instead, the impetus behind the policy appears to be a desire to keep out or …

Trafficking And The Shallow State, Julie A. Dahlstrom

Faculty Scholarship

More than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also have climbed. For example, in fiscal year 2020, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications that the agency adjudicated, compared with just 28.12% in fiscal year 2015. These developments …

Public Health And The Power To Exclude: Immigrant Expulsions At The Border, Sarah R. Sherman-Stokes

Faculty Scholarship

We are presently in the midst of a crisis at the U.S.-Mexico border, as Courts, and indeed the Biden Administration, are struggling to manage thousands of immigrants waiting to seek asylum in the midst of a global pandemic. Beginning in March of 2020, against the advice of public health experts, the U.S. Government closed the southern U.S.-Mexico border, disproportionately impacting would-be asylum seekers from Central America, who are now immediately expelled from the United States should they reach the border under a process known as “Title 42.” Not only do these expulsions lack a legitimate public health rationale, but they …

The Boston Medical Center Immigrant Task Force: An Alternative To Teaching Immigration Law To Health Care Providers, Sondra S. Crosby, Lily Sonis, George J. Annas

Faculty Scholarship

As healthcare providers engage in the politics of reforming and humanizing our immigration and asylum “system” it is critical that they are able to refer their patients whose health is directly impacted by our immigration laws and policies to experts who can help them navigate the system and obtain the healthcare they need.

A Guide For Certifying Agencies: Mgl 258f Certification For Victims Of Violent Crime And Human Trafficking, Alexandra Bonazoli, Julie A. Dahlstrom, Emily Leung, Sarah Leidel, Jennifer Ollington, Ashleigh Pelto, Jamie Sabino

Faculty Scholarship

This guide provides information to certifying agencies about the new law, M.G.L. 258F Certification for Victims of Violent Crime and Human Trafficking, which went into effect on July 1, 2021. The law provides victims of violent crime and human trafficking equal access to justice throughout the Commonwealth and establishes transparent and consistent processes for victims seeking certifications from law enforcement agencies.

Trafficking To The Rescue?, Julie A. Dahlstrom

Faculty Scholarship

Since before the dawn of the #MeToo Movement, civil litigators have been confronted with imperfect legal responses to gender-based harms. Some have sought to envision and develop innovative legal strategies. One new, increasingly successful tactic has been the deployment of federal anti-trafficking law in certain cases of domestic violence and sexual assault. In 2017, for example, victims of sexual assault filed federal civil suits under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) against Hollywood producer Harvey Weinstein. Plaintiffs argued that the alleged sexual assault conduct amounted to “commercial sex acts” and sex trafficking. Other plaintiffs’ lawyers have similarly invoked trafficking …

Third Country Deportation, Sarah R. Sherman-Stokes

Faculty Scholarship

The large-scale deportation of noncitizens from the United States is not new. However, the speed, and secrecy, by which many of these deportations are carried out is unprecedented. Deportations are, increasingly, executed not through a legal court process, but rather, extrajudicially—in detention centers and at border crossings, outside the purview of judges or neutral adjudicators. One kind of this “shadow deportation” is what I term “third country deportation”—the removal of noncitizens to a country other than that designated by an Immigration Judge, after relief to the designated country has been granted, and after the court proceeding has concluded.

This article …

The Past As Present, Unlearned Lessons And The (Non-) Utility Of International Law, Susan M. Akram

Faculty Scholarship

The contemporary moment provides an acute illustration of the dangers of historical amnesia—as if the Trump Administration’s policies of exclusion, extremist nationalism, and presidential imperialism were singular to ‘now,’ and entirely reversible in the next election. This Article argues to the contrary; that we have been down this road before, and the current crisis in immigration and refugee policies is the inevitable development of trends of racism, including anti-Arab, anti-Muslim racism and xenophobia, that have only become normalized by the populist resurgence of Trumpism. If this premise is correct—that we are experiencing a culmination of a historical trajectory—what lessons from …

Immigration Unilateralism And American Ethnonationalism, Robert L. Tsai

Faculty Scholarship

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …

Reparations For Central American Refugees, Sarah R. Sherman-Stokes

Faculty Scholarship

In the midst of vicious and unrelenting attacks on Central American asylum seekers in the United States, this Article seeks to understand historic and present-day patterns of animus and discrimination facing this group of refugees, and to propose solutions. This Article begins by examining decades of prejudice faced by Central American asylum seekers, as well as attempts to right those wrongs through litigation, legislation, and the creation of Temporary Protected Status (TPS). Next, this Article identifies the predominant push and pull factors driving Central American refugees north—and the U.S. role in creating them. The Article then lays out the impact …

The Sanctuary Of Prosecutorial Nullification, Zohra Ahmed

Faculty Scholarship

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.¹ Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. ² After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. ³ The EO announced that Immigration and Customs Enforcement …

Assessing The Impact Of The Global Compacts On Refugees And Migration In The Middle East, Susan M. Akram

Faculty Scholarship

Today, the overwhelming burden of the global refugee and migrant crisis is borne by the Middle East region, driven by protracted armed conflict and exacerbated by a deficit of applicable international legal norms. Most States in the Middle East have not adopted the international treaties that provide protection guarantees for refugees and stateless persons, the 1951 Refugee Convention and its 1967 Protocol, the 1954 Convention on the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness. The lack of legal status for persons displaced by conflict, many of whom are stateless refugees, leaves them in situations …

The Search For Protection For Stateless Refugees In The Middle East: Palestinians And Kurds In Lebanon And Jordan, Susan M. Akram

Faculty Scholarship

Most Arab countries have not ratified the 1951 Refugee Convention/1967 Protocol or the 1954 Convention on the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness has no ratifications in the Middle East. While regional conventions dealing with refugees in the Arab world have been developed, they have been honoured primarily in the breach. Further, many Arab countries do not have domestic laws governing the status of refugees or stateless persons per se, but have applied ad hoc policies to the waves of refugees that have entered and stayed – some for decades – in …

Barack Obama's Emancipation Proclamation: An Essay In Memory Of Judge Richard D. Cudahy, Jack M. Beermann

Faculty Scholarship

In a case involving whether illegal immigrants were protected under federal labor law, Judge Richard Cudahy, observed that illegal immigrants are often at the mercy of unscrupulous employers and that immigrations laws provide employers “with a powerful tool for unfair and oppressive treatment of migrant labor.” There are millions of people in the United States who are vulnerable to exploitation in the workplace due to their illegal immigration status. In 2012 and 2014, the Obama administration announced programs designed to provide limited security to some of the millions of illegal immigrants present in the United States. These programs are, in …

Abolishing Ius Sanguinis Citizenship: A Proposal Too Restrained And Too Radical, Kristin Collins

Faculty Scholarship

Costica Dumbrava maintains that ius sanguinis citizenship is a historically tainted, outmoded, and unnecessary means of designating political membership. He argues that it is time to abandon it. Dumbrava limits his challenge to ius sanguinis citizenship per se, and even suggests that family-based migration rights could be used to minimise the disruptive effect of abolishing citizenship-by-descent. But his core complaints about ius sanguinis citizenship – the mismatch of biological parentage and political affinity, the difficulties of determining legal parentage – can be, and have been, levied against these various family-based preferences and statuses, which are likely found in every nation’s …

Bureaucracy As The Border: Administrative Law And The Citizen Family, Kristin Collins

Faculty Scholarship

This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating …

No Restoration, No Rehabilitation: Shadow Detention Of Mentally Incompetent Noncitizens, Sarah R. Sherman-Stokes

Faculty Scholarship

This article examines the burgeoning mental competency regime in immigration removal proceedings, as well as its shortcomings. While some strides have been made in the last six years to identify noncitizen detainees who are incompetent, and to implement safeguards, including appointed counsel, to protect their rights, the current mental competency framework fails to protect some of the most vulnerable. Specifically, this article explains that mentally incompetent, noncitizen detainees for whom no adequate safeguards are available, face a kind of shadow, prolonged and potentially indefinite detention. These detainees’ continued detention is wholly without process – despite their incompetence, they are not …

Amicus Curaie, Submitted Susan Akram, Susan M. Akram

Faculty Scholarship

B Summary of Argument

7. Palestinian refugees fall under a legal regime that is distinct from all other refugees in the world.¹² As such, they are covered by a series of special provisions that apply only to them and no other refugees. Their special status resulted from the decisions of the drafters of key international treaties to exclude Palestinian refugees from the mandate of the United Nations High Commissioner for Refugees (UNHCR) and the 1954 Convention on the Status of Stateless Persons, and to conditionally exclude them from the benefits of the 1951 Convention on the Status of Refugees. …

Sufficiently Safeguarded?: Competency Evaluations Of Mentally Ill Respondents In Removal Proceedings, Sarah R. Sherman-Stokes

Faculty Scholarship

In this Article, I examine the current regime for making mental competency determinations of mentally ill and incompetent noncitizen respondents in immigration court. In its present iteration, mental competency determinations in immigration court are made by immigration judges, most commonly without the benefit of any mental health evaluation or expertise. In reflecting on the protections and processes in place in the criminal justice system, and on interviews with removal defense practitioners at ten different sites across the United States, I conclude that the role of the immigration judge in mental competency determinations must be changed in order to protect the …

A Study On Immigrant Activism, Secure Communities, And Rawlsian Civil Disobedience, Karen Pita Loor

Faculty Scholarship

This Article explores the immigrant acts of protest during the Obama presidency in opposition to the Secure Communities (SCOMM) immigration enforcement program through the lens of philosopher John Rawls’ theory of civil disobedience and posits that this immigrant resistance contributed to that administration’s dismantling the federal program by progressively moving localities, and eventually whole states, to cease cooperation with SCOMM. The controversial SCOMM program is one of the most powerful tools of immigration enforcement in the new millennium because it transforms any contact with state and local law enforcement into a potential immigration investigation. SCOMM has now been revived through …

Protecting Syrian Refugees: Laws, Policies, And Global Responsibility Sharing, Susan M. Akram, Sarah Bidinger, Aaron Lang, Danielle Hites, Yoana Kuzmova, Elena Noureddine

Faculty Scholarship

This article provides an excerpt of a report that maps out how the Syrian refugee crisis is being played out in four of the main states hosting the refugees, Lebanon, Jordan, Egypt and Turkey. This excerpt focuses on the laws and policies in the host states and how they are creating particularly devastating consequences for Palestinian refugees. The excerpt sets out the Report’s conclusions and recommendations, primarily the call for a global Comprehensive Plan of Action (cpa), with various components within and outside the Middle East region that build on existing legal obligations to better allocate responsibility for the refugee …

States And Status: A Study Of Geographical Disparities For Immigrant Youth, Laila Hlass

Faculty Scholarship

This article looks at the legal and practical challenges arising out of a particular immigration protection for abandoned, abused, and neglected child migrants called “Special Immigrant Juvenile Status” (SIJS). This benefit, which is a pathway to legal permanent residence and citizenship, is the only area within federal immigration law that requires a state court to take action in order for immigration authorities to consider an individual’s eligibility for relief. Using an original data set of roughly 12,000 SIJS applications from the Department of Homeland Security in June 2013, this article describes trends over time and by state regarding the number …

Lost At Sea, Daniela Caruso

Faculty Scholarship

A reflection on the existential loss experienced by many young persons in the aftermath of the Euro-zone crisis (often referred to as ‘the lost generation’) must also acknowledge, for the record and for reasons of relative salience, those who have recently drowned in the waters of southern Europe in their quest for a better future. This essay proposes to reconsider, for a moment, the relation between the obstacles that third country nationals (TNCs) encounter at our external frontiers and the increasing permeability of internal EU borders. Normally, one thinks of the two as structurally opposed: within its boundaries, the EU …

Illegitimate Borders: Jus Sanguinis Citizenship And The Legal Construction Of Family, Race, And Nation, Kristin Collins

Faculty Scholarship

The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real differences” between men and women. Based on extensive archival research, this Article demonstrates …

The Arab-Israeli Conflict And International Law, Susan M. Akram, S. Michael Lynk

Faculty Scholarship

The Arab-Israeli conflict has become the most prominent arena of regional and international tension over the past century. Within the realm of international law, the conflict has contributed greatly to the development of international rule-making. The laws of war, the scope of international humanitarian and human rights law, the rights of refugees, the centrality of self-determination, the laws on terrorism and the content of modern treaty-making -- all have been significantly shaped by the norms established through the copious resolutions, diplomatic statements and legal commentary on the many features of the conflict. Yet, at the same time, the efficacy of …

Go West Young Woman!: The Mercer Girls And Legal Historiography, Kristin Collins

Faculty Scholarship

This essay is a response to Professor Kerry Abrams’s article The Hidden Dimension of Nineteenth-Century Immigration Law, published in Vanderbilt Law Review. The Hidden Dimension tells the story of Washington Territory’s entrepreneurial Asa Shinn Mercer, who endeavored to bring hundreds of young women from the East Coast to the tiny frontier town of Seattle as prospective brides for white men who had settled there. Abrams locates the story of the Mercer Girls, as they were called, in the history of American immigration law. My response locates The Hidden Dimension in American legal historiography, both that branch of American legal historiography …

Are They Human Children Or Just Border Rats?, Susan M. Akram

Faculty Scholarship

No abstract provided.