Law Commons^™

Tenants Without Rights: Immigrants’ Experiences In The U.S. Low-Income Housing Market, Mekkonen Firew Ayano

Journal Articles

Immigrants who recently arrived in the United States generally are not able to exclusively possess rental properties in the formal market because they lack a steady source of income and credit history. Instead, they rent shared bedrooms, basements, attics, garages, and illegally converted units that violate housing codes and regulations. Their situations highlight the disconnect between tenant rights law and the deleterious conditions of informal residential tenancies. Tenant rights law confers a variety of rights and remedies to a residential tenant if the renter has exclusive possession of the premises. If the renter lacks exclusive possession, courts typically characterize the …

Presidential Ideology And Immigrant Detention, Catherine Y. Kim, Amy Semet

Journal Articles

In our nation’s immigration system, a noncitizen charged with deportability may be detained pending the outcome of removal proceedings. These individuals are housed in remote facilities closely resembling prisons, with severe restrictions on access to counsel and contact with family members. Given severe backlogs in the adjudication of removal proceedings, such detention may last months or even years.

Many of the noncitizens initially detained by enforcement officials have the opportunity to request a bond hearing before an administrative adjudicator called an Immigration Judge (IJ). Although these IJs preside over relatively formal on-the-record hearings and are understood to exercise “independent judgement,” …

An Empirical Study Of Political Control Over Immigration Adjudication, Catherine Y. Kim, Amy Semet

Journal Articles

Immigration plays a central role in the Trump Administration’s political agenda. This Article presents the first comprehensive empirical assessment of the extent to which immigration judges (IJs), the administrative officials charged with adjudicating whether a given noncitizen will be deported from the United States, may be influenced by the presidential administration’s political preferences.

We constructed an original dataset of over 830,000 removal proceedings decided between January 2001 and June 2019 after individual merits hearings. First, we found that every presidential administration—not just the current one—disproportionately appointed IJs with backgrounds in the former Immigration and Naturalization Service, the Department of Homeland …

Anti-Sanctuary And Immigration Localism, Pratheepan Gulasekaram, Rick Su, Rose Cuison Villazor

Journal Articles

A new front in the war against sanctuary cities has emerged. Until recently, the fight against sanctuary cities has largely focused on the federal government's efforts to defund states like California and cities like Chicago and New York for resisting federal immigration enforcement. Thus far, localities have mainly prevailed against this federal anti-sanctuary campaign, relying on federalism protections afforded by the Tenth Amendment's anticommandeering and anticoercion doctrines. Recently, however, the battle lines have shifted with the proliferation of state-level laws that similarly seek to punish sanctuary cities. States across the country are directly mandating local participation, and courts thus far …

Making Room For Children: A Response To Professor Estin On Immigration And Child Welfare, Rick Su

Journal Articles

No abstract provided.

The #Buffalo 25 And The New Era Of Immigration Enforcement, Nicole Hallett

Journal Articles

No abstract provided.

Telling Refugee Stories: Trauma, Credibility, And The Adversarial Adjudication Of Claims For Asylum, Stephen Paskey

Journal Articles

When trauma survivors seek asylum in the United States, the deck is stacked against them. In most cases, the applicant’s story is the only direct evidence of the applicant’s claim, and asylum is certain to be denied if a judge finds the applicant not credible. But the stories told by trauma survivors defy cultural norms for a credible story: they are often inconsistent, vague, and both logically and chronologically disjointed. As a result, asylum may be wrongly denied. The problem is inherent in our asylum adjudication system, which subjects most applicants to an adversarial hearing.

This article uses scholarship on …

Substantive Due Process For Noncitizens: Lessons From Obergefell, Anthony O'Rourke

Journal Articles

The state of Texas denies birth certificates to children born in the United States — and thus citizens under the Fourteenth Amendment — if their parents are undocumented immigrants with identification provided by their home countries’ consulates. What does this have to do with same-sex marriage? In a previous article, I demonstrated that the Court’s due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This short essay builds upon my earlier analysis by examining Obergefell v. Hodge’s applications outside the context of same-sex marriage. Obergefell’s due process holding, I …

Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke

Journal Articles

The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This short Article offers a more rehabilitative reading of Windsor, and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.

From Windsor’s holding, the Article distills …

The States Of Immigration, Rick Su

Journal Articles

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 …

The Promise And Peril Of Cities And Immigration Policy, Rick Su

Journal Articles

No abstract provided.

Urban Politics And The Assimilation Of Immigrant Voters, Rick Su

Journal Articles

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 …

Working On Immigration: Three Models Of Labor And Employment Regulation, Rick Su

Journal Articles

The desire to tailor our immigration system to the economic interests of our nation is as old as its founding. Yet after more than two centuries of regulatory tinkering, we seem no closer to finding the right balance. Contemporary observers largely ascribe this failure to conflicts over immigration. Shifting the focus, I suggest here that longstanding disagreements in the world of economic regulations — in particular, tensions over the government’s role in regulating labor conditions and employment practices — also explains much of the difficulty behind formulating a policy approach to immigration. In other words, we cannot reach a political …

Police Discretion And Local Immigration Policymaking, Rick Su

Journal Articles

Immigration responsibilities in the United States are formally charged to a broad range of federal agencies, from the overseas screening of the State Department to the border patrols of the Department of Homeland Security. Yet in recent years, no department seems to have received more attention than that of the local police. For some, local police departments are frustrating our nation’s immigration laws by failing to fully participate in federal enforcement efforts. For others, it is precisely their participation that is a cause for concern. In response to these competing interests, a proliferation of competing state and federal laws have …

Lessons Learned, Lessons Lost: Immigration Enforcement's Failed Experiment With Penal Severity, Teresa A. Miller

Journal Articles

This article traces the evolution of “get tough” sentencing and corrections policies that were touted as the solution to a criminal justice system widely viewed as “broken” in the mid-1970s. It draws parallels to the adoption some twenty years later of harsh, punitive policies in the immigration enforcement system to address perceptions that it is similarly “broken,” policies that have embraced the theories, objectives and tools of criminal punishment, and caused the two systems to converge. In discussing the myriad of harms that have resulted from the convergence of these two systems, and the criminal justice system’s recent shift away …

Immigration As Urban Policy, Rick Su

Journal Articles

Immigration has done more to shape the physical and social landscape of many of America’s largest cities than almost any other economic or cultural force. Indeed, immigration is so central to urban development in the United States that it is a wonder why immigration is not explicitly discussed as an aspect of urban policy. Yet in the national conversation over immigration, one would strain to hear it described in this manner. This essay addresses this oversight by making the case for a reorientation of immigration toward urban policy; and it does so by advocating for an immigration regime that both …

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

Journal Articles

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 …

Local Fragmentation As Immigration Regulation, Rick Su

Journal Articles

Immigration scholars have traditionally focused on the role of national borders and the significance of nation-state citizenship. At the same time, local government scholars have called attention to the significance of local boundaries, the consequence of municipal residency, and the influence of the two on the fragmentation of American society. This paper explores the interplay between these two mechanisms of spatial and community controls. Emphasizing their doctrinal and historic commonalities, this article suggests that the legal structure responsible for local fragmentation can be understood as second-order immigration regulation. It is a mechanism that allows for finer regulatory control than the …

A Localist Reading Of Local Immigration Regulations, Rick Su

Journal Articles

The conventional account of immigration-related activity at the local level often assumes that the "local" is simply a new battleground in the national immigration debates. This article questions that presumption. Foregrounding the legal rules that define local governments and channels local action, this article argues that the local immigration "crisis" is much less a consequence of federal immigration policy than normally assumed. Rather, it can also be understood as a familiar byproduct of localism: the legal and cultural assumptions that shape how we structure and organize local communities, provide and allocate local services, and define the legal relationship of local, …

A New Look At Neo-Liberal Economic Policies And The Criminalization Of Undocumented Migration, Teresa A. Miller

Journal Articles

This paper situates the current “crisis” surrounding the arrival and continued presence of undocumented immigrants in the United States within penological trends that have taken root in American law over the past thirty years. It positions the shift from more benevolent to the increasingly harsh legal treatment of undocumented immigrants as the continuation of a succession of legal reforms criminalizing immigrants, and governing immigration through crime. By charting the increasing salience of crime in public perceptions of undocumented immigrants, and comparing the immediately preceding criminal stigmatization of so-called “criminal aliens”, this paper exposes current severity toward undocumented immigrants as consistent …

Notes On The Multiple Facets Of Immigration Federalism, Rick Su

Journal Articles

This symposium essay takes as its starting point the contestable position that some degree of immigration federalism is both constitutionally permissible and politically desirable. It suggests, however, that liberating the issue of immigration from the shadows of federal exclusivity does not necessarily tell us much about what a conceptual framework or legal jurisprudence of immigration federalism should or will actually be like. This is not solely a function of the difficulties inherent in incorporating principles of federalism into what is usually understood to be an exclusive federal field of immigration. Rather, it is also a consequence of the rifts and …

Blurring The Boundaries Between Immigration And Crime Control After Sept. 11th, Teresa A. Miller

Journal Articles

Although the escalating criminalization of immigration law has been examined at length, the social control dimension of this phenomenon has gone relatively understudied. This Article attempts to remedy this deficiency by tracing the relationship between criminal punishment and immigration law, demonstrating that the War on Terror has further blurred these distinctions and exposing the social control function that pervades immigration law enforcement after September 11th prioritized counterterrorism. In doing so, the author draws upon the work of Daniel Kanstroom, Michael Welch, Jonathan Simon and Malcolm Feeley.

Citizenship And Severity: Recent Immigration Reforms And The New Penology, Teresa A. Miller

Journal Articles

Over the past twenty years, scholars of criminal law, criminology and criminal punishment have documented a transformation in the practices, objectives, and institutional arrangements underlying a range of criminal justice system functions that are at the heart of penal modernism. In contrast to the preceding eighty years of criminal justice practices that were progressively more modern in their belief in the rationality of the criminal offender and their concern for enhancing civilization through rehabilitative responses to criminality, these scholars note that since the mid-198''0s the relatively settled assumptions about the framework that shaped criminal justice and penal practices for nearly …

Subjectship, Citizenship, And The Long History Of Immigration Regulation, Robert J. Steinfeld

Journal Articles

No abstract provided.