Law Commons^™

Operation Sojourner: The Government Infiltration Of The Sanctuary Movement In The 1980s And Its Legacy On The Modern Central American Refugee Crisis, Kristina M. Campbell

Journal Articles

This Article will discuss “Operation Sojourner,” the federal government’s covert infiltration, and subsequent criminal prosecution, of persons involved in the Sanctuary Movement in the 1980s, as well as its impact on the modern Sanctuary Movement in Arizona and the Southwest occurring in response to the current Central American refugee crisis. Section I will provide an overview of the Sanctuary Movement in the 1980s, and the general religious beliefs and philosophies of those involved in the movement. Section II will discuss the genesis of Operation Sojourner by the former Immigration and Nationality Service (INS) in the early 1980s, and the criminal …

Freedom From Detention: The Constitutionality Of Mandatory Detention For Criminal Aliens Seeking To Challenge Grounds For Removal, Darlene Goring

Journal Articles

The article focuses on the immigration system of the U.S., and mentions constitutionality of mandatory detention for criminal aliens who are seeking to challenge grounds for removal. Topics include U.S. Supreme Court case Demore v. Kim, which deals with mandatory detention during removal proceedings; current statutory framework governing mandatory detention for criminal aliens; and modification of the mandatory detention framework offering protection of the fundamental liberty.

The One-Year Bar To Asylum In The Age Of The Immigration Court Backlog, Lindsay M. Harris

Journal Articles

Imagine being forced to flee your home, separated from your children, and undergoing the perilous journey to seek safety and protection in the United States. Upon arrival, you are immediately detained and questioned about your intentions. You explain that you fear for your life and seek asylum protection. You may even undergo a detailed interview with an asylum officer, who finds that you have a significant possibility of establishing asylum eligibility. You are released from detention to pursue your asylum claim in immigration court. You diligently attend check-ins with an Immigration and Customs Enforcement officer for the next two years …

The Aftermath Of United States V. Texas, Shoba S. Wadhia

Journal Articles

On June 23, 2016, the Supreme Court issued a 4-4 ruling in the immigration case of United States v. Texas, blocking two “deferred action” programs announced by President Obama on November 20, 2014: extended Deferred Action for Childhood Arrivals (DACA Plus) and Deferred Action for Parents of Americans and Legal Residents (DAPA). The 4-4 ruling by the justices creates a non-precedential non-decision, upholding an injunction placed by a panel of federal judges in the Fifth Circuit Court of Appeals. While the future of these programs remains uncertain in the long term, the immediate effects are pronounced, as millions of …

From Surviving To Thriving? An Investigation Of Asylee Integration In The United States, Lindsay M. Harris

Journal Articles

This article assesses the efficacy of the legal framework for asylees, individuals granted refugee status within the United States, through an examination of the human outcomes following the grant of asylum. To understand how the asylee benefits system actually functions, I conducted more than fifty field interviews with advocates, service providers, and government officials in the San Francisco Bay Area and the Washington, D.C. metropolitan area. This research fills a conspicuous gap in our understanding of what happens after the grant of asylum and reveals a number of insights about the ways in which the prevailing laws, policies, and programs …

The 'New Selma' And The Old Selma: Arizona, Alabama, And The Immigration Civil Rights Movement In The Twenty-First Century, Kristina M. Campbell

Journal Articles

In his unfinished manuscript, “The Politics of Expulsion: A Short History of Alabama’s Anti-Immigrant Law, HB 56,” the late Raymond A. Mohl, Distinguished Professor of History at the University of Alabama at Birmingham, directly and succinctly identified the true nature of the motivations behind the passage of HB 56 in the Alabama legislature. Professor Mohl observed that “nativist fears of large numbers of ethnically different newcomers, especially over job competition and unwanted cultural change, sometimes referred to as “cultural dilution,” provided political cover for politicians who sought to control and regulate immigration within state borders, but also to push illegal …

Remarks On Executive Action And Immigration Reform, Shoba S. Wadhia

Journal Articles

This essay places the President's executive actions on immigration last November into a larger context by providing a brief history of prosecutorial discretion in immigration cases. This essay also describes how law students at Penn State Law School used the President's announcement of executive actions as a platform for local change in the State College community.

The President And Deportation: Daca, Dapa, And The Sources And Limits Of Executive Authority - Response To Hiroshi Motomura, Shoba S. Wadhia

Journal Articles

This Essay is a response to Washburn University School of Law's Foulston Siefkin Lecture, 2015 titled "The President and Deportation: DACA, DAPA, and the Sources and Limits of Executive Authority," delivered by Professor Hiroshi Motomura in March of 2015. Part II of this Essay provides a summary of Professor Motomura's remarks from this author's vantage point. Part III of this Essay analyzes and supports Professor Motomura's conclusion that deferred action is "different" from prosecutorial discretion and elaborates on how deferred action goes one step "further" than prosecutorial discretion.

Is Immigration Law National Security Law?, Shoba S. Wadhia

Journal Articles

The debate around how to keep America safe and welcome newcomers is prominent. In the last year, cities and countries around the world, including Baghdad, Dhaka, Istanbul, Paris, Beirut, Mali and inside the United States - have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War.

This article is based on remarks delivered at Emory Law Journal’s annual Thrower Symposium on February 11, 2016. It explores how national security concerns have shaped recent immigration policy in the Executive Branch, Congress and the states and the moral, legal and …

Beyond Deportation: Understanding Immigration Prosecutorial Discretion And United States V. Texas, Shoba S. Wadhia

Journal Articles

In this article, I place the Supreme Court case of United States v. Texas into a broader context by describing the history and legal authority for prosecutorial discretion in immigration law and highlighting the contents and recommendations in my book, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases. Part I of this article offers a primer on the role of prosecutorial discretion in immigration law and also describes two related programs announced by President Obama on November 20, 2014 and the subject of litigation for nearly two years as of this writing. Part II provides a history …

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 …

The Tipping Point: The Failure Of Form Over Substance In Addressing The Needs Of Unaccompanied Immigrant Children, Lauren R. Aronson

Journal Articles

No abstract provided.

A Dry Hate: White Supremacy And Anti-Immigrant Rhetoric In The Humanitarian Crisis On The U.S.-Mexico Border, Kristina M. Campbell

Journal Articles

Beginning with the passage of its anti-immigrant “Show-Me-Your-Papers” law in April 2010, S.B. 1070, much has been written about the hostile political climate toward noncitizens in the State of Arizona specifically and the U.S.-Mexico border generally. However, the recent influx of refugees from Central America to the United States has seen a resurgence in the anti-immigrant rhetoric, which is particularly disturbing since a large percentage of the individuals fleeing violence and poverty are children. In this vein, one aspect of the genesis of S.B. 1070 and other anti-immigrant laws that have not received a great deal of attention is the …

The History Of Prosecutorial Discretion In Immigration Law, Shoba S. Wadhia

Journal Articles

This Article describes the historical role of prosecutorial discretion in immigration law and connects this history to select executive actions announced by President Obama on November 20, 2014.

Demystifying Employment Authorization And Prosecutorial Discretion In Immigration Cases, Shoba S. Wadhia

Journal Articles

On November 20, 2014, President Barack Obama announced a series of immigration programs aimed to reform the immigration system. Deferred Action for Parents of Americans or Lawful Permanent Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) represent two such programs announced by the President. Both programs extend deferred action (one form of prosecutorial discretion) to qualifying individuals. Deferred action has been part of the immigration system for more than 50 years, and has been named explicitly by Congress, federal courts, and the agencies responsible for administering immigration laws. Additionally, regulations list deferred action as one basis for work …

Elusive Equality: Reflections On Justice Field’S Opinions In Chae Chan Ping And Fong Yue Ting, Victor C. Romero

Journal Articles

For immigration scholars, Justice Field is perhaps best remembered for his majority opinion in Chae Chan Ping v. United States, the Supreme Court’s decision upholding Chinese exclusion, and credited for introducing the plenary power doctrine to immigration law. Yet, despite the opinion’s xenophobic rhetoric reflecting his personal views of the Chinese, Justice Field dissented in Fong Yue Ting v. United States, reasoning that, once they became lawful residents, the Chinese were entitled to be treated as equals under the law regardless of citizenship, a position supported by his earlier federal circuit court opinion in Ho Ah Kow v. …

The Prodigal Illegal: Christian Love And Immigration Reform, Victor C. Romero

Journal Articles

Despite the impasse around immigration reform, most everyone believes the United States’ immigration system is broken. And most agree that the key issue is what to do with the eleven million or so undocumented persons currently residing in the United States. As a Christian immigration law teacher, I have been interested in the debate among the churches as to what such reform should look like. In this Article, I use Professor Jeffrie Murphy’s conception of agapic love as a lens through which to examine reform proposals. I then evaluate the two positions Christian churches have seemed to embrace—permanent legal status …

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 …

A False Sense Of Security: Due Process Failures In Removal Proceedings, Darlene Goring

Journal Articles

The article explores the reasons for the failure of due process rights afforded by aliens facing criminal prosecution for unauthorized return to the U.S. after prior removal proceedings. Topics discussed include Federal enforcement of the Immigration and Nationality Act, laws governing criminal prosecution and incarceration for previously removed aliens, and disclosure of the availability of judicial review to aliens facing removal from the U.S.

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 …

Rising Arizona: The Legacy Of The Jim Crow Southwest On Immigration Law And Policy After 100 Years Of Statehood, Kristina M. Campbell

Journal Articles

United States immigration law and policy is one the most controversial issues of our day, and perhaps no location has come under more scrutiny for the way it has attempted to deal with the problem of undocumented immigration than the State of Arizona. Though Arizona recently became notorious for its “papers please” law, SB 1070, the American Southwest has long been a bastion of discriminatory race-based law and policy – immigration and otherwise – directed toward Latinos, American Indians, African-Americans, and other non-White racial and ethnic minorities. While largely ignored by both legal and American historians, the socalled “Jim Crow …

A Meditation On Moncrieffe: On Marijuana, Misdemeanants, And Migration, Victor C. Romero

Journal Articles

This essay is a brief meditation on the immigration schizophrenia in our law and legal culture through the lens of the Supreme Court’s latest statement on immigration and crime, Moncrieffe v. Holder. While hailed as a “common sense” decision, Moncrieffe is a rather narrow ruling that does little to change the law regarding aggravated felonies or the ways in which class and citizenship play into the enforcement of minor drug crimes and their deportation consequences. Despite broad agreement on the Court, the Moncrieffe opinion still leaves the discretion to deport minor state drug offenders in the hands of the federal …

Immigration Remarks For The 10th Annual Wiley A. Branton Symposium, Shoba S. Wadhia

Journal Articles

This morning (despite the pressure that our panel comes right before lunch), I am going to provide a “101” on the role of prosecutorial discretion in immigration law, which is my primary area of research and fundamental to understanding how the immigration system operates. Prosecutorial discretion is a largely invisible tool that enables thousands, if not millions, of unauthorized noncitizens to reside in the United States without fear from deportation. It may be characterized as invisible because prosecutorial discretion decisions are largely connected to no action at all or as some call it, nonenforcement. A favorable exercise of “prosecutorial discretion” …

The Rise Of Speed Deportation And The Role Of Discretion, Shoba S. Wadhia

Journal Articles

In 2013, the majority of people deported never saw a courtroom or immigration judge. Instead, they were quickly removed by the Department of Homeland Security via one of several procedures collectively referred to as “speed deportation.” The policy goals of speed deportation are economic; these processes save government resources from being spent on procedural safeguards such as a trial attorney, immigration judge, and a fundamentally fair hearing. Higher deportation numbers may also benefit the image the government seeks to portray to policymakers who support amplified immigration enforcement. However, the human consequences of speed deportation are significant and can result in …

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 …

(Un)Reasonable Suspicion: Racial Profiling In Immigration Enforcement After Arizona V. United States, Kristina M. Campbell

Journal Articles

n June 25, 2012, the Supreme Court of the United States issued its landmark decision in Arizona v. United States, 1 striking down three of the four provisions of Arizona’s notorious Senate Bill (“S.B.”) 10702 challenged by the United States Department of Justice as preempted by federal immigration law. Despite agreeing with the government that the majority of Arizona’s attempt to regulate immigration at the state level through S.B. 1070 was impermissible, the Supreme Court let stand the most controversial section of the law, Section 2(B)—the socalled “show me your papers” provision.3 Under Section 2(B), state and local law enforcement …

Our Illegal Founders, Victor C. Romero

Journal Articles

This Essay briefly mines America’s history to argue that the law setting forth where our national borders are and how strictly we patrol them has always been subject to the vagaries of politics, economics, and perception. Illegal (im)migration has long been part of our migration history, engaged in not just by Latin American border crossers, but also by prominent colonists, giving the lie to the claim that upholding border laws should always be sacrosanct. In many school districts today, the usual summary of American history from our childhood civics classes no longer bypasses the uncomfortable truths of conquest and westward …

Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero

Journal Articles

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as …

The Immigration Prosecutor And The Judge: Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia

Journal Articles

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these …

My Great Foia Adventure And Discoveries Of Deferred Action Cases At Ice, Shoba S. Wadhia

Journal Articles

This Article describes my adventures in FOIA litigation and analyzes deferred action data collected informally by 24 ICE field offices between October 1, 2011, and June 30, 2012. This Article also offers recommendations for the agency on data collection, recordkeeping, and transparency in deferred action cases. Deferred action is a form of prosecutorial discretion that can be granted at any stage of the immigration enforcement process and historically has been applied both to people who meet group characteristics and on an individual basis in compelling humanitarian circumstances. The theory behind deferred action and prosecutorial discretion more generally is to enable …