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 …

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 …

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 …

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 …

Sent ‘Home’ With Nothing: The Deportation Of Jamaicans With Mental Disabilities, Georgetown University Law Center, Human Rights Institute

HRI Papers & Reports

No abstract provided.

A Migrants' Bill Of Rights—Between Restatement And Manifesto, Gerald Neuman

International Migrants Bill of Rights Symposium

These comments first provide a general perspective on the nature of the proposed International Migrants Bill of Rights (IMBR) and then offer some specific observations on the current draft, in particular its provisions on the subject of equality or nondiscrimination, including but not limited to Article 2.

Avoiding Evasion: Implementing International Migration Policy, Justin Gest

International Migrants Bill of Rights Symposium

Despite the broadening range of international arbiters of global migration, the state—with its sovereign control of its territory and its subjection to the politics of its society—remains the only arbiter that oversees the actual interactions during which a proposed bill of rights would be followed. “As long as the nation-state is the primary unit for dispensing rights and privileges, it remains the main interlocutor, reference and target of interest groups and political actors, including migrant groups and their supporters.” This suggests that the normative persuasion and mobilization of even the most powerful non-state actors can only be in the ultimate …

The Most-Favoured Nation Principle, Equal Protection, And Migration Policy, Tomer Broude

International Migrants Bill of Rights Symposium

This article discusses the theoretical interaction between the economically grounded most-favoured nation (MFN) treatment principle and the human-rights based concept of equal protection of migrants. In the multilateral law of international trade, MFN is an article of faith that lays a valid claim to having significantly contributed to the success of the trade-liberalizing and welfare-enhancing role of the General Agreement on Tariffs and Trade /World Trade Organization (GATT/WTO). Above and beyond its trade-related economic roles, when it applies to individuals of different nationalities, the logic of MFN also appears to generally conform to fundamental principles of equal protection of the …

Soft Law And The Protection Of Vulnerable Migrants, Alexander Betts

International Migrants Bill of Rights Symposium

Since the 1980s, an increasing number of people have crossed international borders outside of regularized migration channels, whether by land, air or sea. Policy debates on these kinds of movements have generally focused on security to the neglect of a focus on rights. In a range of situations, though, irregular migrants, who fall outside of the protection offered by international refugee law and the United Nations High Commissioner for Refugees (UNHCR), may have protection needs and, in some cases, an entitlement to protection under international human rights law. Such protection needs may result from conditions in the country of origin …

Protecting And Promoting The Human Right To Respect For Family Life: Treaty-Based Reform And Domestic Advocacy, Ryan Mrazik, Andrew I. Schoenholtz

International Migrants Bill of Rights Symposium

This article examines the right to respect for family life in international law, focusing on its underlying principles and explicit protections. The article identifies these legal norms so that drafters of international treaties, specifically the International Migrants Bill of Rights, and United States legal practitioners representing immigrant children can incorporate the right to respect for family life into their drafting and advocacy, thereby protecting and promoting this critical human right.

To encourage both high-level, international treaty-based reform and the grassroots domestic advocacy necessary to comprehensively protect and promote this right, this article provides specific ideas for incorporating the right to …

From Status To Agency: Defining Migrants, Avinoam Cohen

International Migrants Bill of Rights Symposium

Migrants share an intricate relationship with the law. Identifying a person as a migrant implies, in ordinary language, that she has crossed legally defined territorial boundaries. In legal terminology, invoking the term migrant usually alludes to a particular legal status that entails a specific set of rights, distinguished from those of the citizen. Acknowledging the role of law in identifying and classifying people that move across national frontiers, migrants appear as legal constructs, structured by and within the law. Regulatory mechanisms designed to direct and control migration are deeply intertwined with the phenomenon they strive to govern. In itself, this …

Extreme Vulnerability Of Migrants: The Cases Of The United States And Mexico, Jorge A. Bustamante

International Migrants Bill of Rights Symposium

This paper deals with the notion of vulnerability of migrants, with respect to the realities of two countries, the United States and Mexico. The vulnerability of migrants is understood as a heterogeneously imposed condition of powerlessness. This is based on the premise that migrants are inherently vulnerable as subjects of human rights from the point of their departure as they leave home to initiate their migration. That is, any human being is less vulnerable at home than after she leaves home to become a migrant. The same applies to a sociological extension of the notion of home--a community of origin. …

Reaffirming Rights: Human Rights Protections Of Migrants, Asylum Seekers, And Refugees In Immigration Detention, Eleanor Acer, Jake Goodman

International Migrants Bill of Rights Symposium

The International Migrants Bill of Rights (IMBR) addresses migrants’ rights in a variety of contexts, and this paper looks closely at some of the most crucial rights that apply to migrants, refugees, and asylum seekers who are held in immigration detention.

Migrants, refugees and asylum seekers are entitled to a broad range of rights protections. These protections are spelled out in the provisions of core human rights treaties and regional human rights conventions that apply to all people, as well as in the specific conventions relating to refugees and migrants. While States have the authority to regulate migration, their immigration …

Human Rights Of Migrants: The Dawn Of A New Era?, Ryszard Cholewinski

International Migrants Bill of Rights Symposium

The purpose of this article is to highlight a number of key legal and policy developments which have occurred since the turn of the twenty-first century and to reflect on how these have and may advance the protection of the human rights of migrants. This article is optimistic and forward-looking in tenor, although the generally positive developments discussed do not necessarily mean that abuses of migrants and violations of their rights are no longer taking place. Nonetheless, if ten years of relatively intense activity can be viewed as a sound measure of progress, there is some cause for optimism that …

International Migrants Bill Of Rights, Georgetown University Law Center, International Migrants Bill Of Rights Initiative

Georgetown Law Student Series

The International Migrants Bill of Rights (hereinafter IMBR) is the result of a two-year collaboration between students at the American University in Cairo, Georgetown University Law Center, and Hebrew University in Jerusalem. The IMBR is a dynamic blueprint for the protection of the rights of migrants, drawing from all areas of international law, including treaty law, customary international law, areas of State practice and best practices. The IMBR posits a group of rights that are “universal, interdependent and interrelated,” and that populate the continuum from hard to hortatory. Yet even as the result projects a framework for migrants’ rights that …