Law Commons^™

The Case Against Prosecuting Refugees, Evan J. Criddle

Northwestern University Law Review

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Environmental Justice In Little Village: A Case For Reforming Chicago’S Zoning Law, Charles Isaacs

Northwestern Journal of Law & Social Policy

Chicago’s Little Village community bears the heavy burden of environmental injustice and racism. The residents are mostly immigrants and people of color who live with low levels of income, limited access to healthcare, and disproportionate levels of dangerous air pollution. Before its retirement, Little Village’s Crawford coal-burning power plant was the lead source of air pollution, contributing to 41 deaths, 550 emergency room visits, and 2,800 asthma attacks per year. After the plant’s retirement, community members wanted a say on the future use of the lot, only to be closed out when a corporation, Hilco Redevelopment Partners, bought the lot …

Mezei's Day In Court: Debtors' Prisons, Substance Abuse, And The Permissiveness Of Civil Detention In American Immigration Law, Conor Mcdonough

Northwestern University Law Review

American immigration law mandates the civil detention of certain classes of migrants while their legal cases proceed through the courts. Due to the peculiar nature of immigration law, many migrants find themselves detained for years on end without receiving the level of due process that normally attends imprisonment. This Note draws on historical and comparative analysis to argue that the mandatory detention provisions of American immigration law are not civil, but functionally criminal, and that detained migrants are therefore owed a modicum of due process that they do not currently receive.

This Note traces the history of immigration law in …

Private Prisons, Private Governance: Essay On Developments In Private-Sector Resistance To Privatized Immigration Detention, Danielle C. Jefferis

Northwestern Journal of Law & Social Policy

No abstract provided.

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

Northwestern Journal of Law & Social Policy

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 …

Children Of A Lesser God: Reconceptualizing Race In Immigration Law, Sarah L. Hamilton-Jiang

Northwestern Journal of Law & Social Policy

The increased public exposure to the experiences of Latinx unaccompanied children seeking entry at the United States southern border has revealed the lived reality of the nation’s pernicious immigration laws. The harrowing experiences of unaccompanied children are amplified by their interaction with a legal system plagued by a legacy of systemic racism and sustained racial caste. While immigration law currently affords minimal legal protections for these children, in application, the law continues to fall egregiously short of providing for the safety of unaccompanied children. Though critics have long attested to the legal system’s neglect of unaccompanied children, subsequent legal analysis …

Preschool For All: Plyler V. Doe In The Context Of Early Childhood Education, Shiva Kooragayala

Northwestern Journal of Law & Social Policy

In its 1982 opinion in Plyler v. Doe, the Supreme Court held that a state could not deny undocumented children living within its borders a public and free K-12 education. This Note argues that Plyler’s protections extend to publicly-funded early childhood education programs that serve children between the ages of three and five. Due to the broad support of researchers, educators, and the general public, early childhood education programs funded by local, state, and the federal governments have become an integral part of a comprehensive public education today. While these early childhood education programs are nominally open to all students …

Alienating Citizens, Amanda Frost

Northwestern University Law Review

Denaturalization is back. In 1967, the Supreme Court declared that denaturalization for any reason other than fraud or mistake in the naturalization process is unconstitutional, forcing the government to abandon its aggressive denaturalization campaigns. For the last half century, the government denaturalized no more than a handful of people every year. Over the past year, however, the Trump Administration has revived denaturalization. The Administration has targeted 700,000 naturalized American citizens for investigation and has hired dozens of lawyers and staff members to work in a newly created office devoted to investigating and prosecuting denaturalization cases.

Using information gathered from responses …

Leveraging Social Science Expertise In Immigration Policymaking, Ming H. Chen

NULR Online

The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes …

Finding A Right To Remain: Immigration, Deportation, And Due Process, Simon Y. Svirnovskiy

Northwestern Journal of Law & Social Policy

No abstract provided.

Immigration Exceptionalism, David S. Rubenstein, Pratheepan Gulasekaram

Northwestern University Law Review

The Supreme Court’s jurisprudence is littered with special immigration doctrines that depart from mainstream constitutional norms. This Article reconciles these doctrines of “immigration exceptionalism” across constitutional dimensions. Historically, courts and commentators have considered whether immigration warrants exceptional treatment as pertains to rights, federalism, or separation of powers—as if developments in each doctrinal setting can be siloed. This Article rejects that approach, beginning with its underlying premise. Using contemporary examples, we demonstrate how the Court’s immigration doctrines dynamically interact with each other, and with politics, in ways that affect the whole system. This intervention provides a far more accurate rendering of …

Remote Adjudication In Immigration, Ingrid V. Eagly

Northwestern University Law Review

This Article reports the findings of the first empirical study of the use of televideo technology to remotely adjudicate the immigration cases of litigants held in detention centers in the United States. Comparing the outcomes of televideo and in-person cases in federal immigration courts, it reveals an outcome paradox: detained televideo litigants were more likely than detained in-person litigants to be deported, but judges did not deny respondents’ claims in televideo cases at higher rates. Instead, these inferior results were associated with the fact that detained litigants assigned to televideo courtrooms exhibited depressed engagement with the adversarial process—they were less …

It's Time For An Immigration Jury, Daniel I. Morales

NULR Online

No abstract provided.

After The Flood: The Legacy Of The “Surge” Of Federal Immigration Appeals, Stacy Caplow

Northwestern Journal of Law & Social Policy

For many years, the big news in the United States courts of appeal was the skyrocketing immigration caseload. For courts that traditionally had busy immigration dockets, the effect was tsunamic. One of those circuits, the Second, instituted a nonargument calendar that, over the past five years, has enabled the court to regain some control over its swollen docket. While this administrative strategy has rescued the court from drowning, the flow of cases continues, somewhat abated, but with enduring force. This so-called surge had unanticipated consequences extending far beyond court management changes. As a result of their increased exposure to immigration …

Reclaiming The Immigration Constitution Of The Early Republic, James Pfander

Faculty Working Papers

In contrast to the view that national immigration policy began in 1875, this article explores evidence that immigration policy dates from the early republic period. Built around the naturalization clause, which regulates the ability of aliens to own land and shaped their willingness to immigrate to America, this early republic immigration policy included strong norms of prospectivity, uniformity, and transparency. Drawing on these norms, which readily apply in both the naturalization and immigration contexts, the paper argues against the plenary power doctrine, particularly as it purports to authorize Congress to change the rules of immigration midstream and apply them to …

Visas For Sale: A Comparison Of The U.S. Investor Provision With The Australian Business Migration Program, Catherine R. Giella

Northwestern Journal of International Law & Business

This paper is an attempt to evaluate the United States' new investor program based on a comparison with Australia's failed system. The thesis of this paper is that in order for an investor program to be successful, the program must strike a careful balance between meeting the needs of the immigrant investors and those of the welcoming country and its citizens. The analysis proceeds by briefly looking at the history of immigration in both countries and then focusing on what the interests of the investors and the country are in initiating and taking advantage of such a program.

A Beginner's Guide To Business-Related Aspects Of United States Immigration Law, Paul T. Wangerin

Northwestern Journal of International Law & Business

Recent media references to various aspects of United States immigration law - important legislative changes recently suggested by introduction of the Simpson-Mazzoli "Immigration Reform and Control Act"; the crisis involving refugees arriving in the United States from Cuba, Haiti, and Southeast Asia; massive investments in domestic companies by citizens or residents of Middle Eastern oil-producing countries; potential reaction by European business people to President Reagan's changing stance regarding investments in the Soviet Union; the economic policies of France's socialist government; and the United States' deteriorating relation wtih certain Central and South American countries - have drawn renew attention to the …