Law Commons^™

Transformative Immigration Lawyering, Jayesh Rathod

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Movement actors have long sought expansive reforms in U.S. immigration law, but two deep-seated tendencies are obstructing those efforts: incrementalism and path dependence. This Essay recommends that law clinics counter these forces by setting ambitious goals for structural change and by equipping students with knowledge and skills needed for transformative lawyering.

“By Accident Of Birth”: The Battle Over Birthright Citizenship After United States V. Wong Kim Ark, Amanda Frost

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In theory, birthright citizenship has been well established in U.S. law since 1898, when the Supreme Court held in United States v. Wong Kim Ark that all born on U.S. soil are U.S. citizens. The experience of immigrants and their families over the last 120 years tells a different story, however. This article draws on government records documenting the Wong family's struggle for legal recognition to illuminate the convoluted history of birthright citizenship. Newly discovered archival materials reveal that Wong Kim Ark and his family experienced firsthand, and at times shaped, the fluctuating relationship between immigration, citizenship, and access to …

Publicly Charged: A Critical Examination Of Immigrant Public Benefit Restrictions, Cori Alonso-Yoder

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Since the early days of the Trump Administration, reports of the President’s controversial and dramatic immigration policies have dominated the news. Yet, despite the intensity of this coverage, an immigration policy with far broader implications for millions of immigrants and their U.S.- citizen family members has dodged the same media glare. By expanding the definition of who constitutes a “public charge” under immigration law, the Administration has begun a process to restrict legal immigration and chill the use of welfare benefits around the country. The doctrine of public charge exclusion developed from colonial times and has reemerged in Trump Administration …

Manufactured Emergencies, Robert Tsai

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Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce …

Immigration Unilateralism And American Ethnonationalism, Robert Tsai

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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 …

Criminalization And The Politics Of Migration In Brazil, Jayesh Rathod

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In May 2017, the government of Brazil enacted a new immigration law, replacing a statute introduced in 1980 during the country’s military dictatorship with progressive legislation that advances human rights principles and adopts innovative approaches to migration management. One of the most notable features of the new law is its explicit rejection of the criminalization of migration, and its promotion of efforts to regularize undocumented migrants. Although the law itself is new, the values embedded in the law reflect recent trends in Brazilian immigration policy, which has embraced legalization, and has generally resisted the use of criminal law to punish …

Equity In Contemporary Immigration Enforcement: Defining Contributions And Countering Criminalization, Jayesh Rathod, Alia Al-Khatib

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Since the 2016 Presidential election, discussions of immigration policy and enforcement have taken center stage in the public debate. In contrast to the Obama administration, which had articulated specific priorities for removal, the Trump administration has significantly expanded its enforcement targets. Indeed, high-level officials have confirmed that virtually anyone who is in the country without authorization is susceptible to removal. To make its case for enhanced immigration enforcement, the current administration has deployed familiar tropes regarding immigrant criminality and dangerousness. This rhetoric, operationalized through varied structures of criminalization, has shrunk the pool of individuals who can argue against removal, notwithstanding …

Legal Education En Español: A Pedagogical Model, Jayesh Rathod

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Law schools in the United States are pursuing various strategies to prepare their graduates to compete in a global marketplace for jobs. One such strategy is the development of courses and programs designed to equip law graduates with the knowledge and skills needed to serve as effective bilingual advocates. As part of this effort, in recent years, teachers and scholars have engaged in curricular experimentation and ongoing theorizing about the optimal methods and approaches for bilingual legal education. This essay builds upon existing theoretical work and outlines a unique, bilingual instructional model that involves adding an optional credit hour – …

Damaged Bodies, Damaged Lives: Immigrant Worker Injuries As Dignity Takings, Jayesh Rathod, Rachel Nadas

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Government data consistently affirm that foreign-born workers in the U.S. experience high rates of on-the-job illness and injury. This article explores whether—and under what circumstances—these occupational harms suffered by immigrant workers constitute a dignity taking. The article argues that some injuries suffered by foreign-born workers are indirect takings by the state due to the government’s lackluster oversight and limited penalties for violations of occupational safety and health laws. Using a framework of the body as property, the article then explores when work-related injury constitutes an infringement upon a property right. The article contends that the government’s weak enforcement apparatus, coupled …

Arbitrary Detention? The Immigration Detention Bed Quota, Anita Sinha

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When President Obama took office in 2009, Congress through appropriations linked the U.S. Department of Homeland Security’s (DHS) funding to “maintaining” 33,400 immigration detention beds a day. This provision, what this Article refers to as the bed quota, remains in effect, except now the mandate is 34,000 beds a day. Since 2009, DHS detentions of non-citizens have gone up by nearly 25 percent. To accommodate for this significant spike over a relatively short period of time, the federal government has relied considerably on private prison corporations to build and operate immigration detention facilities.

This Article takes a comprehensive look at …

Danger And Dignity: Immigrant Day Laborers And Occupational Risk, Jayesh Rathod

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The plight of immigrant workers in the United States has captured significant scholarly attention in recent years. Despite the prevalence of discourses regarding this population, one set of issues has received relatively little attention: immigrant workers’ exposure to unhealthy and unsafe working conditions, and their corresponding susceptibility to workplace injuries and illnesses. Researchers have consistently found that immigrant workers suffer disproportionately from occupational injuries and fatalities, even when controlling for industry and occupation. Why, then, are foreign-born workers at greater risk for workplace injuries and fatalities, when compared with their native-born counterparts? This Article seeks to develop answers to that …

Learning From Our Mistakes: Using Immigration Enforcement Errors To Guide Reform, Amanda Frost

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Immigration scholars and advocates frequently criticize our immigration system for imposing severe penalties akin to (or worse than) those in the criminal justice system — such as prolonged detention and permanent exile from the United States — without providing sufficient procedural protections to minimize enforcement errors. Yet there has been relatively little scholarship examining the frequency of errors in immigration enforcement and identifying recurring causes of those errors, in part because the data is hard to find. This Article begins by canvassing some of the publicly available data on enforcement errors, which reveal that such mistakes occur too frequently to …

Crimmigration Creep: Reframing Executive Action On Immigration, Jayesh Rathod

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In this Essay, I seek to build upon existing scholarship relating to DACA and DAPA, by offering an alternate lens through which to examine the programs. Specifically, I argue that DACA and DAPA, by naming and entrenching the “significant misdemeanor” bar to eligibility, contribute to a concerning expansion of “crimmigration law.” To be sure, neither program exists in codified law; nevertheless, the eligibility bars under DACA and DAPA are poised to wreak doctrinal havoc by upending the way particular criminal conduct is treated in the U.S. immigration system. In some respects, the DACA and DAPA bars are more stringent than …

Slavery By Another Name: 'Voluntary' Immigrant Detainee Labor And The Thirteenth Amendment, Anita Sinha

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During the McCarthy era, Congress passed an obscure law authorizing detained immigrants to work for a payment of one dollar a day. The government justified the provision, which was modeled after the 1949 Geneva Convention’s protections for prisoners of war, in the context of the period’s relative heightened detentions of noncitizens. Soon afterwards, the enactment of the Immigration and Nationality Act of 1952 diminished the use of detention drastically, and the practice of detainee labor lay dormant for decades. Modern changes to immigration law and its systems have rendered immigration detention today the largest mass incarceration movement in U.S. history. …

Lgbti Migrants In Immigration Detention: A Global Perspective, Shana Tabak, Rachel Levitan

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Riding The Wave: Uplifting Labor Organizations Through Immigration Reform, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

In recent years, labor unions in the United States have embraced the immigrants’ rights movement, cognizant that the very future of organized labor depends on its ability to attract immigrant workers and integrate them into union ranks. At the same time, the immigrants’ rights movement has been lauded for its successful organizing models, often drawing upon the vitality and ingenuity of immigrant-based worker centers, which themselves have emerged as alternatives to traditional labor unions. And while the labor and immigrants’ rights movements have engaged in some fruitful collaborations, their mutual support has failed to radically reshape the trajectory of either …

Distilling Americans: The Legacy Of Prohibition On U.S. Immigration Law, Jayesh Rathod

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Since the early twentieth century, federal immigration law has targeted noncitizens believed to engage in excessive alcohol consumption by prohibiting their entry or limiting their ability to obtain citizenship and other benefits. The first specific mention of alcohol-related behavior appeared in the Immigration Act of 1917, which called for the exclusion of "persons with chronic alcoholism" seeking to enter the United States. Several decades later, the Immigration and Nationality Act of 1952 specified that any noncitizen who "is or was ... a habitual drunkard" was per se lacking in good moral character, and hence ineligible for naturalization. Although the "chronic …

Problems Faced By Mexican Asylum Seekers In The United States, Anna Cabot

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Violence in Mexico rose sharply in response to President Felipe Calder6n's military campaign against drug cartels which began in late 2006. As a consequence, the number of Mexicans who have sought asylum in the United States has grown significantly. In 2013, Mexicans made up the second largest group of defensive asylum seekers (those in removal proceedings) in the United States, behind only China (EOIR 2014b). Yet between 2008 and 2013, the grant rate for Mexican asylum seekers in immigration court fell from 23 percent to nine percent (EOIR 2013, 2014b). This paper examines-from the perspective of an attorney who represented …

A Season Of Change: Reforming The H2b Guest Worker Program, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

INTRODUCTION: Each year, as spring and summer arrive, Americans partake in range of seasonal traditions: beautifying their lawns and gardens; enjoying harvests of fresh fruits, vegetables, and seafood; and attending local fairs and festivals. Although these rituals have become part of the American cultural fabric, few know that they are supported by thousands of temporary guest workers who enter the United States each year under the H-2 visa program.' The H-a program allows U.S employers to petition for seasonal agricultural workers (via the H-2A program) and seasonal nonagricultural workers (via the H-2B program) to work in this country on a …

Protecting Immigrant Workers Through Interagency Cooperation, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

Stephen Lee’s Monitoring Immigration Enforcement offers a promising prescription for resolving the long-standing tension between the workplace enforcement priorities of the Department of Homeland Security (“DHS”) and the efforts by the Department of Labor (“DOL”) to protect the rights of immigrant workers. Lee convincingly describes - often with the aid of rich historical examples - the origins of the chronic imbalance of power between DHS and the DOL, and the limitations of past efforts to synchronize the work of the respective agencies. Lee’s proposal for interagency coordination, in the form of ex ante monitoring by the DOL of worksite enforcement …

The Dual Purposes Of The U Visa Thwarted In A Legislative Duel, Jamie Abrams

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Congress created the U visa non-immigrant classification to achieve the dual purposes of both strengthening law enforcement’s ability to pursue domestic violence cases and protecting victims. This article reveals how the gatekeeper function of the law enforcement certification in the U visa petition, as set out in the interim final regulations, undermines Congress’s dual purposes and thwarts the statutory framework entirely. The law enforcement certification provisions of the U visa interim final regulations irreparably shift considerable centralized power to law enforcement personnel, subjecting the certification process to inconsistent application and misapplication.

U Visas allow undocumented non-immigrants who are victims of …

Beyond The 'Chilling Effect': Immigrant Worker Behavior And The Regulation Of Occupational Safety & Health, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

This article forms part of a broader scholarly project that seeks to understand the root causes of immigrant worker injury and fatality trends in the U.S., and the ways in which legal norms and regulatory practices shape these trends. This particular contribution examines the broad range of attributes and experiences that influence immigrant worker behavior relating to occupational safety and health -- in the context of interactions with employers and regulatory bodies, and relating to the choices that workers themselves make about how to perform their work.

Drawing upon scholarship from multiple disciplines, the article encourages a more robust understanding …