Immigration Law Commons^™

Jail By Another Name: Ice Detention Of Immigrant Criminal Defendants On Pretrial Release, Kerry Martin

Michigan Journal of Race and Law

This Article assesses the legality of an alarming practice: Immigration and Customs Enforcement (ICE) routinely detains noncitizen criminal defendants soon after they have been released on bail, depriving them of their court-ordered freedom. Since the District of Oregon’s decision in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), a growing group of federal courts has held that when ICE detains federal criminal defendants released under the Bail Reform Act (BRA), it violates their BRA rights. These courts have ordered that the government either free the defendants from ICE custody or dismiss their criminal charges. This …

Revisiting Immutability: Competing Frameworks For Adjudicating Asylum Claims Based On Membership In A Particular Social Group, Talia Shiff

University of Michigan Journal of Law Reform

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and …

A Suspended Death Sentence: Habeas Review Of Expedited Removal Decisions, Lauren Schusterman

Michigan Law Review

Expedited removal allows low-level immigration officers to summarily order the deportation of certain noncitizens, frequently with little to no judicial oversight. Noncitizens with legitimate asylum claims should not find themselves in expedited removal. When picked up by immigration authorities, they should be referred for a credible fear interview and then for more thorough proceedings.

Although there is clear congressional intent that asylum seekers not be subjected to expedited removal, mounting evidence suggests that expedited removal fails to identify bona fide asylum seekers. Consequently, many of them are sent back to persecution. Such decisions have weighty consequences, but they have remained …

L.M.-M. V. Cuccinelli And The Illegality Of Delegating Around Vacant Senate-Confirmed Offices, Nina A. Mendelson

Other Publications

In L.M.-M. v. Cuccinelli, Judge Randolph Moss, a federal judge in the District of Columbia, issued an important opinion setting aside policies limiting asylum applications known as the Asylum Directives. The court held that Kenneth Cuccinelli, who issued them, cannot legally serve as “acting” Director of the United States Citizenship and Immigration Services (“USCIS”) under the 1998 Federal Vacancies Reform Act. The opinion is particularly important because its analysis casts doubt upon the legality of a widespread but not closely scrutinized strategy for bypassing Senate confirmation requirements for high-level agency officials. Under this in-the-weeds strategy, the agency head delegates around …

Department Of Homeland Security V. Regents Of The University Of California, Et Al.: Brief For Administrative Law Scholars As Amici Curiae In Support Of Respondents, Nina A. Mendelson

Appellate Briefs

Amici are professors of administrative law and related public law subjects at institutions across the United States. In their scholarship and their teaching, they have carefully considered the legal doctrines implicated by this case. They submit this brief to address arguments and precedent that are relevant to a central question presented by this appeal: whether the Department of Homeland Security's decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy is judicially reviewable. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in Appendix A.

Under …

Hamama V. Adducci: Petition For A Writ Of Certiorari, Margo Schlanger

Appellate Briefs

Question Presented:

Petitioners are Iraqis with final orders of removal who lived for years or decades in the United States under orders of supervision, because Iraq would not accept their repatriation. In 2017 Iraq indicated it might change its policy; it allowed repatriation of several Iraqis with final orders. Petitioners and others similarly situated were suddenly detained and threatened with immediate removal, without the opportunity to challenge their removal in immigration court. Petitioners, who include Christians, Yezidis, Kurds, and other religious and ethnic minorities in Iraq, faced likely torture and death in Iraq. After their final orders of removal were …

How To Decrease The Immigration Backlog: Expand Representation And End Unnecessary Detention, Kara A. Naseef

University of Michigan Journal of Law Reform

This Note recommends federal policy reform and local implementation in order to decrease the immigration backlog and protect the rights of non-citizens in immigration proceedings. Although non-citizens hold many of the fundamental rights and freedoms enumerated in the Constitution, several core rights— including due process and the right to counsel—are not rigorously upheld in the context of immigration proceeding. By carefully regulating expanded access to representation and ending unnecessary immigration detention, the Executive Office of Immigration Review and Congress will ensure the swift administration of justice and protect non-citizens under the federal government’s jurisdiction.

Assigning Protection: Can Refugee Rights And State Preferences Be Reconciled?, James C. Hathaway

Articles

The theoretically global responsibility to protect refugees is today heavily skewed, with just ten countries – predominantly very poor – hosting more than half of the world’s refugee population. Refugee protection has moreover become tantamount to warehousing for most refugees, with roughly half of the world’s refugees stuck in “protracted refugee situations” for decades with their lives on hold. Both concerns – the unprincipled allocation of responsibility based on accidents of geography and the desperate need for greater attention to resettlement as a core protection response – cry out for a global, managed system to protect refugees.

Michigan Guidelines On The International Protection Of Refugees, James C. Hathaway

Books

The Michigan Guidelines on the International Protection of Refugees are the result of a collective endeavor of hundreds of scholars, advocates, judges, and international officials to tackle some of the most important and challenging questions in international refugee law. This volume presents 20 years of the Guidelines — the consensus work of senior Michigan Law students and experts from around the world on cutting-edge refugee law concerns — in five languages (English, French, Spanish, Arabic, and Russian).

The Guidelines address five of the most difficult issues of refugee status: what is the meaning of a “well-founded fear”; when may refugee …

Switching Employers In A Working World: American Immigrants And The Revocation Notice Problem, Julie Aust

University of Michigan Journal of Law Reform

A current tension in U.S. employment immigration law involves the notice requirements for prospective permanent residency—”green card”—applicants. Foreign workers oftentimes do not receive their green cards for more than ten years after beginning the permanent residency process. For almost four decades after the first major employment immigration legislation was passed in 1965, green card applicants were unable to change employers during this extremely long process without abandoning their applications. In 2000, Congress sought to remedy the problem by passing legislation allowing foreign workers to change employers without sacrificing progress on their green cards. This legislation, however, created a massive gap …

Between The Margins And The Mainstream: The Case Of Women's Rights, Hilary Charlesworth, Christine M. Chinkin

Book Chapters

This chapter investigates the conceptual limits of the field of women’s rights. It identifies two main currents of activity in the field: the elaboration of human rights standards, particularly through the UN Convention on the Elimination of All Forms of Discrimination against Women of 1979; and the development of the ‘Women, Peace and Security’ agenda by the UN Security Council since 2000. Both areas are limited in their understandings of the diverse lives of women. The chapter argues that campaigns for the recognition of women’s rights shuttle between the mainstream and the margins of international law and that the structural …

Treading On Sacred Land: First Amendment Implications Of Ice's Targeting Of Churches, Gabriella M. D'Agostini

Michigan Law Review

In the last few years, Immigration and Customs Enforcement (ICE) has begun to target religious institutions—specifically churches—as a means to find and arrest undocumented immigrants. This technique is in legal tension with the First Amendment rights of free exercise of religion and free association. It is unclear, however, how these legal rights protect those most affected by this targeting tactic: undocumented immigrants. Undocumented immigrants may lack standing to challenge ICE’s tactics on their own and may require the help of related parties to protect their interests.

This Note explores a potential solution to the ambiguity surrounding undocumented immigrants’ protection under …

Critiquing Matter Of A-B-: An Uncertain Future In Asylum Proceedings For Women Fleeing Intimate Partner Violence, Theresa A. Vogel

University of Michigan Journal of Law Reform

The #MeToo movement has brought renewed attention to the impact of gender inequality on our society’s ability to provide protection to women from physical and sexual violence, including intimate partner violence. Despite advances in legal protections and increased resources to prevent, prosecute, and bring an end to intimate partner violence, in the absence of true efforts to combat gender inequality as a whole, intimate partner violence will continue to pervade our society. The discussion of gender inequality’s impact on the treatment of intimate partner violence must expand beyond the violence that occurs in the United States to gender inequality’s impact …

Searching For Humanitarian Discretion In Immigration Enforcement: Reflections On A Year As An Immigration Attorney In The Trump Era, Nina Rabin

University of Michigan Journal of Law Reform

This Article describes one of the most striking features of the Trump Administration’s immigration policy: the shift in the way discretion operates in the legal immigration system. Unlike other high-profile immigration policies that have been the focus of class action lawsuits and public outcry, the changes to the role of discretion have attracted little attention, in part because they are implemented through low-visibility individualized decisions that are difficult to identify, let alone challenge systemically. After providing historical context regarding the role of discretion in the immigration system before the Trump Administration, I offer four case studies from my immigration practice …

Department Of Homeland Security V. Regents Of The University Of California: Brief In Opposition For Respondents Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, Jirayut Latthivongskorn, The County Of Santa Clara, And Service Employees International Union Local 521, Leah Litman

Appellate Briefs

Questions Presented: The Deferred Action for Childhood Arrivals (DACA) program enables nearly 700,000 undocumented individuals who were brought to the United States as children to live and work here without fear of deportation, so long as they play by the rules. In September 2017, the Acting Secretary of Homeland Security, on the advice of the Attorney General, abruptly decided to terminate the program.

Respondents brought suit to challenge that decision. The district court granted respondents' motion for a preliminary injunction and also denied the government's motion to dismiss for lack of jurisdiction. The court of appeals affirmed.

The questions presented …

Family Separation And The Triumph Of Cruelty, Richard A. Primus

Other Publications

Sometime in 1940, an 11-year-old refugee named Yudita Nisse reached the United States on a boat from Japan. Her Latvian-Jewish family had fled Nazi Germany east across the Soviet Union; the trip to North America was to have completed their escape. But the family had no legal authorization to enter the United States, so on arrival in Seattle they were locked up as illegal immigrants. They were eventually released, and Yudita later Anglicized her first name, becoming Judith. A second name change when she married made her Judith Shklar, and by that name she became the first woman ever to …

Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel

Michigan Journal of Race and Law

Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the Supreme Court determined …

Personal Jurisdiction And Aliens, William S. Dodge, Scott Dodson

Michigan Law Review

The increasing prevalence of noncitizens in U.S. civil litigation raises a funda-mental question for the doctrine of personal jurisdiction: How should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal juris-diction, in cases like Bristol–Myers Squibb Co. v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of personal jurisdiction over aliens. Under this theory, alienage status broadens the geographic range for mini-mum contacts from a single state to the whole nation. …

Garcia V. Sessions: Brief Of Scholars Of Immigration And International Law As Amici Curiae In Support Of Petitioner, James C. Hathaway

Appellate Briefs

The nine amici curiae are distinguished scholars of international law, refugee rights, and the immigration laws of the United States. Biographical information on the amici, who are participating in their individual capacities and not as representatives of the institutions with which they are affiliated, is described in Appendix A.

Amici have a strong interest in the questions presented by the petition. As some of the world's leading scholars on these topics, amici are interested in the proper interpretation and application of U.S. laws in accordance with the United States' obligations under the Refugee Protocol and international law. In concluding that …

Cazun V. Sessions: Brief Of International And Immigration Law Scholars As Amici Curiae In Support Of Petitioner, James C. Hathaway

Appellate Briefs

In accordance with Supreme Court Rule 37, Amici respectfully submit this brief in support of the Petitioner. The eight amici curiae are distinguished scholars of international law, refugee rights, and the immigration laws of the United States. The names and biographical information of the amici, all of whom are participating in their individual capacities and not as representatives of the institutions with which they are affiliated, are appended to this brief as Appendix A.

Amici have a strong interest in the questions presented by the petition. Amici, some of the world's leading scholars on these topics, are interested in the …

Restoring A Willingness To Act: Identifying And Remedying The Harm To Authorized Employees Ignored Under Hoffman Plastics, Rita Trivedi

University of Michigan Journal of Law Reform

Part I of this Article provides a background for both the NLRA and the IRCA. It examines the goals and remedies of both statutes as well as the impact of the Supreme Court’s Hoffman decision on available remedies.

Part II addresses the currently-skewed remedial incentives. It considers why employers are tempted to hire unauthorized workers and commit unfair labor practices that are then inadequately remedied, which creates a situation that adversely effects the rights of authorized employees.

Part III more closely analyzes this consequential harm. This Part identifies the erosions on the NLRA’s collective nature and the impact on authorized …

Why Guidance From The Supreme Court Is Required In Redefining The Particular Social Group Definition In Refugee Law, Liliya Paraketsova

University of Michigan Journal of Law Reform

One of the most debated topics in refugee law has been the meaning of particular social group (PSG)—one of the five categories used to claim refugee status. In 2006, the Board of Immigration Appeals (BIA) adopted a narrower PSG definition. Since that adoption, a circuit split has persisted over the meaning of PSG. Two circuits in particular have continually refused to adopt this definition—even when the BIA attempted to revise the definition in response to their criticism. This Note proposes a reform that would include a compromise between the two current definitions of PSG by rejecting the BIA’s particularity requirement …

Special Feature: Eighth Colloquium On Challenges In International Refugee Law, James C. Hathaway

Michigan Journal of International Law

It is our hope that, as in the case of earlier Michigan Guidelines on the International Protection of Refugees, these unanimously agreed standards will inspire a thoughtful and principled debate among scholars, officials, and judicial and other refugee law decision-makers committed to the legally accurate and contextually sound application of international refugee law norms.

The Michigan Guidelines On Refugee Freedom Of Movement

Michigan Journal of International Law

Despite the clear legal foundation of refugee freedom of movement at international law, states are also committed to the deterrence of human smuggling and trafficking, to the maintenance of effective general border controls, to safeguarding the critical interests of receiving communities, and to effectuating safe and dignified repatriation when refugee status comes to an end. Legal obligations to respect refugee freedom of movement therefore co-exist with, and must be reconciled to, other important commitments.

Refugees And The Right To Freedom Of Movement: From Flight To Return, Marjoleine Zieck

Michigan Journal of International Law

This background study focuses on the right to freedom of movement of refugees. It reviews the law pertaining to this freedom from the perspective of the spatial journey of refugees. This focus on the law means that extralegal considerations will not be taken into consideration. The analysis will not proceed from any perceived need for limits that should be accepted as “a product of realism about the strains that migration, especially high-volume migration or sudden influxes, can bring to a society.”

Dialog About A New Asylum System, James C. Hathaway

Articles

The mechanisms for implementing the obligations under the Refugee Convention are fiawed in ways that too often lead States to act against their own values and interests, and which produce needless suffering amongst refugees. A five-point plan could revitalize the Refugee Convention. A managed and collectivized approach to the implementation of refugee protection obligations would include planning for refugee movements, embracing common but differentiated State responsibility and international administration of refugee protection.

Perez-Guzman V. Sessions: Brief Of Scholars Of Immigration And International Law As Amici Curiae In Support Of Petitioner, James C. Hathaway

Appellate Briefs

The seven amici curiae are distinguished scholars of international law, refugee rights, and the immigration laws of the United States. The names and biographical information of the amici, who are participating in their individual capacities and not as representatives of the institutions with which they are affiliated, are appended to this brief.

Over two centuries ago, this Court laid down the fundamental principle of statutory interpretation that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." Murray v. Schooner Charming Betsy, & U.S. (2 Cranch) 64, 118 …

Executive Disorder: The Muslim Ban, Emergency Advocacy, And The Fires Next Time, Abed Ayoub, Khaled Beydoun

Michigan Journal of Race and Law

On January 27, 2017, one week into his presidency, Donald Trump enacted Executive Order No. 13769, popularly known as the “Muslim Ban.” The Order named seven Muslim-majority nations and restricted, effective immediately, the reentry into the United States of visa and green card holders from these states. With the Muslim Ban, President Trump delivered on a central campaign promise, and as a result, injected Islamophobia into American immigration law and policy.

The Muslim Ban had an immediate impact on tens of thousands of Muslims, directly affecting U.S. visa and green card holders currently outside of the country, while exacerbating fear …

A Modest Memo, Yxta Maya Murray

Michigan Journal of Race and Law

A Modest Memo is a satire in the form of a legal memo written for President-Elect Donald Trump circa November 2016. It counsels Mr. Trump to obtain Mexican funding for a United States-Mexico “Wall” via United Nations Security Council sanctions. These sanctions would freeze remittances (that is, “hold them hostage”) until Mexican President Enrique Peña Nieto wired the United States sufficient monies for construction. The memo, which is entirely the product of my imagination and legal study, contemplates one of the many possible worst case scenarios threatened by the Trump presidency. Through the arts of law and literature, I aim …

Castro V. Department Of Homeland Security: Brief Of Refugee And Human Rights Organizations And Scholars As Amici Curiae In Support Of Petitioner, James C. Hathaway

Appellate Briefs

Amici are thirty-one organizations and scholars who study the implementation of U.S. immigration and asylum laws, advocate for greater asylum seeker protections, and represent indigent asylum claimants in expedited removal proceedings. Amici are well-positioned to describe noncitizens' experiences in expedited removal and how the processes designed to identify asylum seekers are implemented. In addition, amici have an interest in ensuring the fair and just application of immigration laws to individuals who fear return to their country of origin. A complete list of amici is contained in the Appendix.

In the two decades since Congress created the expedited removal process for …