Immigration Law Commons^™

Rethinking Immigration Enforcement, Peter L. Markowitz

Articles

As the nation turns the page away from the dark chapter of President Trump's relentless assault on immigrants, it is time to take stock of the nation's unprecedented immigration enforcement regime. During its relatively short existence, the Immigration and Customs Enforcement agency (ICE) has deported more than twice as many people as were deported in the entire previous history of the United States. The human and fiscal costs of ICE's mass deportation agenda are astronomical, and there is almost universal agreement across the political spectrum that the United States' immigration enforcement apparatus is badly broken. That, however, is where the …

Immigration Cyber Prisons: Ending The Use Of Electronic Ankle Shackles, Tosca Giustini, Sarah Greisman, Peter L. Markowitz, Ariel Rosen, Zachary Ross, Alisa Whitfield, Christina Fialho, Brittany Castle, Leila Kang

Online Publications

The call to end immigration detention has garnered strong support in recent years due to a growing public awareness of its devastating impact on the individuals locked away, their families, and entire communities. Throughout the nation, communities, organizers, advocates, and public officials have demanded the shutdown of Immigration and Customs Enforcement (ICE) detention centers, particularly those operated by private prison companies.

However, less attention has been paid to another form of detention that has been insidiously expanding alongside ICE’s brick-and-mortar jails: the Intensive Supervision Assistance Program (ISAP), the primary component of ICE’s so-called “Alternatives to Detention” program. ISAP surveils, monitors, …

Here Stood My Dreaming Tree: A Proposal To Reform Non-Lpr Cancellation Of Removal To Bring Undocumented Immigrants Out Of The Shadows, Andrea Barrientos

Cardozo Journal of Equal Rights & Social Justice

The note advocates for expanding nonLPR (non-Lawful Permanent Resident) cancellation of removal as a pathway to lawful status for undocumented immigrants. It critiques the current system’s restrictive eligibility criteria, annual caps, and high hardship standards, arguing that these limitations exclude many deserving applicants. The proposed reforms aim to eliminate the 4,000-person cap, convert the relief into an affirmative process, and lower the hardship standard to align immigration policy with U.S. values of fairness and inclusion. By doing so, the reforms would stabilize families, reduce marginalization, and bring undocumented immigrants out of the shadows.

Deportation Arrest Warrants, Lindsay Nash

Articles

The common conception of a constitutionally sufficient warrant is one reflecting a judicial determination of probable cause, the idea being that the warrant process serves to check law enforcement. But neither the Constitution nor the Supreme Court has fully defined who can issue arrest warrants within the meaning of the Fourth Amendment; the constitutional significance of arrest “warrants” that are not; or when (if ever) warrants of any type are constitutionally required for deportation-related arrests. In that void, the largest federal law enforcement agency—the Department of Homeland Security (DHS)—is on pace to issue over 150,000 administrative “warrants” annually, authorized by …

Is The U.S. Government Violating The Safe Conducts Of Noncitizens? How A Turn To Strict Originalism Could Revitalize The Alien Tort Statute, Gabe Cahn

Cardozo Law Review

No abstract provided.

State Intent Under International Law, Stephen Townley

Cardozo International & Comparative Law Review

The question of legislative intent has long been a topic of intense scholarly focus in the United States. There has also been a recent uptick in discussion of executive branch intent with the filing of highprofile lawsuits predicated upon allegations of improper motives. However, there has been no corollary effort to unpack the concept of state intent at the international level, where it arises with respect to such varied questions as how to understand the scope of a state's consent, whether a state should be deemed to be negotiating in good faith, and whether a state has engaged in genocide. …

Terrorist Victim Or Perpetrator?: Foreign Solutions To Challenges Posed By The U.S.’S Terrorist Bars To Asylum, Stephanie Blum, Nadav Morag

Cardozo International & Comparative Law Review

This article analyzes the challenges presented by the U.S.'s Terrorism-Related Inadmissibility Grounds ("TRIG") for asylum applicants and looks overseas for potential solutions. TRIG is the method by which the U.S. government bars terrorists and those who materially support terrorism from obtaining asylum and related protections. TRIG, however, is overbroad and inefficient, encompassing terrorist victims who currently pose and never posed any threat to U.S. security. Specifically, TRIG does not consider duress, or the provision of trivial support, when analyzing whether applicants should be barred from asylum because of material support of terrorism. Additionally, current law defines a terrorist organization for …

Abolishing Ice Is Not Enough: Using Conservative Judicial Principles To Protect Unauthorized Immigrants From A "Tyrannical Bureaucracy", Ashley Dylenski

Cardozo Journal of Equal Rights & Social Justice

The note argues that abolishing ICE alone will not resolve the systemic issues plaguing the U.S. immigration system, as the root problem lies in Congress's overdelegation of authority to executive agencies. These agencies, operating under doctrines like plenary power and Chevron deference, wield broad discretion with minimal judicial oversight, leading to inhumane and unpredictable enforcement practices. The analysis advocates for resurrecting the nondelegation doctrine and reasserting congressional authority to restore separation of powers and ensure a more humane and transparent immigration system.

The Real Id Act: Real Consequences Involving Immigration Status & Eligibility Requirement Concerns For Immigrants, Rachael Marvin

Cardozo Journal of Equal Rights & Social Justice

The REAL ID Act of 2005 imposes federal documentation standards for state-issued drivers' licenses, requiring proof of lawful immigration status, which critics argue burdens immigrants and heightens government scrutiny. The Act raises constitutional concerns, including Fourth Amendment violations and interference with the fundamental right to travel, as established in Saenz v. Roe. While the Supreme Court in Arizona v. United States upheld federal preemption over state licensing authority, the Act's implementation has disproportionately affected immigrants, particularly under the Trump administration, which revived its enforcement. The article critiques the Act as an unconstitutional tool for immigration enforcement, undermining civil liberties …

Children's Equality Rights: Every Child's Right To Develop To Their Full Capacity, Nancy E. Dowd

Cardozo Law Review

Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random butfall into patterns by race, gender, and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children's equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to support …

Crossing The Border Or Crossing The Line? Why Alternate Dispute Resolution Is The Best Route To Reunite Families Of Immigrant Children Separated At The U.S.-Mexico Border, Colby Berman

Cardozo Journal of Conflict Resolution

This Note will explore the problem of family separation at the U.S.-Mexico border and propose a solution through the use of mediation as a means to peacefully reunite families without lengthy, emotionally-draining, and expensive litigation. It will discuss case law addressing the problem, as well as the recent history of family separation under President Obama and President Trump. This Note will briefly examine methods used to maintain a tough stance on immigration while also alleviating family separation of immigrant populations, looking to other developed countries' tactics, as well as the United States' Family Case Management Program (which enjoyed success in …

After Ice: A New Humane & Effective Immigration Enforcement Paradigm, Peter L. Markowitz

Articles

In recent years, as the U.S. Immigration and Customs Enforcement Agency's ("ICE') brutal tactics have devasted communities across the nation, a growing chorus of activists and policymakers have begun calling for the agency to be abolished. Abolish ICE advocates have made a compelling case for the irredeemable deficiencies of ICE; they have exposed the core injustices that lay at the heart of our current enforcement scheme, and they have proposed specific and thoughtful changes that are both defensible and achievable. However, these changes tend to focus on a negative vision of what we need to eliminate in our current enforcement …

Lunchtime Talk With Diana Kearney: Strategic Litigation Against The Administration’S Migration Policies, Cardozo Law Institute In Holocaust And Human Rights (Clihhr)

2019 Event Invitations

CLIHHR will host Diana Kearney for a lunchtime lecture on the Administration's migration policies. Strategic litigation efforts across the US and Mexico are combating policies that strip migrants of their human and refugee rights. We will survey cases protecting these rights, including challenges to the "remain in Mexico" policy, family separation, and expedited deportations without due process. In addition, we will examine how civil society groups are coordinating efforts throughout North and Central America to protect migrants.

Diana Kearney is a Legal and Shareholder Advocacy Advisor at Oxfam America, where she focuses on corporate accountability, land rights, refugee rights, and …

The Right To Stay: The Suspension Clause, Constitutional Avoidance, And Federal District Court Jurisdiction To Grant Stays Of Removal Despite 8 U.S.C. Sec. 1252(G), Yael Ben Tov

Cardozo Law Review

No abstract provided.

From Decarceration To E-Carceration, Chaz Arnett

Cardozo Law Review

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to theircommunities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of …

The Right To Appointed Counsel: The Case For Unaccompanied Immigrant Children, Amanda Kavita Sewanan

Cardozo Law Review

No abstract provided.

Universal Representation: Systemic Benefits And The Path Ahead, Lindsay Nash

Articles

At a time when politics, financial considerations, and a push for expediency put pressure on the US immigration system, it can be difficult to have faith in the adjudicatory process. Case resolution quotas, directives that constrain courts’ ability to render justice in individual cases, and executive decisions that contract immigration judges’ discretion contribute to an immigration system that looks less and less like judicial adjudication of some of the highest-stakes cases in our legal system and more like a ministerial claims-processing scheme. A ray of hope exists, however, in the proliferation of public defender–style systems that offer universal representation to …

We The People: These United Divided States, Catherine Powell

Cardozo Law Review

In the wake of President Trump's announcement that he will withdraw the United States from the 2015 Paris Agreement on climate change, then-California Governor Jerry Brown called on the President to fight climate change or to "get out of the way" while the rest of the world works to reduce emissions and invest in clean energy. Similarly, former New York City Mayor Michael Bloomberg-now a United Nations (U.N.) Special Envoy for Cities and Climate Change-said, "If Washington won't lead, then mayors and governors will." Indeed, Trump's threat to withdraw has not only been met with widespread criticism and derision abroad …

Loyalty Without Borders: In Honor Of Arthur Jacobson, George P. Fletcher

Cardozo Law Review

The essence of loyalty is partiality - putting friends, political party, a particular country ahead of its competitors. The ambiguity of this definition lies in question: putting the recipients of loyalty close in what way? In the case of loyalty to a spouse, the loyal lover forswears sex with others. In voting and supporting, say, the Democrats, one does not contribute to the Republicans. By remaining loyal to the United States, one does not offer to join the military or serve in the civil defense force of another country.

Finding A Home In America: Cardozo Law Screening Of Refuge “Hombres Nuevos”, Kathryn O. Greenberg Immigration Justice Clinic, Cardozo Outlaw

2018–2019 Flyers

Promotional flyer for a Cardozo School of Law screening of Hombres Nuevos, episode six of the AT&T original series REFUGE. The episode tells the story of Luis Mancheno, a former Cardozo Law instructor and immigration attorney, who fled persecution in Ecuador and now advocates for the rights of LGBTQ+ asylum seekers in the U.S. The event included a screening and a Q&A moderated by Professor Kate Shaw, and was co-hosted by the Immigration Justice Clinic and OUTLaw.

Abolish Ice . . . And Then What?, Peter L. Markowitz

Articles

In recent years, activists and then politicians began calling for the abolition of the United States’s interior immigration-enforcement agency: U.S. Immigration and Customs Enforcement (ICE). Many people have misinterpreted the call to “Abolish ICE” as merely a spontaneous rhetorical device used to express outrage at the current Administration’s brutal immigration policies. In fact, abolishing ICE is the natural extension of years of thoughtful organizing by a loose coalition of grassroots immigrant-rights groups. These organizations are serious, not only about their literal goal to eliminate the agency, but also about not replacing it with another dedicated agency of immigration police. Accordingly, …

Using Restorative Dialogue As An Assimilation Technique For Unaccompanied Children Escaping Gang Violence, Naomi Jawahar

Cardozo Journal of Conflict Resolution

This Note will first give background on the Northern Triangle area and background on the asylum process in Part I. Part II of the Note will discuss the negative government response in Section A. Section B will delve into the influence of gangs, Section C will discuss the relation between juvenile stigmatization and crime, and Section D will discuss the current resettlement process for UACs that is in place. Finally, Section E, of Part II, will discuss how ADR will help with the resettlement process. Part IH will offer a solution, with Section A showing how restorative dialogue specifically can …

Abolishing The Private Prison Industry's Evolving Influence On Immigrant Oppression, Antonio Iglesias

Cardozo Journal of Equal Rights & Social Justice

The note argues that the private prison industry significantly influences immigration policies, leading to increased detention and oppression of immigrants. It advocates for abolishing private prison contracts, citing the negative social and humanitarian impacts, and suggests that states like Arizona should adopt legislation similar to Illinois and New York to protect immigrants' rights.

Second Class Citizenship? The Plight Of Naturalized Special Immigrant Juveniles, Irene Scharf

Cardozo Law Review

No abstract provided.

Universal Representation, Lindsay Nash

Articles

In an era in which there is little good news for immigrant communities and even holding the line has become an ambitious goal, one progressive project has continued to gain steam: the movement to provide universal representation for noncitizens in removal proceedings. This effort, initially born out of a pilot project in New York City, has generated a host of replication projects throughout the nation and holds the promise of even broader expansion. But as it grows, this effort must confront challenges from within: the sort-of supporters who want to limit this representation system's coverage in a number of ways, …

Eb-5 Visa Regulation And Controversy: How An Immigration-Securities Hybrid Visa Has Been Used To Fund Real Estate Ventures, Rachel Behar

Cardozo International & Comparative Law Review

The EB-5 visa program, designed to stimulate the U.S. economy through job creation and capital investment by foreign investors, has become a controversial tool often misused to fund luxury real estate projects in affluent areas. While the program has contributed significantly to the economy, its implementation has strayed from its original intent, leading to criticism over issues like gerrymandering of Targeted Employment Areas (TEAs), inadequate securities regulation, and fraud risks. The article calls for reforms to align the program more closely with its intended purpose of aiding underserved communities.

Missing The Point(S): "Raise-Ing" A Bias Against Extraordinary Talent In The Arts, Ting Ting Lu

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Unpacking Doj’S New Claim That Dhs Can Legally Detain Migrant Children With Their Parents For Longer Than Twenty Days, Deborah Pearlstein, Marty Lederman, Ryan Goodman

Online Publications

The Trump administration recently claimed it could not reunite migrant children with parents who are being held in ICE detention due to a court order requiring the government to release such children from custody within (at most) 20 days. The government now claims, however, that it can legally detain the children with their parents in ICE detention for much longer than 20 days. How did the government come to this position? In this post we’ll answer that question, and address a central flaw in the government’s logic.

Child Separation In The Courts, Deborah Pearlstein

Online Publications

Developments in the ongoing child separation crisis have come so quickly in the past week it is nearly impossible even for experts to keep track. Donald Trump’s executive order requiring an end to the child separation policy, his administration’s subsequent announcement that it would halt its “zero-tolerance” policy of prosecuting the misdemeanor offense of illegal entry, the California federal court’s Tuesday decision halting further separation and requiring currently separated families be reunified — all of these are positive developments for those concerned about the catastrophic effects of the policy on children and families. But the legal battle here is far …

From Guantánamo To Syria: The Extraterritorial Constitution In The Age Of "Extreme Vetting", Shawn E. Fields

Cardozo Law Review

This Article examines for the first time in scholarly literature whether and to what extent the Constitution applies extraterritorially to immigrants abroad. In particular, it explores whether non-detained immigrants and refugees outside the territorial boundaries of the United States can claim constitutional protection to challenge immigration policies and orders. The Supreme Court's recent willingness to reconsider the limits of the political branches' "plenary power" over immigration law and policy, coupled with the Court's recent extension of the Constitution to certain classes of extraterritorial noncitizens, suggests that a future role may exist for extraterritorial jurisprudence to inform constitutional immigration law. Using …