Immigration Law Commons^™

Enforcing/Protection: The Danger Of Chevron In Refugee Act Cases, Maureen A. Sweeney

Faculty Scholarship

United States immigration courts that decide asylum cases are situated within the Justice Department – a law enforcement agency deeply invested in enforcing border control – and are subordinate to the Attorney General, the nation’s politically appointed chief law enforcement officer. This institutional subjugation of immigration judges and the Board of Immigration Appeals challenges the system’s integrity and leaves people seeking protection promised by international treaty to the whims of an enforcement agency. Courts exacerbate the problem when they give Chevron deference to those Justice Department decisions rather than reviewing them rigorously. Given the prosecutorial nature of the Justice Department, …

287(G) Agreements In The Trump Era, Huyen Pham

Faculty Scholarship

Articulated as a priority in President Trump’s executive orders, his administration has forcefully pushed to sign more 287(g) agreements (and more aggressive forms of those agreements) with local law enforcement agencies (LEAs). In the summer of 2017, the administration signed eighteen new agreements in the state of Texas alone. At the end of 2017, there were at least thirty-eight other LEAs interested in joining the program. Once these agreements come online, the result will be more local law enforcement officers deputized to enforce immigration laws than have ever existed in the history of the 287(g) program.

What are the implications …

Barack Obama's Emancipation Proclamation: An Essay In Memory Of Judge Richard D. Cudahy, Jack M. Beermann

Faculty Scholarship

In a case involving whether illegal immigrants were protected under federal labor law, Judge Richard Cudahy, observed that illegal immigrants are often at the mercy of unscrupulous employers and that immigrations laws provide employers “with a powerful tool for unfair and oppressive treatment of migrant labor.” There are millions of people in the United States who are vulnerable to exploitation in the workplace due to their illegal immigration status. In 2012 and 2014, the Obama administration announced programs designed to provide limited security to some of the millions of illegal immigrants present in the United States. These programs are, in …

Federalism And The State Police Power: Why Immigration And Customs Enforcement Must Stay Away From State Courthouses, George Bach

Faculty Scholarship

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This presence has had an adverse effect on domestic violence victims who are immigrants, as they fear encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about the …

Borders, Bans, And Courts In The European Union, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

The Network For Justice: Pursuing A Latinx Civil Rights Agenda, Luz E. Herrera, Pilar M. Hernández-Escontrías

Faculty Scholarship

This article explores the need to develop a Latinx-focused network that advances law and policy. The Network for Justice is necessary to build upon the existing infrastructure in the legal sector to support the rapidly changing demographic profile of the United States. Latinxs are no longer a small or regionally concentrated population and cannot be discounted as a foreign population. Latinxs reside in every state in our nation and, in some communities, comprise a majority of the population. The goal of the Network for Justice is to facilitate and support local and statewide efforts to connect community advocates to formal …

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

Faculty Scholarship

Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn …

Deporting Undesirable Women, Pooja R. Dadhania

Faculty Scholarship

Immigration law has long labeled certain categories of immigrants "undesirable." One of the longest-standing of these categories is women who sell sex. Current immigration laws subject sellers of sex to an inconsistent array of harsh immigration penalties, including bars to entry to the United States as well as mandatory detention and removal. A historical review of prostitution-related immigration laws reveals troubling origins. Grounded in turn-of-the-twentieth-century morality, these laws singled out female sellers of sex as immoral and as threats to American marriages and families. Indeed, the first such law specifically targeted Asian women as threats to the moral fabric of …

Immigration Enforcement And The Future Of Discretion, Shoba Wadhia

Faculty Scholarship

No abstract provided.

National Security, Immigration And The Muslim Bans, Shoba Wadhia

Faculty Scholarship

National security language has continued to guide the creation and defense of Executive Orders and related immigration policies issued in the Donald J. Trump administration. This Article builds on earlier scholarship examining the relationship between national security and immigration in the wake of September 11, 2001, under the Obama administration, and during the campaign leading to the 2016 Election. While the Article is largely descriptive, it ultimately questions the longevity of using national security to create and defend immigration law. This Article is limited in scope -- it does not provide a deep dive into the constitutionality of the Muslim …

The Model International Mobility Convention, Michael W. Doyle

Faculty Scholarship

People are as mobile as they ever were in our globalized world. Yet the movement of people across borders lacks global regulation, leaving many people unprotected in irregular and dire situations and some States concerned that their borders have become irrelevant. And international mobility – the movement of individuals across borders for any length of time as visitors, students, tourists, labor migrants, entrepreneurs, long-term residents, family members, asylum seekers, or refugees – has no common definition or legal framework.

The President's Immigration Courts, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

A National Study Of Immigration Detention In The United States, Emily Ryo, Ian Peacock

Faculty Scholarship

Amidst growing reports of abuses and rights violations in immigration detention, the Trump administration has sought to expand the use of immigration detention to facilitate its deportation policy. This study offers the first comprehensive empirical analysis of U.S. immigration detention at the national level. Drawing on administrative records and geocoded data pertaining to all noncitizens who were detained by U.S. Immigration and Customs Enforcement in fiscal year 2015, we examine who the detainees are, where they were held, and what happened to them.

The bulk of the detained population consisted of men (79%) and individuals from Mexico, El Salvador, Guatemala, …

Abolishing Ius Sanguinis Citizenship: A Proposal Too Restrained And Too Radical, Kristin Collins

Faculty Scholarship

Costica Dumbrava maintains that ius sanguinis citizenship is a historically tainted, outmoded, and unnecessary means of designating political membership. He argues that it is time to abandon it. Dumbrava limits his challenge to ius sanguinis citizenship per se, and even suggests that family-based migration rights could be used to minimise the disruptive effect of abolishing citizenship-by-descent. But his core complaints about ius sanguinis citizenship – the mismatch of biological parentage and political affinity, the difficulties of determining legal parentage – can be, and have been, levied against these various family-based preferences and statuses, which are likely found in every nation’s …

The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams

Faculty Scholarship

In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the rights of marriage. In particular, it asked whether a person has a constitutional liberty interest in living with his or her spouse. This case is suddenly of paramount importance: executive orders targeting particular groups of immigrants implicate directly this right to family reunification.

This Article …

A Framework For Understanding Subfederal Enforcement Of Immigration Laws, Huyen Pham

Faculty Scholarship

In discussing the varied LEA responses, the normative question naturally arises: Which model of immigration enforcement should an LEA embrace? If an LEA with no current immigration enforcement policy were to decide on a model, which model should it choose? Or, if an LEA wants to reconsider its current enforcement model, what factors should it consider in making its decision? The answers to these questions depend on the interests of individual LEAs-interests that may vary from LEA to LEA. The second contribution of this article then is to raise important questions that LEAs should consider in deciding which model is …

Alternatives To Immigration Detention, Fatma E. Marouf

Faculty Scholarship

The United States places over 440,000 people each year in immigration detention, far more than any other country in the world. This Article argues that there are compelling humanitarian and financial reasons to utilize more alternatives to detention. It examines the strengths and limitations of existing alternatives, including the need to develop more community-based case management programs and to rely less on electronic monitoring. The Article then sets forth several legal arguments under the Constitution, Rehabilitation Act, and international human rights law for requiring greater consideration of alternatives to detention.

A Particularly Serious Exception To The Categorical Approach, Fatma E. Marouf

Faculty Scholarship

A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet, the Board of Immigration Appeals has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examination of the elements with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offenses are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious crime determination to promote …

Bureaucracy As The Border: Administrative Law And The Citizen Family, Kristin Collins

Faculty Scholarship

This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating …

Executive Estoppel, Equitable Enforcement, And Exploited Immigrant Workers, Angela D. Morrison

Faculty Scholarship

Unauthorized workers in abusive workplaces have found themselves in a tug-of-war between federal agencies. On one side are federal prosecutors with the Department of Justice or Immigration and Customs Enforcement--who seek to criminally prosecute or deport the workers and treat the workers as defendants. On the other side are agencies like the U.S. Equal Employment Opportunity Commission, the Department of Labor, and U.S. Citizenship and Immigration Services who have determined the workers are victims of workplace exploitation and deserve protection. This mixed message—protection from one federal agency and prosecution by another—is contrary to Congressional intent and undermines the enforcement of …

Irreconcilable Similarities: The Inconsistent Analysis Of 212(C) And 212(H) Waivers, Kate Aschenbrenner Rodriguez

Faculty Scholarship

No abstract provided.

Response To Professor Holper's Article, "Redefining 'Particularly Serious Crimes' In Refugee Law", Fatma Marouf

Faculty Scholarship

An individual who faces a significant risk of persecution in her home country is barred from asylum in the United States if she is convicted of a “particularly serious crime” (“PSC”). Despite the grave consequences of such a conviction, there is relatively little scholarship exploring how a PSC should be defined. The term, which comes from the UN Refugee Convention, was incorporated into the Immigration and Nationality Act in 1980.

Professor Holper’s article, Redefining “Particularly Serious Crimes” in Refugee Law, makes an important contribution to the literature by showing how the historical trajectory of the PSC definition mirrors the “severity …

On Normative Effects Of Immigration Law, Emily Ryo

Faculty Scholarship

Can laws shape and mold our attitudes, values, and social norms, and if so, how do immigration laws affect our attitudes or views toward minority groups? I explore these questions through a randomized laboratory experiment that examines whether and to what extent short-term exposures to anti-immigration and pro-immigration laws affect people's implicit and explicit attitudes toward Latinos. My analysis shows that exposure to an anti-immigration law is associated with increased perceptions among study participants that Latinos are unintelligent and law-breaking. In contrast, Ifind no evidence that exposure to pro-immigration laws promotes positive attitudes toward Latinos. Taken together, these results suggest …

Refugees And The Primacy Of European Human Rights Law, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

No Restoration, No Rehabilitation: Shadow Detention Of Mentally Incompetent Noncitizens, Sarah R. Sherman-Stokes

Faculty Scholarship

This article examines the burgeoning mental competency regime in immigration removal proceedings, as well as its shortcomings. While some strides have been made in the last six years to identify noncitizen detainees who are incompetent, and to implement safeguards, including appointed counsel, to protect their rights, the current mental competency framework fails to protect some of the most vulnerable. Specifically, this article explains that mentally incompetent, noncitizen detainees for whom no adequate safeguards are available, face a kind of shadow, prolonged and potentially indefinite detention. These detainees’ continued detention is wholly without process – despite their incompetence, they are not …

Amicus Curaie, Submitted Susan Akram, Susan M. Akram

Faculty Scholarship

Summary of Argument

Palestinian refugees fall under a legal regime that is distinct from all other refugees in the world. As such, they are covered by a series of special provisions that apply only to them and no other refugees. Their special status resulted from the decisions of the drafters of key international treaties to exclude Palestinian refugees from the mandate of the United Nations High Commissioner for Refugees (UNHCR) and the 1954 Convention on the Status of Stateless Persons, and to conditionally exclude them from the benefits of the 1951 Convention on the Status of Refugees.

Three main reasons …

Fostering Legal Cynicism Through Immigration Detention, Emily Ryo

Faculty Scholarship

Every year, tens of thousands of noncitizens in removal proceedings are held and processed through an expanding web of immigration detention facilities across the United States. The use of immigration detention is expected to dramatically increase under the Trump administration’s mass deportation policy. I argue that this civil confinement system may serve a critical socio-legal function that has escaped the attention of policymakers, scholars, and the public alike. Using extensive original data on long-term immigrant detainees, I explore how immigration detention might function as a site of legal socialization that helps to promote or reinforce widespread legal cynicism among immigrant …

Family Reunification And The Security State, Kerry Abrams

Faculty Scholarship

No abstract provided.

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Faculty Scholarship

If Donald Trump, kicking off his campaign for the White House, was saying “what everyone is thinking,” about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales — some as old as the Flood. This article recommends that the news …

Alienage Classifications And The Denial Of Health Care To Dreamers, Fatma E. Marouf

Faculty Scholarship

In the Affordable Care Act (“ACA”), passed in 2010, Congress provided that only “lawfully present” individuals could obtain insurance through the Marketplaces established under the Act. Congress left it to the Department of Health and Human Services (“HHS”) to define who is “lawfully present.” Initially, HHS included all individuals with deferred action status, which is an authorized period of stay but not a legal status. After President Obama announced a new policy of Deferred Action for Childhood Arrivals (“DACA”) in June 2012, however, HHS amended its regulation specifically to exclude DACA recipients from the definition of “lawfully present.” The revised …