Immigration Law Commons^™

Trafficking And The Shallow State, Julie A. Dahlstrom

Faculty Scholarship

More than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also have climbed. For example, in fiscal year 2020, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications that the agency adjudicated, compared with just 28.12% in fiscal year 2015. These developments …

Immigration Detention As An Obstacle To Decarceration, Pedro Gerson

Faculty Scholarship

Criminal legal reform and measures to reduce carceral populations have received increasing media and public policy attention nationwide. These efforts have mainly ignored a parallel development: the consistent rise in the use of immigration detention over the last decade. This Article bridges that gap by arguing that ongoing efforts to decarcerate states and localities may be foiled by immigration detention. This argument relies on three different descriptive claims. First, much scholarly work has shown the extent to which vested interests have hampered criminal legal reform; these same interests could look to immigration detention as an alternative protection. Second, the extent …

Public Health And The Power To Exclude: Immigrant Expulsions At The Border, Sarah R. Sherman-Stokes

Faculty Scholarship

We are presently in the midst of a crisis at the U.S.-Mexico border, as Courts, and indeed the Biden Administration, are struggling to manage thousands of immigrants waiting to seek asylum in the midst of a global pandemic. Beginning in March of 2020, against the advice of public health experts, the U.S. Government closed the southern U.S.-Mexico border, disproportionately impacting would-be asylum seekers from Central America, who are now immediately expelled from the United States should they reach the border under a process known as “Title 42.” Not only do these expulsions lack a legitimate public health rationale, but they …

Persistent Inequalities, The Pandemic, And The Opportunity To Compete, Rachel F. Moran

Faculty Scholarship

Even before the recent coronavirus pandemic, race, ethnicity, and socioeconomic status played a powerful role in allocating opportunity—in the public schools and elsewhere. The pandemic laid bare the dimensions of this inequality with a new and alarming clarity. In this essay, I first focus on the landscape of educational inequity that existed before the coronavirus forced public schools to shut down. In particular, I explore patterns of racial and ethnic segregation in America’s schools and evaluate how those patterns relate to additional challenges based on socioeconomic isolation. In addition, I consider the role of language and immigration status in shaping …

Can “Asians” Truly Be Americans?, Vinay Harpalani

Faculty Scholarship

Recent, tragic events have brought more attention to hate and bias crimes against Asian Americans. It is important to address these crimes and prevent them in the future, but the discourse on Asian Americans should not end there. Many non-Asian Americans are unaware or only superficially aware of the vast diversity that exists among us, along with the challenges posed by that diversity. Some have basic knowledge of the immigration and exclusion of Asian Americans, the internment of Japanese Americans which was upheld in Korematsu v. United States, and the “model minority stereotype”, but these are Asian Americans 101. This …

The Impact Of Covid-19 On Immigration Detention, Fatma Marouf

Faculty Scholarship

COVID-19 has spread quickly through immigration detention facilities in the United States. As of December 2, 2020, there have been over 7,500 confirmed COVID-19 cases among detained noncitizens. This Article examines why COVID-19 spread rapidly in immigration detention facilities, how it has transformed detention and deportation proceedings, and what can be done to improve the situation for detained noncitizens. Part I identifies key factors that contributed to the rapid spread of COVID-19 in immigration detention. While these factors are not an exhaustive list, they highlight important weaknesses in the immigration detention system. Part II then examines how the pandemic changed …

The Boston Medical Center Immigrant Task Force: An Alternative To Teaching Immigration Law To Health Care Providers, Sondra S. Crosby, Lily Sonis, George J. Annas

Faculty Scholarship

As healthcare providers engage in the politics of reforming and humanizing our immigration and asylum “system” it is critical that they are able to refer their patients whose health is directly impacted by our immigration laws and policies to experts who can help them navigate the system and obtain the healthcare they need.

Terrorism And The Inherent Right To Self-Defense In Immigration Law, Faiza Sayed

Faculty Scholarship

No abstract provided.

Immigration Detention: Eroding Or Reinforcing A Theory Of Immigration Exceptionalism?, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Beyond Emissions: Migration, Prisons, And The Green New Deal, Wyatt Sassman, Danielle C. Jefferis

Faculty Scholarship

The Green New Deal is a bold resolution that asks us to envision climate policy beyond emissions reductions and pollution controls. The proposal seeks to reduce environmental impacts, including by dramatically reducing carbon emissions, while supporting domestic manufacturing, unionized labor, sustainable agriculture, and social equity. The Biden Administration has expressed support for the Green New Deal as “a crucial framework for meeting the climate challenges we face,” and the proposal has influenced the Administration’s early actions to reduce carbon emissions. How can the Green New Deal’s framework guide climate policy beyond emissions reductions, and who should be a part of …

Principals And Principles In Immigration Law, Jessica Bulman-Pozen

Faculty Scholarship

Adam Cox and Cristina Rodríguez have written a brilliant book — one of big arguments, grand scale, and historical sweep, yet also institutional detail, political acuity, and legal nuance; a book that has as much to teach us about Biden’s nascent administration as about the tenure of his immediate and more distant predecessors. As I add my voice to the chorus of praise, I want to suggest two extensions of the project.

Children In Custody: A Study Of Detained Migrant Children In The United States,, Emily Ryo, Reed Humphrey

Faculty Scholarship

Every year, tens of thousands of migrant children are taken into custody by U.S. immigration authorities. Many of these children are unaccompanied by parents or relatives when they arrive at the U.S. border. Others who are accompanied by parents or relatives are rendered unaccompanied when U.S. immigration authorities separate them upon apprehension. Together, these minors are called unaccompanied alien children (UACs) and transferred to the custody of the Office of Refugee Resettlement (ORR), unless and until their immigration cases are resolved or until the children can be placed with a sponsor in the United States pending the adjudication of their …

Unwilling Or Unable? The Failure To Conform The Nonstate Actor Standard In Asylum Claims To The Refugee Act, Charles Shane Ellison, Anjum Gupta

Faculty Scholarship

Pursuant to its obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” For decades, both the Board of Immigration Appeals and federal courts recognized that individuals could obtain asylum based on a fear of persecution at the hands of nonstate actors, so long as the applicant demonstrated that their government was “unable or unwilling” to control the persecution.

As part of a wide-ranging attack on asylum, the Trump administration has sought to eliminate asylum based on nonstate actor persecution. In …

Corporate Crimmigration, Brandon L. Garrett

Faculty Scholarship

Immigration laws are not just criminally enforced against individuals, but also corporations. For individuals, “crimmigration” is pervasive, as federal immigration prosecutions are a mass phenomenon. More than a third of the federal criminal docket — nearly 40,000 cases each year — consists of prosecutions of persons charged with violations of immigration rules. In contrast, prosecutors rarely charge corporations, which are required to verify citizenship status of employees. This Article sheds light on this unexplored area of corporate criminal law, including by presenting new empirical data. In the early 2000s, corporate immigration enforcement for the first time increased in prominence. During …

A Guide For Certifying Agencies: Mgl 258f Certification For Victims Of Violent Crime And Human Trafficking, Alexandra Bonazoli, Julie A. Dahlstrom, Emily Leung, Sarah Leidel, Jennifer Ollington, Ashleigh Pelto, Jamie Sabino

Faculty Scholarship

This guide provides information to certifying agencies about the new law, M.G.L. 258F Certification for Victims of Violent Crime and Human Trafficking, which went into effect on July 1, 2021. The law provides victims of violent crime and human trafficking equal access to justice throughout the Commonwealth and establishes transparent and consistent processes for victims seeking certifications from law enforcement agencies.

Punishing With Impunity: The Legacy Of Risk Classification Assessment In Immigration Detention, Robert Koulish, Kate Evans

Faculty Scholarship

In 2012, the Department of Homeland Security adopted a risk classification assessment ("RCA") tool to run on migrants in the custody of Immigration and Customs Enforcement ("ICE"). The risk tool helped determine who was detained and who was released from ICE custody. It was intended to curb detention rates by limiting detention based on risk of flight and danger and to ensure that the conditions of civil immigration detention were distinct from those in criminal detention. This Article presents data from several RCA datasets received pursuant to the Freedom of Information Act.

The story of the RCA is one of …

The Classic Arguments For Free Speech 1644-1927, Vincent A. Blasi

Faculty Scholarship

This chapter examines the classic arguments for freedom of speech. It traces the first comprehensive argument for freedom of speech as a limiting principle of government to John Milton’s Areopagitica, a polemic against censorship by a requirement of prior licensing in which Milton develops an argument for the pursuit of truth through exposure to false and heretical ideas rather than the passive reception of orthodoxy. Despite Milton’s belief in the advancement of understanding through free inquiry, he was far from liberal in the modern sense of that term and he did not, for instance, extend the tolerance he advocated to …

Border Babies — Medical Ethics And Human Rights In Immigrant Detention Centers, Sondra S. Crosby, George J. Annas

Faculty Scholarship

Providing decent medical care for families in U.S. detention centers near the Mexican border has become exceedingly difficult over the past 2 years. Trauma was inflicted on migrants to deter others from attempting to enter the United States. A cornerstone of deterrence was the “zero tolerance” policy that forcibly separated children from their parents at the border. Photographs of children confined in cages horrified Americans, who demanded that the policy be rescinded. It was, but family separations continue and have been made even worse by the Migrant Protection Protocol (MPP) — which the U.S. Supreme Court will most likely review …

Technological Triage Of Immigration Cases, Fatma Marouf, Luz E. Herrera

Faculty Scholarship

In the medical profession, triage refers to sorting medical resources in emergency situations based on the greatest need for immediate attention. Similarly, legal service providers talk about “triaging” cases to prioritize individuals with the most serious problems. But in the immigration field, the concept of triage is turned on its head. Noncitizens with the riskiest cases—those facing deportation—have the least access to legal assistance, especially if they are detained. Technology has the potential to help with triage but is not yet being used effectively to assist with deportation defense. This Article argues that utilizing technology to facilitate access to representation …

Presidential Ideology And Immigrant Detention, Catherine Y. Kim, Amy Semet

Faculty Scholarship

No abstract provided.

Re-Reading Anita Bernstein's The Common Law Inside The Female Body From The Bottom Of The Well: Analysis Of The Central Park Five, Border Drownings, The Kavanaugh Confirmation, And The Coronavirus, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Dreamers Interrupted: The Case Of The Rescission Of The Program Of Deferred Action For Childhood Arrivals, Rachel F. Moran

Faculty Scholarship

In 1994, California voters went to the polls to pass Proposition 187, a measure designed to deter unauthorized immigration by denying a range of public benefits to the undocumented. Twenty-five years later, undocumented immigration remains a deeply polarizing issue in our country. But if the political discourse seems similar, the civil rights toolkit is not. In an earlier era, equal protection arguments had pride of place, but today, advocates rely heavily on structural and institutional arguments to constrain official discretion.

In 1982, the United States Supreme Court’s decision in Plyler v. Doe declared unconstitutional a Texas statute that denied undocumented …

Proposition 187 And The Legacy Of Its Law Enforcement Provisions, Huyen Pham

Faculty Scholarship

Passed by a wide margin of California voters in 1994, Prop. 187 is primarily remembered as a law that tried to deny state-funded health care and education to unauthorized immigrants. Far less attention has been paid to Section Four in Prop. 187 that required all law enforcement agencies (LEAs) in California to “fully cooperate” with federal immigration authorities. Specifically, these provisions required LEAs to verify the legal status of any arrestee “suspected” of being in the U.S. unlawfully, notify the arrestee of his/her unlawful status, and report the arrestee to state and federal immigration authorities.

Though never enforced, Section Four …

Immigration Challenges Of The Past Decade And Future Reforms, Fatma Marouf

Faculty Scholarship

Over the past decade, immigrants have faced numerous challenges in the United States, including a dramatic increase in deportations, the expansion and privatization of immigration detention, major changes to the asylum system combined with drastic cutbacks in refugee admissions, and a new wave of racism and xenophobia. This Article discusses these challenges and explores possible ways to address them in 2020 and beyond.

Trafficking To The Rescue?, Julie A. Dahlstrom

Faculty Scholarship

Since before the dawn of the #MeToo Movement, civil litigators have been confronted with imperfect legal responses to gender-based harms. Some have sought to envision and develop innovative legal strategies. One new, increasingly successful tactic has been the deployment of federal anti-trafficking law in certain cases of domestic violence and sexual assault. In 2017, for example, victims of sexual assault filed federal civil suits under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) against Hollywood producer Harvey Weinstein. Plaintiffs argued that the alleged sexual assault conduct amounted to “commercial sex acts” and sex trafficking. Other plaintiffs’ lawyers have similarly invoked trafficking …

Extraterritorial Rights In Border Enforcement, Fatma Marouf

Faculty Scholarship

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in …

An Empirical Study Of Political Control Over Immigration Adjudication, Catherine Y. Kim, Amy Semet

Faculty Scholarship

No abstract provided.

Yearning To Breathe Free: Migration Related Confinement In America, Danielle C. Jefferis

Faculty Scholarship

No abstract provided.

Paper Terrorists: Independence Movements And The Terrorism Bar, Pooja R. Dadhania

Faculty Scholarship

This Article explores the application of the terrorism bar in immigration law to noncitizens who have participated in an independence movement. It proposes a uniform standard that immigration adjudicators can use to determine whether a foreign entity is a state in order to promote accurate applications of the terrorism bar. The terrorism bar in the Immigration and Nationality Act is broad — it can bar most forms of immigration relief, including asylum, and reaches far beyond ordinary definitions of terrorism. For example, the terrorism bar can block immigration relief for noncitizens who nonviolently supported a militia fighting for independence against …

Language Access And Due Process In Asylum Interviews, Pooja R. Dadhania

Faculty Scholarship

The Department of Homeland Security does not provide interpreters to asylum applicants during their asylum interviews, instead requiring them to supply their own. This Article challenges this deprivation of language access as a procedural due process violation because it denies limited English proficient asylum seekers meaningful access to the statutorily created affirmative asylum process. The Department of Homeland Security's failure to provide interpreters can silence limited English proficient asylum seekers by depriving them of the opportunity to meaningfully present their claims. Asylum seekers, especially those who are low income or speak rare languages, face significant challenges in finding suitable interpreters. …