Immigration Law Commons^™

The Borderline Constitution, Pratheepan Gulasekaram

Publications

This Feature identifies and theorizes a distinct constitutional regime that federal courts have constructed at, adjacent to, and because of the nation’s border. Drawing together strands of First, Fourth, Fifth, and Fourteenth Amendment law, along with habeas doctrine, constitutional torts, tribal sovereignty, and separation-of-powers concerns, this Feature demonstrates how constitutional guarantees systematically recede in the border’s shadow. These deviations from canonical and mainstream constitutional norms authorize intrusive state invasions of privacy and other fundamental rights, abdicate judicial oversight in favor of outsized executive discretion, and entrench racial and religious subordination.

The Feature further demonstrates that the effects of border exceptionalism …

Loyalty Disarmament And The Undocumented, Pratheepan Gulasekaram

Publications

Since the Supreme Court's District of Columbia v. Heller decision in 2008, lower federal courts have wrestled with Second Amendment claims raised by categories of people excluded from gun possession. Among those cases, several have been brought by noncitizens challenging their prosecutions under 18 U.S.C. § 922(g)(5), the federal criminal ban on possession by unlawfully present noncitizens. In the post-Heller § 922(g)(5) cases, judges have opined on whether unlawfully present noncitizens were among "the people" who had the right to bear arms and whether the government regulation met the appropriate level of constitutional scrutiny. More recently, however, the Supreme Court …

Dangerousness And The Undocumented, Pratheepan Gulasekaram

Publications

The Supreme Court's most recent Second Amendment opinion, United States v. Rahimi, centers the question of dangerousness in right to bear arms challenges. There, the Court upheld 18 U.S.C. § 922(g)(8), the federal criminal prohibition on possession of firearms by those subject to a civil domestic violence order, opining that legislatures could regulate the right to bear arms of those who were proven credible threats to public safety. Rahimi, however, left open the question whether dangerousness might be imputed to an entire group, absent individual determinations of threat or danger. The several lower federal court cases adjudicating 18 U.S.C. § …

Second Amendment Immigration Exceptionalism, Pratheepan Gulasekaram

Publications

This Essay critiques the decision to uphold federal gun restrictions on unlawfully present noncitizens on the basis of "immigration exceptionalism." It argues that courts should avoid applying bespoke constitutionalism to criminal laws, including gun laws, simply because the law regulates noncitizens. This Essay shows why such exceptional modes misapprehend long-decided Supreme Court cases and well-established legal doctrine. Further, it warns that an exceptional approach to Second Amendment claims by unlawfully present noncitizens cannot be cabined to either firearms or the unlawfully present. Rather, it portends a wider gulf in constitutional protections for all noncitizens across a variety of fundamental criminal …

Immigration Enforcement Preemption, Pratheepan Gulasekaram

Publications

The Supreme Court's 2012 decision, Arizona v. United States, turned back the most robust and brazen state regulation of immigration in recent memory, striking down several provisions of Arizona's omnibus enforcement law. Notably, the Court did not limit preemption inquiries to conflicts between the state law and congressional statutes. The Court also based its decision on the tension between the state law and Executive Branch enforcement policies. The landmark decision seemed to have settled the Court's approach to immigration enforcement federalism. Yet, a scant eight years after Arizona, in Kansas v. Garcia, the Court upheld Kansas's prosecutions of noncitizens who …

The Second Amendment's "People" Problem, Pratheepan Gulasekaram

Publications

The Second Amendment has a “people” problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited “the people” of the Second Amendment to “law-abiding citizens.” In 2022, New York State Rifle & Pistol Ass’n v. Bruen doubled down on the Amendment’s self-defense rationales but, once again, framed the right as one possessed by “citizens.” In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right …

The War On Terror & Vigilante Federalism, Maryam Jamshidi

Publications

No abstract provided.

Restructuring Immigration Enforcement Federalism, Pratheepan Gulasekaram

Publications

No abstract provided.

Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter

Publications

As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard …

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

Publications

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …

The Political (Mis)Representation Of Immigrants In Voting, Ming H. Chen, Hunter Knapp

Publications

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This Essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers on the basis of immigrants and foreign-born voters having rights of semi-citizenship. By placing naturalization backlogs, voting restrictions, and reapportionment battles in the historical context of voter suppression, it provides a descriptive and normative account of the political misrepresentation of immigrants.

The Political (Mis)Representation Of Immigrants In The Census, Ming Hsu Chen

Publications

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the …

Citizenship Denied: Implications Of The Naturalization Backlog For Noncitizens In The Military, Ming H. Chen

Publications

The immigration system is in crisis. Long lines of asylum seekers at the border and immigrants in the interior spend years waiting for their day in immigration court. This is true in the agencies that process applications for immigration benefits from legal immigrants as well. Since 2016, delays in naturalization have increased to historic proportions. The problem is even worse for military naturalizations, where delays are accompanied by denials and overall declines in military naturalizations. It is the latest front in the battle on legal migration and citizenship.

These impediments to citizenship demonstrate an extreme form of policies collectively dubbed …

How Much Procedure Is Needed For Agencies To Change “Novel” Regulatory Policies?, Ming Hsu Chen

Publications

The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make policy, it need not provide notice to the public or allow comment on the new rule; this makes changes easier and faster and less subject to judicial review. Under the Obama Administration, guidance documents were used to implement policy shifts in many areas of administrative law, including civil rights issues such as transgender inclusion and campus sexual harassment and immigration law issues such as …

Making Litigating Citizenship More Fair, Ming H. Chen

Publications

No abstract provided.

Ending Forced Labor In Ice Detention Centers: A New Approach, Jonathon J. Booth

Publications

No abstract provided.

Anti-Sanctuary And Immigration Localism, Pratheepan Gulasekaram, Rick Su, Rose Cuison Villazor

Publications

A new front in the war against sanctuary cities has emerged. Until recently, the fight against sanctuary cities has largely focused on the federal government's efforts to defund states like California and cities like Chicago and New York for resisting federal immigration enforcement. Thus far, localities have mainly prevailed against this federal antisanctuary campaign, relying on federalism protections afforded by the Tenth Amendment's anticommandeering and anticoercion doctrines. Recently, however, the battle lines have shified with the proliferation of state-level laws that similarly seek to punish sanctuary cities. States across the country are directly mandating local participation, and courts thus far …

Silence And The Second Wall, Ming H. Chen, Zachary New

Publications

The Trump administration has made its clarion call “build the wall.” From the start of the presidential campaign to the government shutdown to the declaration of a national emergency, he has made the wall the centerpiece of his immigration enforcement strategy. While the public attention has been riveted on these dramatic episodes at the southern border of the U.S., many more subtle challenges to legal migration have been introduced and implemented. Collectively, these constitute a second wall – one that is invisible to all but the few who have noticed it. This essay explores the distinctive challenges being posed to …

Sanctuary Networks, Pratheepan Gulasekaram, Rose Cuison Villazor

Publications

No abstract provided.

Privatized Detention & Immigration Federalism, Pratheepan Gulasekaram

Publications

No abstract provided.

Leveraging Social Science Expertise In Immigration Policymaking, Ming H. Chen

Publications

The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes …

Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen

Publications

My intended focus is on the widespread response--in cities, churches, campuses, and corporations that together comprise "sanctuary networks"--to the Trump Administration's Executive Order 13768 Enhancing Public Safety in the Interior of the United States as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump Interior E.O., the focus of the Article shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor.

Administrator-In-Chief: The President And Executive Action In Immigration Law, Ming H. Chen

Publications

This Article provides a framework for understanding the role of the President as the Administrator-in-Chief of the executive branch. Recent presidents, in the face of heated controversy and political division, have relied on executive action to advance their immigration policies. Which of these policies are legitimate, and which are vulnerable to challenge, will determine their legacy. This Article posits that the extent to which the President enhances the procedural legitimacy of agency actions strengthens the legacy of the policies when confronted regarding their substance. This emphasis on shoring up administrative procedure is a form of expertise that should be counted …

The President And Immigration Federalism, Pratheepan Gulasekaram, S. Karthick Ramakrishnan

Publications

This Article lays out a systematic, conceptual framework to better understand the relationship between federal executive action and statelevel legislation in immigration. Prior immigration law scholarship has focused on structural power questions between the U.S. federal government-as a unitary entity-and the states, while newer scholarship has examined separation of powers concerns between the President and Congress. This Article builds on both of these traditions, focusing on the intersectional relationship between the federal Executive and subfederal lawmaking, which is an important yet overlooked dynamic in the resurgence of immigration federalism. First, this Article explains the relationship between presidential action and state …

The President And Immigration Federalism, Pratheepan Gulasekaram, S. Karthick Ramakrishnan

Publications

This Article lays out a systematic, conceptual framework to better understand the relationship between federal executive action and statelevel legislation in immigration. Prior immigration law scholarship has focused on structural power questions between the U.S. federal government-as a unitary entity-and the states, while newer scholarship has examined separation of powers concerns between the President and Congress. This Article builds on both of these traditions, focusing on the intersectional relationship between the federal Executive and subfederal lawmaking, which is an important yet overlooked dynamic in the resurgence of immigration federalism. First, this Article explains the relationship between presidential action and state …

Beyond Legality: The Legitimacy Of Executive Action In Immigration Law, Ming H. Chen

Publications

Recent uses of executive action in immigration law have triggered accusations that the President is acting imperially, like a king, or as a lawbreaker. President Obama’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs, which provide protection from deportation and a work permit during a temporary period of lawful presence, serve as the lightning rod for these accusations. But even as legislative and litigation challenges to DACA proceed, many states appear to accept and comply with it, including nearly all of the states that have joined the Texas v United States lawsuit that challenges …

Trust In Immigration Enforcement: State Noncooperation And Sanctuary Cities After Secure Communities, Ming H. Chen

Publications

The conventional wisdom, backed by legitimacy research, is that most people obey most of the laws, most of the time. This turns out to not be the case in a study of state-local participation in immigration law enforcement. Two enforcement programs involving the use of immigration detainers, a vehicle by which the federal government (through ICE) requests that local law enforcement agencies (LEAs) detain immigrants beyond their scheduled release upon suspicion that they are removable, demonstrate the breakdown of conventional wisdom. In the five years following initiation of the Secure Communities program, a significant and growing number of states and …

Did Multicultural America Result From A Mistake? The 1965 Immigration Act And Evidence From Roll Call Votes, Gabriel J. Chin, Douglas M. Spencer

Publications

Between July 1964 and October 1965, Congress enacted the three most important civil rights laws since Reconstruction: The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Immigration and Nationality Act Amendments of 1965. As we approach the 50th anniversary of these laws, it is clear that all three have fundamentally remade the United States; education, employment, housing, politics, and the population itself have irreversibly changed.

Arguably the least celebrated yet most consequential of these laws was the 1965 Immigration Act, which set the United States on the path to become a "majority minority" nation. In …

Immigration And Cooperative Federalism: Toward A Doctrinal Framework, Ming H. Chen

Publications

What can the new federalism teach us about what is happening in immigration law? The changing relationship of federal-state government in the regulation of immigrants has led to the creation of “immigration federalism” as a field of scholarship. Most of this scholarly attention has been directed at resisting restrictionist legislation that encourages vigorous law enforcement against undocumented immigrants. The scholarly tilt is especially pronounced since the Supreme Court recently struck down several provisions of S.B. 1070, Arizona’s restrictive law enforcement legislation. However, law enforcement is only one type of regulation, and the overwhelming focus on it skews the broader debate …

Governing By Guidance: Civil Rights Agencies And The Emergence Of Language Rights, Ming Hsu Chen

Publications

On the fiftieth anniversary of the Civil Rights Act of 1964, this Article asks how federal civil rights laws evolved to incorporate the needs of non-English speakers following landmark immigration reform (the 1965 Hart-Cellar Act) that led to unprecedented migration from Asia and Latin America. Based on a comparative study of the emergence of language rights in schools and workplaces from 1965 to 1980, the Article demonstrates that regulatory agencies used nonbinding guidances to interpret the undefined statutory term "national origin discrimination" during their implementation of the Civil Rights Act of 1964. Their efforts facilitated the creation of language rights, …