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Articles 1 - 30 of 93
Full-Text Articles in Immigration Law
Welcome To The Trump Administration’S Board Of Immigration Appeals. The Immigrant Always Loses., Jason A. Cade
Welcome To The Trump Administration’S Board Of Immigration Appeals. The Immigrant Always Loses., Jason A. Cade
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The first 100 opinions in Volume 29 of the Board of Immigration Appeals’ precedential decisions—issued at more than three times the historical pace—constitute a project. The Trump Administration has used the Attorney General’s self-referral power and a reconstituted, ideologically aligned Board to engineer a body of precedents that reliably produces one result: removal. This Essay organizes these decisions, cataloged in a full Appendix, into five main categories: (1) narrowing relief for noncitizens alleging persecution; (2) expanding mandatory detention while narrowing discretionary release; (3) maximizing the immigration consequences of criminal history and related grounds while foreclosing the relief mechanisms Congress created …
The U Visa At 25: Legislative Missteps, Bureaucratic Neglect, And Geographic Roulette, Jason A. Cade
The U Visa At 25: Legislative Missteps, Bureaucratic Neglect, And Geographic Roulette, Jason A. Cade
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A quarter century ago, Congress created the U visa with dual goals: protecting immigrant crime victims and facilitating law enforcement cooperation by removing deportation barriers to crime reporting. Yet the program as implemented has fallen dramatically short of these aims. This Essay provides the first comprehensive analysis of the U visa's structural failures at its twenty-fifth anniversary. Two fundamental design flaws plague the program. First, Congress capped U visas at 10,000 annually-far below actual need-while the immigration agency has consistently failed to implement congressionally-authorized interim protections. The result is that, as of 2025, applicants wait five years for work authorization …
Civil Rights Microviolations, Michael Kagan, Alissa Cooley Yonesawa
Civil Rights Microviolations, Michael Kagan, Alissa Cooley Yonesawa
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No abstract provided.
Second-Class Asylum, Third-Country Danger, Michael Kagan
Second-Class Asylum, Third-Country Danger, Michael Kagan
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The Trump Administration has aggressively pursued a policy of deporting people who have been found to be in danger of persecution or torture in their countries of origin to third countries. It has primarily impacted people who have two types of what may be called second-class asylum, namely withholding or deferral or removal. This Article examines the structural problems posed by second-class asylum as defined in the Immigration and Nationality Act (INA). The INA’s collection of tiered protected status for people in danger in their countries of origin was always illogical, though its incoherency was more manageable before 2025, when …
A Faster Way To Yes: Re-Balancing American Asylum Procedures, Michael Kagan
A Faster Way To Yes: Re-Balancing American Asylum Procedures, Michael Kagan
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The United States asylum system, like many other asylum systems, is under immense pressure to process asylum applications faster. The primary response to this pressure is negative, namely to deny asylum claims quickly by categorizing them as manifestly unfounded. In the United States, this is done through the “credible fear” process. This negative orientation leads to a structural imbalance in which denials can be fast and easy for the system, but approvals take time and extensive effort. Using domestic and international comparative examples, this Article proposes re-balancing the asylum system by establishing a process for expedited approvals of clearly eligible …
An Upward Trend In Jailhouse Cooperation With Ice: A Report On Detainers Issued By Ice And 287(G) Agreements In Alabama, Arkansas, Louisiana, Mississippi, And Tennessee From 2016 To 2020., Eric Franklin Amarante, Project South
An Upward Trend In Jailhouse Cooperation With Ice: A Report On Detainers Issued By Ice And 287(G) Agreements In Alabama, Arkansas, Louisiana, Mississippi, And Tennessee From 2016 To 2020., Eric Franklin Amarante, Project South
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This report analyzes information received in response to Freedom of Information Act requests to ICE about 287(g) agreements and detainer requests issued between fiscal year 2016 to 2020 in those states. This report concludes with specific recommendations for local, state, and federal governments to end LLE-ICE collaboration and repeal anti-immigrant policies.
Taxing Undocumented Immigrants Redux, Francine J. Lipman
Taxing Undocumented Immigrants Redux, Francine J. Lipman
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No abstract provided.
Challenging The Criminalization Of Undocumented Drivers Through A Health-Justice Framework, Jason A. Cade
Challenging The Criminalization Of Undocumented Drivers Through A Health-Justice Framework, Jason A. Cade
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States increasingly use driver’s license laws to further policy objectives unrelated to road safety. This symposium contribution employs a health justice lens to focus on one manifestation of this trend—state schemes that prohibit noncitizen residents from accessing driver’s licenses and then impose criminal sanctions for driving without authorization. Status-based no-license laws not only facilitate legally questionable enforcement of local immigration priorities but also impose structural inequities with long-term health consequences for immigrants and their family members, including US citizen children. Safe, reliable transportation is a significant social determinant of health for individuals, families, and communities. Applying a health justice lens …
The Absurdity Of Criminalizing Encouraging Words, Eric Franklin Amarante
The Absurdity Of Criminalizing Encouraging Words, Eric Franklin Amarante
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This article discusses the Supreme Court’s holding in Hansen v. U.S., which upheld a statute that makes it a felony to encourage an undocumented person to remain in the United States.
The Abandonment Of International College Athletes By Nil Policy, Victoria J. Haneman, David P. Weber
The Abandonment Of International College Athletes By Nil Policy, Victoria J. Haneman, David P. Weber
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A new era in college sports dawned on July 1, 2021, when the National Collegiate Athletic Association announced that college athletes were (subject to various limitations and restrictions) entitled to earn money based upon their name, image, and likeness ("NIL"). NIL is now a billion-dollar industry. The more than 450,000 college athletes across the United States are now able to leverage NIL to make paid appearances, endorse products or services on social media, receive compensation for autograph signings, and promote local and national businesses. Excluded from most NIL opportunities, however, are the 12 percent of athletes recruited from outside of …
The Immigration Implications Of Presidential Pot Pardons, Jason A. Cade
The Immigration Implications Of Presidential Pot Pardons, Jason A. Cade
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This Essay examines the immigration implications of President Joe Biden’s Proclamation on October 6, 2022, pardoning most federal and D.C. offenders who committed the offense of simple marijuana possession. A late twentieth century interpretive shift by the Board of Immigration Appeals holds that pardons only prevent deportation for certain criminal history categories, which do not include controlled substance offenses, and thus far lower federal courts have deferred to the agency’s approach.Nevertheless, according to the analysis I offer, President Biden’s cannabis pardons should be deemed fully effective to eliminate all immigration penalties. All of the immigrant pardon cases to reach the …
Racial Contagion: Anti-Asian Nationalism, The State Of Emergency, And Exclusion, Stewart Chang
Racial Contagion: Anti-Asian Nationalism, The State Of Emergency, And Exclusion, Stewart Chang
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No abstract provided.
Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan
Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan
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No abstract provided.
In Defense Of Deportation Defense, Michael Kagan
In Defense Of Deportation Defense, Michael Kagan
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Recent years have seen growing momentum toward expanding public funding for legal defense of immigrants fighting deportation. Yet, some recent scholarship argues that government-funded deportation defense carries the risk of legitimizing and entrenching an unsalvageable immigration enforcement system that should simply be abolished. As a result, immigrant rights advocates might hesitate to support deportation defense. This Essay argues that such hesitation would be a mistake. Legal defense is the most feasible means available right now to stop many deportations, and expanding deportation defense resources will strengthen the immigrant rights movement locally and nationally. Expanding deportation defense should be a high …
Chevron’S Asylum: Judicial Deference In Refugee Cases, Michael Kagan
Chevron’S Asylum: Judicial Deference In Refugee Cases, Michael Kagan
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Chevron deference is at the height of its powers in refugee and asylum cases, with the highest possible human consequences. Why does the Supreme Court seem so comfortable with Chevron deference in asylum cases when it has been reluctant to defer to the government in other kinds of deportation cases? More to the point, is this deference justified? There are cogent arguments justifying more deference in asylum cases than in other kinds of deportation cases. These arguments rest to a great extent on the premise that greater political accountability is a good thing when interpreting a statute. Yet in a …
'Water Is Life!' (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade
'Water Is Life!' (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade
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Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy “dissent,” including blacklists, …
All The Border's A Stage: Humanitarian Aid As Expressive Dissent, Jason A. Cade
All The Border's A Stage: Humanitarian Aid As Expressive Dissent, Jason A. Cade
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Immigration enforcement along the Southwest border between the United States and Mexico has long channeled immigrants into perilous desert corridors, where many thousands have dies, out of the public view. In response to this humanitarian crisis, activists from organizations such as No More Deaths (NMD) trek deep into the treacherous desert, hoping to save lives, honor the remains of those who did not survive, and influence public opinion about border enforcement policies. NMD's activism is not merely utilitarian but also deeply expressive; ultimately, they hope to convey the message that all lives -- including those of unauthorized migrants-- are worth …
Immigration And Naturalization, Stewart Chang, Sabrina Damast, Anju Gupta, Pooja Mehta, Samantha Rumsey
Immigration And Naturalization, Stewart Chang, Sabrina Damast, Anju Gupta, Pooja Mehta, Samantha Rumsey
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Immigration law has always been interesting and controversial. Yet in 2018, it became disproportionately so. Law and policymakers identified issues such as unlawful migration, the border between the United States and Mexico, Muslim immigration, and even high-skilled worker visas as critical election issues in anticipation of the 2018 midterm election. Additionally, the current U.S. Executive Branch has taken a hardline approach to immigration, pursuing opportunities to limit, rather than expand, access by non-citizens to U.S. opportunities. As a prime policy example, the fact that U.S. Citizenship and Immigration Services (USCIS), that is responsible for processing immigration and naturalization applications and …
Restoring The Statutory Safety-Valve For Immigrant Crime Victims: Premium Processing For Interim U Visa Benefits, Jason A. Cade, Mary Honeychurch
Restoring The Statutory Safety-Valve For Immigrant Crime Victims: Premium Processing For Interim U Visa Benefits, Jason A. Cade, Mary Honeychurch
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This essay focuses on the U visa, a critical government program that has thus far failed to live up to its significant potential. Congress enacted the U visa to aid undocumented victims of serious crime and incentivize them to assist law enforcement without fear of deportation. The reality, however, is that noncitizens eligible for U status still languish in limbo for many years while remaining vulnerable to deportation and workplace exploitation. This is in large part due to the fact that the agency has never devoted sufficient resources to processing these cases. As a result, the potential benefits of the …
Teaching Tomorrow’S Lawyers Through A (Semi-) Generalist, (Mostly-) Individual Client Poverty Law Clinic: Reflections On Five Years Of The Community Health Law Partnership, Jason A. Cade
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Design options when starting a live-client clinic from scratch can be somewhat overwhelming. Should the clinic focus on systemic impact or individual representation? Appellate work or hearings? Should the clinic specialize or cover multiple legal issues? Another set of issues concerns how the clinic should find and accept its clients, and whether students should have a role in the intake process. The list of choices goes on. In this Essay, written for the Georgia Law Review’s Online Issue celebrating 50 years of clinics at the University of Georgia School of Law, I describe how I have navigated these and other …
Sanctuaries As Equitable Delegation In An Era Of Mass Immigration Enforcement, Jason A. Cade
Sanctuaries As Equitable Delegation In An Era Of Mass Immigration Enforcement, Jason A. Cade
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Opponents of—and sometimes advocates for—sanctuary policies describe them as obstructions to the operation of federal immigration law. This premise is flawed. On the better view, the sanctuary movement comports with, rather than fights against, dominant new themes in federal immigration law. A key theme—emerging both in judicial doctrine and on-the-ground practice—focuses on maintaining legitimacy by fostering adherence to equitable norms in enforcement decision-making processes. Against this backdrop, the sanctuary efforts of cities, churches, and campuses are best seen as measures necessary to inject normative (and sometimes legal) accuracy into real-world immigration enforcement decision-making. Sanctuaries can erect front-line equitable screens, promote …
Families Across Borders: When Immigration And Family Law Collide-Minors Crossing Borders, Stewart Chang
Families Across Borders: When Immigration And Family Law Collide-Minors Crossing Borders, Stewart Chang
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No abstract provided.
Universities As “Sanctuaries”, Maryam Ahranjani
Universities As “Sanctuaries”, Maryam Ahranjani
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When Donald Trump, a businessman and reality television personality with antiimmigrant views, was elected President of the United States in November 2016, thousands of students, faculty and staff at many colleges and universities around the country implored their institutions to affirmatively declare themselves sanctuaries for undocumented students. Enjoying support both from the estimated 200,000 undocumented university students and other stakeholders, the movement gained quite a bit of momentum, but many contentious battles also have occurred. According to the author's empirical analysis, only twenty of the more than 5,000 institutions of higher education in the United States have adopted the sanctuary …
Chevron's Liberty Exception, Michael Kagan
Chevron's Liberty Exception, Michael Kagan
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This Article argues that the Supreme Court’s practice in immigration cases reflects an unstated but compelling limitation on Chevron deference. Judicial deference to the executive branch is inappropriate when courts review the legality of a government intrusion on physical liberty. This norm is illustrated by the fact that the Court has not meaningfully applied Chevron deference in cases concerning deportation, and also has seemed reluctant to do so in cases concerning immigration detention. It is a logical extension of the established rule that Chevron deference does not apply to questions of criminal law. By contrast, the Court applies Chevron deference …
What We Talk About When We Talk About Sanctuary Cities, Michael Kagan
What We Talk About When We Talk About Sanctuary Cities, Michael Kagan
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In this Essay, Professor Michael Kagan asserts when immigrant rights advocates ask their local, state and university leaders to become "sanctuary cities," "sanctuary states," "sanctuary campuses," and so on, they carelessly hurt immigrants in places like Nevada, Texas, and Arizona. And there are a lot of immigrants in those states. People who mean to help immigrants are hurting them. He first sets out assumptions he makes about the semantics and politics of "sanctuary" debates. These assumptions include setting out the kind of actual policies that are usually under consideration when people invoke the sanctuary label, and a way of understanding …
Toward Universal Deportation Defense: An Optimistic View, Michael Kagan
Toward Universal Deportation Defense: An Optimistic View, Michael Kagan
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One of the most positive responses to heightened federal enforcement of immigration laws has been increasing local and philanthropic interest in supporting immigrant legal defense. These measures are tentative and may be fleeting, and for the time being are not a substitute for federal support for an immigration public defender system. Nevertheless, it is now possible to envision many more immigrants in deportation having access to counsel, maybe even a situation in which the majority do. In this paper, Professor Michael Kagan makes no real predictions. Instead, he offers a deliberately-perhaps even blindly optimistic assessment of how concrete steps that …
Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf
Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf
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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 …
Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade
Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade
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This Article focuses attention on two recent and notable federal court opinions considering challenges to Trump administration deportation decisions. While finding no statutory bar to the noncitizens’ detention and deportation in these cases, the court in each instance paused to highlight the injustice of the removal decisions. This Article places the opinions in the context of emerging immigration enforcement trends, which reflect a growing indifference to disproportionate treatment as well as enforcement actions founded on retaliation for the exercise of constitutional rights. Judicial decisions like the ones considered here serve vital functions in the cause of immigration law reform even …
Law, Religion, And Immigration: Building Bridges With Express Lanes, Mark Goldfeder, Gideon Sapir
Law, Religion, And Immigration: Building Bridges With Express Lanes, Mark Goldfeder, Gideon Sapir
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This Article asks whether it can ever be moral or legal to use certain criteria, including nationality and/or religion, in formulating preferential immigration policies. In order to answer the question, it presents an in-depth look at the controversial "right of return, " focusing in particular on the example of the Israeli Law of Return. It contains a detailed history of the law and its development; a defense of the right of return in general; the principle and contextual arguments in favor of an amendment to or abrogation of Israel’s law; and a theoretical and practical defense of the law, with …
Judging Immigration Equity: Deportation And Proportionality In The Supreme Court, Jason A. Cade
Judging Immigration Equity: Deportation And Proportionality In The Supreme Court, Jason A. Cade
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Though it has not directly said so, the United States Supreme Court cares about proportionality in the deportation system. Or at least it thinks someone in the system should be considering the justifiability of removal decisions. As this Article demonstrates, the Court’s jurisprudence across a range of substantive and procedural challenges over the last fifteen years increases or preserves structural opportunities for equitable balancing at multiple levels in the deportation process. Notably, the Court has endorsed decision makers’ consideration of the normative justifiability of deportation even where noncitizens have a criminal history or lack a formal path to lawful status. …