Immigration Law Commons^™

When Congress Requires Nationwide Injunctions, David Hausman

University of Colorado Law Review

A curious provision of the Immigration and Nationality Act (INA) precludes class actions challenging expedited removal, the system of fast-track deportations for individuals who have recently entered the country. The same provision authorizes nationwide relief in non-class actions, but it requires that plaintiffs in such non-class systemic challenges file their claims in the federal District Court for the District of Columbia and that they do so within sixty days of the challenged change to the system. This framework should matter to scholars of nationwide injunctions for two reasons. First, Congress took for granted in 1996 that federal district courts may …

Interring The Immigration Rule Of Lenity, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The immigration rule of lenity has haunted immigration jurisprudence since its initial iteration in 1947. But as with any spectral entity, its existence is more ephemeral than real. The rule was meant to be a tie-breaker of sorts, a canon that where a provision of the immigration laws was ambiguous, the courts should impose the more lenient construction. It has never, however, been the dispositive basis for a holding of the Supreme Court. Rather, to the extent it has been referenced, it has been trotted out only as a rhetorical device to sanction a decision reached on other grounds. Even …

The Boundaries Of Habeas: Due Process, The Suspension Clause, And Judicial Review Of Expedited Removal Under The Immigration And Nationality Act, Peter Margulies

Law Faculty Scholarship

No abstract provided.

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 …

A Practical Overview Of U.S. Immigration Removal Proceedings, Administration Agencies And Respondent's Forms Of Relief, Vy Thuan Nguyen

North Carolina Central Law Review

No abstract provided.

“Dreamers” Versus The Labels Used In Government Documents And Judicial Opinions In Department Of Homeland Security V. Regents Of The University Of California, Maritza I. Reyes

Journal Publications

Regretfully, the debate over immigration reform has been fueled and railroaded by rhetoric that is counter-productive, divisive, and dangerous . It is one thingfor people who are not knowledgeable of the law and its history to use the pejorative terms “illegal alien” and “illegal immigrant;” however, it should become unacceptable for government officials and judges to use labels like “illegal alien” and “illegal immigrant.” When placed in the historical and current context of the United States, these terms carry racial animus. They have developed to attach an identity as inferior human beings to a group of people who are not …

Rising Up Without Pushing Down: Lessons Learned From The Suffragettes' Anti-Immigrant Rhetoric, Kit Johnson

Faculty Articles

American suffragist Elizabeth Cady Stanton famously wrote: “We hold these truths to be self-evident; that all men and women are created equal.” Yet when suffragettes spoke of “all” men and women, they were clear about exceptions. Immigrants did not qualify. Indeed, in her own address at the First Women’s Rights Convention, held in Seneca Falls, New York, in July 1848, Stanton said that “to have . . . ignorant foreigners . . . fully recognized, while we ourselves are thrust out from all the rights that belong to citizens, it is too grossly insulting to the dignity of woman to …

You Shall Not Pass! How The Dublin System Fueled Fortress Europe, Ashley B. Armstrong

Faculty Publications

This Article examines the recent proliferation of walls and fences in Europe, fueled by the Dublin Regulation’s failure to distribute responsibility for asylum seekers equitably among European states. Legal scholarship does not lack literature bemoaning the failures of the E.U.’s Dublin Regulation—which dictates, generally, that the country where an asylum seeker first enters the E.U. is responsible for processing his or her claim for protection. Yet scholarship on border walls and fences, and what induces European states to construct them, is not prominent in the literature. The critiques lodged against the Dublin Regulation have primarily focused on its futility and …

Enabling The Best Interests Factors, Adrián E. Alvarez

Faculty Publications

(Excerpt)

For over a century, state courts and other child welfare agencies in the United States have been applying the “best interests of the child standard” to all decision-making concerning children. The standard is also enshrined within the UN Convention on the Rights of the Child (CRC)—a treaty that every nation in the world has ratified except the United States. Notwithstanding its widespread adoption in family law, the standard is, with only a few exceptions, noticeably missing from American laws and policies pertaining to children in the immigration system.

There is a rich literature arguing that children should enjoy special …

Robert F. Kennedy And The Attorney General's Referral Authority: A Blueprint For The Biden Administration, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

For nearly four years, the Trump Administration’s use of the Attorney General’s referral authority has been criticized by the legal left on both substantive and procedural grounds. With the advent of the Biden Administration, however, use of the authority for liberal ends deserves serious consideration. To conclude otherwise would be throwing the baby out with the bath water. This article argues that the referral authority can be used for liberal constructions of the immigration laws, and that the perfect model for the incoming administration is former Attorney General Robert Kennedy and his use of the authority for just such ends. …

Give Me Your Tired, Your Poor (Unless They Are From “One Of Three Mexican Countries”): Unaccompanied Children And The Humanitarian Crisis At The U.S. Southern Border, Samantha R. Bentley

University of Richmond Law Review

This Comment argues that the United States’s response to the humanitarian crisis at its border is wholly inadequate. It argues that the government chose to advance two policies, Zero Tolerance and Family Separation, that exacerbated the humanitarian crisis at the border. These policies facilitated practices that violated domestic and international law. Most importantly, this Comment argues that the United States government traumatized one of the most vulnerable groups of people in the world: children.

Immigration And Crime Across Southern Us Border: The Effect Of Latino Immigration On Violent Crime, Matthew Hohman

Williams Honors College, Honors Research Projects

In the United States, most lay citizens could voice an opinion on the effect of immigration in the United States. However, these opinions are generally only focused on Latino immigration entering the country across its Southern border from Mexico and Caribbean countries, such as Cuba and Haiti. Increased media coverage on this topic in recent decades has fueled this debate and made it a center stage topic in political agendas. This study aims to shed light on this issue by researching the true effect of Latino immigration, as well as total immigration, across the United States’s Southern Border. To account …

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 …

Injustice And The Disappearance Of Discretionary Detention Under Trump: Detaining Low Risk Immigrants Without Bond, Robert Koulish, Kate Evans

Faculty Scholarship

This Report demonstrates that the Immigration and Customs Enforcement (ICE) violates legal requirements to provide immigrants with an individualized custody determination. Trump’s enforcement policies brought a surge of low-risk immigrants into ICE custody. The detention risk tool was supposed to train officers and strongly discourage them from detaining low-risk immigrants who posed no harm to society and were not a flight risk. Data received pursuant to FOIA show the opposite result. ICE has failed to perform the individualized assessment and restrict its use of civil detention to only those whose high levels of dangerousness and risk of flight justify their …

Regulating The Border, Eunice Lee

Maryland Law Review

No abstract provided.

Categorical Nonuniformity, Sheldon Evans

Scholarship@WashULaw

The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, …

'Water Is Life!' (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade

Scholarly Works

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, …

Teachers' Efforts To Support Undocumented Students Within Ambiguous Policy Contexts, Hillary Parkhouse, Virginia R. Massaro, Melissa J. Cuba, Carolyn N. Waters

Teaching & Learning Faculty Publications

Although education scholars have recently focused greater attention on the experiences of undocumented youth in schools, few studies have examined educators' perceptions of their roles and responsibilities with regards to this population. Since the 1982 Supreme Court decision Plyler v. Doe guaranteed education to this group and barred schools from inquiring about immigration status, little additional policy has offered guidance on how schools can support this group while also refraining from identifying it's members. Policies are particularly lacking in new destination areas where there are fewer resources and less infrastructure for new immigrant populations. As increasingly harsh immigration enforcement policies …

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.

Digital Internment, Margaret Hu

Faculty Publications

In Korematsu, Hirabayashi, and the Second Monster, Eric L. Muller explores whether Korematsu v. United States is dead post-Trump v. Hawaii, and whether by failing to strike down Hirabayashi v. United States, the “mother” of Korematsu and a “second monster” lives on. This brief response Essay contends that answering these questions first demands grasping how Trump v. Hawaiifailed to fully address the program implemented by the Muslim Ban–Travel Ban: Extreme Vetting. Extreme Vetting can be characterized as a form of “digital internment” through a complex web of cybersurveillance, administrative-imposed restraints, and “identity-management” rationales that are …

Hernández V. Mesa And Police Liability For Youth Homicides Before And After The Death Of Michael Brown, Delores Jones-Brown, Joshua Ruffin, Kwan-Lamar Blount-Hill, Akiv Dawson, Cicely J. Cottrell

Sociology & Criminal Justice Faculty Publications

In a five-to-four decision announced in February of 2020, the United States Supreme Court ruled that the parents of an unarmed fifteen-year-old Mexican national killed by a U.S. Border Patrol agent in a cross-border shooting, cannot sue for damages in U.S. civil court. Here, we critique the majority and dissenting opinions and attempt to reconcile the strikingly different approach each used to resolve the case. Using a publicly available data set, we examine the homicide in Hernández v. Mesa, against the circumstances and context in which underage youth were killed by police within the United States over a five year …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

L.M.-M. V. Cuccinelli And The Illegality Of Delegating Around Vacant Senate-Confirmed Offices, Nina A. Mendelson

Other Publications

In L.M.-M. v. Cuccinelli, Judge Randolph Moss, a federal judge in the District of Columbia, issued an important opinion setting aside policies limiting asylum applications known as the Asylum Directives. The court held that Kenneth Cuccinelli, who issued them, cannot legally serve as “acting” Director of the United States Citizenship and Immigration Services (“USCIS”) under the 1998 Federal Vacancies Reform Act. The opinion is particularly important because its analysis casts doubt upon the legality of a widespread but not closely scrutinized strategy for bypassing Senate confirmation requirements for high-level agency officials. Under this in-the-weeds strategy, the agency head delegates around …

Immigration, Emigration, Fungible Labour And The Retreat From Progressive Taxation, Henry Ordower

All Faculty Scholarship

With emphasis on the US, this chapter explores the role that taxation plays in the movement of people and capital. The chapter addresses the relationship between taxes and retention of capital, including tax incentives for capital investment, shifting tax burdens from capital to labor as progressive taxation wanes, and rules preventing the escape of capital from its current taxing jurisdiction. Next, the discussion moves on to consider how taxes supplement immigration policy to attract capital currently outside the jurisdiction. The chapter then queries whether taxes play any significant role in attracting or retaining skilled labor before identifying how tax trends …

Third Country Deportation, Sarah R. Sherman-Stokes

Faculty Scholarship

The large-scale deportation of noncitizens from the United States is not new. However, the speed, and secrecy, by which many of these deportations are carried out is unprecedented. Deportations are, increasingly, executed not through a legal court process, but rather, extrajudicially—in detention centers and at border crossings, outside the purview of judges or neutral adjudicators. One kind of this “shadow deportation” is what I term “third country deportation”—the removal of noncitizens to a country other than that designated by an Immigration Judge, after relief to the designated country has been granted, and after the court proceeding has concluded.

This article …

Discarded Loyalty: The Deportation Of Immigrant Veterans, Deenesh Sohoni, Yosselin Turcios

Lewis & Clark Law Review

The United States has a long history of using the foreign born to meet its mil- itary demands. For many immigrants, military service served both as a way to demonstrate loyalty to their adopted country, and to facilitate their naturali- zation process. However, over the past several decades an increasing number of foreign-born veterans have found themselves being deported, despite their honorable service, for having committed criminal acts. In many cases, these veterans were never given a chance to contest their deportations due to their status as non-citizens. This Article compares the deportation of non-citizen veterans today, with the failure …

All The Border's A Stage: Humanitarian Aid As Expressive Dissent, Jason A. Cade

Scholarly Works

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 …