[Cross-posted from the San Francisco Chronicle]

By Shayak Sarkar

In the coming months, parents will receive hundreds of dollars as the Internal Revenue Service begins paying out the Advance Child Tax Credit, providing financial support to families and combating child poverty. Yet one significant group will be left out: parents of undocumented and certain non-citizen children.

The tax code excludes these parents because of immigration status, even though many have spent years in the United States dutifully paying state and federal income taxes along with property and sales taxes.

Using tax law to patrol the border is not new. In the 19th century, several states enacted constitutionally unsound tax laws to target migrants. New York raised a tax on oceanic migrants for “hospital moneys.” Massachusetts supplemented its foreign passenger tax by requiring a bond of $1,000 for any newly arrived “lunatic, idiot, maimed, aged, or infirm person.”

The Supreme Court found the taxes unconstitutional, explaining that whether foreigners will “be compelled to pay a tax, before they will be permitted to put their feet ashore” is exclusively a federal question. Even after this decision, California imposed special taxes on Chinese migrants until the state supreme court intervened.

Migrant taxes have largely evolved from explicit fees at entry ports to punitive federal tax provisions that cast immigrants financially adrift.

Although federal tax law allows and requires people without Social Security numbers to file taxes using an Individual Tax Identification Number, those filers are excluded from many tax credits. Consider that the CARES Act conditioned COVID-era stimulus payments on not only the recipients’ Social Security numbers, but also their loved ones’. The law initially excluded even citizen spouses from receiving the payment, if they filed jointly with a non-citizen without a Social Security number. Meanwhile, citizen children of parents without Social Security numbers were likewise left aside.

These exclusions echoed immigration-status restrictions in the federal Earned Income Tax Credit (EITC) and Child Tax Credit — two provisions upon which working-class and poor families depend. They also evoke the IRS’s direct collaboration with the Department of Homeland Security in violent workplace raids. (An IRS investigation into a Tennessee meatpacker’s tax compliance ended with allegations of armed state and federal officers violating workers’ civil rights with machine guns, racial slurs and mass detentions.)

Americans appear skeptical of tax-based immigration enforcement, which also treads on uncertain legal ground. In a poll from last year, there was more support than opposition to extending pandemic payments to “those who pay U.S. taxes,” even as support for other punitive enforcement measures prevailed.

Recent lawsuits challenged the CARES Act’s exclusion of citizen relatives of undocumented workers. In R.V. v. Yellen, citizen plaintiffs alleged that the denial of emergency tax relief to otherwise-eligible children for their parents’ lack of a social security number violated equal protection. In another case, lead plaintiff Ivania Amador and her three children possessed Social Security Numbers while her husband did not. She argued that denials based on their spouses’ undocumented status violated their marriage-based due process and equal protection rights, as well as their First Amendment speech and associational rights. Tax law’s policing of borders may unconstitutionally cross the boundaries of familial integrity.

As the federal government financially casts undocumented immigrants aside, some individual states are starting to offer lifelines. New York recently created an Excluded Workers Fund to provide financial relief to noncitizens excluded from unemployment insurance and federal programs. States including California and Oregon, meanwhile, have extended their state-level EITCs to undocumented immigrants, potentially including employment considered illegal under federal law. These financial and tax laws generate thorny questions about where state authority ends and federal power dominates.

Federalism limits states and cities’ abilities to directly regulate immigration. Yet despite these limitations, states still possess unique tax powers, particularly to promote residents’ health and safety across immigration statuses. Cities and states are choosing to foster inclusion to balance the weaponization of federal tax law against immigrants. While the Supreme Court may ultimately weigh in again on limits to state and local action, for now, states and localities should feel legally comfortable pursuing a range of immigrant-inclusive financial and tax policies.

Federally, effective methods exist to deal with tax noncompliance beyond cooperation with immigration enforcement. In 2017, the Treasury Inspector General suggested a more “focused strategy” on employers and payroll service providers to reduce tax noncompliance. Unlike using tax law to deport migrants, focusing on employers could raise needed revenue and comply with the Supreme Court’s employer-focused interpretation of immigration enforcement statutes. In contrast, cooperation between tax and immigration authorities could inhibit undocumented immigrants’ tax compliance, for fear that information sharing could lead to deportation.

Policing poor immigrants through tax law weakens the borders between immigration and tax law meant to protect citizens and noncitizens alike. Respecting those borders is as important as respecting territorial ones.

Edited by Kevin R. Johnson

Table of Contents

"The Danger of Dissent: A Century of Targeting Immigrants"

-Lenni Benson, New York Law School

"The Impact of International Scientists, Engineers, and Students on US Research Outputs and Global Competitiveness"

-Sarah Rovito, Rovito Ventures LLC
-Divyansh Kaushik, Carnegie Mellon University
-Surya D Aggarwal, NYU Langone Grossman School of Medicine

"Sentencing and the Scope of Deportation in Nigeria"

-Alfred Oluropo Filani, Ekiti State University
-Raphael Abiola Olowookere, Independent

A Lineage of Family Separation

-Anita Sinha, American University - Washington College of Law

------------------------

"The Danger of Dissent: A Century of Targeting Immigrants"  
New York Law School Law Review, Vol. 65, No. 2, 2021

LENNI BENSON, New York Law School
Email: Lenni.Benson@nyls.edu

Introduction and article discussing 2019 Symposium on the anniversary of the Department of Justice raids that targeted immigrant activists. The article also discusses the contemporary attacks on immigrants who are seeking reforms or are critics of government.

"The Impact of International Scientists, Engineers, and Students on US Research Outputs and Global Competitiveness"  

SARAH ROVITO, Rovito Ventures LLC
Email: smr32@alum.mit.edu
DIVYANSH KAUSHIK, Carnegie Mellon University
Email: dkaushik@cs.cmu.edu
SURYA D AGGARWAL, NYU Langone Grossman School of Medicine
Email: surya.aggarwal@nyulangone.org

International scientists and researchers have made, and continue to make, innumerable and immense contributions to the United States’ science and engineering research enterprise. This source of talent is a comparative advantage for the U.S. and is critical for keeping the nation at the leading edge of discovery and knowledge. This paper quantifies and reaffirms the impact of international scientists and scholars, who serve as a vital source of talent fueling American leadership in innovation and ingenuity. Bolstering measures to attract and retain top students from across the globe and fostering a culture where immigrants are welcome and can thrive is imperative for the continued success of our society and economy.

"Sentencing and the Scope of Deportation in Nigeria"  
Global Journal of Politics and Law Research 2021, Vol.9, No.5, pp.1-14

ALFRED OLUROPO FILANI, Ekiti State University
RAPHAEL ABIOLA OLOWOOKERE, Independent

This paper examined the scope of deportation within the deterrent framework of Nigerian Criminal Justice System. Various legal provisions for its operation and judicial attitudes were discussed. The paper equally examined various acts of internal deportation carried out by the Executive Arm of Government with impunity, against the poor and proffered lasting solutions to the problem.

"A Lineage of Family Separation"  
Brooklyn Law Review, Forthcoming

ANITA SINHA, American University - Washington College of Law
Email: asinha@wcl.american.edu

Family separation is a practice rooted in U.S. history. In order to comprehensively examine the most recent execution of separating children from their parents under the Trump Administration’s “zero tolerance” policy, one must follow and understand this history. That is what this Article does. Examining the separation histories of enslaved, Indigenous, and immigrant families, it offers critical context of a reoccurring practice that has had devastating effects largely on communities of color, and across generations. By contextualizing the separation of migrant families crossing the U.S.-Mexico border under zero tolerance, this Article identifies narratives from colonial times to the present that consistently rely on racism, xenophobia, and paternalism to justify a practice that otherwise is extreme in its inhumanity.

These justification narratives are juxtaposed with counter-stories that resist and challenge the separation of families, including by humanizing those impacted and articulating the profound harm it causes to children, parents, and communities. These stories have been told through first-hand narratives, Congressional testimonies, research studies, media reports, and facts and allegations in lawsuits. Narratives describing the harm caused by separating families are a powerful element of putting the practices to an end. The historical record suggests that these narratives have typically gained potency in specific socio-political contexts that rendered them compelling enough to overcome the justifications for specific family separation policies.

Although these practices were brought to an end, systemic reform has been elusive. In the case of Indigenous family separation, legislation enacted to cease the practice failed to bring about substantial change, and has been diluted by persistent legal challenges. Historical family separation practices against enslaved and immigrant families have been replaced with systems that separate families for prolonged times or permanently. These include the present-day U.S. criminal legal and immigration systems, where the government separates children from their parents on a substantial scale as a collateral consequence of mass incarceration and widespread detention and deportation, with little to no scrutiny. The outrage that ended zero tolerance has not extended to these ongoing examples of family separation. In order to meaningfully address these practices, counter-stories urging the valuation of family integrity must be aligned with a societal will to challenge systems that, through racialized justifications, continue to separate mostly marginalized children from their parents.

[Cross-posted from The Conversation]

By Kevin R. Johnson

Editor’s note: A federal court in Texas delivered a blow to an Obama-era federal program shielding hundreds of thousands of undocumented immigrants who came to the United States as children from being deported.

U.S. District Judge Andrew Hanen ruled on July 16, 2021, in Texas v. United States that Deferred Action for Childhood Arrivals, or DACA, was unlawful. Hanen put a hold on new applications. The decision caught many people off guard because, in 2020, the U.S. Supreme Court had rejected then-President Donald Trump’s effort to dismantle DACA, leaving the policy mostly intact.

The federal government under President Joe Biden has been accepting new applications for DACA protections. That must now stop, Hanen ruled.

We asked legal scholar Kevin Johnson, who specializes in immigration law, to explain what impact Hanen’s ruling will have on DACA – and what comes next.

1. If the Supreme Court already ruled DACA could continue, how can it be unlawful?

In Department of Homeland Security v. Regents of University of California, the Supreme Court did not decide whether DACA, established by President Barack Obama in 2012, was lawful. It held only that in its efforts to end DACA, the Trump administration had not followed the proper procedures required by the federal Administrative Procedure Act to terminate the policy.

In a 5-4 decision written by Chief Justice John Roberts, the court ruled that President Trump’s attempt to end DACA was “arbitrary and capricious” because it had failed to adequately account for, among other things, the severe disruption of the lives of DACA recipients who had relied on the program in making life decisions.

By so doing, Trump had violated the Administrative Procedure Act, and, thus, his administration’s attempt to invalidate DACA was unlawful. As a result, the immigrants already protected by DACA would maintain their legal status, and the ruling seemed to require the administration to allow new DACA applications.

But the Trump administration refused to allow new applications to the program.

In Texas v. United States, Judge Hanen reviewed a different decision by a different president – the Biden administration’s decision to resume accepting new DACA applications. But his ruling relied on the Supreme Court’s analysis of President Trump’s attempted termination of DACA.

Hanen found that the Biden administration had not reopened applications following appropriate procedures under the Administrative Procedure Act, which requires allowing public notice and comment on the policy. As such, he ruled, the Biden administration could not accept new DACA applications.

2. What does the Texas court’s decision mean for current DACA recipients?

Judge Hanen’s ruling only bars the approval of new DACA applications. It does not eliminate DACA relief for the approximately 690,000 people already enrolled in the program.

Current DACA recipients may still apply for renewals every two years. The Biden administration is likely to grant those renewals absent a change in the applicant’s circumstances, such as a serious criminal conviction.

Put simply, for the time being, current DACA recipients are protected from deportation, but the Biden administration can no longer offer that same protection to other undocumented immigrants brought to the U.S. as children – even if technically it seems they could apply for DACA.

3. What’s next in the DACA debate?

President Biden has said his administration will appeal Judge Hanen’s ruling, and the Supreme Court ultimately could take the case. If the ruling were reversed by a higher court, the Biden administration would be permitted to approve new DACA applications.

The courts aren’t the only place where DACA’s legal problems could be addressed. Biden, immigrant rights advocates and congressional Democrats, including Sen. Dick Durbin, are now calling for lawmakers to pass legislation permanently protecting DACA recipients.

The American Dream and Promise Act of 2019 – introduced to Congress during President Trump’s campaign to end DACA – would provide a pathway to citizenship for current DACA recipients. That immigration reform would give them lasting legal status, rather than the temporary – and revocable – relief from deportation offered by DACA.

Edited by Kevin R. Johnson

Table of Contents

"The Impact of COVID-19 on Immigration Detention"

Fatma E. Marouf, Texas A&M University School of Law

"From Chinese Exclusion to Contemporary Systemic Racism in the Immigration Laws"

Kevin R. Johnson, University of California, Davis - School of Law

"Blue Card as a Method for Regulating Migration Processes in the European Union"

Dmitriy Ivanov, Moscow State Institute of International Relations (MGIMO)
Sofya Zavyalova, Moscow State Institute of International Relations (MGIMO)
Anastasia Trofimova, Moscow State Institute of International Relations (MGIMO)

"Tax Law's Migration"

Shayak Sarkar, University of California, Davis - School of Law

"Film as an Anti-Asylum Technique: International Law, Borders and the Gendering of Refugee Subjectivities"

Sara Dehm, University of Technology Sydney, Faculty of Law
Jordana Silverstein, University of Melbourne

"Is Free Movement of People Subverting Democracy in Europe? A Hirschmanian Hypothesis"

Vesco Paskalev, Brunel University London - Brunel Law School

"‘Love Mounts to the Throne with Law’: Citizenship in Northern Ireland and Seamus Heaney’s Antigone"

David Kenny, Trinity College Dublin School of Law

--------------------------------

"The Impact of COVID-19 on Immigration Detention"  
Frontiers in Human Dynamics, Vol. 2, 2021
Texas A&M University School of Law Legal Studies Research Paper Forthcoming

FATMA E. MAROUF, Texas A&M University School of Law
Email: fatma.marouf@law.tamu.edu

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 size of the population in detention, the length of detention, and the nature of removal proceedings. In Part III, the Article offers recommendations for mitigating the impact of COVID-19 on detained noncitizens. These recommendations include using more alternatives to detention, curtailing transfers between detention facilities, establishing a better tracking system for medically vulnerable detainees, prioritizing bond hearings and habeas petitions, and including immigration detainees among the groups to be offered COVID-19 vaccine in the initial phase of the vaccination program. The lessons learned from the spread of COVID-19 in immigration detention will hopefully lead to a better response to any future pandemics. In discussing these issues, the Article draws on national data from January 2019 through November 2020 published by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), two agencies within DHS. The main datasets used are detention statistics published by ICE for FY 2019 (Oct. 2018-Sep. 2019), FY 2020 (Oct. 2019-Sep. 2020), and the first two months of FY 2021 (Oct. 2020-Nov. 2020). These datasets include detention statistics about individuals arrested by ICE in the interior of the country, as well as by CBP at or near the border. Additionally, the Article draws on separate data published by CBP regarding the total number of apprehensions at the border based on its immigration authority under Title 8 of the United States Code, as well as the number of expulsions at the border based on its public health authority under Title 42 of the United States Code.

"From Chinese Exclusion to Contemporary Systemic Racism in the Immigration Laws"  
Indiana Law Review, forthcoming 2021
UC Davis Legal Studies Research Paper Forthcoming

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

California today is widely considered to be a staunchly pro-immigrant state. That, however, has not always been the case. In fact, the Golden State in the late 1800s experienced widespread anti-Chinese agitation and frequent violence directed at Chinese immigrants and businesses. Political pressure ultimately pushed Congress to enact the first comprehensive federal immigration laws, the Chinese exclusion laws. This Essay argues that, surprisingly enough, those laws continue to reverberate through U.S. immigration law and its enforcement and allow systemic racism to flourish in the contemporary immigration system.

This Essay specifically analyzes how anti-Chinese activism in a small California mountain town at the tail-end of the nineteenth century led to state-wide, and ultimately national, discriminatory immigration laws. Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of legislation that began in earnest the process of excluding Chinese immigrants—and later immigrants from all of Asia—from the United States. In upholding the Act, the Supreme Court in an extraordinary decision declared that, because Congress possessed “plenary power”—absolute authority—over immigration, the immigration laws were completely immune from review of their constitutionality.

Well more than a century later, the plenary power doctrine lives on. Surviving the revolution of constitutional rights of the twentieth century, the doctrine enabled President Trump, a zealous advocate of tough-on-immigration measures, to pursue the most extreme approach to immigration of any modern president. As the nation attempts to understand how the Trump administration was able to no less than brutally treat immigrants, it is an especially important moment to consider the evolution of the plenary power doctrine, which today permits the treatment of immigrants in ways completely inconsistent with modern constitutional law. Ultimately, the national commitment to remove systemic racism from the nation’s social fabric requires the end of the plenary power doctrine.

"Blue Card as a Method for Regulating Migration Processes in the European Union"  

DMITRIY IVANOV, Moscow State Institute of International Relations (MGIMO)
Email: dmitriy.i.ivanov@mail.ru
SOFYA ZAVYALOVA, Moscow State Institute of International Relations (MGIMO)
ANASTASIA TROFIMOVA, Moscow State Institute of International Relations (MGIMO)

In this article, the authors consider one of the ways to regulate migration processes - the blue card, pay attention to the development process of this institution, its tasks and applicability in practice.

"Tax Law's Migration"  
Boston College Law Review, Forthcoming

SHAYAK SARKAR, University of California, Davis - School of Law
Email: ssarkar@fas.harvard.edu

Tax law has long left poor foreigners in precarity. Despite the Supreme Court striking down nineteenth-century state laws taxing migrants upon entry, the tax system has nonetheless determined who deserved a place, and what sort of place, within our borders. That tradition continues when the tax system’s emergency relief deprives otherwise needy noncitizens, giving migrants a lesser place.

This Article sheds light on this phenomenon—“tax law’s migration”—engaging two underappreciated connections between immigration and tax law. First, I use the term to explain the tax system’s long tradition of policing migrants. From colonial tax incentives for selective migration to joint tax-immigration worksite enforcement, tax law crystallizes financial welcome for some and hostility for others. Immigration status-based inequalities give rise to constitutional litigation constraining, but not extinguishing, tax law’s policing of migrants.

Second, I describe how migration and mobility rights are used to police tax compliance. Tax law now fashions penalties through the revocation of driver’s licenses and passports. A striking contrast emerges from comparing (often-affluent) citizen tax noncompliers with noncitizens. Remaining in the country becomes the penalty for those who may take it for granted but the privilege denied to those who seek little else.

Reckoning with tax law’s migration requires acknowledging the bureaucratization of ethnic and racial animus and the abandonment of economically vulnerable migrants during emergencies. We should be concerned about, rather than reflexively ratify, tax law’s migration.

"Film as an Anti-Asylum Technique: International Law, Borders and the Gendering of Refugee Subjectivities"  
Published in (2020) 29(3) Griffith Law Review

SARA DEHM, University of Technology Sydney, Faculty of Law
Email: sara.dehm@uts.edu.au
JORDANA SILVERSTEIN, University of Melbourne
Email: jordys@unimelb.edu.au

In 2015, the Australian government commissioned a telemovie as part of its strategic communication campaign to deter would-be asylum seekers from travelling to Australia unauthorised by boat. In this article we explore this film as one instance of state practices that seek to control migration at their borders, and a form of state messaging which uses gendered story telling techniques and characterisations to do so. Officially termed ‘public information campaigns’ (PIC) by states or ‘information strategies’ by international organisations such as the UNHCR, the use of such practices has increased in volume, frequency and prominence in recent years. While there has been some academic attention to PICs, to date, the gendered dimensions of these campaigns have remained largely unexamined. In this article, we argue that a feminist analysis of PIC is critical to understanding both how state borders ‘gender’ refugee subjectivities as well as international law’s authorisation of the violence of state borders more generally. By allocating blame and responsibility on individual refugees and their gendered choices, rather than on state actions and state violence, the film reveals how the institution and policing of state borders simultaneously rest upon gendered imaginaries of refugee responsibilitisation and the invisibilisation of state responsibility.

"Is Free Movement of People Subverting Democracy in Europe? A Hirschmanian Hypothesis"  

Stefan Mayr & Andreas Orator (eds.), Populism, Popular Sovereignty, and Public Reason (Central and Eastern European Forum for Legal, Political, and Social Theory Yearbook, Vol. 10), Peter Lang, Forthcoming 2021

VESCO PASKALEV, Brunel University London - Brunel Law School
Email: vesselin.paskalev@eui.eu

Mobility within the EU is normally understood as economic: a flow from poor members from Central and Eastern Europe (CEE) to the wealthier West which recently replaced a similar flow from the poorer South to the North. It is rarely noticed, however, that the same flows represent also movement from lower quality democracies to higher quality ones. If so, it is plausible to expect that this movement, on a scale unseen in Europe since WWII, will have some feedback effect on the quality of democracy too. Indeed, as we know from Albert Hirschman, citizens are facing a perennial dilemma between ‘voice’ and ‘exit’. The other choice they have to make according to him is between investing their time and energy in actions in the public sphere and pursuit of private welfare. By facilitating the exit option on one side and enhancing the opportunities for private prosperity on the other, the Union, for all the great things it provides, may subvert democracy in the member states. This effect may be negligible in most of the ‘old’ member states which have not seen significant outward migration but it should be very strong in the ‘new’ member states in the East.

Thus, the paper aims to initiate the systematic exploration of the relationship between emigration and democratic backsliding which is currently the most characteristic trend in CEE. It begins by an exploration of the dynamics of mobility, participation and private welfare which may (or may not) come into play in the context of European integration and of the free movement of people in particular. This is followed by a brief discussion of the available evidence for the relationship between mobility and political participation – all of it from other contexts. It concludes with an argument that the EU ought to compensate its adverse effect on domestic democracy and (very briefly) discusses the types of measures which could remedy the problem.

"‘Love Mounts to the Throne with Law’: Citizenship in Northern Ireland and Seamus Heaney’s Antigone"  
(2022) Law and Humanities (Forthcoming)

DAVID KENNY, Trinity College Dublin School of Law
Email: david.kenny@tcd.ie

In this paper, I examine disputes about citizenship in Northern Ireland though the lens of poet Seamus Heaney’s 2004 version of Antigone, The Burial at Thebes. Citizenship and identity in Northern Ireland—if people are Irish or British—has been a central issue of the conflict there. The 1998 peace agreement promised to allow people to identify however they wished, and not be forced to adopt an identity they rejected. But recent controversies, including Brexit and a major legal challenge, have shown that the legal concept of citizenship has not been able to fulfil this promise. Sophocles’ Antigone presents a great clash between the authority of the State and deep personal/morality commitments, and the tragedy that result. Heaney’s Antigone casts light on the fundamental clash at the centre of citizenship, and points us toward a flexible, contextual multi-level citizenship as a solution to law’s rigid conception of what a citizen must be.

[Cross-posted from Immigration Prof Blog]

By Kevin R. Johnson

In the 2020 Term, the Supreme Court decided five immigration cases.  The U.S. government prevailed in four of the five cases, an 80 percent success rate.  This rate was higher than that seen in recent Terms.  In my estimation, there are no blockbusters among the five immigration decisions.  The decisions primarily focused on interpreting the complexities of the Immigration & Nationality Act.  The cases are in the chronological order of their decision.

[Cross-posted from ImmigrationProf Blog]

Revised edition posted June 24, 2021

By Raquel Aldana

We parked our cars on the U.S. side of the border at an empty parking lot in the desolate, hot Sonoran desert landscape. We were a small team of four: a lawyer, a student legal intern, a community organizer, and I, a law professor from King Hall. I was there to volunteer with a small team of attorneys from Arizona which has been coming to the Nogales border for the past four years to provide legal orientations to asylum-seekers. In recent months, they have shifted the focus of their services to helping process hundreds of asylum seekers stranded in Mexico.

Our uneventful, uninterrupted, and unnoticed crossing by foot across the Mexican border made me conscious immediately of the vastly different experiences of human mobility across borders that we, as U.S. citizens, experience. I confess, however, that I subtly checked for the umpteenth time that my little blue U.S. passport was indeed in my backpack as I looked over the other side to the U.S. border I would be crossing back to later that day. As a Central American immigrant and naturalized citizen of nearly four decades, somehow that fleeing yet lingering feeling of outsider overtook me. I know it had a lot to do with my extremely personal identification with the migrants I would be meeting in the next two days. The chasm between the enormity of the circumstances that forced their displacement and the meager solutions we could offer them overwhelmed me.

The circumstances at the border have been fluid since the Biden administration took office. In theory, the border remains shut for asylum seekers based on so-called health reasons in response to the pandemic under Title 42. But now, a type of slightly less chaotic metering process was in place – one that essentially permitted migrants lucky enough to access non-profits “get in line” to be allowed to present themselves to the border to seek asylum in a process coordinated by different binational and/or international humanitarian organizations along the southern border. That was progress. When I was first trained by the Arizona non-profit’s border attorneys back in March of this year, only migrants with extreme and urgent humanitarian grounds for seeking parole, usually based on grave victimization in Mexico, could hope to enter. That process literally called for a sifting of trauma among a sea of trauma, and it felt hallow. This new process, which seemed mostly to create more filters, now in the hands of non-profits, to ensure that migrants both had a “fear of return” + a negative COVID-19 test or an active MPP case + a negative COVID-19 test before presenting themselves at the border, created some path to an otherwise shut border. Especially for those stuck in Mexico waiting for this moment, some for as long as two years, this provided renewed hope.

Hope is exactly what I encountered with at least nine of the ten migrants I met over the course of two days. Here are their brief profiles:[1] a Mexican mother of five and her husband who had made their living selling fruits and vegetables in the street until the extortionists threatened their lives and livelihood; a young Salvadorean couple and their toddler, fleeing after being forced to testify against a gang for a murder and who feared for their lives; a Honduran woman and her son running away from a gang-ridden after a family member was murdered; two adult siblings each running from different forms of violence: one from a much older, abusive husband to whom she had been married off as a child, forcing her to leave behind her children; the other from an extortionist gang he had been violently forced to join and who now sought to kill him for his desertion; a gay man from who had been nearly killed by three strangers who could not stand his homosexuality; and a Venezuelan refugee family who firmly resettled in Mexico but was now facing extortion from a gang who was threatening his livelihood in his new home. I felt that what I could offer them was so little: a kind ear to listen and validate their suffering, and my attempt to prepare them as much as possible for their journey if and when they made it to the other side. For some, I had to tell them they were ineligible for asylum and could only seek withholding of removal or relief under the Convention Against Torture (CAT). Others I had to prepare for the likely possibility of mandatory detention and tried to paint a picture for them as much as possible of this reality. For all, I had to inform them how hard it is to win asylum and how desperately they would need to secure a lawyer to even have a shot at winning. The only saving grace was that all of them had family in the U.S. I urged them to tell their family to identify a lawyer in anticipation of their arrival. In speaking to each of them, I realized how much hope is altered by our circumstances. Their desperation made them either ignore or accept with resignation my account of the reality that awaited them when they crossed the border. All but one remained resolute to cross the border. I fully understood it. One of them who was barred from asylum due to prior immigration history said to me, as he held his son sleeping soundly in his arms, “maybe a miracle will happen and they will grant me asylum.” His hope eclipsed my legal explanation of his ineligibility. At that, I could only smile as I touched his shoulder and caressed his little boy’s hand and wished him well.

I have spent over two decades of my professional career as a human rights lawyer and scholar trying to address the underlying causes of forced migration. I remember a priest who once described the phenomena of forced migration as the most visible expression of failed democracies, the type we can no longer ignore because their suffering has spilled across borders. I fully grasp the response of many in the U.S. who feel we simply cannot absorb all the world’s problems by accepting all refugees, no matter how awful their stories. It is much easier to say this when you have never had to sit across the table from the migrant who most desperately seeks no more than a fourth of what you have. I do believe there is a lot we can do to help migrants stay home and live dignified lives. If you are interested, I invite you to read two of my most recent reflections on serious and complex solutions that we must take up if we are to reduce forced migration from Central America. You can find these here and here. What we cannot do is pretend that harsh immigration policies that shut down borders, detain migrants, or that make asylum standards nearly unreachable will suffice to quell the desperate hope that fuels forced migration.

One of the migrants with me during these past few days was a ten-year-old boy. He was beautiful and surprisingly happy and well-adjusted. Unlike his mom, his eyes sparkled as he mischievously hovered over me to marvel at how fast I typed and to ask me questions about living in the U.S. and being a lawyer. I told him I, too, had come to the U.S. at the age of ten. I wished so much, then, that his life could be closer to mine at his age. You see, I came with my entire family in a plane, through a church sponsored visa in 1982. I would learn later that we, too, had received death threats. But my parents, as ministers of a U.S.-based church, had access to church-sponsored visas. I, too, was a precocious, intelligent child, like that beautiful Honduran boy. I remember looking up at the “EXIT” sign as we exited U.S. immigration at the Miami airport. “Look dad,” I exclaimed proudly, “this is a great country, they are wishing us success.” You see, exito means success in Spanish. This is my desperate hope: that rather than exit we can hope for exito for these migrants' lives stuck at the border.   

Edited by Kevin R. Johnson

Table of Contents

"Niz-Chavez v. Garland: Pereira Groundhog Day"

Ashley Oldfield, Independent

"Trump’s Policy of Putting Kids in Cages: Six Dead, Thousands Separated From Parents, Making America Great Again?"

David R. Katner, Tulane University - Law School

"Enabling the Best Interests Factors"

Adrian Alvarez, St. John's University - School of Law

"White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States"

Elena A. Baylis, University of Pittsburgh - School of Law

"Migrant Protection Protocols and the Death of Asylum"

Austin Kocher, Transactional Records Access Clearinghouse

"Refugee Entrepreneurship: A Systematic Review of Prior Research and Agenda for Future Research"

Alex Newman, Deakin University - Faculty of Business and Law
Luke Macaulay, Deakin University - Faculty of Business and Law
Karen Dunwoodie, Deakin University - Faculty of Business and Law

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"Niz-Chavez v. Garland: Pereira Groundhog Day"  

ASHLEY OLDFIELD, Independent
Email: oldfab17@gmail.com

In Niz-Chavez v. Garland, the Supreme Court of the United States addressed, for the second time, what constitutes a notice to appear under 8 U.S.C. § 1229(a)(1). In doing so, the Court may have also resurrected challenges to an immigration court’s jurisdiction which first arose following the Court’s decision in Pereira v. Sessions.

"Trump’s Policy of Putting Kids in Cages: Six Dead, Thousands Separated From Parents, Making America Great Again?"  
28 Virginia Journal of Social Policy and the Law 87 (2021)
Tulane Public Law Research Paper No. 21-2

DAVID R. KATNER, Tulane University - Law School
Email: dkatner@law.tulane.edu

For the first time in history, the U.S. executive branch enacted an immigration policy designed to inflict such pain and trauma on children and their families so as to dissuade families from Latin America from coming to the U.S. seeking asylum. With six children dead and thousands separated from their families, we continue to learn more about the atrocities inflicted on these migrants seeking a better life. Women were subjected to nonconsensual hysterectomies, families were tortured, and the toxic stress inflicted may require years to resolve. This article seeks accountability for the intentional acts imposed by the U.S. government in the form of possible legal remedies. This policy marks the lowest point in U.S. immigration policy, a country with origins rooted in reliance on migrants from every part of the world to make the nation a better place.

"Enabling the Best Interests Factors"  
St. John's Legal Studies Research Paper No. 21-0007

ADRIAN ALVAREZ, St. John's University - School of Law
Email: alvareza@stjohns.edu

In February 2019, the media reported that the Office of Refugee Resettlement (ORR)—an agency within the U.S. Department of Health and Human Services (HHS) charged with the care and custody of unaccompanied immigrant children—was using minors’ admissions of prior gang affiliation during confidential therapy sessions as the sole criteria for “stepping up” children from low-security shelters to more restrictive and punitive detention facilities. ORR was also then sharing the therapy notes with the Department of Homeland Security (DHS) to use them against children in deportation proceedings. The newspaper article that broke the story noted that while the information sharing between HHS and DHS was “technically legal,” it was “a profound violation of patient confidentiality.” This article argues that these practices are not “technically legal” at all. They are illegal because they violate basic best interests principles now enshrined in the William Wilberforce Trafficking Victims Protection Recovery Act of 2008 (TVPRA), and, in some instances, they may violate Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (Title II), federal anti-discrimination laws designed to protect people with disabilities.

The best interests approach “is a dynamic concept that requires an assessment appropriate to the specific context,” and stepping up a child to a more restrictive setting based solely on prior gang affiliation is inconsistent with the procedural aspects of the best interests standard. Moreover, using gang affiliation revealed in therapy sessions as the sole criteria for sending a child to a more restrictive setting may also violate federal anti-discrimination statutes designed to protect children with disabilities. For instance, Section 504 and Title II’s regulations prohibit recipients of federal funds and public entities, respectively, from using “criteria or methods of administration . . . that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” Because confidentiality is required for therapy to succeed, this policy may unintentionally have the effect of substantially impairing unaccompanied minors from receiving the intended therapeutic benefits of the therapy session. Although gang affiliation is disability neutral on its face, it has a disparate impact on unaccompanied minors with psychosocial disabilities because there is a correlation between gang affiliation and emotional and behavioral disorders.

"White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States"  
University of Illinois Law Review, 2022 Forthcoming
U. of Pittsburgh Legal Studies Research Paper No. 2021-16

ELENA A. BAYLIS, University of Pittsburgh - School of Law
Email: ebaylis@pitt.edu

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have a federal law prohibiting crimes against humanity. This Article first applies international law to define crimes against humanity and assess the risk of crimes against humanity occurring within the United States. It then turns to domestic law to evaluate the potential for a federal law or other federal measures to protect against crimes against humanity, including the political obstacles, the likelihood that any future legislation will depart significantly from international law, and the implications for effectiveness.

"Migrant Protection Protocols and the Death of Asylum"  
Journal of Latin American Geography

AUSTIN KOCHER, Transactional Records Access Clearinghouse
Email: ackocher@syr.edu

From January 2019 to January 2021, a Trump-era policy known as the Migrant Protection Protocols (MPP) forced asylum seekers arriving at the U.S.-Mexico border to wait for their hearings in dangerous parts of northern Mexico. MPP had disastrous consequences: very few migrants in MPP had a meaningful chance to request asylum compared to other asylum seekers, and the forced migrants waiting in Mexico faced pervasive violence. President Biden suspended new enrollments in the program on his first day in office and, by late February 2021, migrants who were living in the refugee camp that emerged as a result of MPP in Matamoros, Mexico, began to enter the United States to pursue their asylum claims. As the MPP program—also known as Remain in Mexico—appears to come to a close, this essay examines key aspects of the program through the perspective of ontological, political, and physical death that Alison Mountz theorizes in her recent book The Death of Asylum. Drawing on Mountz’s work, I view MPP as symptomatic of a concerted though spatially uneven assault across the developed world on both the institutions and operations of asylum as a practice as well as on asylum seekers themselves.

"Refugee Entrepreneurship: A Systematic Review of Prior Research and Agenda for Future Research"  
JOBR-D-21-02296

ALEX NEWMAN, Deakin University - Faculty of Business and Law
Email: a.newman@deakin.edu.au
LUKE MACAULAY, Deakin University - Faculty of Business and Law
Email: l.macaulay@deakin.edu.au
KAREN DUNWOODIE, Deakin University - Faculty of Business and Law
Email: k.dunwoodie@deakin.edu.au

In recent years, the refugee crisis has emerged as a grand societal challenge with a host of economic, social, and political implications. As of 2020 there were around 26 million people registered with the UNHCR as refugees. While refugees are considered by some to be a burden on their host countries, there is growing evidence that they make significant contributions to the economies of their host countries, with rates of entrepreneurship higher than other migrant groups and host country nationals. To take stock of what we know about refugee entrepreneurship, this article undertakes a systematic review of the literature. The systematic review provides insights on themes regarding facilitators and barriers to refugees’ entry into entrepreneurship, as well as identifying gaps in our extant knowledge. Based on these gaps, a future research agenda is proposed which targets empirical and theoretical advancement of the field of refugee entrepreneurship.

By Lisa Pruitt

Cruz Reynoso, former California Supreme Court Justice and my colleague at UC Davis School of Law for two decades, died a few days ago at the age of 90.  Many are offering remembrances of Reynoso -- who the faculty and staff at the law school knew as just "Cruz"-- and it's interesting for me as a ruralist to see the number of references to "rural" in his life's story.  

Of course, Reynoso famously led California Rural Legal Assistance (CRLA), the "first statewide, federally funded legal aid program in the country."  That was during the heyday of Cesar Chavez and Dolores Huerta's organizing in the 1960s.  CRLA provides free legal services to farmworkers.  In California, "rural" is largely conflated with agriculture in the popular imaginary (though there are far less densely populated and more remote California locales than its agricultural valleys), and the organization's website articulates its mission as helping “rural communities because those communities were not receiving legal help.” 

The tumultuous history of that organization under Reynoso's leadership is recounted in a Los Angeles Times story: 

Then-California Gov. Ronald Reagan repeatedly vetoed federal funds for the California Rural Legal Assistance while Reynoso headed the office and even signed off on an investigation that accused the nonprofit of trying to foment murders and prison riots (the investigation went nowhere).

Among other achievements during his leadership, Reynoso "oversaw eventually successful efforts to ban the short-handled hoe, which required farmworkers to stoop and led to debilitating back problems, and DDT, the deadly agricultural chemical."  

The Sacramento Bee reports on one of CRLA's big litigation victories under Reynoso's leadership, Diana v. California State Board of Education:  

It centered on Latino children who were incorrectly assessed by their school and labeled mentally challenged. The pupils were funneled into special education classes when, in reality, they were simply new English learners. CRLA lawyers filed a class-action lawsuit on behalf of students in the Monterey County town of Soledad.

“CRLA won a consent decree that allowed non-Anglo children to choose the language in which they would respond on IQ tests,” wrote the Salinas Californian in 2016. “It banned verbal sections of the test. It also required state psychologists to develop an IQ test appropriate for Mexican Americans and other non-English-speaking students.”

This column by Gustavo Arellano in the Los Angeles Times recounts Reynoso's childhood -- including early activism -- in Orange County, which then included significant rural stretches: 

[Reynoso's] family lived in a rural part of La Habra, where the Ku Klux Klan had held the majority of City Council seats just a decade earlier and Mexicans were forced to live on the wrong side of the tracks. Reynoso’s parents and neighbors had to travel a mile to the post office for their mail because the local postmaster claimed it was too inconvenient to deliver letters to their neighborhood.

Reynoso didn’t question this at first — “I just accepted that as part of the scheme of things,” he’d tell an oral historian decades later, in 2002.

But one day, a white family moved near the Reynosos and immediately began to receive mail. The teenage Cruz asked the postmaster why they were able to receive mail, but his Mexican family couldn’t. If you have a problem with this, the postmaster replied, write to her boss in Washington D.C.

And write a letter to the U.S. Postmaster General is exactly what Reynoso did.  According to a story released by UC Davis on the occasion of Reynoso's death: 

He wrote out a petition, gathered signatures, and successfully lobbied the U.S. Postmaster General in Washington, D.C., for rural mail delivery.

The obituary in the Los Angeles Times notes that Reynoso continued to live a rural life, even while working in Sacramento and Davis.  He "had a 30-acre spread in the agricultural Sacramento County town of Herald," population 1,184.The L.A. Times also reports that, as children, Reynoso and his 10 siblings worked summers in the fields with their parents. 

But the rural fact that leapt out at me most prominently was this line from the UC Davis story about what Reynoso did after finishing law school at UC Berkeley:

Justice Reynoso and his wife, Jeannene, moved to El Centro, in California’s Imperial Valley, where he started his own practice.

Today, Imperial County and El Centro, its county seat, are legal deserts--and they probably were back then, too.  Just imagine a UC Berkeley Law or UC Davis Law grad going to El Centro and hanging out a shingle in 2021?  It's nearly unthinkable, though a few probably go there each year to work for legal aid organizations like CRLA.  If it were more common to follow such a career path -- and for legal educators to prommote and honor those paths -- the Golden State would not be facing a rural lawyer shortage, with impoverished communities of vulnerable workers like the Imperial Valley suffering most as a consequence of that deficit.    

A Sacramento Bee column about Reynoso by Marcos Breton on the occasion of Reynoso's death features several remarkable photos.  These include one of Reynoso at the Herald property in 2000 with his then-young grandchildren; Reynoso was wearing overalls, a signifier of his rural authenticity.  The photo was taken by a Bee reporter the year he was awarded the Presidential Medal of Freedom and previously published as part of the paper's reporting on that honor.  

Speaking of that authenticity, I always appreciated Cruz's frequent use of the word "folk" to refer to groups of people, or the populace generally. Indeed, I see the Spanish translation is "la gente," meaning "people, town, dweller."  For me, his use of "folk" provided implicit permission to use that word and its plural, both terms I'd grown up with but later excised from my professional vocabulary becuse I had thought them too colloquial.  

Cruz was as approachable to students as he was to faculty and staff.  We often saw him walking to the Silo (an eatery on campus) with a group of students for lunch.  And in my first year at UC Davis, 1999-2000, when Cruz was visiting from UCLA's law school, he gamely agreed to participate in a student-sponsored moot court event called "Battle of the Giants," which featured two professors playing the role of advocates in a mock appellate argument.  It took a while for the student organizers of the event to get someone to agree to be the opposing "giant" (eventually, I reluctantly agreed), but Cruz had not hesitated to take on this time-consuming task, one little valued by the law school administration.

Cruz was very gentle in how he engaged and educated people, which I believe often rendered him particularly persuasive. Many years ago, I heard him say to a group of students, in his typical, soft-spoken way, "No human being is illegal." This was at a time whne the phrases "illegal alien" and "illegal immigrant" were still widely used. Expressed in his calm, avuncular, matter-of-fact way, I'm sure he won over many, got them to think about the significance of language. It's quite a contrast with the ways in which so many in our educational institutions today "call out" or "cancel" each other in shrill and judgmental fashion, a tactic that often serves primarily to aggravate divisions.   

Given Cruz's commitment to students and education, it's not surprising that his family has asked that, in lieu of flowers, donations be made to the UC Davis student scholarship fund "for legal access" that honors him and his wife. 

[Cross-posted from the ImmigrationProf Blog]

By Kevin Johnson

As previously announced on this blog, the George W. Bush Presidential Center co-sponsored a virtual program on "Immigrants and the American Future: A Conversation with President George W. Bush, Dr. Russell Moore, and Yuval Levin."

The George W. Bush Institute, National Immigration Forum, and the Ethics & Religious Liberty Commission of the Southern Baptist Convention co-sponsored the conversation with President George W. Bush on his book, Out of Many, One: Portraits of America’s Immigrants, a powerful collection of 43 portraits painted by President Bush and accompanying stories that exemplify the promise of America and our proud history as a nation of immigrants.

President Bush was joined by Dr. Russell Moore, President of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, and Yuval Levin, Director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute. Together they discussed the value of immigrants to our nation and the faith and culture of our increasingly diverse country. The conversation touched on the stories in Out of Many, One: Portraits of America's Immigrants, including Levin’s personal experience as an immigrant.  

I watched the event, which was a bit over one-half hour in length.  I was impressed by the humanity that the speakers, including President Bush, brought to the discussion of immigration.  The dialogue was civil and hopeful in articulating the need for reasonable and practical approaches to immigration.  President Bush expressed the view that immigration reform in small "bits" of legislation at the time might be achievable.  Besides the human aspects of immigration, President Bush noted the economic benefits of immigration.  He also stated that the current immigration system is "broken."  In contrast to the harsh treatment of asylum seekers embraced by the Trump administration, President Bush suggested the need for more immigration judges to decide asylum claims.

The event opened with remarks from Holly Kuzmich, Executive Director of the George W. Bush Institute and Ali Noorani, President and Chief Executive Officer of the National Immigration Forum. 

KJ

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

On April 29, the Supreme Court in Niz-Chavez v. Garland held that a notice to appear sufficient to trigger the “stop-time” rule for measuring the time for cancellation of removal relief must be a single document containing all the information about the noncitizen's removal hearing.  The case involved the application of the Court's 2018 decision in Pereira v. Sessions, which held that A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a notice to appear under the statute , and does not trigger the "stop-time rule."

Justice Gorsuch delivered the majority opinion.  Justices Thomas, Breyer, Sotomayor (who wrote for the Court in Pereira), Kagan, and Barrett.  Justice Kavanaugh filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.

As described by the syllabus to the opinion, the majority held that "[a] notice to appear sufficient to trigger the . . . stop-time rule is a single document containing all the information about an individual’s removal hearing . . . . "

In recapping the argument, Jayesh Rathod is spot on in predicting the outcome:

"By the end of the hour, four justices – Breyer, Gorsuch, Kagan and Sotomayor – had openly expressed skepticism about the government’s reading of the statute. Roberts and Barrett revealed less, but seemed persuaded that the government could sidestep this entire issue by modifying some agency practices. Although few of the justices invoked Pereira as controlling precedent, the court’s decision there – coupled with its seeming reluctance to indulge bureaucratic inefficiencies – could very well lead to another lopsided decision in favor of noncitizens."

Here is the SCOTUSBlog collection of materials and commentary on the case.

We will post analysis of the Court's decision as it becomes available.

UPDATE (April 30):  The title of Mark Joseph Stern's article in Slate ("Neil Gorsuch’s Persnickety Libertarianism Gave Immigrants a Win at the Supreme Court") offers a good hint of his analysis of the Court's decision in Niz-Chavez.  The punch line:

"On Thursday, Agusto Niz-Chavez received the benefit of the written word. He can now petition for the ability to remain in the United States with his three children, all American citizens. The decision may not be an earth-shaking victory for immigrants’ rights. But it vindicates a principle that has been badly damaged in recent years: Immigration officials can’t cheat non-citizens out of a right guaranteed to them by the plain language of the law."