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July 14, 2022

Systemic Racism in the U.S. Immigration Laws

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

In 1998, the Indiana Law Journal published my analysis of race and the U.S. immigration laws.  The Journal just published my latest article on the topic.  (A teaser for the article can be found here.).  The article is based on, and inspired by, my remarks in April 2021 at the Jerome Hall Lecture at Indiana University Maurer School of Law
 

This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.

Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court in an extraordinary decision that jars modern racial sensibilities declared that Congress possessed “plenary power”—absolute authority—over immigration and that racist immigration laws were immune from judicial review of their constitutionality.

The bedrock of U.S. immigration jurisprudence for more than a century and never overruled by the Supreme Court, the plenary power doctrine permits the treatment of immigrants in racially discriminatory ways consistent with the era of Jim Crow but completely at odds with modern constitutional law. The doctrine enabled President Trump, a fierce advocate of tough-as-nails immigration measures, to pursue the most extreme immigration program of any modern president, with
devastating impacts on noncitizens of color.

As the nation attempts to grapple with the Trump administration’s brutal treatment of immigrants, it is an especially opportune historical moment to reconsider the plenary power doctrine. Ultimately, the commitment to remove systemic racism from the nation’s social fabric requires the dismantling of the doctrine and meaningful constitutional review of the immigration laws. That, in turn, would open the possibilities to the removal of systemic racial injustice from immigration law and policy.

June 30, 2022

Supreme Court’s ‘Remain in Mexico’ ruling puts immigration policy in the hands of voters – as long as elected presidents follow the rules

[Cross-posted from The Conversation]

By Kevin R. Johnson

In the very last decision of its latest term, the Supreme Court released a major ruling that not only clears a barrier to ending a signature policy of the Trump administration but also signals that the future of immigration policy is in the hands of the electorate.

In Biden v. Texas, the Supreme Court rejected an effort to prevent the current president’s rollback of a Trump-era policy that requires asylum seekers arriving at the U.S. southern land border to be returned to Mexico while their claims were being processed.

The 5-4 decision means that the case will be returned to the lower courts court. But it also makes clear that whoever is control of the White House has the power to change directions in immigration policy – even drastic reversals of policy. It follows that presidents can do the same in other substantive legal areas as well, such as civil rights and environmental protection.

The rights (and wrongs) of remain

The issue in Biden v. Texas was whether the Biden administration could dismantle a Trump administration policy formally known as Migrant Protection Protocols but widely referred to as the “Remain in Mexico” policy.

As part of an array of immigration enforcement measures, the Trump administration announced the policy in late 2018 in response to numbers of migrants arriving at the U.S.-Mexico border.

But the Migrant Protection Protocols came under scrutiny amid concerns over the safety and conditions to which asylum seekers were subjected in camps under the supervision of Mexican authorities. Human Rights Watch found the policy sent “asylum seekers to face risks of kidnapping, extortion, rape, and other abuses in Mexico” while also violating “their right to seek asylum in the United States.”

Yet an attempt by the Biden administration to eliminate the protocols was barred by the U.S. Court of Appeals for the Fifth Circuit. The circuit judges found that the Biden administration had violated immigration law requiring the detention of asylum seekers.

The Supreme Court rejected this ruling. In a majority opinion written by Chief Justice John Roberts – joined by Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor and Brett Kavanaugh – the court held that the Biden administration’s decision to terminate the Migrant Protection Protocols did not violate federal immigration law. The state of Texas had argued that ending the “Remain in Mexico” policy violated a provision that every asylum seeker entering the country be returned or detained.

In his dissent, Justice Samuel Alito argued that the statute requires mandatory detention of migrants at the border. Justice Amy Coney Barrett’s dissent expressed the view that the Supreme Court lacked the jurisdiction and that the case should be remanded back to the lower courts.

Avoid the arbitrary, cease the capricious

The Supreme Court’s decision means the case will be sent back to the lower court to decide, but with the removal of a major legal obstacle preventing Biden from ending the “Remain in Mexico” policy. The Supreme Court held that the immigration law does not require mandatory detention of all asylum seekers while their claims are being decided.

But moreover, the court made clear that the president has the discretion to change direction in immigration policy and continue, or end, policies of the previous president.

That might seem self-evident. But it comes after another 5-4 decision penned by Chief Justice Roberts – 2020’s Department of Homeland Security v. Regents of the University of California, which held that a president could not act irrationally in changing immigration policy.

In that decision, the Supreme Court found that the Trump administration had acted in an arbitrary and capricious fashion in rescinding the Obama administration’s Deferred Action for Childhood Arrivals – or DACA – policy. That policy provided limited legal status and work authorization to undocumented migrants who came to the country as children, so-called Dreamers.

In the court’s view, the Trump administration had not adequately considered the interests of the migrant children in deciding to rescind the policy and had given inconsistent reasons about the basis for the rescission.

That ruling provided fuel for states to challenge the Biden administration when it attempted to roll back some Trump-era policies. For example, Arizona, along with other states, challenged Biden’s attempt to abandon a proposed rule change by the previous administration that would tighten the requirements on low- and moderate-income noncitizens seeking to come to the U.S. Although the Supreme Court initially accepted review of the case, it ultimately dismissed the appeal and declined to decide the merits.

In the end, the Supreme Court’s decision in Biden v. Texas stands for the simple proposition that presidential elections matter when it comes to government policy. As long as an incumbent administration follows the rules – including rational deliberation of the policy choices in front of it – it can, the Supreme Court has said, change immigration policy.

March 28, 2022

Race and Politics in Judge Ketanji Brown Jackson's Hearings

[Cross-posted from the Daily Journal]

 

By Kevin R. Johnson

 

Ketanji Brown Jackson has the profile of a perfect nominee to be an associate justice on the U.S. Supreme Court.

Harvard College. Harvard Law School. Editor of the Harvard Law Review. A law clerk to two federal judges and Associate Justice Stephen Breyer. Criminal and civil experience. With over  nine years as a federal judge, Judge Jackson has more judicial experience than Justices Elena Kagan, Brett Kavanaugh and Amy  Coney Barrett had when confirmed. So why the cringeworthy treatment of Judge Jackson, who would be the first African­ American woman on the high court, by Republican members of the Senate Judiciary Committee? Sadly enough, race and partisan politics deeply influenced the treatment of                      Judge Jackson.

Over three days of confirmation hearings, Judge Jackson with poise, dignity and patience thanked each senator for every single question and thoughtfully attempted  to answer each one. She explained her approach  to deciding cases as a judge. With grace, Judge Jackson always maintained a calm and professional demeanor even when some of the senators did not.

 

In deciding cases, Judge Jackson described her approach as carefully adhering to the constitutional and statutory text and following the intent of the drafters of the text. As a federal district court judge, Judge Jackson decided the cases based on the facts and the law in a careful -- might I say judicious -- way. She appears to be a moderate pragmatist in her judicial approach, much like her mentor who she is set to replace, Justice Breyer.

Wary of being called out as racists, the Republican senators on the Judiciary took a roundabout path to                            challenging Judge Jackson. They persistently sought to paint Judge Jackson as "soft on crime.”

The endorsements of the Fraternal Order of Police and the International Association of Chiefs of Police did not         stop the Republican senators' from pushing that attack. Nor did the fact that Judge Jackson's own brother is a law enforcement officer.

In 1967, senators in similar fashion claimed that the first African-American on the Supreme Court, Thurgood Marshall, was soft on crime. Like Jackson, Marshall also represented criminal defendants.

Crime historically has been one way of indirectly talking about race in the United States. In successfully running for president in 1968, Richard Nixon campaigned on a "law and order" platform that tapped into concerns of some whites about riots, as the nation reckoned with civil rights demands by African-Americans. At a time when the police killings of George Floyd, Breanna Taylor and other African-Americans had the nation confronting systemic racism in the criminal justice system, it is cruelly ironic that the Republican senators again relied on crime to assail a Black nominee with outstanding credentials.

Senator Josh Hawley, R-Mo., in particular, joined by others, including Sens. Lindsay Graham, R-S.C., Ted Cruz, R-Texas, and Tom Cotton, R-Ark., caustically challenged Judge Jackson on crime and her sentencing of defendants convicted of possession of child pornography. They interrupted and badgered her while exhibiting general disrespect, at times disdain, for Judge Jackson.

In a similar vein, several senators questioned Judge Jackson's representation of detainees labeled as enemy combatants on Guantanamo Bay. Other senators joined in the piling on about the representation of terrorists Senator Graham, at one point, lashed out that he hoped that the detainees just would flat out "die in jail.”

The conservative challenge to critical race theory, which challenges racial discrimination in U.S. society, came into play in the interrogation of Judge Jackson. Senator Cruz questioned her about books assigned to students    at Georgetown Day School, a private school for which she serves on its board of trustees. Waving books around in a manner that likely will soon be parodied on Saturday Night Live, he brought blown-up pictures of pages from one book titled, "Antiracist Baby," which he alleged embodied the evils of CRT. One can only wonder why Judge Jackson would be questioned about CRT. As she succinctly put it, "I’ve never studied critical race theory and I've never used it. It doesn't come up in the work that I do as a judge." Because Judge Jackson is Black, she apparently in the eyes of some conservatives is a suspected underground CRT adherent.

Partisan politics, with the midterm election on the horizon, also came into play. Playing to her conservative base, including bringing up CRT, Sen. Marsha Blackburn, R-Tenn., questioned Judge Jackson about, among other things, the rights of transgender people. One of the incredible questions she posed to Judge Jackson was  how she would define the word "woman." Judge Jackson's actual views on transgender rights seemed to be irrelevant to Blackburn's questioning.

Graham appeared angry about the past political skirmishes during previous confirmation hearings. He asked Judge Jackson to rate her commitment to religious faith on a scale of one to 10, even though he admitted that  questions about religion were inappropriate; he asked them because questions on religion were asked of Justice Barrett at her confirmation hearings. In an angry tone, Graham claimed that the "radical left" supported her nomination and attacked the record of Graham's preferred candidate, Judge Michelle Childs of South Carolina.

The confirmation hearings revealed much about the strength of Judge Jackson's character. She mentioned that, when she began at Harvard, it was a "rough" period of adjustment. A Black woman saw her, apparently looking downtrodden, and gave her one word of advice. "Persevere," she told a younger Judge Jackson. That is  precisely what Judge Jackson did throughout the Republican onslaught at the confirmation hearings.

In the end, the U.S. Senate -- as it should -- will almost certainly confirm Judge Jackson as a Supreme Court justice. Nonetheless, the gauntlet that she was subjected to was just another troubling episode in this nation's long history of mistreatment of Black women. "Race baiting" is one characterization of the Republican senators' hostile treatment of Judge Jackson. Or, to use Justice Clarence Thomas' phrase used to describe his  1991 confirmation hearings, was it a "high-tech lynching"?

March 16, 2022

Immigration Status Identifiers in Crime News Stories

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

Terminology has proven to be tricky in public discussions of immigration.  Recognizing that the terms “alien” and “illegal alien” dehumanize human beings and rationalize their harsh treatment, news services now refer to undocumented immigrants.  For similar reasons, a proposed immigration reform bill would replace “alien” with “noncitizen” in the U.S. immigration laws. 

Reference to a suspected criminal’s undocumented status in a news story also may be problematic.  Consider this March 8, 2022 Fox News headline:  “Gunman who Killed Three Daughters in California Church was in US Illegally.” By tapping into popular stereotypes, such references inflame passions about—and in effect constitute subtle racial code for--Latina/o immigrants.  The salacious reference to a person’s immigration status results in the same kinds of damages as referring to an “African American” criminal defendant, which best journalistic practices generally prohibit.  Such references to immigrant status generally should be similarly avoided in crime news stories.

A Recent Example of News Exploitation of the Undocumented Immigrant

Last week, press outlets across the nation reported on a tragedy at a church in Sacramento, California.  On a supervised visit, a father, a Mexican citizen reportedly with mental health and drug problems, killed his three children and a chaperone before killing himself at a church.  Following an Associated Press (AP) report that the suspect had overstayed his visa and thus was not authorized to be in the United States, a local Sacramento news station reported that:  “David Mora Rojas . . . used a ‘ghost gun’ [a manufactured gun without registration] in the shooting.  Mora Rojas also overstayed his visa after entering California from his native Mexico” (emphasis added). 

AP originally speculated in its report “that a possible motive [for the killings] was fear of being separated from the children through deportation.”  In correcting the story, AP later admitted that “the AP did not have the reporting to substantiate that as a possible motivation.”

Oddly, rather than focus on mental health, drugs, or the proliferation of “ghost guns,” news agencies and politicians have seized on the news report about the father's immigration status and attempted to make a family tragedy into an immigration issue.  For example, Sacramento County Sheriff Scott Jones, currently running for Congress, declared in a Facebook post that blame for “this horrific tragedy” should be placed on “the deplorable state of our national immigration policies, and California’s Sanctuary State Laws.” 

Sensationalism in news stories unfortunately is nothing new.  It occurs regularly in reports about immigrants.  Although Fox News highlighted the undocumented status in the Sacramento case, such treatment is not confined to conservative news outlets, with the mainstream AP gratuitously referring to the Sacramento suspect’s immigration status, ABC News reported that, an “undocumented immigrant from Mexico, was found guilty by jury of first degree murder [of Mollie] Tibbets . . . in . . . rural . . . Iowa, in July 2018.” 

But what did David Mora Rojas’ immigration status have to do with the killings in Sacramento?  Unlike mental health, drugs, and ghost guns, his immigrant status does not seem relevant to the tragedy.  Being undocumented is not necessarily a crime and is not necessarily newsworthy. The fact that he overstayed his visa and thus was technically undocumented does not relate to the crime of murder.  Injecting his undocumented status into a news story about the tragic killings serves no other function than to stir up fears of immigrants and crime.  Moreover, because the popular stereotype of the criminal immigrant in the United States is that he is Mexican, the reference to undocumented status signals to many the Mexican background of the criminal suspect.  In announcing his successful 2016 run for President, Donald Trump played into this stereotype by characterizing Mexican immigrants as “criminals” and “rapists.”

Although some immigrants—from Mexico and elsewhere—do in fact commit crimes, studies consistently show that immigrants commit crimes at lesser rates than native born U.S. citizens.  Moreover, news stories that focus gratuitously on immigration status can result in the proliferation of hate crimes.  Recall that the shooter in the mass murder of Latina/os in El Paso in 2019 wrote a “manifesto” with the kinds of hatred directed at Mexican immigrants repeating many of the invectives that President Trump did in referring to people of Mexican ancestry.

There is another reason to avoid reference to immigration in crime news stories.  Undocumented status is not always easy to define.  A person seeking asylum for fear of gang violence in Honduras may not currently have authorization to be in this country but might be entitled to it.  A long-term resident without authorization also might be eligible for relief from removal under the immigration laws.  Being undocumented is not always as clear-cut as a simple reference to being undocumented might suggest. 

Extending the AP Stylebook on Racial Identification to Immigration Status

The AP Stylebook, a bible of sorts of best journalistic practices, cautions journalists on publishing information about a person’s race:  “Consider carefully when deciding whether to identify people by race.  Often, it is an unrelated fact and drawing increasing attention to someone’s race or ethnicity can be interpreted as bigotry.” (emphasis added).  The Stylebook explains its call for caution as follows:

[i]n cases where suspects or missing persons are being sought, and the descriptions provided are detailed and not solely racial. Any racial reference should be removed when the individual is apprehended or found . . . . In other situations when race is an issue, use news judgment. Include racial or ethnic details only when they are clearly relevant and that relevance is explicit in the story.  (emphasis added)

Because there are many times when a source’s race is irrelevant to the news item, the AP Stylebook careful approach to racial identification thus makes sense.  A criminal suspect’s immigration status should not be included in a crime news story unless it has something to do with the alleged crime.  Otherwise, such a reference is not news but simply exacerbates anti-immigrant and racist passions.  The same basic rationale holds true for reference to immigration status.  To paraphrase the AP Stylebook, an entry about immigration status could read, “consider carefully when deciding whether to identify people by [immigration status.]” “Any [immigration status] reference should be removed when the individual is apprehended or found.”

March 7, 2022

Exploiting Immigration Passions in a Tragic and Horrible Case

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

News outlets across the nation last week reported on a tragedy in Sacramento. On a supervised visit, a father killed three children, and a chaperone, before killing himself at a church.

Sadly, news outlets and political leaders now are trying to make immigration an issue by highlighting the fact that the father was an undocumented immigrant from Mexico. This kind of sensationalism unfortunately is nothing new and occurs regularly in high profile cases involving immigrants. One should ask the question what his immigration status had to do with the horrible crime? 

A local Sacramento news station reported that:

"The gunman who killed his three daughters, a chaperone who was supervising his visit with the children and himself in a Sacramento County church was known to have struggled with mental health issues, officials said.

New details also reveal that David Mora Rojas, 39, also used a `ghost gun' in the shooting. Mora Rojas also overstayed his visa after entering California from his native Mexico on Dec. 17, 2018, on a non-immigrant visitor visa, U.S. Immigration and Customs Enforcement spokeswoman Alethea Smock told The Associated Press."

As the local report noted, the Associated Press appears to be the source about Rojas' immigration status.

Although mental health issues, not immigration status, appears to have directly resulted in the killings, Sacramento County Sheriff Scott Jones, who is running for Congress, says U.S. immigration policies and California’s sanctuary law somehow are to blame for the deadly church shootings.

"They’ll call me racist and evil," Jones wrote in a Facebook post. "But let me be perfectly clear, there is only ONE thing that allowed this horrific tragedy to occur with certainty: the deplorable state of our national immigration policies, and California’s Sanctuary State Laws."

The killings of the young people in a church by all appearances are a tragedy. We all should think about how it happened and how such tragedies could be avoided. For example, mental health crisis services are not as well funded and accessible as they perhaps should be. Oddly, rather than focus on mental health, news agencies have been broadcasting the father's immigration status and tapping into passions for the purpose of exploitation. President Trump tapped into similar passions, for example, characterizing Mexican immigrants as "criminals" and "rapists."   

The truth of the matter is that Mora's immigration status had absolutely nothing to do with his criminal acts.

Although immigrants commit crimes, studies consistently show that immigrants commit crimes at lesser rates than native born U.S. citizens. News stories that focus on immigration status of alleged criminal perpetrators help reinforce stereotypes that immigrants are predisposed to crime, which is simply not true.  

Immigrant rights advocates do not claim that immigrants who commit crimes should not be held accountable. No one could reasonably say that the perpetrator of a crime like that which occurred in the Sacramento church -- immigrant or not -- should not face criminal charges. With the alleged perpetrator dead, that is not possible in this case. Rather than chase immigration ghosts, we should think hard about how we can act to avoid tragic deaths of young people in the future.  

February 15, 2022

Congress, Not Biden, Should Be Held Accountable For Immigration Reform

[Cross-posted from The Hill]

By Kevin R. Johnson

As the Biden administration completed its first year, a flurry of news reports highlighted the bipartisan disappointment with its record on immigration. While liberals objected to the continuation of some of former President Trump’s policies, such as closing the U.S. borders, conservatives alleged that President Biden has embraced “open borders.”   

The criticisms directed at Biden are not entirely fair. Consider the immigration situation that he inherited in January 2021. Trump had dedicated four years to restrictive immigration measures like no president in modern U.S. history. To that end, policy after policy was put into place. Reversing course in a massive federal bureaucracy is not something that can be done overnight — or even in a year.   

Additionally, four years of tough measures and verbal attacks on immigrants did not solve the nation’s immigration problems, but arguably, made them worse. The Trump administration’s efforts ensured that the longstanding and serious immigration problems remained for the new administration: Approximately 11 million undocumented migrants lived in the country before — and after — the Trump presidency.

With the election of Biden, hope sprang eternal among immigrants’ rights activists. The truth of the matter is the Biden administration has dismantled some harsh Trump immigration policies. Gone are the Muslim ban and immigration raids on 7-Eleven convenience stores and state courthouses. Vitriol about immigrants no longer comes from the White House and the Biden administration has brought rationality to the discussion of federal immigration policy. In that vein, Vice President Kamala Harris has started a discussion of long-term solutions to stem migration flows from Central America.   

The administration has also faced resistance in its efforts to change the direction on immigration. For example, the courts have rejected attempts to reopen to new applicants the Deferred Action for Childhood Arrivals (DACA) policy, which provides relief to undocumented young people, or to dismantle the “Remain in Mexico” policy requiring asylum seekers to wait in Mexico while their claims are being decided. Republicans have adamantly fought against any effort by the Biden administration to moderate the harsh measures embraced by Trump. 

That said, if one is truly interested in immigration change, the appropriate measuring stick is not what Biden did in year one but what Congress has failed to do for decades — pass meaningful immigration reform. Democrats and Republicans repeatedly claim that the current immigration system is “broken” but have done absolutely nothing to fix it. Presidents Bush, Obama and Biden have been unable to move Congress to pass reform legislation. Early in Biden’s term, the U.S. Citizenship Act was introduced in Congress. The bill, backed by the president, has languished in Congress.  

Reform is long overdue. The comprehensive U.S. immigration law, the Immigration and Nationality Act of 1952, was forged at the height of the Cold War and designed to exclude and deport communists. Although amended on many occasions, it focuses more on keeping people out than letting people in. Economic and humanitarian concerns, not fears of the spread of communism, must be the touchstone for the immigration laws of the 21st century.  

Immigration solutions need long-term blueprints most appropriately written by Congress, not quick fixes by a president. For example, economic development and building political institutions in Central America that diminish migration pressure take time and congressional appropriations. Effective efforts cannot realistically be achieved in one year by a new president.  

The bottom line is that the nation’s immigration issues can only be effectively addressed if Congress engages in the serious and difficult task of formulating long-term solutions and approaches that outlast any president. In a time of political discontent, that is no small feat.   

But, there are much-needed reforms that Congress could make to the U.S. immigration system. To start, Congress could provide a path to durable legal immigration status for DACA and Temporary Protected Status (TPS) recipients, as well as for other undocumented immigrants.  

Lawmakers can work to restructure the immigration court system, which is poorly funded, inadequately staffed, lacks independence, and has a backlog of more than 1.5 million cases. The visa system needs reforms to eliminate visa backlogs and to allow for sufficient admission of immigrants to satisfy U.S. labor and family reunification needs.   

Congress needs to create a system that is fair to immigrants and allows for effective enforcement, not a misguided border wall on the U.S./Mexico border, which will cause more deaths but not halt migration.  

And finally, the dehumanizing term "alien," which has helped to obscure and rationalize the treatment of people inconsistent with our constitutional values, needs to be removed from U.S. immigration laws.   

Congress will, at some point, meaningfully address immigration reform. The sooner it does, the sooner the nation will begin the process of moving forward. One president can only be reasonably expected to do so much.

January 27, 2022

Justice Stephen Breyer Announces Retirement

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

The big Supreme Court news yesterday was Justice Stephen Breyer's announcement of his decision to retire and that President Biden will have the opportunity to nominate a replacement. 

In my mind, one of Justice Breyer's memorable immigration opinions is his majority opinion in Zadvydas v. Davis (2001), which reasoned that the prospect of indefinite detention of a noncitizen would raise "serious" constitutional questions.  He wrote "[b]ased on our conclusion that indefinite detention of aliens...would raise serious constitutional concerns, we construe the statute to contain an implicit `reasonable time' limitation, the application of which is subject to federal-court review."  Contrary to the teachings of the plenary power doctrine, which directs the courts to defer to the immigration judgments of the President and Congress, Justice Breyer did not show special deference to the U.S. government's immigration decisions.  

As immigration scholars know, Zadvydas is in tension with the Court's subsequent decision in Demore v. Kim (2003), in which Chief Justice Rehnquist was considerably more deferential to the U.S. government's immigration detention decisions.  The dueling decisions continue to be invoked in the immigrant detention cases coming before the Court, including in a pair of cases argued earlier this month.  

In the next few weeks, the ImmigrationProf blog will offer a closer look at Justice Breyer's immigration opinions.  Stay tuned.

January 19, 2022

How President Trump Reminded Us of the Value of a Legal Education

[Cross-posted from Daily Journal]

By Kevin R. Johnson

Law school deans often spend their days thinking about rather ordinary matters, such as tuition and finances, admissions, law student job placement, school rankings, and bar passage rates. But with the election of Donald Trump deans experienced something extraordinary that goes to the very core of the mission of law schools. 

Over four tumultuous and contentious years, President Donald J. Trump's approach to governing, perhaps unintentionally, reinforced the importance of the fundamental nature of legal education in a democratic society. 

As one would expect, the Trump administration's repeated dismissal of the facts and the law had consequences. The nation watched with disbelief as a historic event unfolded at our nation's capitol on Jan. 6, 2021. President Trump's baseless allegation that the 2020 election was stolen, repeated in a speech only minutes before violence broke out, directly led to an armed insurrection by white supremacists in Washington D.C. Some observers characterized the violence as an attempted coup d'état.

But the assault on our legal institutions, legal analyses and the rule of law started long before the insurrection. The election of President Trump had impacts that reverberated through law schools across the United States. The early years of the Trump presidency saw the so-called "Trump Bump” in the number of law school applications. Many law school applicants reported an expressed interest in going to law school so they could challenge the existential threat to civil rights of the Trump administration.

Law faculty responded. At UC Davis, for example, Professor Elizabeth Joh released a podcast “What Trump Can Teach Us About Con Law.” Professor Carlton Larson provided expert opinions to the Washington Post, New York Times and other news organizations about whether the president’s conduct amounted to treason.

In addition, our faculty found teaching immigration law more relevant than ever. Consistent with the president's propensity for making racist statements, the Trump administration put into place a staggering array of immigration policy initiatives, including, but not limited to the infamous policy of separating migrant children from their parents and the "Remain in Mexico" policy, both of which applied almost exclusively to Central America.

Shortly after the announcement of President Trump’s Muslim ban, students and faculty raced to airports to assist noncitizens. Student interest in civil rights and immigration spiked. Our clinics provided vital information to immigrants in the crosshairs of the Trump administration’s immigration policies. Students in real time could see the significance of lawyering skills.

A much more subtle, yet potentially far-reaching, change emerged from the chaos generated by President Trump's approach to policymaking and governing generally.

Consistently playing fast and loose with the facts and law like no other modern president, Trump effectively placed into question the basics of legal analysis — and thus the core of legal education. Careful treatment of the facts and application of the law is the bread-and-butter of a legal education. They were not, however, characteristic of the president's partisan approach to many policy issues. He misrepresented facts and regularly questioned, if not subverted, the law and the courts. Moreover, all too often, the Trump administration allowed racial passions to dominate policymaking.

To illustrate the need for rigorous policy analysis, consider the nation's general reckoning with systemic racial injustice like the controversial issues that dominated the headlines in 2020, with police killings of African-Americans crying out for immediate transformative change.

As seen in his response to the Black Lives Matter movement, Trump regularly denigrated legal requirements and took extraordinary policy steps in violation of the law. Contrary to fundamental understandings that the action was unlawful, the president sent the U.S. military into the streets of Washington D.C. to control crowds protesting in the summer of 2020. Similarly, he took the extraordinary step — bordering on the unlawful if not downright illegal — of deploying Department of Homeland Security officers to disperse protesters in Portland, Oregon and Oakland, California. At frequencies and ways not seen in any other modern presidential administration, Trump pushed policy to the limits of the law and well beyond. In some instances, the Courts including the Supreme Court, intervened. The Court, for example, rejected the Trump administration’s partisan effort to add a citizenship question to the 2020 Census.

As law professors, we must translate policies in action into education. Racism has a lengthy pedigree in U.S. history. Critical race theory has offered invaluable insights on the centrality of race historically to the law as a tool to maintain white supremacy. It has identified how race has indelibly influenced the development of the criminal justice system in the United States and its devastating impacts on communities of color. Racism obviously motivated Jim Crow and institutionalized racial segregation. It rationalized the suppression of Black voters. It led to racist immigration laws.

The powerful insights of CRT shed light on these racist milestones in U.S. history. The contemporary reckoning with systemic racism has fueled efforts by law schools to incorporate racial justice and CRT into the curriculum.  Not surprisingly with the Trump administration’s assault on civil rights, students have demanded more CRT and race in the law school curriculum.

Despite the powerful insights of CRT, the Trump administration sought to halt efforts to incorporate the teachings of CRT on racial justice into the workings of the U.S. government. Efforts at teaching the nation's unfortunate racial history were challenged as well. The controversy sparked by Trump directly fueled passionate and divisive efforts to outlaw the teaching of CRT in the public schools.

The Trump administration's approach to public policy issues taught a valuable cautionary lesson: law schools should not abandon the basic emphasis on educating students to rigorously analyze the facts and identify the applicable law to reach a conclusion.

Kevin R. Johnson is dean of UC Davis School of Law and the author of a chapter in “Beyond Imagination? The January 6 Insurrection” (2022), a book by law deans.

December 20, 2021

Top 10 Immigration Law Stories of 2021, Immigration Book of the Year

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

It is the end of a wild pandemic year.  And time for our annual Top 10 Immigration Law Stories.  As you might recall, President Donald Trump, who frequently made immigration news, topped the 2020 list.

The year has seen many changes.  Joe Biden became President.  President Trump, and his fervent dedication to a restrictive immigration agenda, now is in the rear-view mirror.  Despite repeated efforts by Democrats, any type of meaningful immigration reform failed in Congress.  Reminiscent of the old adage "three strikes and you're out," the Senate Parliamentarian on three occasions ruled out efforts to squeeze in immigration changes into budget reconciliations.

1.  President Biden Brings in a New Immigration Regime

In January, President Biden brought to Washington D.C. a new approach to immigration and immigration enforcement.  Nonetheless, a variety of Trump policies, such as the much-maligned "Remain in Mexico" policy, remained in effect.  Its survival led to an op/ed by Ruben Navarrette Jr. entitled "Trump Lost the Presidential Battle but Won the Immigration War?," which to many raised a very good question. 

The Biden administration also continued the Title 42 border closure justified by public health concerns, a move  that has been harshly criticized.  Former Yale Law Dean Harold Koh left the State Department and ripped President Biden's use of Trump-era Title 42.

Events on the United States' southern border almost immediately put the Biden administration on the defense.  On her first visit as Vice President to Guatemala, Kamala Harris expressed optimism about cooperation with the Guatemalan government on reducing migration to the United States but bluntly told the Guatemalans considering the journey:  "Do not come.  Do not come."  This blunt message provoked controversy and criticism.

With challenges from the left and right, the Biden administration has a tough row to hoe in formulating a coherent and effective immigration policy.

The Biden administration made important changes in the top officials making U.S. immigration policy decisions.  New Attorney General Merrick Garland has a very different perspective on immigration and immigrants than President Trump's first AG, Jeff Sessions.  Alejandro Mayorkas, the new Secretary of the Department of Homeland Security, is very different from John Kelly and Kirstjen M. Nielsen, DHS secretaries in the Trump administration.

2.  The Shocking Treatment of Haitian Asylum Seekers by the U.S. Government

In August, an earthquake devastated Haiti.  Thousands of Haitians fled the country.  The sight of Border Patrol officers on horseback chasing Haitians on the U.S./Mexico border was, to say the least, "bad optics."  It provoked controversy and a spirited defense from the Biden administration

Human Rights Watch condemned the treatment of Haitian migrants on the U.S./Mexico border.  This headline says it all:  "US: Treatment of Haitian Migrants Discriminatory -- Chased by Border Agents on Horseback; Returned to Danger in Haiti."

3.  The Afghan Refugee Crisis

A refugee crisis followed the U.S. military's withdrawal in August from Afghanistan and the almost immediate takeover by the Taliban.  The United States has a long and difficult relationship with this war-torn nation.  Many wondered how the nation might respond to Afghan refugees.

There have been many calls to help Afghan refugees. A number of governmental and nongovernmental (including faith-based) groups publicly offered assistance to the refugees.  Nonetheless, resettlement in the United States has been challenging.

ImmigrationProf posted regularly about the plight of Afghan refugeesOne of those posts highlights the complex immigration avenues in the United States -- including Special Immigrant Visas, refugee status, and asylum -- for persons fleeing Afghanistan.  "The tens of thousands of Afghan refugees who made it to the United States as part of a historic humanitarian evacuation are entering an extraordinary system with very different benefits."

4.  Immigration in the Supreme Court

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. 

There were no blockbusters among the five immigration decisions -- nothing like the DACA decision in 2020.  The decisions primarily focused on interpreting the complexities of the Immigration and Nationality Act. 

Although the U.S. government prevailed in all but one case, there were no sweeping statements about the power of the U.S. government over immigration, such as the statements in the 2020 expedited removal case (Department of Homeland Security v. Thuraissigiam) and its ringing endorsement of the plenary power doctrine.  

There continued to be a steady stream of immigration rulings in the lower courts, especially as the Biden administration sought to walk back Trump era policies.  Two lower court decisions stand out.   

In one case, a U.S. District Court found  "strong and disconcerting evidence" of the racist origins of 8 U.S.C. § 1326, which criminalizes unlawful re-entry into the United States.  Judge Michael H. Simon's opinion carefully reviewed the historical record of the racial animus behind Section 1326.

In another case, Chief Judge Miranda M. Du of the U.S. District Court, District of Nevada ruled that:

"Carrillo-Lopez has demonstrated that Section 1326 disparately impacts Latinx people and that the statute was motivated, at least in part, by discriminatory intent . . .  [T]he Court reviews whether the government has shown that Section 1326 would have been enacted absent discriminatory intent. Because the government fails to so demonstrate, the Court finds its burden has not been met and that, consequently, Section 1326 violates the Equal Protection Clause of the Fifth Amendment."

It is rare for a law to be found unconstitutional.  It is even rarer for an immigration law to be found unconstitutional.  Will these two rulings start a trend? 

5.  DOJ Reverses Course and Agrees to Recognize Immigration Judges Union

Earlier this mnnth, the Department of Justice's Executive Office for Immigration Review agreed to a settlement with the National Association of Immigration Judges (NAIJ) to again recognize NAIJ as the exclusive representative and collective bargaining agent for the nation's immigration judges.  The settlement put an end to the Trump administration's effort to end the union's representation of the immigration judges.

Before the settlement, the Biden administration has been accused of "doubling down" on the Trump administration's efforts to de-certify the immigration judges union.

6.  Economist with Major Immigration Contributions Wins Nobel Prize

UC Berkeley economist David Card, who studied the effects of the Mariel Boatlift on the Miami labor market, won the Nobel PrizeCard wrote the 1990 article: The Impact of the Mariel Boatlift on the Miami Labor MarketIn that article

"Card studied the effect that the large influx of Cuban workers (125,000 arrived between May and September of 1980) had on the Miami labor market. He found that the labor force grew by 7%, with a greater increase in less-skilled occupations and industries. But he found no effect on the wages or unemployment rates of non-Cuban workers nor non-boatlift Cuban workers. There was, in fact, 'rapid absorption' of the Mariel immigrants into the Miami

workforce."

Card's cutting-edge scholarship is a briefly summarized here.

7.  Death on the Border Continues

Sadly, the regular deaths along the U.S./Mexico border are not breaking news.  But they are a reality of modern immigration enforcement along the border. 

Migrants die on a regular basis and the death toll has risen over the years.  ImmigrationProf regularly reports on the deaths to remind readers of the deadly impacts of U.S. immigration enforcement.  Shouldn't the nation be considering alternative enforcement strategies that do not result in deaths?

8.  The Complicated Legacy of 9/11:  20 Years After

2021 marked the 20 year anniversary of the tragic events of  September 11, 2001.  News reports reminded us of the implications of that fateful day.  Importantly, serious discussions of immigration reform designed to remedy the harsh edges of the 1996 reforms, ended with that tragic event.

In "How 9/11 stalled immigration reform - and inspired a new generation of activists," Meena Venkataramanan for the Los Angeles Times offers an interesting -- and more positive -- take on a collateral impact of September 11, 2001:

"The Sept. 11 attacks upended U.S. immigration policy, linking it for the first time to the nation's anti-terrorism strategy and paving the way for two decades of restrictive laws. But it also gave rise to a new kind of immigrant rights movement led by young people . . . . "

The immigrant rights movement has continued to grow and is one of the amazing social movements of the 21st century and hold the promise of immigration reform.

9.  Census 2020

The Trump administration's proposed citizenship question, which it abandoned after a Supreme Court ruling against the administration, on Census 2020 provoked controversy and concern with an undercount.  Although some noncitizens may have been too fearful to respond to the Census, The Census revealed some interesting thingsCNN reads the data as follows:  "America is more diverse and more multiracial than ever before, according to new 2020 Census data . . . ." (bold added).

10.  10 Most-Cited Immigration Law Faculty in the U.S., 2016-2020  

This, I believe, was the first Leiter Law Report citation court of immigration scholars.  "Based on the latest Sisk data, here are the ten most-cited law faculty working on immigration law . . . in the U.S. for the period 2016-2020 (inclusive) . . . ."

 

HONORABLE MENTION

1.  A Surprising Immigration Factoid (At Least to Me)

I would not have guessed that, at least for a moment, Honduras was the largest source of migrants to the United StatesConditions in Honduras have fueled greater migration to the United States so that the number of migrants from Honduras currently exceed those from El Salvador, Guatemala, and Mexico. 

2.  Belarus Uses a Border Crisis as a Political Weapon

Sadly, we cannot make this stuff up.  

In November,  CNN reported that thousands of people trapped on the border between Poland and Belarus were being stopped from crossing the border into Poland.  The European Union, the United States and NATO accused Belarusian leader Alexander Lukashenko of manufacturing the migrant crisis as retribution for sanctions imposed on Belarus over human rights abuses. Stranded migrants have faced "catastrophic" conditions in freezing forests and makeshift camps.

3.  DACA Recipient Heads Georgetown Law Journal

Here is a positive immigration storyDeferred Action for Childhood Arrivals (DACA) recipient Agnes Lee, was named the editor-in-chief of the Georgetown Law Journal.  NBC News reported that.  "Growing up in Los Angeles, [Lee] saw many in her community incarcerated for petty drug charges. Several of her friends' family members were deported. . . . [She] learned from her parents to fear the police and remain quiet . . . . 'The best thing you could do with the law was to stay away from it,' she said."

4.  Immigrant of the Day Leads Milwaukee Bucks to NBA Championship

Two time Immigrant of the Day, National Basketball Association superstar Giannis Antetokounmpo (Milwaukee Bucks) became an NBA champion!

5.  Law Faculty News

RIP Cruz Reynoso, first Latino Justice on California Supreme Court.  A Professor Emeritus at UC Davis, Justice Reynoso devoted his life to defending the rights of immigrants and other vulnerable communities.  In an amazing career, Reynoso was appointed by President Carter to serve on the Congressional  Select Commission on Immigrant and Refugee Policy.  President Clinton appointed Cruz to be the vice-chair of the U.S. Commission of Civil Rights and, in 2000, gave Cruz the Presidential Medal of Freedom for his social justice work.

Professor (and former Dean) John Eastman has long been known for taking dubious immigration positions, including questioning Kamala Harris eligibility to be President,  arguing that birthright citizenship was not required by the U.S. Constitution, and more.  In 2021, Eastman entered the national spotlight in a big way.  He spoke to Trump supporters just before they stormed the U.S. Capitol.  The mob included many white supremacists.  The New York Times reported that Eastman was in the Oval Office with President Donald Trump the day before the Capitol violence, arguing that Vice President Mike Pence had the power to block certification of Joe Biden's Electoral College victory.  Later, CNN  published a copy of the "Eastman Memo" advising President Trump's legal team on a strategy to overturn the election results. 

Eastman retired from his law professor position at Chapman in the middle of the academic year.

Eastman has filed suit to protect his phone records from discovery by Congress.  He also is the subject of a new complaint with the California State Bar signed by nearly 1,000 lawyers.  The complaint alleges Eastman was working in concert with Rudy Giuliani and Jeffrey Clark to overturn the 2020 election results. Attorneys who signed the complaint include Erwin Chemerinsky, Laurence Tribe and two former presidents of the American Bar Association.

 

Book of the Year

The ImmigrationProf Book of the Year is Driving While Brown:  Sheriff Joe Arpaio versus the Latino Resistance by Terry Greene Sterling & Jude Joffe-Block

Remember Sheriff Joe?  The book describes his immigration reign of terror on Latina/os in Arizona.   Until he lost a re-election bid in 2016, Sheriff Joe gave me an almost daily story for this blog.    The new book brings back memories.

The book specifically tells the story of

"How Latino activists brought down powerful Arizona sheriff Joe Arpaio

Journalists Terry Greene Sterling and Jude Joffe-Block spent years chronicling the human consequences of Sheriff Joe Arpaio's relentless immigration enforcement in Maricopa County, Arizona. In Driving While Brown, they tell the tale of two opposing movements that redefined Arizona's political landscape-the restrictionist cause embraced by Arpaio and the Latino-led resistance that rose up against it."

Jude Joffe-Block guest blogged about the book on this blog.

Honorable Mentions

These two great books are important scholarly contributions.

Mae Ngai, The Chinese Question: The Gold Rushes and Global Politics (2021).  She has been speaking widely on this important book.

Sahar F. Aziz, The Racial Muslim: When Racism Quashes Religious Freedom (2021).  Here is the University of California Press description of the book:

"Why does a country with religious liberty enmeshed in its legal and social structures produce such overt prejudice and discrimination against Muslims? Sahar Aziz's groundbreaking book demonstrates how race and religion intersect to create what she calls The Racial Muslim. Comparing discrimination against immigrant Muslims with that of Jews, Catholics, Mormons, and African American Muslims during the twentieth century, Aziz explores the gap between America's aspiration for and fulfillment of religious freedom. With America's demographics rapidly changing from a majority white Protestant nation to a multiracial, multi-religious society, this book is an essential read for understanding how our past continues to shape our present-to the detriment of our nation's future."

 

September 29, 2021

IMMIGRATION, REFUGEE & CITIZENSHIP LAW eJOURNAL Vol. 22, No. 51

Edited by Kevin R. Johnson

Table of Contents

"Ruse and Rhetoric as the Populist’s Xenophobic Ploy"

-Ediberto Roman, Florida International University (FIU) - College of Law
-Ernesto Sagás

"Re-examining the Philosophical Underpinnings of the Melting Pot vs. Multiculturalism in the Current Immigration Debate in the United States"

-Daniel Woldeab, Metropolitan State University
-Robert M. Yawson, Quinnipiac University
-Irina Woldeab, Minnesota Department of Natural Resources

"The Effects of Bilateral Labor Agreements: Evidence from the Philippines"

-Adam Chilton, University of Chicago - Law School
-Bartosz Woda, University of Chicago - Law School

"Constitutional Validity of Assam Accord in Accordance with the Validity of Citizenship (Amendment) Act, 2019"

-Jayanta Boruah, North-Eastern Hill University (NEHU)

"The Call for the Progressive Prosecutor to End the Deportation Pipeline"

-Talia Peleg, City University of New York School of Law

"The End of Entry Fiction"

-Eunice Lee, University of Arizona - James E. Rogers College of Law

"Refouling Rohingyas: The Supreme Court of India's uneasy engagement with international law"

-Malcolm Katrak, Jindal Global Law School
-Shardool Kulkarni, Bombay High Court

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

"Ruse and Rhetoric as the Populist’s Xenophobic Ploy" 
Florida International University Legal Studies Research Paper No. 21-12

EDIBERTO ROMAN, Florida International University (FIU) - College of Law
Email: romane@fiu.edu
ERNESTO SAGÁS
Email: Ernesto.Sagas@colostate.edu

Rhetoric can be a tool that builds strong communities and great empires, but it can also be weaponized in order to isolate, disenfranchise, and oppress. A thorough examination of rhetoric and its impacts in the United States introduces a unique reflection on the legacy of former President's Trump’s dialogue with a large segment of the American people and its connection to a broader fear of “the other” within the global community. The verbal onslaught indirectly and other times directly, expressed those immigrants as not of the same as the domestic-citizen “ingroup.” Consequently, we have borne witness to some of the most nonsensical attempts at immigration reform disguising the purest form of xenophobia. Unfortunately, the United States was not the lone place where rhetoric towards these outsiders fueled aggressive nationalistic response to a perceived threat. A five-country case study of the Americas highlights a critical consequence of these anti-immigrant attitudes and resulting policies. Specifically, the use of rhetoric in this fashion created an invaluable political pressure relief for conservative populist leaders: promoting a belief in the masses of a dedicated nationalist hero focused on ending the immigrant threat, but in reality only creating the figurative and not literal deportation of an indispensable labor force that are immigrants in these lands.

"Re-examining the Philosophical Underpinnings of the Melting Pot vs. Multiculturalism in the Current Immigration Debate in the United States" 
In: Harnessing Analytics for Enhancing Healthcare & Business. Proceedings of the 50th Northeast Decision Sciences Institute (NEDSI) Annual Meeting, Pgs. 264 - 285. Virtual Conference, March 26-27, 2021. DOI:10.31124/advance.14749101.v1

DANIEL WOLDEAB, Metropolitan State University
Email: daniel.woldeab@metrostate.edu
ROBERT M. YAWSON, Quinnipiac University
Email: robert.yawson@quinnipiac.edu
IRINA WOLDEAB, Minnesota Department of Natural Resources
Email: imwoldeab@gmail.com

Immigration to the United States is certainly not a new phenomenon, and it is therefore natural for immigration, culture and identity to be given due attention by the public and policy makers. However, current discussion of immigration, legal and illegal, and the philosophical underpinnings is ‘lost in translation’, not necessarily on ideological lines, but on political orientation. In this paper we reexamine the philosophical underpinnings of the melting pot versus multiculturalism as antecedents and precedents of current immigration debate and how the core issues are lost in translation. We take a brief look at immigrants and the economy to situate the current immigration debate. We then discuss the two philosophical approaches to immigration and how the understanding of the philosophical foundations can help streamline the current immigration debate.

"The Effects of Bilateral Labor Agreements: Evidence from the Philippines" 

ADAM CHILTON, University of Chicago - Law School
Email: adamchilton@uchicago.edu
BARTOSZ WODA, University of Chicago - Law School
Email: woda@uchicago.edu

Facilitating legal and safe international labor migration is arguably the most promising way to promote economic development. Due to data limitations, however, little is known about whether one of the primary legal tools that developing countries use to promote international labor migration — a kind of treaty known as a Bilateral Labor Agreement (“BLA”) — actually affect the flow of workers or the terms of those workers’ employment. We explore the effect of BLAs using administrative data from one of the world’s most prolific promoters of labor migration and signers of BLAs: the Philippines. We find no evidence that signing BLAs has increased either the international migration of Filipino workers or the return of remittances to the Philippines. This suggests that the negotiation of new BLAs may only have modest effects on promoting labor migration or improving the terms of migrant workers’ employment.

"Constitutional Validity of Assam Accord in Accordance with the Validity of Citizenship (Amendment) Act, 2019" 
Forthcoming, International Journal of Legal Science and Innovation, Volume 3 Issue 3, 117-127, ISSN: 2581-9453

JAYANTA BORUAH, North-Eastern Hill University (NEHU)
Email: jayanta.boruah94@gmail.com

Assam has always been facing the issue of illegal immigration since time immemorial. And this issue has always created huge tensions in establishing the law and order situation in the State. There are several examples of brutal incidents that are related to this issue like- the Nellie massacre in 1985, the Bodo-Muslim Conflict in 2012, and recently the protests against the Citizenship (Amendment) Act of 2019 (CAA) where again five Assamese people had to sacrifice their lives. In such a situation analysis of the existing Citizenship laws and their relevancy with the Assam Accord, which was signed after the brutal Nellie Massacre, becomes important for understanding the extent of conformity between the objectives of these laws and the demands of the local people from such laws. This Article has therefore focused on the Constitutional validity of the Assam Accord and the CAA of 2019 along with the conflict between the two and the impact of such laws on the issue of the Assamese people where the conclusion highlights the lacunas in both the legal documents along with the question that we as citizens of a democratic country must think for.

"The Call for the Progressive Prosecutor to End the Deportation Pipeline" 
Georgetown Immigration Law Journal, Forthcoming

TALIA PELEG, City University of New York School of Law
Email: talia.peleg@law.cuny.edu

“Progressive prosecutors” seek to redefine the role of the prosecutor and question the purpose of the criminal legal system, ushering in the need to reexamine the scope and substance of their duties toward all, but particularly immigrant defendants, seeing as they suffer outsized punishment for most criminal offenses. Ten years ago, Padilla v. Kentucky broke ground in finally recognizing that defense counsel is constitutionally obligated to advise immigrants of the clear risks of deportation associated with a plea. Nevertheless, immigrants ensnared in the criminal legal system have since faced deportation at ever-increasing rates. Given the entwinement of immigration and criminal law, organizers and scholars have recognized that local prosecutors serve as gatekeepers to the federal criminal removal system. Yet, prosecutors around the country wildly differ in their treatment of immigrant defendants, at times ignoring or misusing this gatekeeping role.

In the last decade, new prosecutorial goals — ensuring fairness and equity, promoting community integrity, tackling disproportionate treatment of Black and brown communities in policing and incarceration, addressing root causes of crime — have gained increasing popularity, by some. Decriminalization and decarceration have been tools utilized to meet these goals. The specific goals strived for by self-described progressive prosecutors require an examination of their treatment of non-citizens given the prosecutor’s outsized role in determining immigration consequences and application of an immigrant’s rights lens to current practices. Their policies toward immigrant defendants to date have been tepid and at times, harmful.

Yet, careful study reveals “progressive prosecutors” have expansive obligations to immigrant defendants — rooted in the progressive prosecution movement’s own rhetoric about the appropriate role of the prosecutor and the underlying purposes of the criminal legal system, prosecutorial ethical and professional standards, and Supreme Court jurisprudence. The progressive prosecutor’s duty is simple — to utilize their powers to avoid the double punishment of criminal sentence and deportation. This means ensuring that policy choices that purport to support communities of color and poor communities do not neglect immigrant defendants, thereby creating disproportionate consequences for this population.

Due to the immigration consequences that might flow from any contact with the criminal legal system, progressive prosecutors need not only look at their role in plea negotiations, but beyond. A progressive prosecutor’s work then is to first, understand her role as gatekeeper to the federal deportation machine and second, act to stop feeding it. This Article proposes a series of guidelines and policy recommendations prosecutors can institute toward these ends, including institutional changes as well as the adoption of specific practices that consider immigration consequences at all stages of criminal proceedings – arrest, conviction, sentencing and beyond. This might include the creation of an immigrant integrity unit to audit and revamp all areas of practice to establish policies like the expanded use of declination, the encouragement of pre-arrest diversion and a prohibition on information sharing with ICE.

“Progressive federalism” suggests that by taking these kinds of actions, progressive prosecutors will move closer to securing proportionate outcomes for immigrants in the criminal legal system. While federal immigration reform remains stymied, adoption of a robust immigration agenda by the local prosecutor will simultaneously begin to disentangle the criminal and immigration systems and influence immigration enforcement policy on a national level.

"The End of Entry Fiction" 
North Carolina Law Review, Vol. 99, pp. 565-642, 2021

EUNICE LEE, University of Arizona - James E. Rogers College of Law
Email: eunicelee@arizona.edu

Although “entry fiction” emerged in immigration and constitutional law over a century ago, the doctrine has yet to account for present-day carceral and technological realities. Under entry fiction, “arriving” immigrants stopped at the border are deemed “unentered” and “not here” for constitutional due process purposes, even in detention centers deep within the United States. As a result, the Department of Homeland Security (“DHS”) uses its sole discretion to detain tens of thousands of arriving asylum seekers in its facilities without a bond hearing. Despite significant modern changes in immigration statutes and due process jurisprudence, the Supreme Court recently suggested, but did not decide, that individuals subject to entry fiction may continue to lack constitutional due process protections against detention. Both courts and the government have invoked sovereign power as the doctrine’s justification, asserting that detention is necessary to effect exclusion (removal) of individuals and that entry fiction appropriately protects the government’s power to detain.

While many scholars over the decades have offered trenchant critiques of the doctrine, no recent treatment evaluates entry fiction as legal fiction. This Article fills that gap, tracing entry fiction’s origins in law and jurisprudence to consider its operation in the present-day context. I engage in a close rereading of Chinese Exclusion- and McCarthy-era cases to uncover functionalist and humanitarian underpinnings of entry fiction, including an intention to minimize hardship to immigrants. I then reevaluate entry fiction in the present day. In particular, this Article explores DHS’s indiscriminate use of immigration detention and its breathtaking expansion of surveillance technology. Today, DHS both operates a mass detention regime and engages in ever-increasing surveillance, including real-time tracking of immigrants that allows deportation without physical detention. These current realities decouple entry fiction from sovereign purpose—rendering detention unnecessary for the sovereign power of exclusion—and engender decidedly antihumanitarian practices. I conclude that courts must put entry fiction to rest as a vestige of the past and recognize the constitutional due process rights of all persons who are present and here in U.S. immigration detention centers.

"Refouling Rohingyas: The Supreme Court of India's uneasy engagement with international law" 
Journal of Liberty and International Affairs | Vol. 7, No. 2, 2021

MALCOLM KATRAK, Jindal Global Law School
Email: mkatrak@jgu.edu.in
SHARDOOL KULKARNI, Bombay High Court
Email: kulkarnishardool@yahoo.co.in

The complex relationship between international and municipal law has been the bone of significant scholarly contention. In the Indian context, despite a formal commitment to dualism, courts have effected an interpretive shift towards monism by espousing incorporation of international law. The case of Mohammad Salimullah v. Union of India, which involves the issue of deportation of Rohingya refugees from India, represents a challenge in this regard owing to the lack of clarity as to India’s obligations under the principle of non-refoulment. The paper uses the Supreme Court’s recent interim order in the said case as a case study to examine India’s engagement with international law. It argues that the order inadequately examines the role of international law in constitutional interpretation and has the unfortunate effect of ‘refouling’ Rohingyas by sending them back to a state where they face imminent persecution.