November 29, 2023

Immigration, Refugee & Citizenship Law eJournal, Vol. 23, No. 117

Edited by Kevin R. Johnson

Table of Contents

"Citizenship Outside the Courts"

-Catherine Y. Kim, Brooklyn Law School

"Border Enforcement as State-Created Danger"

-Jenny-Brooke Condon, Seton Hall Law School
-Lori A. Nessel, Seton Hall Law School

"When Migrants Mobilize Against Labor Exploitation: Evidence from the Italian Farmlands"

-Gemma Dipoppa, Brown University, Political Science

"Europeans’ Attitudes Towards Displaced Populations: Evidence From a Conjoint Experiment on Support for Temporary Protection"

-Michal Wiktor Krawczyk, Joint Research Center of the European Commission
-Andrea Blasco, Harvard University - Institute for Quantitative Social Science
-Tomasz Gajderowicz, University of Warsaw
-Marek Giergiczny, University of Warsaw

"An Economic Analysis of Internal and International Migration - Some Issues and Challenges"

-Nagesha Economics, Department of Economics

"Dignity. Reverence. Desecration."

-Duane Rudolph, University of San Francisco School of Law

"The Exclusion of Long-Term Australian Residents from Access to Voluntary Assisted Dying: A Critique of the 'Permanent Resident' Eligibility Criterion"

-Katrine Del Villar, Queensland University of Technology
-Lindy Willmott, Queensland University of Technology - Faculty of Law
-Ben White, Queensland University of Technology - Faculty of Law


"Citizenship Outside the Courts" Free Download
Catherine Y. Kim, Citizenship Outside the Courts, 57 U.C. Davis L. Rev. 253 (2023)
Brooklyn Law School, Legal Studies Paper No. 757

CATHERINE Y. KIM, Brooklyn Law School

The notion of citizenship lies at the core of our constitutional structure, determining possession of fundamental rights ranging from the rights to vote and hold public office to the right to enter and remain in the United States at all. Indeed, the entire constitutional project of self-governance rests on the premise of a defined group of “We the people.” Determining who qualifies as a citizen is thus central to our constitutional fabric. Prior literature has tacitly assumed that the federal judiciary has been the principal arbiter for deciding who qualifies for citizenship under our Constitution. This Article, however, demonstrates that political actors, rather than federal courts, have played the primary role in defining access to constitutional citizenship for members of historically marginalized groups, which raises significant normative implications.

This article excavates records surrounding three pivotal episodes from our nation’s history: the contestation of citizenship for Black Americans in the early to mid-nineteenth century; the denial of citizenship to Chinese Americans during the Exclusion Era from 1882 to 1943; and the stripping of citizenship from American women who married noncitizens prior to 1922. In each case, members of historically marginalized groups seeking to assert their constitutional citizenship found little recourse in the federal courts. Political institutions, however, independently wrestled to determine their citizenship status, in the absence of — or even in defiance of — federal court opinions. The historical record tells a story of judicial abdication, which allowed political actors to both narrow and expand access to constitutional citizenship.

The histories unearthed in this Article raise an urgent fundamental normative question: To what extent should constitutional citizenship be determined by political actors? This Article argues that citizenship is unique among constitutional provisions in ways that generally cast doubt on the legitimacy of efforts — political or otherwise — to deny it to members of marginalized communities. Moreover, the histories uncovered in this Article show that political institutions are not inherently more or less likely than the federal judiciary to do so. The experiences of Black Americans, Chinese Americans, and married American women thus suggest that the road to a more inclusive citizenship requires involvement by both: federal courts must play an active role in policing the constitutional floor for citizenship, but the political branches must remain free to expand constitutional citizenship beyond that floor, which may, in turn, generate a new consensus on what that floor should be.

"Border Enforcement as State-Created Danger" Free Download
Seton Hall Law School Legal Studies Research No. Forthcoming
St. John's Law Review , Vol. 96, No. 4, 2022

JENNY-BROOKE CONDON, Seton Hall Law School
LORI A. NESSEL, Seton Hall Law School

A woman seeks refuge at the U.S. border, but U.S. officials force her to wait for her asylum hearing in Mexico where a police officer later stalks and rapes her. A father and child suffer unbearable trauma after U.S. officials separate them under a policy aimed at deterring migration. A formerly healthy family loses a loved one to the coronavirus while forced to wait at an unsanitary, makeshift tent city in Mexico after fleeing for safety to the United States. For the people impacted by U.S. border policies, the southern border is a dangerous place—it is the site of rampant U.S.-created harm. Typically, legal and policy responses to refugee crises are framed by international and domestic legal obligations to provide safety and protect those fleeing persecution or humanitarian disasters. When states fail to meet migrants’ needs or thwart humanitarian processes, critiques logically focus on the government’s failure to meet its refugee, domestic law, and moral obligations. But this focus, though an essential part of countering the government’s illegal actions, insufficiently addresses the United States’ role in creating and inflicting harm.

Recently, however, in the context of the Trump Administration’s family separation policy, a district court recognized that the state-created danger theory of substantive due process protection may have a role to play in reckoning with the harm inflicted at the border—a development constitutional law scholars described as “groundbreaking.” The recognition of state-created danger theories in the family separation context thus raises the possibility of unlocking substantive due process protection in response to other forms of immigration enforcement that cause grievous and lasting harm.

Still, commentators have long lamented the state-created danger doctrine as narrow and impossible to meet. Nevertheless, over the last several decades, many state and federal courts have affirmed the doctrine, recognizing that the State has a duty not to expose people to conscious-shocking harm, even harm committed by third parties, if it is made possible or likely because of state action. The courts have recognized the theory as a possible constitutional restraint even if they have been reluctant to recognize circumstances qualifying as constitutional violations.

This Article draws upon this strand of substantive constitutional protection to help draw attention to and conceptualize new ways of challenging the United States’ state-created border harm. We argue that this body of law provides a strong theoretical foundation for holding government actors accountable for what one commentator described as a doctrine reserved “for truly egregious” government abuse, fitting match for excessive and punitive immigration enforcement that costs people their lives, safety, health, and security. At the very least, it is a starting place for broader normative conversations about the unlawful harm inflicted by the United States in the name of border control.

"When Migrants Mobilize Against Labor Exploitation: Evidence from the Italian Farmlands" Free Download

GEMMA DIPOPPA, Brown University, Political Science

Migrant labor exploitation is widespread in developed countries, which host growing populations of undocumented migrants. While denouncing by migrants is essential to prosecute exploitative employers, an undocumented community actively hiding from the state is unlikely to whistleblow. I consider an intervention giving migrant farmworkers in Italy information and incentives to report their racketeers. I leverage the intervention’s staggered (phased) rollout to study its effects in a difference-in-differences framework. The intervention empowered migrants to denounce their exploitation to the authorities; it increased the prosecution of criminal organizations, responsible for racketeering migrants; and it raised awareness among natives, who became more favorable towards immigration and parties supporting it. These findings highlight the conditions under which undocumented migrants can take political action for their socioeconomic advancement. Unlike other integration policies which have been shown to backlash, highlighting migrants’ vulnerability to exploitation might foster solidarity and more liberal immigration attitudes among natives.

"Europeans’ Attitudes Towards Displaced Populations: Evidence From a Conjoint Experiment on Support for Temporary Protection." Free Download

MICHAL WIKTOR KRAWCZYK, Joint Research Center of the European Commission
ANDREA BLASCO, Harvard University - Institute for Quantitative Social Science
TOMASZ GAJDEROWICZ, University of Warsaw
MAREK GIERGICZNY, University of Warsaw

Millions of people were forced to flee Ukraine after Russia’s invasion on February 24, 2022, one of the fastest displacements in decades. Citizens' response in EU countries (where most displaced Ukrainians arrived) has been considerably more positive than in past refugee crises. This study investigates several possible drivers of this difference. We conduct a large conjoint experiment in six EU Member States, eliciting willingness to provide temporary protection to hypothetical groups of future migrants whose characteristics we manipulate systematically. We find that all of the experimental variables make a difference. We observe a greater support for protecting groups consisting of relatively many children and many women rather than men. The region of origin and the religious affiliation also play a significant role. Finally, we see greater support for people fleeing a war rather than poverty or the adverse consequences of climate change. While all these effects are identified consistently across different groups of respondents (e.g., the respondent's religion played a limited role), effect sizes vary considerably between countries. Finally, randomly manipulate which aspect of temporary protection (social housing, access to the labour market) is emphasised in our communication to the participants. We find this manipulation to have a limited effect on the public support for the policy.

"An Economic Analysis of Internal and International Migration - Some Issues and Challenges" Free Download

NAGESHA ECONOMICS, Department of Economics

Migration has become one of the most important facts of globalization. Migration has a dynamic process that has significantly formed the global economies. Migration means the movement of skill, cultures, traditions, families and hopes that make up the life of a human being. There are several facts, political, economic and social that influences the movement of people and the choice of their destination. Internal migration, effects on the economies in the domestic countries, whereas, international migration affects on the economies of both the domestic and aboard. Such affects may be economic and non-economic. About 139 million internal migrants in India are found and globally there were an estimated 258 million migrants (World Economic Forum Report 2017). The macro-level causes for voluntary international migration are for example socio-economic reasons. Numerous causes are responsible for migratory movement. To mention some of them: land degradation, unequal distribution land, low productivity of agriculture, the decline in natural resources, unemployment, socio-economic factors, religious and miscellaneous factors etc..Population growth in the countries is substantially being affected by the migrant population. The migration poses challenges both internally and externally. The external challenge is to balance the need for foreign workers and human rights commitment for migrants who want economic opportunity and political freedom. Problems related to migration are challenging, such as Rapid Growth in Population, Challenges of High Labour Migration Cost, Inadequate Resource Allocation, and Lack of Skilled Human Resource. The paper deals with some issues and challenges of internal and international migration. The paper depended on secondary sources of information.

"Dignity. Reverence. Desecration." Free Download
Seton Hall Law Review, Vol. 53, No. 1173, 2023

DUANE RUDOLPH, University of San Francisco School of Law

This Article focuses on two cases from the Supreme Court of the United States dealing with sexual orientation—Bowers v. Hardwick (1989) and Boutilier v. Immigration and Naturalization Service (1967). Hardwick held that the Federal Constitution did not recognize a right to consensual intimacy among human beings of the same sex, and states could regulate the issue. Boutilier held that the federal government could order the deportation of non-heterosexual applicants for citizenship since they were deemed to have a “psychopathic personality, sexual deviate,” and their treatment as such did not offend the Federal Constitution.

The argument is that human dignity, as represented in Hardwick, Boutilier, and other landmark cases, is not only about the status of specific individuals and communities, but also about the reverence required by individuals and communities holding superior or supreme status. Those holding such status identify individuals and objects they revere and for whom (and which) they mandate reverence. Reverence, in this context, has two meanings—veneration and deference. Veneration and deference are selectively bestowed upon specific individuals, communities, and objects, and they are denied to others, especially those associated with the most vulnerable communities.

The absence or failure of dignity is not, as commentators often argue, humiliation, demeaning, or degradation of a human being, but desecration. Desecration is an experience, an attitude, and a response, which includes humiliation, demeaning, and degradation. Desecration is the unacceptable experience, by those holding superior or supreme status, of a perceived lack of reverence for hallowed individuals, objects, and ideals. Desecration is, further, an attitude and a response. As an attitude, desecration is the intuitive act of resistance by those assigned inferior status simply by being themselves. And as a response, desecration is what those possessing superior or supreme status do to those who, simply by existing as themselves, are deemed inferior.

"The Exclusion of Long-Term Australian Residents from Access to Voluntary Assisted Dying: A Critique of the 'Permanent Resident' Eligibility Criterion" Free Download
Monash University Law Review, Forthcoming

KATRINE DEL VILLAR, Queensland University of Technology
LINDY WILLMOTT, Queensland University of Technology - Faculty of Law
BEN WHITE, Queensland University of Technology - Faculty of Law

When state parliaments legalised voluntary assisted dying (VAD), they could not have anticipated that the requirement to be ‘an Australian citizen or permanent resident’ would be one of the main areas of controversy. This criterion of eligibility was intended to prevent people travelling from other countries to access VAD. However, because the term ‘permanent resident’ is not defined in the legislation, it has unfortunately prevented some long-term Australian residents from accessing VAD. We evaluate various definitions of ‘permanent resident’ and conclude that a plain English definition better suits the text, context and purpose of the VAD laws than the technical definitions found in migration or citizenship legislation. We then suggest policy and statutory reform to ameliorate some of the problems which have occurred in practice.

October 13, 2023

The Song Remains The Same: Election Year Immigration Politics

Presidential campaign 2024 will be heating up and immigration will no doubt be discussed  Former President Donald Trump is rattling the sabers of tough immigration policies.   Several debates of Republican candidates for President have been held.  The candidates predictably talked tough on border enforcement. Harsh words, however, will not move the nation forward in revamping the U.S. immigration laws.  They haven’t in the past and will not in the future. 

At least since after the presidency of George W. Bush, Republican politicians have consistently called for more stringent border enforcement with sparse relief for immigrants, and most definitely not a pathway to lawful status for undocumented immigrants.  The amazing political popularity of President Trump’s no-holds-barred approach to immigration looms large in the minds of Republican presidential hopefuls.  That is the case even though President Trump did not have lasting impacts on immigration policy goals, such as reducing the size of the undocumented immigration.  The measures however, did frighten, punish, and injure immigrants. 

Democrats have not been all that different.  They have been committed to tougher border enforcement and to providing some relief for immigrants.  Although tending to take a softer, more balanced approach to immigration, some Democratic presidents have embraced tough positions.  President Bill Clinton signed into law the tough Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  President Obama set records for removals of noncitizens from the United States, earning him the moniker in some circles as the “Deporter in Chief.”  Today, Democratic leaders in the state of New York, including the Mayor of New York and Governor, demand federal action to quell the flow of immigrants into the state.  Although taking a more nuanced approach to immigration enforcement, President Biden recently announced the building of barriers along the U.S./Mexico border, which generated opposition from immigrant advocates. 

Put differently, political expediency has drawn Democrat and Republican to support heightened border enforcement measures.  Unfortunately, what is wholly absent in the political wreckage of immigration politics is any commitment to doing the challenging political work necessary to build a coalition in support of a meaningful and lasting immigration reform proposal.

Historically, anti-immigrant campaigns have enjoyed great political success.  Fueled by racial hatred running rampant at the time, the Chinese exclusion laws of the late 1800s are a shining example of how dark passions have left deep stains on the nation.  Anti-Chinese political movements in the West sparked Congress to pass a series of federal laws effectively excluding Chinese immigrants from U.S. shores.  Modern examples of the political power of anti-immigrant sentiments are plentiful.  President Trump’s infamous Muslim ban founded on anti-Muslim animus and the separation of migrant families at the border are powerful reminders.  As constitutionally dubious as they are, calls to end birthright citizenship often are made, including by Donald Trump.  Race (Mexican) and gender (women) are the targets of the efforts to end birth-right citizenship.  In the 2016 campaign, loud cheers for a border wall between the United States and Mexico could be heard at Trump speeches in which he advocated a “big, beautiful wall.”

 Sad to say political grandstanding, not serious calls for reform, carry the day.  The way to change the fundamental nature of political debate is not entirely clear.  Republicans and Democrats agree on the dire need for far-reaching immigration reform.  The path to getting there, as well as the nature of the reform, unfortunately is far from evident.  Until a path to meaningful change is found and followed, we can expect political campaigns and immigration politics that we have seen for the last twenty years.  Tough talk on immigration and little attempt to in fact address the real challenging issues.


July 7, 2023

Immigration in the Supreme Court, 2022 Term

[Cross-Post from ImmigrationProf Blog]

By Kevin R. Johnson

No Supreme Court Term could be expected to attract the national attention given to the 2021 Term, which saw the unprecedented leak of the opinion in the Dobbs case overruling Roe v. Wade and changing the constitutional trajectory of reproductive freedom in the United States.  Still, some decisions in the 2022 Term brought great change to the law.  Flirting with the outcome for years, the Court finally put in the minds of many an end to race-conscious affirmative action in university admissions.  At the same time, there were some pleasant surprises for liberals, including notable voting rightselection law, and Indian law decisions.  There also was time for a light moment or two.  Lovers of dogs and whiskey had to take glee in Jack Daniel's beat back in a trademark case of the manufacturer of a "Bad Spaniels" dog toy.

Each year, I compile the Supreme Court's immigration decisions from the most recent Term.  My recap of immigration decisions from the 2021 Term is here.   

The 2022 Term saw the Court issue four immigration decisions, the same number as last Term.  None were immigration law blockbusters, although the Court's disposal of the challenges of states to the Biden immigration enforcement priorities case (United States v. Texas) and Title 42 border closure case (Arizona v. Mayorkas) were important to the Biden administration's overall immigration program. 

The four merits decisions -- three of which came down in the last week of June -- dealt with executive power over immigration enforcement priorities, exhaustion of remedies for judicial review, criminal removals, and a (rare) First Amendment decision involving an immigration attorney  The U.S. government won in three cases.  Noncitizens won in two.  Immigration attorneys lost in one.  States lost in one case.

Merits Decisions

1.  Executive Power over Immigration Enforcement Priorities:   United States v. Texas.

U.S. government wins.  Noncitizens win.  States Lose.

In an opinion by Justice Brett Kavanaugh, the Court in United States v. Texas held that Texas and Louisiana lacked Article III standing to challenge the Biden administration’s immigration enforcement priorities, namely its more targeted approach focused on criminal noncitizens and other dangers to public safety than the Trump administration's "zero tolerance" approach to all undocumented immigrants.  Justice Samuel Alito was the lone dissenter.

The Court specifically held that the states could not challenge the Biden administration's Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law.

Writing for the majority, Justice Kavanaugh emphasized that “[t]he States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Amy Howe for SCOTUSBlog summarized the decision as follows:

"In a major victory for the Biden administration, the Supreme Court . . . ruled that Texas and Louisiana do not have a legal right, known as standing, to challenge a Biden administration policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation. The justices therefore did not weigh in on the legality of the policy itself, instead reversing a ruling by a federal district court in Texas that struck down the policy. The vote was 8-1. Justice Brett Kavanaugh wrote for a majority. . . . Justice Neil Gorsuch wrote an opinion in which he agreed that the states lacked standing, but for a different reason; his opinion was joined by Justices Clarence Thomas and Amy Coney Barrett (who wrote her own concurring opinion, joined by Gorsuch).

Justice Samuel Alito was the lone dissenter. He complained that the court’s decision left states `already laboring under the effects of massive illegal immigration even more helpless.'

The policy at the center of . . . United States v. Texas, was outlined in a . . . memorandum by Secretary of Homeland Security Alejandro Mayorkas. The memorandum explains that because the Department of Homeland Security does not have the resources to apprehend and deport all of the more than 11 million noncitizens who could be subject to deportation, immigration officials should prioritize the apprehension and deportation of three specific groups of people: suspected terrorists; noncitizens who have committed crimes; and those caught recently at the border." (bold added).

The Court went to some length to make it clear that its holding does not affect the ongoing challenges by several states to the lawfulness of the Deferred Action for Childhood Arrivals policy.   As the National Immigration Project stated in a "practice advisory" to United States v. Texas

"[t]he decision may have broader implications on states’ standing to challenge federal immigration policies, but the Court repeatedly noted that its decision is limited to the context of enforcement discretion over arrests and prosecutions. The Court explained that it does not reach questions regarding standing to challenge provision of legal benefits (such as DACA) or detention of noncitizens who have already been arrested." (bold added).

Secretary of Homeland Security Alejandro N. Mayorkas released the following statement on the Court’s ruling in United States v. Texas:  “We applaud the Supreme Court’s ruling. DHS looks forward to reinstituting these Guidelines, which had been effectively applied . . . to focus limited resources and enforcement actions on those who pose a threat to our national security, public safety, and border security. The Guidelines enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress."

On the same day that it decided United States v. Texas, the Court decided United States v. Hansen.  The two decisions were the final immigration decisions of the Term.

2.  Exhaustion of Remedies and Judicial Review:  Santos-Zacaria v. Garland

Noncitizen wins.

Justice Jackson delivered the unanimous opinion of the Courtwhich Chief Justice Roberts and Justices Sotomayor, Gorsuch, Kavanaugh, and Barrett joined.  Justice Alito concurred in the judgment, which Justice Thomas joined. 

In a straight-forward statutory interpretation case, the Court held that 8 U.S.C. 1252(d)(1), which requires noncitizens to “exhaus[t] all administrative remedies . . . as of right” before challenging a Board of Immigration Appeals final order of removal in federal court, does not require noncitizens to file motions for reconsideration before seeking review in the court of appeals.  The ruling vacated in part and remanded the Fifth Circuit decision rejecting an appeal by a Guatemalan transgender woman.  

3.  First Amendment Challenge to a Criminal Immigration Statute:  United States. v. Hansen

U.S. government wins.   Immigration attorneys lose.

The case presented the question whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain violates the First Amendment.  The Supreme Court in United States v. Hansen rejected the First Amendment challenge to the law. 

The U.S. government prosecuted Helaman Hansen for promising noncitizens a path to citizenship through "adult adoption," a form of relief that does not exist under the law.  8 U.S.C. §1324(a)(1)(A)(iv) makes it unlawful to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”  Hansen challenged the law as overbroad in violation of the First Amendment. The Ninth Circuit agreed.  The Supreme Court in 2020 had been presented the same First Amendment issue (United States v. Sineneng-Smith) but had disposed of the case on procedural grounds.  

In a 7-2 decision authored by Justice Amy Coney Barrett, the Court reversed, finding that the law does not prohibit a substantial amount of protected speech and does not violate the First Amendment.  Justice Ketanji Brown Jackson dissented, in an opinion joined by Justice Sonia Sotomayor. The dissent states:

"At bottom, this case is about how to interpret a statute that prohibits `encourag[ing] or induc[ing]' a noncitizen `to come to, enter, or reside in the United States' unlawfully. . . . The Court reads that broad language as a narrow prohibition on the intentional solicitation or facilitation of a specific act of unlawful immigration—and it thereby avoids having to invalidate this statute under our well-established First Amendment overbreadth doctrine. But the majority departs from ordinary principles of statutory interpretation to reach that result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century."

4.  Criminal Removal for Obstruction of Justice:  Pugin v. Garland (consolidated with Garland v. Cordero-Garcia)

U.S. government wins.

The issue is these cases was whether, to qualify as “an offense relating to obstruction of justice,” 8 U.S.C. § 1101(a)(43)(S), an offense must have a nexus to a pending or ongoing investigation or judicial proceeding?  The issue is of practical immigration significance because an “offense relating to the obstruction of justice” is among the criminal convictions that are classified by the immigration statute as an "aggravated felony" subjecting noncitizens to mandatory removal from the United States. 

Justice Kavanaugh delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Barrett, and Jackson joined.  Justice Jackson filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, which Justice Gorsuch joined, along with Justice Kagan (except for Part III).  The majority held that a criminal offense may "relat[e] to obstruction of justice” under the statute even if the offense does not require that an investigation or proceeding be pending.  The Court observed that obstruction of justice is often “most effective” when it prevents “an investigation or proceeding from commencing in the first place.” 

The bottom line of the SCOTUSBlog analysis of the decision by Karen Pita Loor and Cassidy Heverling is that "the majority’s decision in Pugin opens the door for the government to argue that an ever-expanding array of crimes warrant deportation."

Case Dismissed from Merits Docket

The immigration case of the 2022 Term that perhaps received the most attention involved the Title 42 order, which President Trump originally issued to close the border to migrants ostensibly to reduce the spread of COVID.  Arizona v. Mayorkas involved challenges to the Title 42 order.  After the Biden administration abandoned the appeal, the Court agreed to review whether states may intervene to challenge the district court’s entry of summary judgment order in the case  In December 2022, the Court allowed the Title 42 order to remain in place pending the appeal.   In May 2023, the Biden administration lifted the Title 42 order.   Despite considerable (and exaggerated) concern with the mass movement of migrants, the end of Title 42 was uneventful.  Not long after, the Supreme Court dismissed the appeal and sent the case back to the lower court with instructions to dismiss the states’ request as moot.


June 9, 2023

Migrant Flights Reveal How Politicians Would Rather Toy with People Than Talk Solutions

[Cross-post from CalMatters]

By Kevin R. Johnson

With 2024 campaigns heating up, immigration politics are as well, and we can expect the election cycle to bring much fire and brimstone. Sadly, as has long been the case in U.S. history, immigrants will likely suffer as a result of the political maneuverings.   

Seeking to establish his tough immigration enforcement credentials as the Republican primaries near, Florida Gov. Ron DeSantis has made headlines by taking the extraordinary step of flying migrants to Democratic states that are more open to immigrants. Last year, he arranged for a group to be flown to tourist destination Martha’s Vineyard in Massachusetts, a Democratic bastion. And over the last week, DeSantis sent several flights to Sacramento making it the latest blue-state dumping ground. 

Sadly, DeSantis’ publicity stunts adversely affect real people and real lives. To his credit, Sacramento Mayor Darrell Steinberg and others embraced the migrants with open arms,  providing them with food, shelter and lawyers to help them address their immigration status.  

Although the migrant relocation program may be new, it is just the latest chapter in the cynical practice of playing politics with immigrant lives.  

Immigrant bashing has a long history in the United States. In a period of Chinese immigration in the 1800s, California strongly advocated for national Chinese exclusion laws, which effectively led to a ban on Chinese immigration to the United States.

More recently, former President Donald Trump famously kicked off his successful 2016 presidential campaign by attacking Mexican immigrants as “criminals” and “rapists.” As president, he continued similar rants toward Haitians, Salvadorans and others, crudely saying that the United States should not be accepting migrants from “shithole countries.” Trump appealed to his anti-immigrant base, and fomented even greater hate.  

For four years, the Trump administration pursued tough immigration policies, narrowed asylum relief, talked of a “beautiful” wall along the southern border and ending birthright citizenship. He also closed the border under Title 42, ostensibly to prevent the spread of COVID, and the “remain in Mexico” policy forcing asylum seekers to remain in Mexico while their claims were being decided in the United States. 

President Trump’s tough talk translated into unforgiving policies, felt by immigrants, their families and communities. Two of the most memorable policies were the heartless separation of children from their parents, and the ban on the admission of migrants from Muslim nations.  

Immigrant communities in the U.S. responded as expected. Terrified to leave their homes, some parents feared taking their children to church, doctors and school. Activists fought back but the damage was done. 

Unfortunately, DeSantis follows the same anti-immigrant playbook as Trump. In fact, he seems to be trying to outdo Trump on immigration enforcement. 

The governor demonizes immigrants at every turn and supports policy measures that punish them. At his behest, the Florida legislature passed a tough state immigration law, much of which appears to intrude on the federal power to regulate immigration and thus likely violates the U.S. Constitution. It requires employers to use a federal database to verify the employment eligibility of employees and invalidates out-of-state drivers licenses for immigrants.  

Put simply, DeSantis seeks to make headlines by playing with immigrant lives. He is appealing to the nation’s baser instincts and, in the end, does little to address the nation’s challenging immigration policy issues – which include reforming the system of legal immigration, addressing the legal status of undocumented immigrants already in the U.S. and determining how best to enforce immigration laws stateside and at the border. 

In the end, the migrants dumped in Sacramento are part of a larger ploy to score political points and win elections, not address the immigration issues facing the nation.

May 31, 2023

The Ninth Circuit, Racism, and Immigration Law

[Cross-post from ImmigrationProf Blog]

By Kevin R. Johnson

Last week, in a widely-reported decision, the U.S. Court of Appeals for the Ninth Circuit, once known for its liberalism, reversed a lower court finding that Congress passed a federal immigration law with an intent to discriminate against persons from Mexico.  The law in question bars the unlawful re-entry into the United States of previously removed noncitizens.  The court rejected the lower court ruling even though district court fact findings are rarely disturbed, the evidence included a racial epithet (“wetbacks”) in a Department of Justice letter that was part of the legislative history, and the overwhelming majority of the persons convicted under the statute year in and year out have been Latina/o.  The ruling in United States v. Carrillo-Lopez shows both how dramatically the Ninth Circuit has changed over time and, at the same time, how difficult it is to dislodge systemic racism from the U.S. immigration laws.

Because of its geographic proximity to the U.S./Mexico border, the Ninth Circuit hears more immigration appeals than any other circuit.  Conservatives for years criticized the decisions of the court as too liberal.  Although the Supreme Court reversed some Ninth Circuit’s immigration decisions, it in INS v. Cardoza-Fonseca :: 480 U.S. 421 (1987) affirmed the opinion of Judge Stephen Reinhardt, known as the court’s “liberal lion,” which outlined the evidentiary burden on noncitizens fleeing feared persecution and seeking asylum in the United States.

With conservatives today a majority of the Ninth Circuit’s judges, the days of the court being reasonably labeled as ultra-liberal are long gone.  The opinion rejecting the Equal Protection challenge to the illegal re-entry statute in United States v. Carillo-Lopez was written by Judge Sandra Ikuta, a George W. Bush appointee.  The case turned on the requirement that, to prevail on an Equal Protection challenge to a law, the plaintiff must prove that the government intended to discriminate.  It, of course, is difficult to prove what is in one’s mind and thus is not surprising that Judge Ikuta found that race had not been adequately established as a motivating factor for the illegal re-entry law. 

In so holding, the court rejected the claim that the reference by a Department of Justice official to “wetbacks,” a racial epithet directed at Mexicans, in discussing the law failed to support a finding of a discriminatory intent.  Nor were the stark impacts of Latina/os suffering the overwhelming majority of the criminal convictions under the law sufficient to prove such an intent.  One is left to wonder what, in the court’s eyes, would be sufficient to prove a discriminatory intent.  The court’s restrictive notion of what proves a discriminatory intent likely will limit successful discrimination challenges to, among other things, government policing practices, housing laws, and employment decisions.

As the nation grapples with systemic racism in criminal law enforcement, it has begun to confront such racism in the immigration laws.  In the first comprehensive federal immigration law in the 1800s, Congress passed the Chinese Exclusion Act in an attempt to end Chinese immigration.  The discriminatory tradition lives on in the modern immigration laws and their enforcement.  Bringing race to the forefront of the immigration debate, President Trump crudely denigrated Mexican, Salvadoran, Haitian, and other immigrants and proclaimed the need for more immigrants from Norway.  Exemplifying President Trump’s approach to immigration, the Muslim ban barred the admission of migrants from a group of predominately Muslim nations.

In rejecting the claim that the law targeting Mexicans was motivated by racism, Judge Ikuta in United States v. Carrillo-Lopez emphasized the narrow scope of judicial review of immigration laws and policies, citing, among many cases, the Supreme Court decision to uphold the Muslim ban in Trump v. Hawaii (2018).  The Ninth Circuit’s ruling will make it difficult to challenge the provisions of the immigration laws that are facially neutral (i.e., do not mention race) but have disparate and dramatic impacts on immigrants of color from the developing world.

In the end, the Ninth Circuit’s ruling in United States v. Carrillo-Lopez shows how much things have changed and how much they remain the same.  The Ninth Circuit has become more conservative.  And systemic racism remains at the core of U.S. immigration law and its enforcement.  Moreover, the Ninth Circuit in United States v. Carrillo-Lopez made it more difficult for plaintiffs to successfully challenge many discriminatory laws and policies.

May 17, 2023

The End of the Title 42 Order – a Return To Border Migration Normalcy and Due Process of Law

[Cross-post from Daily Journal]

By Kevin R. Johnson


Last week, the Biden administration lifted the Title 42 order put in place by President Trump, which for several years had in effect closed the U.S./Mexico border to migrants. Rather than a feared stampede at the border, the end of Title 42 simply returned the border to the system that has stumbled along for decades. The task before the nation now is how to reform that system so that it responds effectively and efficiently to manage the 21st century of global migration.

In 2020, President Trump issued an order under Title 42, a public health law, which permitted the immediate removal from the country of asylum seekers fleeing violence and persecution. Critics claimed that the President relied on the public health law to rationalize mass expulsions; more generally, that said, he wanted to limit the number of immigrants in the United States, which was consistent with his many efforts to restrict immigration.

As few could miss, the Biden administration’s plan to end the Title 42 border closure made the news. Story after story raised the specter of an uncontrollable influx of migrants storming the U.S./Mexico border.

Given that the Trump Title 42 order had been in place for several years, one might in fact expect that the lifting of the order might be followed, at least temporarily, by an increase in migration. Pent-up demand for migration might contribute to more migration in the short run. President Biden himself cautioned that it might take time for migration flows to stabilize.

Responding to such fears, the Biden administration took steps to deter migrants from unlawfully entering the United States. Indeed, troops were sent to the border. Restrictions on asylum applications also were put into place. Clear legal pathways for Haitians, Venezuelans, Cubans, and Nicaraguans, fleeing nations plagued by violence and turmoil, were created to discourage all unlawful entry.

As it turns out, the end of Title 42 did not result in a flood of migrants. In fact, little has changed along the U.S./Mexico border. Migrants—families among them—still come seeking a better life or sanctuary from violence. However, traffic so far has been manageable.

The truth of the matter is that, as was the case for many years before the Title 42 order, there is a system in place to process the asylum and other claims of migrants. Although far from perfect, the system has operated and enforces the border consistent with the rule of law.

The border closure through the Title 42 order was an easy—and arguably unlawful—answer to proponents of halting migration. But there no longer is a public health emergency that justifies the extreme measure of closing the border and denying any and all rights to migrants. Title 42 simply no longer is a viable policy option.

Moreover, there is no need for radical border closure. Ebbs and flows of migration have occurred regularly in U.S. history. Political turmoil and violence in Central America and Haiti in the 1980s and 1990s led to many U.S. government responses, such as the interdiction of boats of Haitians by Coast Guard cutters and the immediate return of migrants to Haiti.

Policies were also put into place to detain large numbers of Haitians and Central Americans seeking asylum. Congress added to the U.S. government’s tool box in 1996, such as the creation of expedited removal of migrants apprehended at the border without a credible asylum claim, and the increased authorization of detention of migrants. Although some of these measures may be criticized (such as deaths in detention, including some reported last week), they are preferable—and legal—alternatives to an unsustainable and unlawful system of closed borders.

The exaggerated fears of the end of Title 42 are now behind us. The hard work ahead is improving our under-resourced migration system. The U.S. government has returned to a system that permits migrants to apply for asylum and have their claims decided by asylum officers and immigration courts. The difficult task is how to refine that system so it operates efficiently and has the confidence of the American people.


March 30, 2023

The Future of Diversity in Legal Education

[Cross-post from The Bencher, American Inns of Court]

By Kevin R. Johnson

As anyone understands, the global pandemic has greatly complicated legal education and the practice of law.  As a law school dean, I can attest to the fact that just keeping law schools operating over the last two years has been no easy feat.  As the pandemic shows nascent signs of subsiding, law schools still face roughly the same challenges that existed before the shutdown of U.S. society in 2020.  One of the most formidable challenges no doubt will continue to be legal education’s pursuit of diversity, equity, and inclusion.

The benefits of student and faculty diversity are well-known.  For years, law schools have sought to diversify their student bodies.  The ultimate hope has been to diversify the legal profession.  Despite those efforts, attorneys of color remain sorely underrepresented among attorneys nationwide.  In addition, law schools have been called upon to add to the racial and gender diversity of their faculties.  Hiring and retention of faculty of color has changed a bit, but not that much in the last thirty years. 

Put simply, progress on improving student and faculty diversity has been slow, uneven, and at times downright frustrating.  Unfortunately, the future challenges facing law schools in pursuit of the goal of diversity, equity, and inclusion appear to be just as daunting as they have ever been.  Fissures to the fabric of the community caused by stresses and strains of the pandemic have made achieving diversity goals even more challenging than they once were.  The pandemic has had especially adverse impactseconomically, health-wise and in other ways–on people of color.  Moreover, many observers predict that the Supreme Court will put an end to any consideration of race in law school admissions in Students for Admissions Inc. v. President & Fellows of Harvard College.  The end of affirmative action would restrict efforts to pursue law student diversity in the post-pandemic world.

Student Diversity and Calls for the Teaching of Racial Justice

For years, law schools have made efforts to increase the diversity of law student bodies.  The goal has been to produce a corps of lawyers that looks more like the overall population than it has for decades.  Diversity among students facilitates student learning outcomes by allowing students to hear from a variety of different perspectives in the classroom.  Pressures for increased diversity have escalated over time and will likely remain for the foreseeable future.

The Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003) upheld the University of Michigan law school’s carefully calibrated admissions system that considered race as one factor among many in the admissions process.  For the last twenty years, many law schools have relied on Grutter in fashioning admissions systems and pursuing affirmative action to diversify law student bodies.  That may cease with the Supreme Court’s re-assessment of the constitutionality of such programs in a case argued at the end of October 2022.  The demise of affirmative action would require considerable soul searching, restructuring, and rethinking law school admissions by law schools.  

The American Bar Association (ABA) today considers student diversity in the accreditation of law schools.  In addition, the ABA House of Delegates earlier this year voted to require law schools “provide education to law students on bias, cross-cultural competency, and racism” at “the start of the program of legal education” and “at least once again before graduation.”  (Amended ABA Standard 303).  The ABA standards make clear that racism and racial discrimination must be a part of the law school curriculum for all students as well.

Employers of all types also demand that law schools enroll more diverse law student bodies.  That in no small part mirrors demands from clients that employers staff their matters with a diverse staff of attorneys.  Law schools have responded to employers’ demands.  Although progress has been made, much work remains.

Recent highly publicized deaths of African Americans at the hands of police have generated controversy.  To the surprise of many, much discussion has focused on the elimination of systemic racism from U.S. social life.  Students are pressuring law schools to respond by teaching students more about racial justice.  They also consistently have sought more diverse faculties and student bodies.  Such student advocacy will likely continue in the future.  Some schools also have asked that issues of racial justice be better integrated into the law school curriculum. 

Resources are available to law schools seeking to increase the teaching of racial justice and promote a more inclusive law school environment.  For example, a group of African American women law school deans started the Law Deans Antiracist Clearinghouse Project, which includes resources for law schools interested in embracing an anti-racism program.  Anti-racist pedagogy, diversity and implicit bias training, and other programs (as well as consultants to advise law schools) are readily available.

As law schools seek to diversify student bodies, efforts at retention are important.  Academic support and other programs help to integrate and include first-generation law students and students of color.  Such programs represent a marked improvement over the prevailing “sink or swim” approach that dominated how law schools traditionally responded to student learning and the stresses of legal education.  Such an approach is starkly out of step with modern DEI sensibilities and does a serious disservice to students of color and first-generation law students.

Importantly, Inn of Court chapters may help promote the diversification of the legal profession.  Student members gain measurably from networking with, and mentoring from, judges and lawyers.  Inn chapters should continue to consciously strive to ensure that their student members, who gain from networking and mentoring, come from a diverse cross-section of the law student community.  Building a pipeline into the legal profession can be effective, rewarding, and fulfilling.

Faculty Diversity

A diverse law faculty also makes it easier for law schools to recruit and retain diverse student bodies.  A diverse law student body understandably does not want to learn from predominantly white faculties.  With role models at the front of the classroom, students gain from seeing teachers who look like them.  The days of the patrician (and entirely Socratic) Professor Kingsfield of The Paper Chase are long gone.  Law schools have stepped up to the challenge and committed themselves to changing their hiring.

As I have written (How and Why We Built a Majority/Minority Faculty, Chronicle of Higher Education, July 24, 2016), law schools must act intentionally if they hope to hire more women and people of color faculty members.  Law schools often long for stratospheric credentials in law professor candidates, such as a prized clerkship with a Supreme Court justice and grades at the very top of the class.  Besides the fact that these credentials might not be a good measure of law professor potential, relatively few people of color satisfy these elite credential demands, which makes diversifying law faculties a task easier said than done.  The number of faculty of color has stabilized and remains smaller than one would hope.  Nonetheless, there here have been improvements.  Perhaps most notably, the last few years have seen a marked increase in the number of women of color assuming deanships at law schools. 

Diverse faculties may bring diverse perspectives to the classroom, including the teaching of Critical Race Theory (CRT).  As mentioned previously, that is precisely what students are demanding.  Although controversial at its birth, CRT now is taught in law schools across the country and views law as part of the system of racism that persists in the modern United States. 

Future DEI Challenges

The pandemic has hindered diversity, equity, and inclusion efforts by law schools.  With remote instruction teaching over much of the pandemic, there was less informal, in-person interaction between students and professors.  For similar reasons, law schools held fewer in-person open houses for prospective law students.  Outreach programs conducted virtually in all likelihood are not as effective as in-person programs. 

Moreover, maintaining a sense of community, which is especially important in retaining and ensuring the success of students of color and first-generation students, proved difficult in a fractured remote or hybrid environment.  During the pandemic, student organizations understandably put almost all in-person activities on hold, with the lack of a sense of community provided by such events missed especially by students of color.   

If the Supreme Court ends race-conscious affirmative action, law schools will need to engage in much introspection and adaptation.  Examples of race-neutral means to increase the diversity of student bodies do exist.  In California, Proposition 209, passed by the voters in 1996, ended affirmative action at public colleges and universities in the Golden State.  Outreach programs, stepped up recruiting of applicants, and similar measures have enjoyed a degree of success in ensuring diverse student bodies.  Law schools across the nation can learn from the efforts in the state’s public law schools to continue to enroll diverse student bodies.

Efforts to build a community devoted to diversity, equity, and inclusion are by necessity a work in progress.  There are no quick fixes or easy answers.  Dedication, vigilance, and simple hard work are essential.  To improve, law schools must regularly consider and evaluate how they might best promote a positive climate for all students. 

DEI Efforts at UC Davis Law

The UC Davis School of Law is proud of its diversity, equity, and inclusion (DEI) achievements.  They include a “majority-minority” faculty and student body, a program supporting first-generation students, and extensive wellness programing (including a trained on-site psychological counselor).  The school requires implicit bias training for first-year students and annually offers a social justice-minded community “book read” and a “Critical Perspectives” lecture series organized around the first-year curriculum presented by the Aoki Center for Critical Race and Nation Studies.  This year, the community focused on the book Defund Fear:  Safety Without Policing, Prisons, and Punishment (Zach Norris, 2020), which advocates reform of the criminal justice system.  

In 2021, the School of Law added a DEI fellow, a position that was transformed into a director of law school DEI programs.  The new position provides students a clear path for registering concerns about any and all law school climate issues and develops innovative DEI and community-building programming.  At the same time, the law school continues to strive to integrate DEI sensibilities into every office in the law school, from admissions to faculty appointments to career service, and financial aid. 

As protests over police brutality and systemic racism have swept the nation, UC Davis School of Law reaffirmed its commitment to racial justice.  For three years running, the law school has offered a Racial Justice Speaker Series examining some of the most urgent racial justice issues facing our nation and world today.  The series has gathered leading voices on civil rights, criminal justice, and civic and governmental responsibility to inform, enlighten, and–most important–engage in meaningful conversation with our community and the public.

In 2021/22, as part of the continuing efforts in the pursuit of ensuring diversity, equity and inclusion, two law school committees completed reports addressing matters ranging from curriculum reform to student recruitment to DEI training for all.

The school created a diversity, equity, and inclusion committee of staff, students, and alumni to prepare a strategic plan and recommendations for DEI measures.  At the end of the 2021/22 academic year, the DEI Committee released its inaugural strategic plan.  The plan urges that, among other things, the law school continue to:


1.       Cultivate an inclusive atmosphere and sense of belonging;


2.       Support community mental health;


3.       Continue to recruit diverse staff members and students; and


4.       Develop and provide more resources to students from lower-income backgrounds.

In addition, the law school’s Educational Policy Committee, composed of faculty and students, suggested a series of initiatives highlighted by a new graduation requirement that every law student complete a course touching on racial justice.  The committee’s recommendations, which the faculty unanimously approved, also include the following:


1.       The first year Intro Week anti-bias and sensitivity training be retained and potentially expanded and improved;


2.       Further steps be taken to add critical and antiracist perspectives to the 1L curriculum;


3.       The seminars for externships and clinicals offer a session on bias, cross-cultural competency, and racism; and


4.       Opportunities for faculty training on DEI-related matters be explored and expanded and that each faculty member commit to a training in 2022-23.



In certain respects, the stars are in alignment with the collective view of the importance of DEI matters in legal education.  Law schools are responding to employer, student, and ABA concerns with DEI.  The pandemic has made achieving DEI goals all the more challenging.  More work is needed and more undoubtedly is coming.


February 2, 2023

A Sign of the Times?

[Cross-post from The Daily Journal]

By Kevin R. Johnson

Having grown up in the San Gabriel Valley, I know Monterey Park, a tight-knit bedroom community on the eastern outskirts of Los Angeles. Last weekend, the relative peace of the city was disturbed by a mass killing of eleven by a gunman. Two days later, a mass shooting in Half Moon Bay, south of San Francisco, left seven dead, the apparent result of a workplace dispute. Those and similar tragedies have been occurring with tragic regularity. Sadly enough, the truth of the matter is that mass shootings, deaths, and tragedies have become a regular part of U.S. social life. The nation in the last few years has seen a spate of violence at schools, churches, nightclubs, shopping malls, workplaces, and many public places. Together, they reveal much about the way we have become willing to resolve disagreements.

Hatred abounds and no doubt fuels gun violence, with guns generally available. However, guns have long been available in U.S. society. And California, where the latest mass tragedies occurred, have relatively tight gun safety laws. In the end, there appears to be larger social forces at work that have contributed to the spike in gun violence.

We should learn from the events of Jan. 6, 2021 in Washington, D.C. and the concerted effort by a small group to overturn a peaceful presidential election and orderly transition of power through violence. In effect, some of the perpetrators disagreed with Donald Trump’s election defeat. Anger, disappointment, and political frustration in some quarters is understandable. The inability to allow for respectful exchanges of ideas, readily accessible guns, and the belief that violence is a viable alternative to achieve change by silencing others together are a combustible mix.

The events of January 6 show a group of politically disappointed people who thought it acceptable to threaten to take power through violence. Although few really want to “kill the umpire” at a baseball game, some truly did want to kill some political leaders on Jan. 6, such as then-Speaker of the House Nancy Pelosi (and later one man nearly killed her husband Paul in their home). Similar passions appear to have fueled many of the mass shootings.

Unfortunately, as has happened at various times in history, anger, frustration, and disagreements with others has led to violence. For a while, violence, for example, was part and parcel of the struggle over access to abortions, with abortion clinics bombed and doctors who provided reproductive services killed. A long political fight followed, with the Supreme Court ultimately stepping in.

More recently, violence against members of the gay, lesbian, and transgender communities has followed recognition of their rights by political opponents of those rights. For many, unhappiness with political outcomes or other matters did not trigger violence. Recent events show today that violence may be viewed by many Americans as a viable political approach.

As history teaches, racial tensions can lead to violence. Throughout the pandemic, Asian Americans have been on edge in light of the spike in hate crimes against members of their communities. Some claimed that President Trump’s verbal attacks toward Chinese people encouraged violence against them. The spike itself shows the flaws in the claims that Asian Americans (called by some the model minority), even those whose families have been in the United States for generations, are fully accepted in U.S. society. Undoubtedly, some might well blame immigration and migrants for the violence in Monterey Park. They won’t assimilate. “They” live separate from “us.” But some of the culprits in the various attacks apparently have assimilated into the culture of violence that has become a new form of alternative dispute resolution in the United States.

Violence today is viewed in many circles as a form of expressing disagreement. That view affects all of us as a nation.

The tragic events in Monterey Park and Half Moon Bay, two California suburbs known for peace and tranquility, provide an appropriate time for a national soul-searching. Our fabric is frayed and violence has spread like a wildfire. Change must happen if the nation hopes to never see again anger and frustration erupt into violence.

December 22, 2022

Top Ten Immigration News Stories of 2022

[Cross-post from ImmigrationProf Blog]

By Kevin R. Johnson

2022 has been an exciting year in immigration law and enforcement.  It probably will be most remembered for

(1) the efforts of (and courts' resistance to) the Biden administration to roll back the Trump administration's immigration measures; and

(2) the publicity stunts of the governors of Texas and Florida to show that the Biden administration was not effectively enforcing the immigration laws. 

Here is the ImmigrationProf top 10 news stories for 2022.  By way of comparison, here are the top 10 news stories from 2021.

1.  The Biden Administration Faced Fierce Resistance to Rolling Back Trump Immigration Enforcement Measures.

As a public health measure, President Trump had invoked a public health law, Title 42, to expel migrants seeking to enter the country at the U.S./Mexico border.  The Biden administration sought to lift the Title 42 order.  Some courts and political leaders fiercely resisted the efforts.  The Supreme Court earlier this week stayed an injunction requiring an end of the Title 42 order. 

It was not only conservatives who questioned the lifting of the Title 42 order.  Its termination generated concern among some Democratic Senators.  With the Title 42 order slated to end, some Democrats became nervous.  As Law360 reported, four Democratic senators pressed the U.S. Department of Homeland Security to answer questions about managing the expected increase in migrants crossing the southern border, with a lifting of the Title 42 order.

The intensity of the worries grew after U.S. District Judge Emmet Sullivan invalidated the Title 42 order as "arbitrary and capricious."   Maria Sacchetti and Spencer S. Hsu for the Washington Post reported on the ruling.  The court order and the Biden administration's attempted announcement the the title 42 order would be lifted, sparked controversy. 

Days before the scheduled lifting of the Title 42 order, U.S. Supreme Court Chief Justice John Roberts stayed the court order ordering the end of the Title 42 orderThe bottom line:  the Trump administration's Title 42 expulsion order remains in effect.

DHS Announces the End (Finally) to Remain in Mexico Policy,  A Court Says No Way

Title 42 was not the only area in which the Biden administration's immigration initiatives -- and roll backs on Trump policies -- experienced resistance.  Despite the Supreme Court ruling allowing the Biden administration to dismantle the "Remain in Mexico" policy, which allows the return of asylum-seekers to Mexico while their asylum claims are being decided, the policy remained in place.  The Department of Homeland Security announced that it would phase out the Trump era Migrant Protection Protocols (MPP) program reported Adolfo Flores for BuzzFeed News.  MPP forced thousands of migrants to spend lengthy periods in dangerous conditions in Mexico.  It "has endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border," noted DHS Secretary Alejandro Mayorkas

The legal roller coaster over President Trump's Remain in Mexico policy continues.  A trip to the Supreme Court did not end the controversy.  Just last week, U.S. District Judge Matthew Kacsmaryk, a Trump appointee, suspended the Biden administration's termination of MPP.

There have been many other challenges to the Biden administration's immigration policies.  The Title 42 and Remain in Mexico battles offer an idea of the magnitude of the resistance and the administration's inability to reverse signature Trumpian immigration measures.

2.  State Governors Protest the Alleged Lack of Federal Immigration Enforcement by Transporting Migrants North

Texas Governor Greg Abbott and Florida Governor Ron DeSantis in 2022 repeatedly engaged in publicity stunts that showed utter disregard for the plight and humanity of migrants who have come to the United States. That included the extraordinary step of busing migrants to New York City, Washington D.C., and Chicago.

Governor DeSantis's transportation of a group of migrants to Martha's Vineyard in Massachusetts, a tourist destination of the rich and famous, attracted the most attention.  See Class Action: Migrants Say Florida Governor DeSantis "Stranded" Them on Martha's Vineyard.  A lawsuit followed Governor DeSantis's Massachusetts adventure.  Law360 reported on the suit by asylum-seekers alleging that they were tricked into boarding flights to Martha's Vineyard -- and left them stranded there -- in violation of their constitutional rights.

Other reports on the Martha's Vineyard spectacle:

Immigrants land on Martha's Vineyard;  Florida Governor takes credit

DeSantis Plays Politics with the Lives of Migrants

In line with the Governor DeSantis playbook, Texas Governor Greg Abbott made federal immigration enforcement a re-election campaign issue.  See Texas Governor Now Busing Migrants to Chicago as well as DC and NYC.

He sent migrants by bus from Texas to Washington, D.C. , New York City, and Chicago.  See Texas Governor Busing of Migrants to NYC and DC Keeps Him in the News.   NPR reported that "New York City Mayor Eric Adams . . . criticiz[ed] Texas Gov. Greg Abbott for sending busloads of migrants to the city, saying that Abbott 'used innocent people as political pawns to manufacture a crisis.'" (bold added).

Governor Abbott took a number of other immigration measures (and here).  They generated controversy but kept Abbott in the news.  

3.  The Supreme Court and Immigration

"Immigration in the Supreme Court, 2021 Term" reviews the Court's immigration decisions of the 2021 Term.  See last year's recap of the 2020 Term. 

The 2021 Term did not include any blockbuster immigration decisions.  Biden v. Texas probably received the most attention.  The decision cleared the way for the Biden administration to dismantle a signature Trump administration immigration enforcement policy, the "Remain in Mexico" policy, which requires asylum seekers to be returned to Mexico while their claims are being decided.  Breaking News: Supreme Court Decides Remain in Mexico Case.    

The Court decided five immigration cases in the 2021 Term, an average number for the Court in recent years.  What is different this Term is that the pro-immigrant position failed in four of the five immigration cases, showing the tilt of the Supreme Court's conservative super-majority.  The Court's immigration decisions include ones requiring careful, but rather routine (if not ponderous), interpretation of the immigration statute as well as more general legal principles.

For reasons having nothing to do with immigration, few will soon forget the 2021 Term in U.S. Supreme Court history.  For weeks, news was dominated by a leaked draft opinion in a blockbuster abortion case, which foreshadowed the overruling of Roe v. Wade (1973) in Dobbs v. Jackson Women's Health Organization.  In addition, controversy surrounded conservative Justice Clarence Thomas's ethical obligations in connection with the Court's consideration of cases in which his wife's political activities were implicated. 

This blog post looked at "The Overruling of Roe v. Wade and Immigrants."  The demise of Roe v. Wade undoubtedly will affect immigrant women -- especially poor ones (and here) -- in the United States   It will take some time to see the full impacts of Dobbs v. Jackson Women's Health.  Many questions will arise about the scope and breadth of the decision.  Will, for example, the federal government continue to provide access to abortions for immigrant women in detention?  Access to an abortion by a detained immigrant teen was the subject of litigation a few years back.  Some women may feel it necessary to travel to Mexico for an abortion.  Can a state bar travel outside the state to do so?  

On the last day of the 2021 Term, Associate Justice Stephen Breyer retired and the first African American woman Justice, Ketanji Brown Jackson, was sworn in to replace him.  During her confirmation hearings, Judge Jackson was quizzed on expedited removal ruling.  Here is a review of the Immigration Record of Judge Ketanji Brown Jackson, President Biden's Supreme Court Nominee.

With the retirement of Justice Stephen Breyer, the Court lost the author of a memorable 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 decision in that instance.  Zadvydas v. Davis has undermined the decision in recent years.

3.  Tragedy in San Antonio. Deaths on the Border Continue

A tragic mass death of migrants being trafficked in a truck/trailer into the United States in San Antonio shocked the nation, reminding us of the deadly consequences of contemporary migration flows.  See Death on the Border Chapter 101:   46 Migrants Reported Dead in Truck/Trailer in San Antonio, Texas.  In a statement on the tragedy, President Biden acknowledged that the event may be "the deadliest people smuggling tragedy in recent U.S. history."

The San Antonio deaths are the tip of the iceberg.  Border deaths are a regular part of U.S./Mexico border life and are an international phenomenon as well.  See IOM Report: More Than 50,000 Migrant Deaths; CNN: A record number of migrants have died crossing the US-Mexico border.

Deaths of migrants along the U.S./Mexico border have made the news for years.  See, for a few examples, hereherehere.  The death toll continues to mount.  Earlier this year, CNN reported that nearly 750 migrants have died at the U.S./Mexico border this fiscal year, a new record, according to Department of Homeland Security figures.  Migrants often face treacherous terrain when crossing the border - including oppressive desert heat, dangerous waters, and falling from the border wall.

4.  President Trump Announces 2024 Run for President

Can you believe it?  Donald Trump announced his 2024 run for President.  On the same day that a federal court found that his administration's extraordinary Title 42 order was arbitrary and capriciousDonald Trump announced that he would again run for PresidentHe made it clear that immigration enforcement would be a major plank in his platform.  President Trump, of course, took the most aggressive enforcement measures of any modern U.S. President.

5.  The World Welcomes Ukrainian Refugees Flee the Russian Invasion

The Russian invasion of Ukraine led to a mass migration of refugees.  European nations embraced them with open arms.  A number of posts on the ImmigrationProf blog (and here) have highlighted the differential treatment of Ukrainian refugees and those from Syria, Afghanistan, and Central America.  Voice of America released a report entitled "Immigration Experts Contrast US Support for Ukrainian, Afghan Refugees."  Here are a few more stories on the treatment of Ukrainian refugees: Ukrainian refugee crisis already ranks among the world's worst in recent history Refugee Double Standard: What the Global Response to Ukrainian Refugees Teaches Welcome for Ukrainians reveals 'hypocrisy' of Irish immigration system? "Fortress Europe" opens for Ukrainian refugees but keeps others out Ukrainian Refugees and Racism

6.  Migrants Flee Chaos in Venezuela

Political and economic turmoil in Venezuela led to a flow of migrants from that South American nation.  See Migrants from Venezuela, Nicaragua and Cuba are driving apprehensions at the U.S./Mexico border; AP -- US officials: Border crossings soar among Venezuelans.

Consistent with other news reports (and here), CNN reported that U.S. government data showed that "[i]n August alone, immigration agents encountered more than 203,000 individuals at the southern border. Migrants from just three countries - Venezuela, Nicaragua and Cuba - made up about 56,000 of those encounters, or about 28 percent . . . ."   The increase in migration from these three nations reduced the share of migrants coming from Mexico and Central America.  

7. Top Trump Advisor Steve Bannon Arrested for Fraud in Connection with Fundraising to Build a Border Wall

At one time a top Trump advisor, Steve Bannon in September surrendered on New York state fraud charges related to fundraising to build the wall along the U.S./Mexico border.  The state charges are based on the same conduct that Bannon was charged with by federal prosecutors in 2020. Then-President Donald Trump pardoned Bannon on the federal fraud charges. Presidential pardons do not apply to state charges.  The prosecution is pending.

8.  10th Anniversary of  DACA

June 15, 2022 marked the 10 year anniversary of the announcement by President Barack Obama of the Deferred Action for Childhood Arrivals (DACA) policy.  DACA was a major immigration milestone of the 21st century and provided limited relief to hundreds of thousands of young noncitizens.

Although the Supreme Court invalidated the Trump administration's attempt to rescind DACA, the Biden administration has met formidable judicial resistance to continuing the policy.  The lower courts have not been friendly to the administration's efforts to revive DACA and litigation continues over the future of DACA.

9.  UK's Policy of Shipping Asylum Seekers to Rwanda Challenged

The following news story did not get the attention in the United States that it deserves.  Kit Johnson blogged about the United Kingdom's extraordinary decision to ship asylum seekers to Rwanda.  Yes, Rwanda.  Click here for an Associated Press discussing how the policy operates.  The controversy over the policy continues.  Rwanda, really?

10.  The Holy Grail?  Immigration Reform.  Forget About It.

Congress discussed at various times the possibility of long-awaited immigration reform.  A possible proposal briefly made the news as the lame duck Congress moved toward the end of 2022.  See Is There a Possibility for Bipartisan (and Limited) Immigration Reform?

The recent chatter about the possibility of bipartisan immigration reform has dissipated.  Senators Kyrsten Sinema, who recently left the Democratic Party to become an Independent from Arizona, and Thom Tillis (R-NC), floated a framework for immigration reform.  It would have provided legal status for young undocumented immigrants and appropriations for additional border security.  To this point, reform has not come.  Forget about it.


1.  UC Hastings Law Center on Race, Immigration, Citizenship, and Equality

ImmigrationProf blogger and Professor Ming Hsu Chen this fall launched a center at UC Hastings that will pursue research on equality issues and collaborate with other scholars and academic institutions.  Chen previously founded the Immigration and Citizenship Law Program at the University of Colorado.

The Center on Race, Immigration, Citizenship, and Equality (RICE) will offer lectures, conferences, panel discussions, research projects, student employment opportunities, and law classes with fieldwork components. It will promote scholarly engagement and forge links between other centers at UC Hastings, including the Center for Gender and Refugee Studies and the Center for Racial and Economic Justice.

2.  Passing of Immigration Law Professors

Legal academia in 2022 lost two wonderful and influential immigration law professors.

Funeral Services for Professor Michael OIivasRIP Michael Olivas Immigration Scholar

We lost an influential immigration scholar Professor Michael Olivas.  He had been honored in 2010 as this blog's Immigration Professor of the Year.  Professor Olivas was an influential immigration law scholar and a leading figure in legal education.  One strand of Professor Olivas's vast body of scholarship focused on issues at the intersection of immigration and Latina/o civil rights.  He also was a wonderful immigration colleague and organized the inaugural Immigration Law Teachers workshop in New Mexico in 1992.

RIP Professor Anna Shavers, Friend and Colleague

We also lost another wonderful person and influential immigration law professor, Anna W. Shavers, Cline Willliams Professor of Citizenship Law and associate dean for diversity and inclusion at the University of Nebraska College of Law.  She was simply the most decent person one could ever want to meet.  And she was an important immigration scholar.  Here is the University of Nebraska's statement on Professor Shavers's passing.

3.  Welcome Austin Kocher, New ImmigrationProf Blogger

In January, the ImmigrationProf blog announced the addition of blogger Austin Kocher, Research Associate Professor for the Transactional Records Access Clearinghouse.  Check out his profile.  TRAC is a research institute that uses Freedom of Information Act requests to study the federal government.  

Sports Page

Immigrants made the sports pages in 2022.  Here are a few headlines:

1.  Immigrants and the World Cup  

Argentina beat France in the finals on penalty kicks and took home the World Cup.  Migrant labor, with abuses reported, made the World Cup possible in Qatar.  Some may be surprised that many of the soccer players were not born in the country that they represented in the competition.      

2.  Game, set, match:  Novak Djokovic loses visa appeal, leaves country ahead of Australian Open

Last January, the saga of professional tennis champion Novak Djokovi seeking to defend his title in the Australian Open finally came to an end.  CNN reported that "[i]n a statement released after his appeal was dismissed, Djokovic said he would cooperate with authorities in arranging his departure from the country and confirmed he would not be playing in the Australian Open."  According to CNN, "Judge James Allsop said earlier that the court's ruling to uphold the immigration minister's decision to revoke Djokovic's visa was unanimous."

3.  Boston Celtic Changes Name to Freedom, calls becoming U.S. citizen "unforgettable"

At the very end of 2021, a National Basketball Association Boston Celtics player changed his name from Enes Kanter to Enes Kanter Freedom in celebration of becoming a U.S. citizen.  He said that taking the citizenship oath was "maybe the most unforgettable moment that I had in my life." An immigrant from Turkey, Freedom has been an outspoken critic of President Recep Tayyip Erdoğan and the Turkish government.  NPR interviewed Freedom about why he changed his name and his support for a boycott of the Olympics in China.

Society Page

An immigrant with expensive tastes, a propensity for con jobs, and the subject of a hit Netflix series, faced removal from the United States.  See Inside fake German heiress Anna Sorokin's immigration battle.

 The immigration case of Anna Sorokin, whose elaborate fraud captured the world's imagination, continues.  The subject of the hit Netflix series "Inventing Anna", Sorokin served about four years in prison after found guilty of criminal charges. She had claimed to be a German heiress named Anna Delvey who had a $60 million inheritance and was raising funds to launch a Manhattan social club. Sorokin swindled hundreds of thousands of dollars from friends, banks and New York City luxury hotels to fund a lavish lifestyle.

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.