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.

 

August 27, 2021

IMMIGRATION, REFUGEE & CITIZENSHIP LAW eJOURNAL Vol. 22, No. 47

Edited by Kevin R. Johnson

Table of Contents

"A Masterclass in Evading the Rule of Law: The Saga of Scott Morrison and Temporary Protection Visas"

-Joyce Chia, Independent
-Savitri Taylor, La Trobe University - School of Law

"Migration Policy-making in Africa: Determinants and Implications for Cooperation with Europe"

-Mehari Taddele Maru, European University Institute - Migration Policy Centre

"Unpacking the Rise in Crimmigration Cases at the Supreme Court"

-Philip Torrey, Harvard Law School

"Judicial Deference and Agency Competence"

-Mary Hoopes, Berkeley Judicial Institute

"TOW Environmental Migrants in the International Refuge Law and Human Rights: An Assessment of Protection Gaps and Migrants’ Legal Protection"

-Muhammad Bilawal Khaskheli, Zhejiang University
-Ayalew Abate Bishaw, Zhejiang University
-Jonathan Gesell Mapa, Zhejiang University
-Carlos Alves Gomes Dos Santos, Zhejiang University

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

"A Masterclass in Evading the Rule of Law: The Saga of Scott Morrison and Temporary Protection Visas"  
University of New South Wales Law Journal, Vol. 44, No. 3, 2021

JOYCE CHIA, Independent
Email: joycekwc@icloud.com
SAVITRI TAYLOR, La Trobe University - School of Law
Email: s.taylor@latrobe.edu.au

For over a year, the Minister for Immigration successfully avoided granting permanent protection to refugees who came by boat. His newly elected government had promised to re-introduce a temporary protection regime, but came to power without the numbers to pass necessary legislation. In order to achieve his policy objective, the Minister chose to engage in a variety of legally dubious tactics to forestall and delay granting permanent protection, as required by the law. In doing so, the Minister navigated skilfully through the holes in Australia’s institutional frameworks designed to protect the rule of law and Australia’s constitutional arrangements. The saga of Scott Morrison and temporary protection visas is therefore a telling story about the fragility of the rule of law in Australia and demonstrates how a determined executive can upend the constitutional order.

"Migration Policy-making in Africa: Determinants and Implications for Cooperation with Europe"                                                                                                                                                                            Robert Schuman Centre for Advanced Studies Research Paper No. 2021/54

MEHARI TADDELE MARU, European University Institute - Migration Policy Centre

Email: Mehari.Maru@eui.eu

This paper focuses on African policy positions on migration to Europe and towards cooperation on migration with the EU and its Member States. It draws on existing research to discuss the key features and drivers of migration policies in Africa. Paying attention to both commonalities and variations across different national economic and political contexts, the paper discusses seven inter-related factors that inform, influence and determine the policy approaches of African countries: (i) the common view that migration and development are intrinsically linked; (ii) the political regime type and domestic politics (both of which can influence governments’ responsiveness to human rights issues, public demands related to bilateral agreements on migration both from within the country and outside); (iii) the financial gains to be made from cooperation with the EU in the form of development aid as well as remittances; (iv) diplomacy, geographic proximity and routes to Europe; (v) policy and capability limitations of current migration governance structures; (vi) lobbying by migration facilitators and, in some cases, corruption; and (vii) the pan-African agenda of integration, especially on the mobility of persons. Considering the dynamics of past and existing Africa-Europe agreements, I argue that the power asymmetry (financial and diplomatic) between Europe and Africa has distorted the priorities of Africa and created pressure to implement policies that give precedence to Europe’s interests over those of African countries and migrants. The paper further discusses the implications of these dynamics in the Africa-Europe migration partnership, including the challenges and opportunities for more effective cooperation in the future.

"Unpacking the Rise in Crimmigration Cases at the Supreme Court"                                                                                                                                                                                                                         New York University Review of Law & Social Change, The Harbinger

PHILIP TORREY, Harvard Law School
Email: ptorrey@law.harvard.edu

Why has the Supreme Court recently granted more writs of certiorari in cases concerning the complex legal test known as the categorical analysis than it has in the last ten years? As background for the uninitiated, the categorical analysis is a tool used by adjudicators to determine when immigration consequences or federal sentencing enhancements are triggered by prior convictions. It is an often misunderstood—and consequently misapplied—analysis that has befuddled adjudicators for decades. The Supreme Court has decided to reaffirm and refine the legal test in several cases over the last few terms. The Court will have the opportunity to do so again this term in two cases, Pereida v. Barr and Shular v. United States. This Article examines several factors that may elucidate why the Court has recently taken a growing interest in the categorical analysis.

"Judicial Deference and Agency Competence"  
Berkeley Journal of International Law (BJIL), Forthcoming

MARY HOOPES, Berkeley Judicial Institute
Email: mhoopes@berkeley.edu

While there is consensus among practitioners and scholars alike that immigration adjudication is in a state of crisis, very few studies have examined the role that federal courts play in reviewing this system. This Article focuses on asylum appeals at the federal appellate level, and constructs an original database of cases across five circuits over seven years. It reveals that the Courts of Appeals have created a wide variety of court-fashioned rules that serve to either expand or constrict the scope of judicial review, with important implications for the likelihood of remand. In these data, having one’s asylum appeal heard in the Seventh or Ninth Circuits was associated with a significantly higher likelihood of remand than in the First, Tenth, or Eleventh Circuits. This variation does not merely reflect a difference in the types of cases across circuits. Rather, a qualitative analysis reveals very different approaches to reviewing the agency’s decision-making. Across these five circuits, the Seventh and Ninth Circuits have adopted a much more searching level of review that arguably reflects a distrust of the agency’s competence.

As this analysis demonstrates, the elasticity of the appellate review model permits this wide variation, as courts applying a nearly identical standard of review are reaching starkly different results. I argue that the more expansive approach to review is normatively beneficial, as we ought to have an appellate review model that permits courts to be responsive to evidence of an agency in crisis. This is particularly compelling in the context of asylum seekers, as their lack of political power has enabled both a long history of politicization of the adjudication process and a disregard for quality assurance initiatives within the agency. Since larger changes aimed at addressing the underlying flaws at the agency level are unlikely to be forthcoming soon, federal courts may be the only institutions equipped to meaningfully address problems within asylum adjudication.

"TOW Environmental Migrants in the International Refuge Law and Human Rights: An Assessment of Protection Gaps and Migrants’ Legal Protection"  
ScienceRise: Juridical Science, (3 (13), 52–59. doi:10.15587/2523-4153.2020.213985

MUHAMMAD BILAWAL KHASKHELI, Zhejiang University
Email: Bilawal_kamber@yahoo.com
AYALEW ABATE BISHAW, Zhejiang University
Email: tsionayelam@yahoo.com
JONATHAN GESELL MAPA, Zhejiang University
Email: mapajona@yahoo.fr
CARLOS ALVES GOMES DOS SANTOS, Zhejiang University
Email: carlosatos25@hotmail.com

The concept and the rights of environmental refugees have attracted national, international governance and scholars’ attention. I have tried to analyse through a descriptive and explanatory approach the current trend of environmental refugees’ legal protection and its limitations and achievements. The objective of this research work is first to review legal scholars’ work relating to environmental refugees to show the current trends relating to environmental refugees’ protection. Second, to analyse the existing legal framework to show, whether it adequately has governed the issue of environmental refugees’ rights and identify the gaps. Third, it explains the ways forward, discussing the international refugee law (the 1951 refugee convention and the 1969 OAU refugee convention), the international environmental law, international law on Stateless persons, the international human right law and the system of temporary protected status. Environmental refugees could be referred otherwise as environmental migrants, environmentally displaced persons, climate refugees, climate change refugees, environmental refugees and ecological refugees. The legal concepts shaping that definition include concepts such as well-founded fear, persecution, crossing international border, exclusion from refugee status (undeserving cases), and cessation of refugee status. The UN High Commissioner for Refugees states that 36 million people were displaced by natural disasters in 2009, and about 20 million of those were forced to move for climate change-related issues. According to other estimates, there could be as many as 150 million by 2050. In accordance with the estimates of UN Environment Programme, by 2060 there could be 50 million environmental refugees in Africa alone.

August 5, 2021

Forget ICE. Tax Law is Becoming the New Border Patrol

[Cross-posted from the San Francisco Chronicle]

By Shayak Sarkar

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

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

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

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

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

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

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

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

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

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

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

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

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

July 28, 2021

IMMIGRATION, REFUGEE & CITIZENSHIP LAW eJOURNAL, Vol. 22, No. 44

Edited by Kevin R. Johnson

Table of Contents

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

-Lenni Benson, New York Law School

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

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

"Sentencing and the Scope of Deportation in Nigeria"

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

A Lineage of Family Separation

-Anita Sinha, American University - Washington College of Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 23, 2021

DACA in Doubt After Court Ruling: 3 Questions Answered

[Cross-posted from The Conversation]

By Kevin R. Johnson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. What’s next in the DACA debate?

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

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

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

July 22, 2021

IMMIGRATION, REFUGEE & CITIZENSHIP LAW eJOURNAL Vol. 22, No. 43

Edited by Kevin R. Johnson

Table of Contents

"The Impact of COVID-19 on Immigration Detention"

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

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

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

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

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

"Tax Law's Migration"

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

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

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

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

Vesco Paskalev, Brunel University London - Brunel Law School

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

David Kenny, Trinity College Dublin School of Law

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

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

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

COVID-19 has spread quickly through immigration detention facilities in the United States. As of December 2, 2020, there have been over 7,500 confirmed COVID-19 cases among detained noncitizens. This Article examines why COVID-19 spread rapidly in immigration detention facilities, how it has transformed detention and deportation proceedings, and what can be done to improve the situation for detained noncitizens. Part I identifies key factors that contributed to the rapid spread of COVID-19 in immigration detention. While these factors are not an exhaustive list, they highlight important weaknesses in the immigration detention system. Part II then examines how the pandemic changed the size of the population in detention, the length of detention, and the nature of removal proceedings. In Part III, the Article offers recommendations for mitigating the impact of COVID-19 on detained noncitizens. These recommendations include using more alternatives to detention, curtailing transfers between detention facilities, establishing a better tracking system for medically vulnerable detainees, prioritizing bond hearings and habeas petitions, and including immigration detainees among the groups to be offered COVID-19 vaccine in the initial phase of the vaccination program. The lessons learned from the spread of COVID-19 in immigration detention will hopefully lead to a better response to any future pandemics. In discussing these issues, the Article draws on national data from January 2019 through November 2020 published by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), two agencies within DHS. The main datasets used are detention statistics published by ICE for FY 2019 (Oct. 2018-Sep. 2019), FY 2020 (Oct. 2019-Sep. 2020), and the first two months of FY 2021 (Oct. 2020-Nov. 2020). These datasets include detention statistics about individuals arrested by ICE in the interior of the country, as well as by CBP at or near the border. Additionally, the Article draws on separate data published by CBP regarding the total number of apprehensions at the border based on its immigration authority under Title 8 of the United States Code, as well as the number of expulsions at the border based on its public health authority under Title 42 of the United States Code.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 12, 2021

Immigration in the Supreme Court, 2020 Term

[Cross-posted from Immigration Prof Blog]

By Kevin R. Johnson

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

1.    Pereida v. Wilkinson.  Holding:  A noncitizen seeking cancellation of removal, who bears the burden of persuasion to secure relief, fails to carry his burden of showing that he has not been convicted of a disqualifying offense when the conviction is ambiguous about whether it included a disqualifying offense.  U.S. government wins.
 
Kate Evans for SCOTUSblog encapsulates the impacts of the decision:
 
"Under the majority’s reasoning, the decision is limited to cutting off deportation relief when a noncitizen’s conviction could be for a disqualifying or non-disqualifying offense and the criminal records are unclear. . . . What is clear is that unavailable or insufficient court records will prevent many long-time immigrants from even asking an immigration judge to consider the hardship of deportation on their U.S. citizen or lawful permanent resident family members. For them, instead of leaving the decision to the immigration judge’s discretion, deportation is now mandatory." 
 
2.    Niz-Chavez v. Garland.  Holding: A notice to appear sufficient to trigger the stop-time rule for measuring the time necessary for cancellation of removal is a single document containing all the information about the individual’s removal hearing specified in 8 U.S.C. § 1229(a)(1).  Niz-Chavez is a follow-up to the Court's decision in Pereira v. Sessions (2018), which held that a  the Notice to Appear (NTA) is invalid if it does not specify the date and time of the hearing.  That decision has had significant ripple effects on the notices provided to noncitizens by the U.S. government.  Noncitizen wins.
 
Ashley Oldfield in the Wake Forest Law Review notes that:  "Thus, Niz-Chavez presents another opportunity to challenge an immigration court’s jurisdiction.  After all, `if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.'”
 
3.    Garland v. Dai, Garland v. Alcaraz-Enriquez.  Holding: The Ninth Circuit's judicially-created rule that, absent an express adverse credibility finding by an immigration judge or the Board of Immigration Appeals, a court of appeals must treat the noncitizen’s testimony as credible, is inconsistent with the Immigration and Nationality Act.  U.S. government wins.
 
Victoria Neilson for CLINIC sums up the decision as follows:
 
"The Dai decision does not fundamentally change appellate review in asylum cases other than within the Ninth Circuit. It remains to be seen whether this interpretation will affect any other areas of judicial review beyond the limited credibility determination analysis in this case.  . . . 

Once the BIA issues its decision, federal courts will employ highly deferential review, upholding the BIA’s finding regarding credibility unless `any reasonable adjudicator' should have reached the opposite conclusion. Practitioners should be mindful of these standards at each stage of review and craft their arguments accordingly.  Where the record contains conflicting evidence, practitioners should explain why the inconsistencies should not lead to a finding of adverse credibility." (bold added)

4.    Sanchez v. Mayorkas.  Holding:  The Court  held 9-0 that two Temporary Status (TPS) recipients from El Salvador, who was not lawfully admitted into the United States, is not eligible to adjust his status to lawful permanent resident.  This decision affected tens of thousands of TPS recipients, many of whom had been threatened with loss of their legal status by the Trump administration.    U.S. government wins.
 
Elura Nanos for Law and Crime encapsulated the decision as follows:

"The Supreme Court of the United States unanimously decided Sanchez v. Mayorkas . . . , ruling that a married couple who fled earthquakes in El Salvador cannot receive green cards even though they have been lawfully in the U.S. for 20 years . . . . The ruling, which has potential to affect hundreds of thousands of immigrants with TPS, was not unexpected, but is being hailed as evidence of the urgency to create a `pathway to citizenship” for TPS holders and other immigrants.'"

5.    Johnson v. Guzman Chavez:  The issue in the case was whether the detention of a noncitizen who is subject to a reinstated removal order and who is pursuing withholding of removal based on alleged persecution is governed by one of two provisions of the immigration statute (8 U.S.C. § 1231 or 8 U.S.C. § 1226).  Jack Chin described the case as "rais[ing] a complex question about bond for migrants in removal proceedings."  Since 1996, when Congress expanded the immigrant detention powers of the U.S. government, the courts have seen increasing numbers of immigration detention cases in recent years.   

Holding:  The Court held that 8 U.S.C. § 1231, not § 1226, governs the detention of noncitizens subject to reinstated orders of removal.  Section 1231, which the U.S. government argued applied, was narrower than Section 1226, in providing bond hearings to noncitizens. Justice Alito delivered the opinion of the Court, except as to footnote 4, which was joined by Chief Justice Roberts, Kavanaugh, and Barrett.  Justice Breyer, joined by Justices Sotomayor and Kagan dissented.   The dissent summarized the case as follows:

"The question in this case is whether respondents are entitled to a bond hearing while immigration authorities engage in the lengthy process of determining whether respondents have the legal right (because of their fear of persecution or torture) to have their removal withheld.  The Court points to two statutory provisions that might answer that question.  The first, §1226, is a more general provision governing detention, and favors respondents. It says that `pending a decision on whether the alien is to be removed from the United States,' 8 U. S. C. §1226(a), the Government `may release the alien on . . . bond' or `conditional parole.' §§1226(a)(2)(A), (B) . . . .  The second, §1231, is a provision that more specifically applies to `aliens ordered removed,' and can be read to favor the Government because it does not expressly provide for a bond hearing during what it calls the 90-day `removal period.' 8 U. S. C. §1231(a)(2) . . . .

The Court agrees with the Government."

U.S. government wins.

***

By my count, the Supreme Court decided eight immigration cases in the 2019 Term, including the Deferred Action for Childhood Arrivals (Department of Homeland Security v. Regents of the University of California) and the expedited removal (Department of Homeland Security v. Thuraissigiam) cases.   It does not seem to me that the Court's immigration decisions this Term were as significant in terms of legal change or impacts as either of the DACA or expedited removal cases.
 
The Court might have ended up reviewing more immigration cases.  The Court dropped from the docket a couple of cases after the Biden administration changed Trump administration policies.  Those cases were challenges to the controversial  Migrant Protection Protocol (Remain in Mexico) policy and the Trump administration's reinvigorated "public charge" rule.
 
There are, of course, other decisions from the 2020 Term that do directly interpret the U.S. immigration laws but will affect noncitizens.  One of those cases is Borden v. United States, which involved the interpretation of the term "violent felony" in a federal criminal statute and likely will affect the interpretation of "aggravated felony" for removal purposes. 
 
So far, the Court has only granted certiorari in one immigration case for the 2021 Term.   Patel v. Garland raises the question whether 8 U.S.C. 1252(a)(2)(B)(i) precludes judicial review of non-discretionary determinations underlying the determination of the Board of Immigration Appeals that a noncitizen is inadmissible to the United States for permanent residence and therefore ineligible for adjustment of status.  John Elwood for SCOTUSblog explained the basics of the case as follows:

"Petitioner Pankajkumar Patel checked a box on a Georgia driver’s license application falsely stating that he is a U.S. citizen, even though he was eligible for a license regardless of his citizenship. . . . When Patel later sought to adjust his status to lawful permanent resident and obtain a green card, a divided panel of the Board of Immigration Appeals denied him relief, holding that he is inadmissible because he `falsely represented' himself as a U.S. citizen for a benefit under state law. . . . .  When Patel sought review of that decision, the en banc U.S. Court of Appeals for the 11th Circuit parted with decisions of other courts — and rejected the government’s own reading of the governing statute — to hold that the court lacked jurisdiction to review threshold eligibility findings for discretionary relief from removal, including whether the immigrant is inadmissible for incorrectly representing himself as a U.S. citizen. (The government takes the position that the statute forecloses only review of discretionary decisions not to grant relief, not factual findings that are factored into those decisions.) "

June 23, 2021

Two Days at the Nogales Border

[Cross-posted from ImmigrationProf Blog]

Revised edition posted June 24, 2021

By Raquel Aldana

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


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


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


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


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


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



June 22, 2021

IMMIGRATION, REFUGEE & CITIZENSHIP LAW eJOURNAL, Vol. 22, No. 41

Edited by Kevin R. Johnson

Table of Contents

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

Ashley Oldfield, Independent

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

David R. Katner, Tulane University - Law School

"Enabling the Best Interests Factors"

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

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

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

"Migrant Protection Protocols and the Death of Asylum"

Austin Kocher, Transactional Records Access Clearinghouse

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

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

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

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

ASHLEY OLDFIELD, Independent
Email: oldfab17@gmail.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 10, 2021

Justice Cruz Reynoso's Rural Life

By Lisa Pruitt

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

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

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

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

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

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


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


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

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

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


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


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

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

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

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

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

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


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


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


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


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

 

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

 

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