Edited by Kevin R. Johnson
Table of Contents
"Niz-Chavez v. Garland: Pereira Groundhog Day"
Ashley Oldfield, Independent
"Trump’s Policy of Putting Kids in Cages: Six Dead, Thousands Separated From Parents, Making America Great Again?"
David R. Katner, Tulane University - Law School
"Enabling the Best Interests Factors"
Adrian Alvarez, St. John's University - School of Law
"White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States"
Elena A. Baylis, University of Pittsburgh - School of Law
"Migrant Protection Protocols and the Death of Asylum"
Austin Kocher, Transactional Records Access Clearinghouse
"Refugee Entrepreneurship: A Systematic Review of Prior Research and Agenda for Future Research"
Alex Newman, Deakin University - Faculty of Business and Law
Luke Macaulay, Deakin University - Faculty of Business and Law
Karen Dunwoodie, Deakin University - Faculty of Business and Law
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"Niz-Chavez v. Garland: Pereira Groundhog Day"
ASHLEY OLDFIELD, Independent
Email: oldfab17@gmail.com
In Niz-Chavez v. Garland, the Supreme Court of the United States addressed, for the second time, what constitutes a notice to appear under 8 U.S.C. § 1229(a)(1). In doing so, the Court may have also resurrected challenges to an immigration court’s jurisdiction which first arose following the Court’s decision in Pereira v. Sessions.
"Trump’s Policy of Putting Kids in Cages: Six Dead, Thousands Separated From Parents, Making America Great Again?"
28 Virginia Journal of Social Policy and the Law 87 (2021)
Tulane Public Law Research Paper No. 21-2
DAVID R. KATNER, Tulane University - Law School
Email: dkatner@law.tulane.edu
For the first time in history, the U.S. executive branch enacted an immigration policy designed to inflict such pain and trauma on children and their families so as to dissuade families from Latin America from coming to the U.S. seeking asylum. With six children dead and thousands separated from their families, we continue to learn more about the atrocities inflicted on these migrants seeking a better life. Women were subjected to nonconsensual hysterectomies, families were tortured, and the toxic stress inflicted may require years to resolve. This article seeks accountability for the intentional acts imposed by the U.S. government in the form of possible legal remedies. This policy marks the lowest point in U.S. immigration policy, a country with origins rooted in reliance on migrants from every part of the world to make the nation a better place.
"Enabling the Best Interests Factors"
St. John's Legal Studies Research Paper No. 21-0007
ADRIAN ALVAREZ, St. John's University - School of Law
Email: alvareza@stjohns.edu
In February 2019, the media reported that the Office of Refugee Resettlement (ORR)—an agency within the U.S. Department of Health and Human Services (HHS) charged with the care and custody of unaccompanied immigrant children—was using minors’ admissions of prior gang affiliation during confidential therapy sessions as the sole criteria for “stepping up” children from low-security shelters to more restrictive and punitive detention facilities. ORR was also then sharing the therapy notes with the Department of Homeland Security (DHS) to use them against children in deportation proceedings. The newspaper article that broke the story noted that while the information sharing between HHS and DHS was “technically legal,” it was “a profound violation of patient confidentiality.” This article argues that these practices are not “technically legal” at all. They are illegal because they violate basic best interests principles now enshrined in the William Wilberforce Trafficking Victims Protection Recovery Act of 2008 (TVPRA), and, in some instances, they may violate Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (Title II), federal anti-discrimination laws designed to protect people with disabilities.
The best interests approach “is a dynamic concept that requires an assessment appropriate to the specific context,” and stepping up a child to a more restrictive setting based solely on prior gang affiliation is inconsistent with the procedural aspects of the best interests standard. Moreover, using gang affiliation revealed in therapy sessions as the sole criteria for sending a child to a more restrictive setting may also violate federal anti-discrimination statutes designed to protect children with disabilities. For instance, Section 504 and Title II’s regulations prohibit recipients of federal funds and public entities, respectively, from using “criteria or methods of administration . . . that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” Because confidentiality is required for therapy to succeed, this policy may unintentionally have the effect of substantially impairing unaccompanied minors from receiving the intended therapeutic benefits of the therapy session. Although gang affiliation is disability neutral on its face, it has a disparate impact on unaccompanied minors with psychosocial disabilities because there is a correlation between gang affiliation and emotional and behavioral disorders.
"White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States"
University of Illinois Law Review, 2022 Forthcoming
U. of Pittsburgh Legal Studies Research Paper No. 2021-16
ELENA A. BAYLIS, University of Pittsburgh - School of Law
Email: ebaylis@pitt.edu
Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have a federal law prohibiting crimes against humanity. This Article first applies international law to define crimes against humanity and assess the risk of crimes against humanity occurring within the United States. It then turns to domestic law to evaluate the potential for a federal law or other federal measures to protect against crimes against humanity, including the political obstacles, the likelihood that any future legislation will depart significantly from international law, and the implications for effectiveness.
"Migrant Protection Protocols and the Death of Asylum"
Journal of Latin American Geography
AUSTIN KOCHER, Transactional Records Access Clearinghouse
Email: ackocher@syr.edu
From January 2019 to January 2021, a Trump-era policy known as the Migrant Protection Protocols (MPP) forced asylum seekers arriving at the U.S.-Mexico border to wait for their hearings in dangerous parts of northern Mexico. MPP had disastrous consequences: very few migrants in MPP had a meaningful chance to request asylum compared to other asylum seekers, and the forced migrants waiting in Mexico faced pervasive violence. President Biden suspended new enrollments in the program on his first day in office and, by late February 2021, migrants who were living in the refugee camp that emerged as a result of MPP in Matamoros, Mexico, began to enter the United States to pursue their asylum claims. As the MPP program—also known as Remain in Mexico—appears to come to a close, this essay examines key aspects of the program through the perspective of ontological, political, and physical death that Alison Mountz theorizes in her recent book The Death of Asylum. Drawing on Mountz’s work, I view MPP as symptomatic of a concerted though spatially uneven assault across the developed world on both the institutions and operations of asylum as a practice as well as on asylum seekers themselves.
"Refugee Entrepreneurship: A Systematic Review of Prior Research and Agenda for Future Research"
JOBR-D-21-02296
ALEX NEWMAN, Deakin University - Faculty of Business and Law
Email: a.newman@deakin.edu.au
LUKE MACAULAY, Deakin University - Faculty of Business and Law
Email: l.macaulay@deakin.edu.au
KAREN DUNWOODIE, Deakin University - Faculty of Business and Law
Email: k.dunwoodie@deakin.edu.au
In recent years, the refugee crisis has emerged as a grand societal challenge with a host of economic, social, and political implications. As of 2020 there were around 26 million people registered with the UNHCR as refugees. While refugees are considered by some to be a burden on their host countries, there is growing evidence that they make significant contributions to the economies of their host countries, with rates of entrepreneurship higher than other migrant groups and host country nationals. To take stock of what we know about refugee entrepreneurship, this article undertakes a systematic review of the literature. The systematic review provides insights on themes regarding facilitators and barriers to refugees’ entry into entrepreneurship, as well as identifying gaps in our extant knowledge. Based on these gaps, a future research agenda is proposed which targets empirical and theoretical advancement of the field of refugee entrepreneurship.
