Tag Archives: Immigration
Oct 20, 2022 Angela BanksLexImmigration
In September of 2021, Haitian migrants, attempting to return to a migrant camp in Del Rio, Texas, were met with U.S. Border Patrol agents on horseback with whips. The Haitian migrants had gone to Mexico to obtain food for their families, as there was insufficient food at the camp. Upon their return, Border Patrol agents attempted to push the Haitian migrants back across the Rio Grande to Mexico. One viral image showed a Border Patrol agent on horseback holding a whip and grabbing a Haitian migrant by the back of his shirt. Kit Johnson’s recent article, Women of Color in Immigration Enforcement, raises interesting questions about whether or not the growing number of women of color in immigration enforcement could positively impact the “use-of-force culture in the federal immigration enforcement context.” (P. 997.)
Johnson’s article introduces new demographic data about immigration enforcement officers that demonstrates that the majority of female immigration enforcement officers are women of color. In light of this new information, Johnson introduces a research agenda to examine the impact and experiences of women of color within immigration law enforcement. While scholars have explored the experience and impact of Latinx immigration enforcement officers, the experience and impact of women of color specifically has not been explored. Now that more granular demographic data is available, women of color can be the focus of analysis. Continue reading "Immigration Enforcement in the Twenty-First Century"
Jul 8, 2022 Juliet StumpfLexImmigration
In immigration law, where the apex penalty is deportation, proportionality is absent. We tend to think of proportionality in punishment as requiring that the severity of a penalty track the severity of the offense, minus mitigating circumstances. The coin of the realm in immigration law is immigration status, so mitigating circumstances would in theory focus on the noncitizen’s particular qualities, such as length of residence in and ties to the United States. In Immigration Law’s Arbitrariness Problem, published in the Columbia Law Review, Shalini Bhargava Ray argues for sanctions better tailored to these considerations.
I like this article (lots) because for one thing, it challenges my own scholarship advocating for proportionality in immigration law and centralizing deportation as the sole immigration penalty. (I’m not alone. Angela Banks, Mike Wishnie, Maureen Sweeney, and Jason Cade (and others) have also proposed proportionality in deportation, and they’re no slouches). The article’s first contribution is to challenge the notion that proportionality is a fix for deportation’s ills. Proportionality proponents tend to point to the criminal justice system’s employment of proportionality in sentencing but, as Bhargava Ray observes, criminal law is replete with “overpunishment and overcriminalization” and so not a model of proportionality as path to justice. Besides, courts tend to hate the proportionality argument, which is why it tends to fail. Continue reading "Shining a Light on Shadow Sanctions"
Feb 23, 2022 Jill FamilyLexImmigration
Ava Ayers, Missing Immigrants in the Rhetoric of Sanctuary, 2021
Wis. L. Rev. 473 (2021), available at
SSRN.
Ava Ayers asks us to think about a hypothetical policy that says, “We must protect our children from violent crime because children are key drivers of economic well-being.” Professor Ayers aptly describes this language as “creepy.” Why, then, do politicians often discuss immigration by emphasizing what migrants can do for us, rather than in terms that recognize the agency, rights, and intrinsic value of individual migrants? While the effects of immigration are a legitimate concern, the rhetoric of politicians often leans on a transactional approach to immigration, rather than one based on moral grounds. While the reluctance to highlight what is best for migrants may be understandable given political calculations, Professor Ayers pushes us to think about what is lost by ignoring opportunities to say that undocumented individuals matter, that they are a part of the community, and that they are worthy of the concern of public leaders. Professor Ayers’ approach focuses on the way that policy reflects “attitudes about the value of human beings.” The law is about more than just consequences.
In Missing Immigrants in the Rhetoric of Sanctuary, Professor Ayers examines the rhetoric used by local and state policymakers when crafting sanctuary policies. While “sanctuary” has no strict definition, it generally refers to policies that resist immigration enforcement or policies that withhold state and local cooperation with immigration enforcement. Some sanctuary policies involve active resistance, while others are more passive. All sanctuary policies are meant to protect individual noncitizens. But, as Professor Ayers has found, the justifications for sanctuary policies are at times expressed in language that emphasizes what sanctuary policies can achieve for those who are not at risk of deportation. In other words, policymakers, at times, do not make those who will benefit from a sanctuary policy the center of their rhetoric. Continue reading "Why Don’t Policymakers Speak Out About Migrants?"
Sep 7, 2021 Jaya Ramji-NogalesLexImmigration
In Global Southerners in the North, Ama Ruth Francis offers a new theoretical angle on the long-standing and crucial question of how to mobilize popular opinion and legal power on behalf of migrants who lack political voice. Her contribution decenters the state as the key actor in international law, and suggests instead that scholars concentrate on individuals and sub-state spaces. Focusing on climate change migration, Francis suggests that the way to address the severe power asymmetries between those responsible for and those most impacted by the changing climate is to reconceptualize the Global South to include all people and spaces rendered expendable by racial capitalism. She builds on the Third World Approaches to International Law (TWAIL) literature to argue that international law should be theorized as a shared commitment that can be furthered by political agents – in other words, that states are not the only actors capable of creating international law.
Francis begins her analysis by noting that the Global South is not a monolithic bloc; there are vast differences across and within states. For example, among the BRICS nations (Brazil, Russia, India, China, and South Africa), China is a major emitter even though it remains part of the Global South. Moreover, within states in the Global North and the Global South, racial capitalism creates significant gulfs between rich and poor that underlie disparities in both emissions and community resilience in the face of climate change. She describes the TWAIL literature on international environmental law that discusses the history of colonial expansion and domination linked to environmental degradation, and explains how this project of global economic inequality was justified and continues to be bolstered by international law. Continue reading "Theorizing Transnational Resistance “From the Inside Out”"
Aug 5, 2021 Juliet StumpfLexImmigration
When I picture immigration enforcement, my mind’s eye sees walls bisecting dusty hills, “POLICE” slashed across ICE uniforms, sheriffs with immigrant detainers, and the bright painted bricks and silvery wire of detention facilities. I don’t see money.
At least, I didn’t. Then I read Shayak Sarkar’s Capital Controls as Migrant Controls. Now, like a Sixth Sense, when I picture immigration control, I see money. I see it everywhere, walking around. Capital Controls will shift your perspective on the relationship between how we control capital and how capital is a tool of immigration control. Continue reading "Follow the Money: Capital Controls as Migrant Control"
Jul 7, 2021 Angela BanksLexImmigration
Since the summer of 2020, Americans have been having more explicit discussions about racial hierarchy in the United States and the role of law enforcement in maintaining such hierarchy. Kevin Johnson’s forthcoming essay, Bringing Racial Justice to Immigration Law, brings that conversation to immigration law. Johnson argues that Congress, but ultimately the Supreme Court, needs to explicitly address the racial animus that has motivated the structure of immigration law in the United States. Through an examination of immigration history, the emergence of a robust immigrant rights movement, and the significant backlash from the Trump Administration, Johnson demonstrates that a positive agenda for immigration reform is required in order for the country to move towards a more just immigration system, rather than simply reverting to the pre-Trump immigration system, which was not a model for justice.
Johnson’s essay begins by mapping the racially discriminatory foundations of immigration law and the minimal role that courts have played in acknowledging and remedying such discrimination. The essay then discusses the emergence of the robust immigrant rights movement despite the fact that non-citizens are not eligible to vote. A response to the growth of the immigrant rights movement was a backlash by the Trump Administration. The next section of the essay explores the efforts undertaken by the Trump Administration to “maintain and reinforce the racial caste quality of the immigration system.” (P. 3.) The essay ends with an appreciation for the immigrant rights movement, and the claim that the goals sought by the movement will only be “meaningful, lasting, and truly transformative” if the Supreme Court jurisprudence shifts to require robust constitutional review of immigration laws and “allows the courts to serve as a check on racial animus.” (P. 3.) Continue reading "A Positive Immigration Agenda for Racial Justice"
Nov 11, 2020 Jill FamilyLexImmigration
The Law of Rescue connects aiding migrants to the body of law governing rescue generally. Professor Shalini Bhargava Ray proposes a new theoretical framework for the law of rescue based on her examination of prosecutions for migrant rescue. Her framework de-emphasizes economic interests and lifts up considerations of liberty and dignity.
While “[t]he law of rescue was not designed to express, promote, or protect the human dignity of beneficiaries or the liberty of rescuers,” (P. 623) Professor Ray argues that it should be redesigned to do so. Her new framework would balance three considerations: (1) the rescuer’s liberty to engage in the rescue; (2) the beneficiary’s need for rescue; and (3) the potential third-party harm flowing from a consensual rescue. Continue reading "Rescue Based in Liberty and Dignity"
Jun 12, 2020 Juliet StumpfLexImmigration
Daniel Farbman,
Resistance Lawyering, 107
Cal. L. Rev. 6 (2019), available at
SSRN.
“Resistance is useless,” said the Vogon guard to Ford and Arthur, the intergalactic protagonists of Douglas Adam’s Hitchhiker’s Guide to the Galaxy. That statement turned out to be pretty accurate. Despite Ford’s attempt at resistance through searing critique of the bureaucratic system that the Vogon guard serves, he and Arthur are summarily pushed through the airlock into the starry void.
Perhaps what Ford needed was the lesson in Daniel Farbman’s Resistance Lawyering: that resistance staged from within an unjust and illegitimate system, rather than from the outside, can be dramatically effective. Farbman illustrates this through examining resistance to the Fugitive Slave Act of 1850, the sharp edge of a system that shaped both the racial trajectory of this nation and our national yardstick of the meaning of injustice. Continue reading "Resistance is Not As Useless As We Believed"
May 21, 2020 Angela BanksLexImmigration
In 2018 the Pew Research Center reported that approximately two-thirds of all unauthorized migrant adults in the United States have lived here for more than ten years. The average length of residence is fifteen years. The unauthorized migrant population has become a more settled population rather than a temporary population and mass deportation is politically impossible. In light of these realities it is critically important to seriously explore a pathway to lawful immigration status and/or citizenship for this population. Wadhia’s recent article in the Notre Dame Journal of Legislation argues that long-term residence should be a basis for access to regularizing immigration status in the United States. This argument is rooted in the historical use of long-term residence as the basis for a variety of forms of relief in immigration law.
Americans in Waiting: Finding Solutions for Long Term Residents offers a detailed overview of the role that long-term residence has played in the past, the role that it currently plays, and the role that it could play to address the immigration status of the almost 11 million unauthorized migrants in the United States. Long-term residence in the United States has been recognized as a mitigating factor in deportation cases since 1891 when Congress authorized the deportation of individuals who became a public charge within one year of arrival. The one-year statute of limitations was later extended to five years and this approach to deportation grounds was continued in 1917 when crime-based deportation grounds were adopted. Continue reading "Long-Term Residence as Evidence of De Facto Membership"
Mar 20, 2020 Jaya Ramji-NogalesLexImmigration
Petra Molnar, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, 8 Cambridge Int’l L. J. 305 (2019).
As scholars of immigration law have been busy digesting the firehose of law and policy changes shooting out of the Trump administration, the use of new technologies at the border has been proliferating. Petra Molnar’s new article, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, reminds us that we must begin to pay closer attention to these developments and how they are deployed and regulated. Building on her excellent report, Bots at the Gate, the article provides a timely and useful roadmap of the relevant technologies and their very real risks. Though in the end Molnar is more sanguine than I about the potential of human rights law to mediate these risks, she rings a crucially important warning bell that we would all do well to keep an ear out for over the roar of the firehose.
The article begins, as it should, with a basic description of the “class of technologies that assist or replace the judgment of human decision-makers.” Automated decision-making has the potential to impact adjudication processes and outcomes by the full range of immigration actors, from border patrol to immigration courts. But what technologies are contained within this category? Molnar lists four: artificial intelligence, machine learning, automated decision systems, and predictive analytics, describing them as technologies that can be taught and can learn. Along with the description, she raises the key concern about the opacity of how exactly these decisions are made. As Frank Pasquale and others have asked, what is in that algorithm? Bias, perhaps? Molnar makes the important connection between the literature that critically examines automated decision-making and immigration adjudication. She notes that these technologies present the same risks as human decision-makers: accountability, bias, discrimination, error, and transparency, reminding us not to be fooled by the algorithm’s veneer of scientific objectivity. Continue reading "Watch This Space: AI at the Border"
