Tag Archives: Immigration

The Substantive Criteria Underlying Birthright Citizenship

D. Carolina Núñez, Beyond Blood and Borders: Finding Meaning in Birthright Citizenship, 78 Brooklyn L. Rev. 835 (2013).

The Fourteenth Amendment of the United States Constitution grants birthright citizenship to all individuals born within the territory of the United States, with an exception for the children of diplomats. Consequently, the children of unauthorized migrants born in the United States are United States citizens. A number of individuals, including members of Congress, contend that birthright citizenship serves as an incentive for unauthorized migration. As recently as January 3, 2013, the House of Representatives considered a bill that would limit constitutional birthright citizenship to the children of U.S. citizens, lawful permanent residents, and noncitizens serving in the armed forces. Carolina Núñez’s article makes an important contribution to this debate, and to the academic literature on citizenship and membership more broadly, because it offers substantive criteria for determining who should have birthright citizenship in the United States and because it analyzes a variety of proxies for measuring these substantive criteria.

Through an examination of post-American-Revolution cases and the congressional debates for the Fourteenth Amendment, Núñez identifies three substantive factors that have been critical in making membership decisions: mutuality of obligation, community ties, and community preservation. Núñez introduces three models of membership utilized in U.S. law (the territorial model, the status-based model, and the post-territorial model) and assesses each model’s ability to effectively measure the substantive criteria. She concludes that the use of “inaccurate proxies are unavoidable” when assigning birthright citizenship, but that the territorial model offers the most accurate proxy. (P. 857.)

After the Revolution, courts had to determine “[w]hat made a former British subject a citizen” as well as when British subjects became U.S. citizens. Rather than using rigid rules to make these determinations, the courts utilized a totality-of-the-circumstances approach in which loyalty to the United States and community ties were important factors. Allegiance gave rise to a state obligation to protect the loyal individual. Integration into the community was evaluated based on where individuals were raised and where they decided to live.

Núñez argues that the congressional debates regarding the Fourteenth Amendment reinforced the importance of these substantive factors in making birthright citizenship decisions. During the debates Congress discussed whether the children of Gypsies, Chinese immigrants, and Native Americans would obtain territorial birthright citizenship. While the arguments against extending birthright citizenship to these groups had racist overtones, Núñez adeptly identifies the specific conduct that was used as the basis for excluding these groups. Those against birthright citizenship cited concerns about loyalty, willingness to submit to U.S. sovereignty, and limited ties to American communities. The Fourteenth Amendment did not exclude the children of Gypsies and Chinese immigrants. Núñez attributes this fact to Congress concluding that these children would be loyal, that they and their families played an important economic role in American communities, and that exclusion would create a subclass within American society whereas inclusion “would create a just, egalitarian society.” (P. 870.) A different outcome, however, was reached for Native Americans—primarily because Native Americans were considered members of separate and distinct nations and were viewed as not having any allegiance or obligations to the United States.

Based on her conclusion that mutuality of obligation, community ties, and community preservation are the substantive criteria upon which membership decisions should be made, Núñez evaluates the ability of the territorial and status models to accurately identify desirable members. The territorial model uses the border to assign membership. Those within the border are members and those outside of the border are not. This is contrasted with the status-based model in which rights are assigned based on an individual’s status. Finally, the post-territorial model seeks to measure the desired substantive criteria directly rather than using proxies.

Núñez concludes that implementing the post-territorial model and conducting an individualized assessment of every person born in the United States “would be impractical.” (P. 875.) Thus, proxies are necessary. Núñez argues that the territorial model better assesses mutuality of obligation, community ties, and community preservation than the status-based model. Because legal obligations in the United States are based on presence rather than status, Núñez easily concludes that mutuality of obligation is better measured by territorial presence than by parental status. Birth in the United States is also more predictive of the development of community ties because it generally gives rise to long-term residence and connection to community institutions. Finally, Núñez contends that denying the children of unauthorized migrants birthright citizenship would “distribute membership rights on different terms to individuals who are effectively identical in all substantive respects,” which is unjust. (P. 880.)

Núñez’s analysis of the post-Revolutionary citizenship cases convincingly offers a set of substantive criteria for membership in the American polity. Her discussion of the initial refusal of birthright citizenship to Native Americans suggests that cultural assimilation has also been a substantive requirement for birthright citizenship. Native Americans were denied constitutional birthright citizenship not only because they were deemed members of independent sovereign nations but also because they were viewed as “uncivilized” and thus lacking community ties.

Núñez’s article provides a very useful starting point for thinking about the substantive criteria for birthright citizenship in the United States. Her analysis also offers important insights about American identity and the ways in which certain community ties may be privileged over others when deciding who is sufficiently connected to be deemed an American at birth.

Cite as: Angela Banks, The Substantive Criteria Underlying Birthright Citizenship, JOTWELL (June 6, 2014) (reviewing D. Carolina Núñez, Beyond Blood and Borders: Finding Meaning in Birthright Citizenship, 78 Brooklyn L. Rev. 835 (2013)), http://lex.jotwell.com/the-substantive-criteria-underlying-birthright-citizenship/.

Civilizing Civil Detention

César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. (forthcoming 2014), available at SSRN.

When the news came out that nearly half a million noncitizens now find themselves in immigration detention, it struck me that this may be the most invisible civil-rights issue of our era. Immigration Detention as Punishment, by César Cuauhtémoc García Hernández, offers a compass through this tricky and contested terrain.

Formally, immigration detention is a civil status, an administrative adjunct to deportation. Detained noncitizens have lesser procedural protections against unnecessary or excessive detention than the criminal justice system provides to pre-trial detainees. Yet, immigration detention functions to deprive noncitizens of social and physical liberty in the same way as criminal incarceration. The government detains noncitizens in the same jails and prisons as criminal defendants and the convicted.  The lives of noncitizens in detention are regulated in the same way as the lives of those whose confinement results from the criminal justice system.

That’s okay, said the Supreme Court in Demore v. Kim, because detention is an avenue to deportation, and as long as immigration detention is not used to punish, it is classified as civil and Due Process sets the procedural standard. The constitutional protections give way a bit, giving Congress some leeway to withhold individualized bond hearings. That raises two questions: Is immigration detention punishment? And if it is, can we inoculate immigration detention from illegitimacy with more robust criminal-type procedural protections?

The title of García’s elegantly written article might clue you in to his answer to the first question. The article takes an unexpected turn, however, when addressing the second. If immigration detention is civil, it argues, criminal procedural protections are not the solution.

I loved this piece because I love legal history, especially when it reveals new insights into the more peculiar structures of modern law, and because I love scholarship that delves deeply into one corner of law to ask questions about the whole room. Until I read this piece, I assumed that the profligation of immigration detention stemmed from the major expansion of deportation grounds in the 1990s. That’s consistent with the idea that detention is merely an airlock to deportation.

Immigration Detention as Punishment led me farther back in time to the beginning of the “war on drugs.” 1986 was the birth year of modern “immcarceration” (hat tip to Anil Kalhan for that evocative term), when Congress ordered the Defense Department to make detention facilities available to the Attorney General for “illegal alien felons and major narcotics traffickers,” and authorized police to request immigration “detainers” from federal immigration officials. Most importantly, Congress channeled funding to state and local governments, the Bureau of Prisons, and the immigration agency for detention connected with “illegal alien” involvement in drug trafficking and crimes of violence. Later, Congress specified that jails and prisons and other comparable facilities were appropriate, even desirable, for detaining noncitizens.

Locating the birth of modern immigration detention within the war on drugs allows García to connect the rise of detention with the contemporaneously swelling penal prison population. He shows how the mandatory minimum sentences and sentencing guidelines that came into vogue in criminal law in the ‘80s and ‘90s, limiting judicial discretion and expanding prosecutorial power, appeared in refracted form in immigration provisions that introduced mandatory detention provisions and constrained judicial power to avert deportation. Seen through this historical lens, immigration detention “became an integral part of the punitive consequences” of the war on drugs. García’s meticulous unfolding of the legislative history of immigration detention constructs a persuasive argument that Congress intended immigration detention to perform a punitive function.

Entangling immigration detention with criminal punishment would seem to support an argument for importing criminal procedural protections into immigration detention. García acknowledges that raising procedural barriers to immigration detention would make it slower and costlier for the government to impose detention. But he notes that the criminal justice system, with its panoply of constitutional procedural protections, neither won the war on drugs nor prevented the mass incarceration of drug-crime defendants.

It is this examination of the contradictions of immigration detention that leads García to call for “a wholesale reexamination of the efficacy of confinement as a tool of social control.” Here García makes an Escher-like move, shifting the readers’ perspective from criminal analogues to the formally civil status of detention and asking us to take it seriously. The article advocates creating the “truly civil detention system” that the Immigration and Customs Enforcement agency states that it aspires to.

Imagining a civil detention system may invoke for some the picture of unauthorized aliens sunbathing at leisure at taxpayer expense. Taking civil detention seriously, though, requires a rigorous evaluation of how to calibrate deprivations of liberty and individual circumstances with immigration policy goals. So as not to be a spoiler, I will leave you to the pleasure of that garden pathway with García as your guide.

Cite as: Juliet Stumpf, Civilizing Civil Detention, JOTWELL (May 9, 2014) (reviewing César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. (forthcoming 2014), available at SSRN), http://lex.jotwell.com/civilizing-civil-detention/.

Undocumented Status and Slavery: Examining the Parallels

Chantal Thomas, Immigration Controls and “Modern-Day Slavery” (Cornell Law Sch. Legal Studies Research Paper Series, Paper No. 13-86, 2013), available at SSRN.

In the heat of the debate over comprehensive immigration reform last spring, Marco Rubio’s press secretary likened undocumented migrants to slaves, noting that Americans have not “had a cohort of people living permanently in US without full rights of citizenship since slavery.” The parallel between slavery and undocumented status is drawn often, but rarely with precision or analytical rigor.

Chantal Thomas’s new paper, Immigration Controls and “Modern-Day Slavery”, takes on the challenge of bringing hard-nosed logic to bear on the concept of “modern-day slavery” and its interface with immigration law. In my view one of the most interesting authors out there on questions of international law, immigration, and labor, Thomas’s analysis of the slavery debate does not disappoint.

She begins by noting the potential breadth of the term “modern-day slavery,” and presenting the debates around whether forced labor should be included within the definition. Thomas focuses on the coercion aspect of slavery, arguing that today the lack of lawful immigration status is “the single most formal and legally permitted basis” for this type of coercion. (P. 11). This leads to the article’s central contribution: Pointing out that advocates and scholars who seek to dismantle modern-day slavery are engaged with the wrong problem, as their proposed solutions focus on criminal law or human rights protections but fail to discuss the impact of immigration laws. Because United Nations human rights bodies and even anti-slavery advocates never seriously question state sovereignty and border control prerogatives, they are ineffective in preventing severe exploitation of undocumented migrants.

Thomas engages with two literatures in the course of her article. She begins with the contemporary debate around the legal definition of slavery, labeling the different camps with the monikers of “maximalist” and “minimalist.” (Pp. 15-22). These groups sit at either end of a spectrum in defining slavery, from narrow de jure ownership to a broad sociological approach that includes conditions of control. Thomas gets deep into the weeds of the debate around the 1926 Slavery Convention and its definition of slavery, tangling with questions of factual and legal equivalence. For those familiar with the literature, this is the least interesting portion of the paper, as Thomas engages in critique of the analytically impossible task of defining slavery in a world in which ownership of humans is legally prohibited. Though she does an admirable job of parsing the debate and highlighting its glaring deficiencies, I think Thomas is at her best when she spins out her own far more original and thoughtful theories. In my view, it would have sufficed to make the point that current-day abolitionists are seeking to “eradicate a practice that has no explicit legal component” and therefore abolitionists are barking up the wrong tree. (P. 15). Given the questions raised in the rest of the paper, this section might have focused instead on whether the academic focus on slavery and definitions of possession and control serves to obscure the role of the state in enabling coercion.

Thomas gets to that point next, in a lively and engaging section that draws on legal realist scholars Wesley Hohfeld and Robert Hale. Hohfeld and Hale wrote about labor law in the early 20th century, highlighting the “internal analytical incoherence and external negative impact” of conservative legal interpretations of labor law. (P. 12). Following Hohfeld, Thomas unearths the hidden role of private law in enforcing the state’s coercive power. In her words, “Hohfeld encourages us to identify the precise contours of legal rules that shape entitlements as enforced by the state. If we try to unpack what legal rules contribute to modern-day slavery, we are confronted with the fact that border controls do a lot of this work.” (P. 36). From Hale, Thomas extracts an explanation of the ways in which property laws, by requiring us to enter into the market, construct the imbalanced bargaining power faced by undocumented migrants. Hohfeld and Hale’s theories are powerful, and Thomas deftly adapts them to the contemporary situation of the undocumented.

Thomas struggles with the analogy between undocumented status and slavery, appearing (understandably) conflicted about whether or not it should be drawn. The term “slavery” brings with it formidable rhetorical power, but, as she notes, there are important differences between undocumented migrants and slaves. In the beginning of the article, Thomas explicitly disavows the equivalence of undocumented migrants and slaves, noting that the former have some rights and are therefore in quite a different position from the latter. Yet she is drawn to the parallel, returning to it at the end of the article. Thomas first argues that the thread that ties undocumented status and slavery is the deprivation of the right to freedom of movement. She recognizes that the analogy is imperfect: In her view because the former group is forcibly returned to the country of origin while the latter is forcibly returned to forced labor.  I agree with Thomas that undocumented migrants face problematic restrictions on their freedom of movement.  But I would distinguish that right from the right to territorial security.  In other words, the inability to travel within a country is conceptually distinct from the inability to regularize and remain lawfully in that country.  I therefore find more convincing Thomas’s second argument: that the main parallel between slaves and the undocumented is their susceptibility to exploitation, and that the threat of expulsion imposed by immigration law is a central factor in that vulnerability.

The article is a refreshing and provocative foray into the contemporary slavery debate and is at its strongest when showcasing the author’s original ideas. Its theoretical power is matched by its practical value, and I, for one, look forward to the day when anti-slavery advocates and scholars heed Thomas’s advice and focus on the role of immigration law in perpetuating the exploitation of undocumented migrants.

Cite as: Jaya Ramji-Nogales, Undocumented Status and Slavery: Examining the Parallels, JOTWELL (February 5, 2014) (reviewing Chantal Thomas, Immigration Controls and “Modern-Day Slavery” (Cornell Law Sch. Legal Studies Research Paper Series, Paper No. 13-86, 2013), available at SSRN), http://lex.jotwell.com/undocumented-status-and-slavery-examining-the-parallels/.

Local Prosecutors as Deportation Gatekeepers

Stephen Lee, De Facto Immigration Courts, 101 Cal. L. Rev. 553 (2013).

In De Facto Immigration Courts, Stephen Lee untangles part of the thicket that is immigration law. Immigration law is a dense and unique fusion of administrative law, constitutional law, criminal law, and more. It is these intersections, in the context of the very human story of migration, which give immigration law its essence. Professor Lee’s article identifies and explores an underexposed phenomenon arising from immigration law’s dependence on criminal law and criminal procedure.

Professor Lee’s article focuses on how events in state and local criminal law proceedings affect eventual federal civil law agency removal (deportation) proceedings in immigration courts. Specifically, he looks at the impact of state and local prosecutors’ charging and plea choices in criminal cases in eventual agency immigration law proceedings. He argues that criminal court systems are functioning as de facto immigration courts.

Because immigration law has grown to depend on criminal convictions to determine who may legally enter and remain in the United States, what happens during a criminal case often will determine whether an individual is removable under the immigration statutes. The federal immigration statutes contain intricate formulations for determining whether a particular conviction falls into a category that makes a person removable. Because those formulations are known, the immigration consequences of any conviction are (or should be) a major factor in determining the outcome of a criminal case with a non-citizen defendant. Prosecutors may choose to charge tough or leniently, or to agree or disagree to certain plea deals with immigration consequences in mind. The Supreme Court recently recognized this power in Padilla v. Kentucky, but Professor Lee goes further by assessing the phenomenon. He evaluates a system where local law enforcement officials hold the power to “control the pool of removable immigrants.” Professor Lee shines a needed spotlight on this power, gives the phenomenon a name, and insightfully evaluates the trend.

The immigration statutes are harsh and complex when it comes to the consequences of criminal convictions. Shoplifting, for example, can qualify as an “aggravated felony.” Let me explain how. The immigration law definition of “aggravated felony” includes a theft offense where the “term of imprisonment” is at least one year. The phrase “term of imprisonment,” it so happens, ignores any suspensions and looks only at the term ordered. Also, in immigration law, a “conviction” includes a guilty plea. So, if an individual accepts a plea of shoplifting with a one-year suspended sentence, voilá, we have an aggravated felony. Therefore, a guilty plea to shoplifting, which may seem like an acceptable deal from a criminal law perspective, renders an individual deportable and ineligible for almost all forms of relief from removal as an aggravated felon. If the deal had been structured differently (for example, one day less than one year), the conviction would not qualify as an aggravated felony.

State and local prosecutors, of course, are essential players in structuring plea deals. By agreeing to one year or one day less than one year, they also determine removability. One of Professor Lee’s major contributions is that he recognizes that state and local prosecutors control the pool without federal executive branch oversight. This is not a delegation of executive power, as state and local prosecutors are carrying out their traditional criminal law function. State and local prosecutors do not need federal executive branch permission to charge in a certain way or to accept certain plea deals. In this way, however, they affect federal immigration enforcement. The choices of state and local prosecutors may not be in sync with federal enforcement policy, and Professor Lee has advanced immigration law scholarship by acknowledging and confronting this disconnect.

The power of state and local prosecutors over federal immigration law enforcement is not absolute. As Professor Lee explains, a prosecutor cannot force the federal government to initiate removal proceedings (although certain convictions may make removal proceedings almost guaranteed). The federal government regularly exercises prosecutorial discretion in deciding whether to initiate agency removal proceedings. The impact of state and local prosecutors may also be limited if a foreign national is removable for some other, non-criminal reason. Also, prosecutors may be influenced by a variety of constraining factors, such as a desire to maintain a good relationship with immigrant communities, the visibility and seriousness of the criminal activity, and resource limitations.

Beyond acknowledging and confronting the phenomenon of de facto immigration courts, Professor Lee explores how this reality might be improved. He recommends that Congress consider formalizing the role of criminal courts by reinstituting the JRAD (Judicial Recommendation Against Deportation). Under the JRAD regime, sentencing judges had the discretion to recommend against deportation. While Congress eliminated the power to make such recommendations in 1990, Professor Lee asserts that a revitalized JRAD power would provide some oversight over the gatekeeping power of prosecutors. Additionally, Professor Lee emphasizes a need to consider how state and local prosecutors engage in plea bargaining in cases with immigration consequences, including whether there should be more standardized practices.

Professor Lee’s work reveals that when Congress set up the immigration laws to rely on criminal convictions to determine who may join or who must leave our society, Congress in effect gave state and local prosecutors a major role in the selection process. This is an important discovery, for it calls into question the true nature of a conviction-based removal—is it based on an exercise of federal or state power? Administrative adjudication is also implicated. This is an area not fully explored by Professor Lee. If prosecutors hold the power to dictate whether someone is removable, that effectively neuters the administrative immigration courts. If immigration judges are powerless in the face of a conviction, then the role of immigration judges is simply to give effect to the result in state court. The immigration court system is effectively avoided if a prosecutor has achieved a result in the criminal court system that leaves nothing for an immigration judge to do.

Cite as: Jill Family, Local Prosecutors as Deportation Gatekeepers, JOTWELL (January 8, 2014) (reviewing Stephen Lee, De Facto Immigration Courts, 101 Cal. L. Rev. 553 (2013)), http://lex.jotwell.com/local-prosecutors-as-deportation-gatekeepers/.