Tag Archives: Immigration
Dec 5, 2023 Angela BanksImmigration
Gun violence remains a serious issue in the United States. The Gun Violence Archive reports that between January 1, 2023, and May 1, 2023 there have been 185 mass shootings that injured 744 people and killed 252 people. In 2008, the United States Supreme Court held that the Second Amendment protects an individual right to possess firearms, separate and apart from militia service in Heller v. District of Columbia. This right is held by “the people.” Yet, the Court has simultaneously held that noncitizens are not part of “the people” guaranteed a right to bear arms. In the Second Amendment context “the people” has been defined as citizens. Pratheepan Gulasekaram’s forthcoming article in the Vanderbilt Law Review explores the Supreme Court’s expansion of individual gun rights while shrinking the Court’s conception of “the people.” Gulasekaram offers a more capacious interpretation of “the people” and his analysis offers an approach for noncitizen inclusion in other core constitutional rights.
The Second Amendment’s “People” Problem begins with a history of federal regulation of gun possession and noncitizens. Gulasekaram demonstrates how the restrictions implemented stemmed from a desire to limit specific ideologies and subversive activities. Noncitizens in this context were viewed as threats to the constitutional order. Under a pre-Heller Second Amendment that focused on organized armed defense of the constitutional order, noncitizens viewed as a threat could not be viewed as “the people” who would protect the constitutional order. In Part II, Gulasekaram demonstrates how Heller’s emphasis on an individual right to self-defense does not lend itself to the same wholesale exclusion of noncitizens from “the people.” Part III presents Gulasekaram’s argument that once the right to bear arms is rooted in an individual right based on self-protection, the rationale for connecting gun rights to citizenship status disappears.
Part I of The Second Amendment’s “People” Problem does an excellent job demonstrating that historical limitations on noncitizen gun ownership were rooted in “baked-in social hierarchies and stereotypes.” (P. 8.) Gulasekaram explores how the initial regulation of gun possession by disfavored groups “either conflated citizenship with race, or traded on the notion that immigrants were the source of anti-American and subversive ideologies.” (Pp. 7-8.) Federal immigration law in the early 1900s reflected concerns about noncitizens and anti-American ideologies. For example, the 1903 Immigration Act prohibited the entry and naturalization of “anarchists.” In 1918, Congress passed the Alien Anarchists Exclusion Act, which banned the entry of individuals who advocated or taught the overthrow of the American government and allowed for their deportation. The growing connection between noncitizens and dangerousness allowed California to enact a law in 1923 banning “unnaturalized foreign-born person[s]” from possessing firearms.”
Another important contribution made in Part I is illustrating the role of the powerful gun lobby in encouraging lawmakers to regulate immigrants rather than firearms. Building on the growing concerns about noncitizens’ anti-American ideology, in the 1920s and 1930s the United States Revolver Association (“USRA”) deployed campaigns arguing that significant gun regulation was anti-American and rooted in foreign ideologies. Advocacy campaigns argued that “[r]ather than regulate firearms, Congress should regulate the source of the true danger: immigrants.” (P. 11.) The National Rifle Association continued these themes, arguing that expansive gun rights should exist for “citizen sportsmen, hunters, and private owners,” and that regulation could and should exist for “undesirable aliens” and “Fifth Columnists.” (P. 12.)
In Part II, Gulasekaram argues that the grounding of the Second Amendment in a right to self-defense invites a new examination of “the people” who are guaranteed the right to bear arms. One important part of the analysis Gulasekaram offers in this section is how the Court’s analysis of “the people” is based on the Court’s 1990 decision in United States v. Verdugo-Urquidez. Construing the Fourth Amendment, the Court defined “the people” as those individuals who are “part of the national community or who have otherwise developed sufficient connection to the country to be considered part of that community.” Gulasekaram notes how in Heller the Court changed “national community” to “political community” and eliminates the alternative approach based on “sufficient connection to the country.” (P. 19.) These modifications make it possible to interpret “the people” as citizens.
Part III offers a new approach to “the people” that is rooted in the justification for an individual right to bear arms offered in Heller and reinforced in New York State Rifle & Pistol Assn v. Bruen. Those cases decouple the right from organized community protection of the state, or from the state, and base it instead on the right to protect individuals from private violence. Based on this approach to the Second Amendment, “the people” are “all those who may need arms for protection of self, loved-ones, or home.” Gulasekaram notes that the rights of citizens and noncitizens are often inextricably linked. Many immigrant families are mixed-status families, and depriving noncitizens of the right to self-defense through firearms will also deprive citizens of their right to self-protection. Gulasekaram does not argue that “the people” has no limitations, or that firearm regulation is impossible. Rather he argues that as a right of self-defense “immigration status bears no relationship either to the need for protection nor the ability to wield a firearm safely, in the way status as a minor or mental-illness might.” (P. 49.) Gulasekaram contends that limitations on Second Amendment rights should “closely track the inability of governments to ensure the safe, non-criminal use of the firearm.” (P. 50.)
The Second Amendment’s “People” Problem does an excellent job of demonstrating the internal tensions within the Court’s jurisprudence defining “the people” for Second Amendment purposes and detailing the history of limitations on noncitizen gun ownership. These insights raise significant questions about the accuracy and wisdom of defining noncitizens out of “the people.” The approach Gulasekaram offers provides a model for rethinking noncitizens’ constitutional rights.
Jun 15, 2023 Juliet StumpfImmigration
Keeping secrets is so middle school.
When the secret is law, though, the problems mature and proliferate. Faiza Sayed’s The Immigration Shadow Docket uncovers a nest of secret law in the Board of Immigration Appeals (BIA)’s practice of deciding almost 100% of its cases as unpublished, nonprecedential decisions. These decisions are available to government lawyers but not to immigrants or their lawyers, and that makes steam come out of my head.
The BIA decides about 30,000 cases each year, but publishes only 30 of them. Those published decisions are authored either by three-member panels, or by the Board en banc, and they lay out the legal reasoning and findings of the Board. The few published decisions are accessible to the public and citable.
The remaining tens of thousands of decisions of immigration cases are issued by single members of the Board. Sayed calls this the “immigration shadow docket.” The vast majority are summary affirmances and orders, and they cannot be cited as precedent—at least, not by advocates for immigrants. In practice, however, government attorneys and immigration judges access them and cite them in briefs and decisions. Thus, the steam.
Sayed describes one gesture that the BIA has made towards public access to some unpublished decisions, which sounds like a law librarian’s nightmare. A sliver—less than 6%—of the unpublished decisions are publicly accessible. They’re accessible, that is, only to members of the public willing to travel to the room where they reside (in hard copy only) in Falls Church, Virginia. Once there, the visitor discovers that the decisions are organized solely by month and year. There is no index nor topical filing system. As Sayed notes, “The only way to find decisions on a particular topic was to leaf through them, one by one.” (P. 911.) One imagines her there, leafing metronomically, sharing a table with bleary-eyed immigration lawyers with beards down to their toes.
Electronic versions of unpublished decisions reside on the internal BIA case database and some other immigration court locations where government counsel and immigration judges can find them. Although FOIA litigation has resulted in a settlement allowing for staggered disclosure of certain past and future unpublished decisions, many categories remain undisclosed and individual FOIA requests are often denied. Because of the inequality in access to Board decisions, the government and the adjudicator can tap into the secret law while it remains hidden from the public. The unpublished decisions are not minor procedural issues or ministerial decisions. They are adjudications of whether an individual may stay or must go. They are determinations that impact the future of individuals and families. At that volume, they are decisions about who will compose our communities.
Other courts, most famously the Supreme Court, also have shadow dockets—categories of orders, affirmances, and denials that are non-precedential but impact a significant volume of cases. These shadow dockets have been the subject of critique and efforts at reform. Sayed describes these in the article and relies on some of them in her suggestions for BIA reform.
But the BIA’s practice takes the shadow docket to a new height. In contrast to publication practices of the Supreme Court and federal appellate courts, almost 100% of the BIA’s decisions are on the shadow docket. The difference between the federal courts’ shadow dockets and the BIA’s body of secret law is that nearly all of the Board’s decisions are unpublished, and the federal courts have responded to critique by enacting reforms.
Having a secret body of immigration law calls into question the legitimacy of the immigration adjudication system. The article brings to light the existence of inconsistent outcomes in cases that should have the same result, such as two cases that determined both that a specific organization was a terrorist group and that it was not, resulting in a removal determination for one non-citizen but not the other. Sayed also points out that the nature of the shadow docket encourages “low-quality opinions that are thinly reasoned or lack reasoning entirely” and “error-prone decision-making.” (P. 920.)
Sayed’s long list of concerns about the existence of the shadow docket is compelling. She notes the high stakes of BIA decisions when removal orders mean banishment from the United States. Because of the severe restrictions on federal court review and jurisdiction, the BIA is essentially the Supreme Court for most immigration cases. Lack of a right to appointed counsel, among other barriers, means that the odds are stacked against the indigent non-citizen in immigration court. Even with counsel, how well can an attorney represent a client when the law is inaccessible to her? How is the public to comply with the law, or advocate for changes in law, if the law itself is secret?
But her larger point is the takeaway here. Secret immigration law stunts the development of immigration law itself. The Board is tasked with providing guidance about the meaning of immigration law and effecting uniformity in immigration law nationally. This is an impossible task when only 30 of those 30,000 decisions are published. As Sayed concludes: “shadow docket decision-making defies important principles of administrative governance, including notice, justification, coherence, and procedural fairness, and undermines political accountability and judicial review.” (P. 898.)
Apr 12, 2023 Jaya Ramji-NogalesImmigration
Scholarly examinations of sanctuary for immigrants tend to focus on destination states in the Global North, where the concept implicates support for the immediate needs of immigrants in a specific location—such as a church, or throughout a city—and in some cases policy advocacy efforts. Few scholars writing in the Global North have explored how this concept translates to the Global South, where most migration and transit occurs, and where a substantial amount of work is happening to support migrants despite the more profound costs to those residing in countries with more limited resources. Alexandra Délano Alonso offers the reader a shift in the epistemology of migration, taking us to locations in the Global South where this work is taking place. In Sanctuary in Countries of Origin: A Transnational Perspectives, she investigates the concept of sanctuary through a case study of her home country of Mexico, determining that the term is an uneasy fit and that the practice of sanctuary is more transformative in the Mexican context.
Délano begins with an examination of historical sanctuary practices in Mexico, noting that, much like in the United States, the main actors have been migrant shelters, churches, and community organizations, but that Mexicans are more likely to use the terms hospitality, shelter, and welcome to describe the support offered to migrants. Given that the Spanish definition of sanctuary tends to focus narrowly on religious spaces, she questions its political power in popular discourse. Délano also asks the key question about sanctuary that Mexicans raised in response to the Central American caravans in 2018, namely, whether sanctuary can exist in a location that is unsafe and under-resourced even for locals. She also explores the complexity and contradiction in the political discourse around these caravans, noting an about-face between governments, from a discourse of hospitality for asylum seekers to the assertion just a few months later that Mexico is not a sanctuary or a “country of open doors” by the administration of Andrés Manuel López Obrador.
The article offers three case studies to explore the discourse and practice of the sanctuary in Mexico. It begins with a description of Mexico City’s efforts, in conjunction with cities such as Chicago and Los Angeles, to respond to returning citizens and resist the anti-immigrant actions of the Trump administration by labeling itself a sanctuary city. Délano explains that the term sanctuary was not politically effective in this setting and that Mexico City eventually relabeled itself, becoming instead a city of hospitality and human mobility.
The article next explores the richest of the three case studies, namely the migrant shelters in Mexico that seek to offer hospitality with dignity. This approach, which includes basic needs such as food and shelter, is distinguishable from sanctuary as practiced in the Global North in that it views “integration as a process of liberation and mutual recognition.” (P. 91.) In other words, dialogue around the structural discrimination, violence, and poverty that affect both locals and migrants is baked into the hospitality process. The goal of this practice is to create political consciousness, enabling migrants to leave behind the status of victim and instead become “protagonists of their own liberation.” (P. 91.) Sanctuary thus becomes encounter and solidarity leading to mutual transformation rather than a practice of citizens bestowing charity upon migrants.
The final case study examines post-deportation sanctuary. Like the first case study, this is an interesting application of the concept to citizens who require assistance to successfully reintegrate into their native country. Délano describes the stigma that attaches to deportees and explains the role that community organizations play in offering support for their immediate as well as medium and long-term needs. She labels these practices “holistic accompaniment”; in addition to food and clothing upon arrival, the groups help to find employment, offer mental and emotional health care, and create community spaces. This is a much longer-term approach than government services that are provided only at arrival. Similar to the migrant shelters described in the prior case study, groups such as Otros Dreams en Acción engage in the praxis of mutual aid, solidarity, and advocacy to dismantle a range of inequalities–economic, social, and political inequality–that harm not only returnees but also their communities. The actors in this final case study were more comfortable deploying the concept of sanctuary, likely because of the time they had spent in the United States.
This thoughtful article looks to the Global South to offer a “more dynamic, self-critical, expansive, and transformative practice of sanctuary.” (P. 95.) In Mexico, we can see practices of hospitality and solidarity that aim to create new forms of community that can alter systems in ways that improve the well-being of migrants and locals alike. Stepping away from the framework of sanctuary in the United States (in which citizens offer aid and non-citizens are victims and recipients of assistance) a turn to the Global South as a site of knowledge production enables a more radical approach that offers the promise of emancipating all of us, citizens and non-citizens alike.
Dec 15, 2022 Jill FamilyImmigration
An immigration lawyer’s work is rarely easy. The outcomes are high stakes, and the statutes are complex and harsh. The law is unstable because immigration law relies heavily on shifting agency memos. Backlogs and case completion times seem only to multiply. Clients understandably are on edge, and lawyers try to help them comprehend a maddening system. Immigration law is a challenging practice area, no matter who occupies the White House. During the Trump administration, however, the executive branch made things especially difficult as it focused its power on grinding the system to a halt.
In the midst of the Trump administration, asylum lawyers participated in a survey administered by Professors Lindsay Harris and Hillary Mellinger. Harris and Mellinger’s main finding is high levels of burnout and secondary traumatic stress among the asylum attorneys who responded to the survey. These attorneys scored higher, meaning more burnout, than social workers, hospital doctors, nurses, prison wardens, and immigration judges. In Asylum Attorney Burnout and Secondary Trauma, Harris and Mellinger report their methods and findings, and make recommendations for alleviating the status quo.
Harris and Mellinger used two established tools. They administered the Copenhagen Burnout Inventory and the Secondary Traumatic Stress Scale to survey participants. Additionally, they asked their own demographic questions and a free response question (“Is there anything else you would like to share about the challenges of your job as an immigration/asylum attorney?”). Since Harris and Mellinger’s study relied on self-selected, volunteer participants—and is not based on a random sample—it shares the same potential for selection bias as any similar survey. The authors are careful to remind us that their results reflect the responses of those who participated and cannot be generalized to all asylum attorneys. Nevertheless, over 700 respondents to the survey were included in the authors’ analysis, which signals that these asylum lawyers were struggling and is an indication that others might be struggling as well.
The mean personal burnout score for the asylum lawyers in the survey was 65.12. The closer the score is to 100, the higher the level of burnout. Personal burnout measures physical and psychological fatigue and exhaustion. For social workers, it was 38.8 and for prison wardens, it was 33 (in previous applications of the same survey not conducted by Harris and Mellinger). The mean work burnout score for the asylum attorneys was 63.6, which is higher than social workers (35.8) and prison wardens (32.6). Work burnout measures physical and psychological fatigue and exhaustion as related to work. The mean client burnout score was 44.75, which also is higher than other groups, but not as dramatically. Client burnout measures physical and psychological fatigue and exhaustion as related to work with clients.
The mean secondary traumatic stress score for the asylum attorneys was 2.95. The closer the score is to 5, the higher the level of secondary traumatic stress. The stress scale asks questions about intrusive thoughts (e.g., thinking about clients outside of work involuntarily), avoidance (i.e., procrastination), and arousal (e.g., being short-tempered).
In addition to discovering burnout and stress scores, Harris and Mellinger collected demographic data. The respondents’ self-reports indicated that they are overwhelming female and white. The authors’ regression findings show that female respondents were associated with higher levels of burnout and stress. Regarding race, the authors’ findings are uncertain, given the small number of respondents of color. However, the authors found that of the survey participants of color, there were higher levels of burnout. The authors recommend further research here. The authors also found that solo practitioners were associated with higher levels of burnout and stress, and that having support staff and lower caseloads are associated with lower levels of burnout and stress. There are also findings in the article related to age, hours worked, geographic location of practice, and timing of survey completion (pre or post-pandemic).
As Harris and Mellinger explain, asylum practice is difficult because it inherently involves trauma. Lawyers must shepherd trauma victims through a bureaucratic system that requires asylum applicants to retell their trauma multiple times. There is pressure to relate to trauma perfectly. Because asylum applications usually are not well documented, due to the nature of the claim—the applicant usually was on the run to seek safety—the law tells adjudicators to base their decision on the applicant’s credibility. Adjudicators make credibility determinations based on the consistency of the applicant’s retelling (even if research shows that this is difficult for trauma victims). Lawyers are exposed multiple times to each client’s trauma. This exposure occurs within a system that is stingy with success. Lawyers are constantly pushing the boulder up the hill, fighting to help their clients in a system poised to say no. The system is designed to make pursuit of a case difficult, seems never to work as it should, and, at times, views immigration lawyers as distasteful because they advocate for their clients.
The Trump administration introduced new elements that made representing asylum applicants even more challenging. For example, the Trump administration restricted access to asylum adjudication by forcing asylum applicants to remain in dangerous conditions in Mexico until their hearing date. Additionally, the Trump administration used its power over the immigration agencies to change agency interpretations of asylum law to narrow its availability. Due to these efforts, Harris and Mellinger explain that asylum attorneys not only represent clients but also must take “regular action to try to protect the very institution of asylum.”
The authors present suggestions for improvement. Recognizing that asylum applicants with legal representation have a higher chance for success, the authors make their case that the fairness of the system depends on keeping asylum attorneys practicing and healthy. The authors not only recommend tools to help attorneys exist within the system, but also recommend a major change to the system itself.
For attorneys, the authors argue that self-care and “responsible trauma stewardship” is ethically required. According to the authors, law schools must teach this and provide future lawyers with the tools necessary to be attuned to mental health. Employers must continue these educational efforts, as well as experiment with reducing and diversifying caseloads and providing access to mental health counseling. As far as systemic change, the authors recommend the creation of a more independent adjudication system. The authors would move immigration adjudicators out from under the political control of the Executive Branch.
The authors recognize that their work is the beginning of a conversation and that their research does not answer all questions about the mental well-being of asylum attorneys. Because this study is the first of its kind, it does not measure whether attorneys were worse off under the Trump administration. It does, however, provide us with information about how these 700 asylum attorneys fared during the Trump administration, and the attorneys are not “alright.” The responses to the survey’s free-form question included this one:
I have decided to quit law altogether. It’s impossible to deal with the financial crush of serving a low-income population AND cope with the secondary trauma. I’ve lost my appetite for the law altogether after this shit show area of law. I have no faith in justice or the law anymore.
Harris and Mellinger deserve kudos for identifying a problem and starting the conversation on how to turn things around.
Oct 20, 2022 Angela BanksImmigration
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.
The article begins with an overview of the functions of three key immigration enforcement offices within the Department of Homeland Security (“DHS”): the Office of Field Operations (“OFO”) within U.S. Customs and Border Protection (“CBP”), U.S. Border Patrol (“USBP”) within CBP, and Enforcement and Removal Operations (“ERO”) within U.S. Immigration and Customs Enforcement (“ICE”). After describing and contextualizing the work of these agencies, Johnson details the legal tools that have led to the diversification of immigration enforcement. Federal legislation, like Title VII of the Civil Rights Act of 1964, Executive Orders, and agency rulemaking have prohibited employment discrimination within the federal government, encouraged increasing the number of Latinx individuals employed by the federal government, and promoted federal employment as a place of “equal opportunity, diversity, and inclusion.” (P. 1008.) Due to Management Directive 715 by the Director of the Federal Sector Programs Office of Federal Operations Equal Employment Opportunity Commission DHS was obligated to “identify barriers to creating a more diverse immigration workforce.” (Id.) This led to efforts to recruit more enforcement officers who are people of color and/or women. (P. 1009.)
Recent data suggests that the DHS efforts have successfully diversified some of the immigration enforcement agencies. For example, 13 percent of ICE officers are women, as are 19.6 percent of CBP officers. Compared to local police departments, where 12.6 percent of officers are women, ICE is in line with national figures and CBP is ahead. (P. 1011.) Yet, U.S. Border Patrol is significantly lower at 5.5 percent female officers. (Id.) The insight offered by Johnson’s essay is that the majority of the women within immigration law enforcement are women of color. For example, 55.1 percent of female CBP officers, 58 percent of female ICE ERO officers, and 54.1 percent of female U.S. Border Patrol officers identify as women of color. (P. 1012.) Johnson also notes that a greater percentage of female immigration enforcement officers identify as Black, Latinx or multi-racial than male officers working for CBP, ICE, and the U.S. Border Patrol. (Id.)
There is little research examining the impact that the diversification of immigration enforcement along the lines of race, ethnicity, and gender has had. Johnson offers a framework to begin this analysis. Applying David Alan Sklansky’s framework for evaluating the effects of diversity within local law enforcement to immigration enforcement, Johnson examines (1) competency effects, (2) community effects, and (3) organizational effects. Competency effects explore the “skills and abilities of the workers.” Community effects examine the implications “for the relationship between the agency and the community it works with.” Organization effects look at the “ways in which employees affect their workplace.” (P. 1013.) Johnson’s essay begins to analyze these factors but acknowledges that additional empirical research is needed to address the organizational effects properly. Additional issues to address in future research would be: Why does the U.S. Border Patrol have such low numbers of women across the law enforcement spectrum? Why does CBP have higher numbers of women within immigration law enforcement and local law enforcement more broadly? Finally, it would be interesting to see how the immigration enforcement figures compare to other federal law enforcement agencies. It is possible that the organizational culture of each of these immigration enforcement agencies provides insights. Yet additional research is necessary to determine how different the agency cultures are, and what if any impact it has on the demographics of the officers.
In light of the images seen by the world in the Fall of 2021, Johnson’s call for increased scholarly attention to the growing number of women of color within immigration enforcement is timely. In addition to the question she identifies for further research, I would add the following: with regard to community effects, what are the strategies and techniques used by female officers that enable them to de-escalate situations successfully? To what extent can this lead to new forms of training that could have organizational effects? Additional organizational effects to explore would be, does an increase in the number of women and/or women of color within an enforcement agency change other aspects of the culture?
