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Out of the Mouths of Babes

International and domestic laws aimed at protecting children involved in human smuggling generally operate under the assumption that these children are vulnerable and defenseless prey to dangerous and violent criminals, for whom they work against their will. In her recent article, “Circuit Children”: The Experiences and Perspectives of Children Engaged in Migrant Smuggling Facilitation on the US-Mexico Border, sociologist Gabriella Sanchez uses original qualitative fieldwork to upend or at least nuance this claim that sits at the heart of current anti-smuggling laws. The children whose stories she tells offer a much more complex picture of their role in helping others navigate the U.S.-Mexico border.

While many scholars have decried the carceral turn in human smuggling laws, Sanchez offers a key piece of evidence demonstrating the fundamental problems with this move to criminalization. It is, as has been far too obvious of late, easy for politicians and governments to demonize actors in the migratory process, both migrants and those who help them to move. But the carceral approach masks the structural forces that render migration both necessary and nearly impossible to undertake lawfully for individuals who do not win the birthplace lottery. Sanchez’s body of work highlights the humanity and dignity of the individuals who facilitate migrant journeys—who might, from a different perspective, be viewed as part of a modern-day Underground Railroad. Though she refrains from hitting the reader over the head, the unmistakable take-away from her work is that these individuals are not the source of the problem; they are doing the best they can in the face of structural and geopolitical forces beyond their control.

Sanchez’s empirical research fills a crucial gap in the literature. Undocumented migration is by its very nature challenging to study; people moving outside the bounds of the law are not easy to track let alone interview. Sanchez engages with this challenge head-on to gather insights into the realities of human movement across borders that are often at odds with the assumptions animating laws that criminalize human smuggling. Her previous scholarship challenges popular depictions of migrant smugglers as ruthless criminals, using empirical work to demonstrate the symbiotic relationships and social networks that often connect migrants and those who facilitate their journeys. If migrants’ perceptions of smugglers rarely enter the legal or even scholarly discourse, it is rarer still to hear from children who participate in facilitating human movement across borders.

The voices of these children tell a story that, in Sanchez’s words, defies “the state-centric notion that the facilitation of informal, clandestine mobility strategies inherently constitutes a crime” as well as the assumption that “smuggling is the exclusive domain of organized crime.” Her interviews with 18 children aged 14 to 17 in Ciudad Juárez reveal conscious decisions to engage in smuggling that enabled them to support their families financially. These children empathized with the migrants, and appreciated the personal, social, and economic capital they gained through their smuggling work. Sanchez recognizes the risks faced by these children, but notes that they viewed law enforcement, especially U.S. Border Patrol, as the most fearsome danger.

Sanchez’s interviews raise the voices of a small group of children in one specific location. The story they tell cannot possibly be universal, but it raises important questions about the criminalization of migrant smuggling. Sanchez emphasizes that children involved in smuggling face serious risks, but refutes essentializing claims that all of these children are forced against their will to work for transnational organized crime. Their perspectives beg for further study, and starkly highlight the need for a reassessment of law’s carceral approach to migrant smuggling.

Cite as: Jaya Ramji-Nogales, Out of the Mouths of Babes, JOTWELL (March 19, 2019) (reviewing Gabriella Sanchez, "Circuit Children": The Experiences and Perspectives of Children Engaged in Migrant Smuggling Facilitation on the US-Mexico Border, 11 Anti-Trafficking Review 103 (2018)), https://lex.jotwell.com/out-of-the-mouths-of-babes/.

Translating Economics for Immigration Policy

Howard F. Chang, The Economics of Immigration Reform, 52 U.C. Davis L. Rev. 111 (2018).

Scholarship that translates and connects one discipline to another is a special treasure. The need for this type of scholarship is especially great in immigration law. Immigration law is interwoven with many other disciplines, but immigration law scholars often are so occupied with the extreme complexity and immediacy of the legal discipline that it can be difficult to branch out. I’m selfishly fond of The Economics of Immigration Reform by Howard Chang because it does a great service to those of us who needed a lucid and approachable explanation of the economics behind immigration law reform. Professor Chang explains in detail why immigration restrictionists are wrong when they argue that less immigration makes economic sense. If less immigration is desirable, it is not for economic reasons.

Professor Chang uses economic theory to evaluate recent legislation proposed to restrict legal immigration. Along the way, Professor Chang examines two major economic studies that both concluded that immigration produces a positive fiscal impact, one from 1997 and one from 2017. In the process of using the studies to evaluate proposed limits on immigration, Professor Chang teaches us that the assumptions underlying any economic study affect outcomes.

The 1997 study by the National Research Council (NRC) adopted a baseline, “most reasonable” scenario using one set of assumptions and concluded that an average immigrant had a positive fiscal impact of $80,000 in net present value in 1996 dollars. The 2017 study by the National Academies of Sciences, Engineering and Medicine updated the NRC study. While both studies produced a range of estimates of fiscal impact based on various assumptions, the 1997 NRC study more definitively adopted a set of assumptions as “most reasonable.” The 2017 study did not do that. Even so, the 2017 study still concluded that immigrants have a positive fiscal impact. Using the same set of assumptions recommended by the 1997 study leads to a positive fiscal impact of $279,000 in net present value in 2012 dollars.

Why did the 2017 study take a more “agnostic” (P. 7) approach about adopting one set of assumptions as most reasonable? Professor Chang states that it “may be a response to the objections raised by the economist George Borjas,” (P. 7) who objects to the NRC’s “most reasonable” assumptions. Professor Chang is not a fan of the agnostic stance. He believes some of the assumptions allowed by the National Academies study are not appropriate, and he supports the NRC adopted baseline.

The treatment of public goods is one example Professor Chang uses to highlight the importance of examining the assumptions that underlie economic analyses of immigration. The cost of a public good does not rise with the size of the population and use of a public good does not prevent another person from using it. National defense is an example. All government services are not public goods. Services that are congestible, like roads, police services, and libraries, are not public goods. Professor Chang criticizes the National Academies study for presenting estimates of immigrant fiscal impact that treat public goods as congestible services. Professor Chang is not impressed with the National Academies’s justification for its presentation of public goods as congestible goods; the justification seems to undercut the concept of a public good, suggesting that public goods could be affected by population size. Even under the National Academies’s more conservative assumptions that treat public goods as congestible, however, immigration still produces a net fiscal benefit. (P. 10.)

What about the effect of immigration on the wages of native workers? The more conservative National Academies study concluded that the least skilled native workers (high school dropouts) may feel more negative effects of immigration compared to others, but that the negative effects tend to fade after 10 years. (P. 20.) As Professor Chang explains, the demand for labor fluctuates. Therefore, immigrants do not arrive and compete for a fixed pot of jobs. Also, native born and immigrants are “imperfect substitutes.” (P. 21.) They often do not compete for the same jobs and complement each other instead. Therefore, immigration does not significantly lower the wages of native workers.

Professor Chang concludes that, based on economic analysis, our immigration laws are unduly restrictive. Adoption of reasonable assumptions shows that immigrants contribute a positive fiscal impact and that immigration restrictions do not significantly lower the wages of native workers. Therefore, if fiscal impact were the only consideration, higher levels of immigration would be the natural policy result.

The reality, however, is that immigration policy is not formulated based on economic considerations alone, and immigration policy often diverges from the rational path. Professor Chang shows us a prime example of this by examining the RAISE Act, an immigration reform bill supported by President Trump. The RAISE Act aims to cut immigration across the board, which would work against economic interest. It also would eliminate pathways for younger immigrants, which is counterintuitive based on evidence that younger immigrants contribute more over the course of their longer lives in America. (P. 17.)

Professor Chang asks a very important question. If immigration is an economic win, “why not liberalize our immigration laws?” As far as economics is concerned, our immigration policies should be liberalized. Professor Chang’s article is helpful in allowing non-economists to understand why that is so and why immigration restrictionists should not be allowed to hide behind economic arguments.

Cite as: Jill Family, Translating Economics for Immigration Policy, JOTWELL (January 17, 2019) (reviewing Howard F. Chang, The Economics of Immigration Reform, 52 U.C. Davis L. Rev. 111 (2018)), https://lex.jotwell.com/translating-economics-for-immigration-policy/.

Populist Judicial Reasoning

Under the Trump administration, each week brings a new attack on due process and on substantive protections for migrants. Sacred cows such as Temporary Protected Status for Salvadorans, which had been extended by Democratic and Republican administrations alike for the past two decades, are dispatched with alacrity. Attorney General Sessions appears intent on destroying the immigration adjudication system, demanding that immigration judges meet unrealistic case completion goals and reversal rates while limiting the resources available to the system. Migrants’ rights are a constant source of litigation, from highly anticipated Supreme Court judgments to battles fought through amicus briefs before the Attorney General.

Beyond the momentary relief of deft political satire, a comparative glimpse across the pond can provide helpful perspective on the situation at home. Vladislava Stoyanova’s forthcoming article reminds us that we are not the only nation facing populist movements that “exploit public anxieties over migration” in order to “curb[] immigration and restrict the rights of migrants.” Her rigorous and painstaking analysis of the European Court of Human Rights (ECtHR) decisions prompts analysis of larger philosophical questions about law’s paradoxical approach to migrants’ rights and offers a provocative new concept: populist judicial reasoning.

Stoyanova begins with a brief definition of populism and its relationship to migration, explaining that “migrants are…excluded from ‘the pure people’ that populists claim to exclusively represent.” She then poses a question that has haunted scholars of immigration law since the first week of the Trump administration: can courts act as effective points of resistance against populism?

As her title suggests, Stoyanova’s analysis focuses on the European human rights system, which offers an effective supranational framework absent in the U.S. context. Yet the parallels with legal protections for migrants available under the U.S. Constitution are still rich. Stoyanova notes that the ECtHR “acts with restraint and sides with the sovereign” when it comes to migrant rights, an apt description of our highest court. There is a difference in motivation; in extending rights to migrants, the European court has concerns about its own legitimacy that have little bearing on the U.S. Supreme Court.

And of course, Stoyanova explores a right that doesn’t exist under the United States Constitution: the right to family life found in Article 8 of the European Convention on Human Rights. In her words, she explores ECtHR responses to “exclusionary nationalist anti-migrant dimension of the populist turn when adjudicating cases implicating the rights of migrants.” Stoyanova dives into the technical details, critically examining the procedural steps the European Court takes to analyze migrants’ right to family life.

The examination is fruitful; it is here that she uncovers the court’s affinity for populist tools. As the court works to avoid acting as a point of resistance to the sovereign, it sets to one side the careful legal reasoning required of courts and instead adopts the populist method of decisionmaking without critical analysis. This is a provocative and rich idea, and this reader wished only that Stoyanova had engaged in deeper theoretical analysis around it. She does provide ample analytical support for her idea, noting four ways in which the court dances with populist tools. The ECtHR assumes a conflict between migrant rights and community interests without examining arguments that upholding migrants’ rights to family life is in the best interest of the community. The Court accepts the state’s general invocation of immigration control prerogatives, rather than requiring the sovereign to clearly articulate specific aims animating its denial of the right to family life. The ECtHR doesn’t engage in any rational or factual scrutiny of the goals offered by the state, and represents migrants’ rights as exceptional. This careful analysis of the case law is instructive, building a strong case for her populist reasoning argument.

Stoyanova also examines critically the ECtHR’s characterization of Article 8 as a positive obligation in the case of migrants who are unlawfully present. This determination contrasts with the treatment of migrants who lose their previous immigration status and can therefore claim Article 8 as a negative obligation. She exposes the analytical flaws in the ECtHR’s approach, explaining that expulsion disrupts family life and “is a clear action attributable to the state irrespective of the formal migration status of the person.” This downgrading of rights for migrants unlawfully present is paralleled in U.S. constitutional law, and Stoyanova’s analysis offers food for thought in debates over that approach as well as arguments about whether removal should be treated as a civil or criminal penalty given its harsh consequences.

As with U.S. Constitutional law, Stoyanova points out that migrants’ rights have long been a weak point of human rights law. In the battle between statism and cosmopolitanism, the sovereign has consistently prevailed. Her article points to the vacuum in legal reasoning that has led to that outcome, and presents us with a new way to frame this transnational phenomenon: populist judicial reasoning. Though neither the ECtHR nor the U.S. Supreme Court is currently doing so, Stoyanova’s detailed critical analysis demonstrates how these courts could act as effective sites of resistance against populism if only they had the will.

Cite as: Jaya Ramji-Nogales, Populist Judicial Reasoning, JOTWELL (September 10, 2018) (reviewing Vladislava Stoyanova, Populism, Exceptionality and the Right of Migrants to Family Life under the European Convention on Human Rights, 10(2) Eur. J. of Legal Stud. 83 (2018)), https://lex.jotwell.com/populist-judicial-reasoning/.

Modernizing Immigration Enforcement

Amanda Frost, Cooperative Enforcement in Immigration Law, 103 Iowa L. Rev. 1 (2017).

Public rhetoric about immigration paints the issues in stark terms. Immigrants are either criminals and terrorists or they are family members, workers, and survivors of persecution. Immigration is either our secret sauce, the key to our national prosperity, or it is the sleeper cell in our midst, the smooth-talking snake. It is about inclusion or exclusion, banishment or return, belonging or outcast. Immigrants are virtual citizens, or vicious vipers. They are law-abiding; they are lawless.

Amanda Frost’s Cooperative Enforcement in Immigration Law describes how this dichotomy in the discourse plays out in approaches to deportation policy. Deportation policy, she observes, is stuck in two parallel grooves. It demands either unfettered deportation of unlawfully present noncitizens, or the exercise of prosecutorial discretion to permit prescribed groups of noncitizens to remain in the United States without a recognized status.

Cooperative Enforcement carves a third path, one that emphasizes compliance with immigration policy. Frost suggests we retrofit immigration enforcement using a well-oiled administrative law concept: cooperative enforcement. This term sounds like it is ripped from the pages of the Secure Communities program. Secure Communities relied on a veneer of cooperation between nonfederal police and immigration authorities in apprehending fugitive or dangerous noncitizens. That narrative of cooperation evaporated when courts revealed that the immigration “detainers” that Secure Communities depended on were in fact invitations to police to make expensive unconstitutional arrests.

This sort of interaction bears no resemblance to Frost’s cooperative enforcement concept. Her proposal, instead, is a total re-envisioning of the role of DHS’s immigration enforcement agencies, from an enforcement model to a compliance model. Sound radical? This approach may feel new to immigration law, but it borrows from an administrative law approach that is as old as Saturday Night Fever.

Remain calm. Frost is not suggesting we retrofit the Border Patrol with big hair, velour uniforms, and wide lapels. The concept of cooperative enforcement has been de rigueur in other areas of administrative law, updating “the rigid, adversarial, command-and-control regime that dominated the regulatory environment in the 1970s and 1980s.” Over the past 20 years, the household names of administrative agencies—OSHA, the FDA, the EPA, and the SEC—have adopted a “collaborative approach to rulemaking and enforcement. They pioneered initiatives to use education, consultation, and flexible interpretations of legal standards to work together with regulated entities to come into legal compliance.”

Frost proposes that the immigration bureaucracy do the same. She envisions a new model under which government officials would proactively assist specific categories of unauthorized immigrants to come into compliance with the law. A sizable chunk of unauthorized immigrants qualify for at least one pathway to lawful status, but most are unaware of it or are stymied by the complexity of process. The immigration bureaucracy has an important role to play in navigating through the opportunities and complex procedural pathways “through education, assistance, adoption of streamlined, user-friendly procedures, and the liberal exercise of discretion, just as federal agencies such as OSHA, FDA, EPA, and SEC regularly assist the entities and individuals they regulate come into compliance with federal law.”

In the current moment, when command and control suffuses the immigration enforcement creed, a compliance-oriented approach seems like heresy. But Frost offers compelling reasons. “As in other regulatory contexts,” she points out, “the use of adversarial, command-and-control style enforcement of immigration law is both costly and inefficient.” Removing a single noncitizen costs an average of about $12,000, and “the immigration bureaucracy has the resources to remove only about 4% of the undocumented population each year.” “Deportation alone,” she concludes, “cannot solve the nation’s unauthorized immigration problems, just as enforcement actions alone cannot ensure compliance with environmental or workplace safety laws and regulations.” Working with eligible unauthorized immigrants to take advantage of existing pathways to legal status “reduces the unauthorized population without expending resources, harming the economy, or amending the immigration statute.”

“Cooperative enforcement is both more legally defensible and politically palatable than the extensive use of prosecutorial discretion,” Frost asserts.  It can’t be more controversial than President Obama’s efforts to expand prosecutorial discretion to include unlawfully-present parents of citizens and lawful permanent residents, she says, pointing to the persistent criticism and prolonged litigation that DAPA attracted. Rather, a cooperative enforcement approach “seeks to use existing laws to assist unauthorized immigrants to regularize their status, and thus cannot be attacked as lawless or an abuse of executive power.”

Following in the footsteps of other agencies toward a flexible, cooperative approach to immigration enforcement isn’t just about legitimacy or efficiency. Complying with immigration law is as much about recognizing an individual’s right to remain as it is about requiring removal. Frost’s idea, at bottom, is about enforcing all of the laws, not just those that favor deportation.

Cite as: Juliet Stumpf, Modernizing Immigration Enforcement, JOTWELL (July 20, 2018) (reviewing Amanda Frost, Cooperative Enforcement in Immigration Law, 103 Iowa L. Rev. 1 (2017)), https://lex.jotwell.com/modernizing-immigration-enforcement/.

The Need For Facts In Immigration Policymaking

Ming H. Chen, Leveraging Social Science Expertise in Immigration Policymaking, 112 Northwestern L. Rev. Online (forthcoming 2018), available at SSRN.

In President Donald J. Trump’s first State of the Union address he framed immigrants as dangerous criminals—gang members and murderers. To address this public safety threat President Trump proposed building a wall along the Southern border, ending the visa lottery, and eliminating the majority of family-based green cards. Yet social science research dating back to the early 1900s has found that immigrant criminal activity is significantly lower than United States citizen criminal activity. Despite these robust social science findings,  immigration policy makers continue to promote and adopt policies based on the idea that immigrants present a significant public safety risk to the American public.

Ming H. Chen’s forthcoming essay, Leveraging Social Science Expertise in Immigration Policymaking, offers a critical intervention at this time in immigration policymaking. Chen’s essay presents concrete strategies that immigration policymakers can utilize to ground immigration policymaking in facts and social science insights. Chen’s recommendations focus on the process by which immigration decisions are made and seek to bring traditional administrative and constitutional principles into the process. First, bring presidential policymaking into the administrative state. Second, use political mechanisms to improve the quality of evidence used in the immigration policymaking process. Finally, strengthen judicial review of immigration policy.

These proposals are based on the traditional role that expertise has played in administrative decision-making. Experts and administrative procedure are two ways that administrative law has safeguarded against arbitrary decision-making. Administrative agencies traditionally embraced social science evidence to improve the quality of the agency decision-making. These agencies have relied on experts within the government and externally. Civil servants are the internal experts, and they offer learned expertise as a result of accumulating experience in the complex policy matters that they work on. External experts are used on advisory councils and confer with agency experts while maintaining their university or nonprofit positions. Advisory councils offer a forum in which social scientists are able to offer their professional norms regarding information-gathering and research methods. Incorporating external experts into the policymaking process provides a basis for decision-making based on professional norms rather than politics.

Administrative procedure is the other means by which agencies have limited arbitrary decision-making. Courts have increasingly required agencies to “identify their assumptions, methods, and evidence, as well as explain their reasoning.” (P. 4.) Today administrative decision-making is highly proceduralized, as evidenced by the Administrative Procedure Act (“APA”) and other trans-substantive legislation. Additionally, many organic statutes dictate what can and cannot be considered during decision-making.

Part II of Chen’s essay illustrates how immigration policymakers reject expertise. This section analyzes border control policies, federal responses to sanctuary cities, and the exclusion of refugees to demonstrate the institutional failures that allow immigration policymakers to ignore facts and social science insights. Chen contends that incorrect assumptions about the drivers of unauthorized migration by Republicans and Democrats has led to border control policies that are ineffective at best and at worst counterproductive. For example, sociological research regarding the factors driving migration suggests that a border wall is likely to exacerbate unauthorized migration rather than halt it. Sociologist Douglas Massey’s research indicates that heightened border control prevents circular migration such that individuals remain in the United States and establish roots rather than traveling to the United States for seasonal work opportunities and returning to their country of origin.

Federal responses to sanctuary cities are based on a “strong belief in immigrant criminality.” (P. 10.) This belief leads the federal government to adopt policies to punish sanctuary cities. Yet the idea that immigrants commit more crimes than citizens is false. Chen cites numerous reports and social science research findings showing that immigrants do not commit more crimes than citizens. Despite these facts the perception of immigrants is shaping immigration policy.

Finally, President Trump’s decision in January of 2017 to prohibit refugee admissions and his decision to reduce the refugee cap by more than half are based on the idea that refugees present a heightened terrorist threat. These presumptions ignore evidence regarding the rigorous vetting process that refugees undergo and “conflate terrorists and their victims.” (P. 14.)

Chen argues that importing traditional administrative and constitutional principles can bring more social science expertise into the immigration decision-making process. First, presidential policymaking should be brought into the administrative state by involving civil servants when undertaking executive action. Consulting with the affected agencies and encouraging those agencies to promulgate further regulations to carry out the executive orders would facilitate this goal. Second, use political mechanisms to improve the quality of evidence used in the immigration policymaking process. For example, amend the APA or the Immigration and Nationality Act to require that policies be based on a factual record that is subject to review and that information regarding methods and data sources for any studies relied upon be disclosed. Finally, strengthen judicial review of immigration policy. Chen suggests that normal standards of constitutional and statutory review should apply to immigration decisions. Such an approach “would require courts to take a ‘hard look’ at the rationality of agency decision-making, or at least be sure that the agency has taken a hard look and provide some kind of rational explanation for the policy changes.” (P. 19.)

Immigration policy is a key part of the President’s legislative agenda. As an increasing number of policy decisions are made in the area of immigration it is critically important that these decisions are based on accurate and reliable information. Chen’s essay makes two important contributions. First, it outlines the various ways in which current immigration policy is not based on accurate and reliable information, which causes the policies to be ineffective and at times counterproductive. Second, it provides an important roadmap for operationalizing administrative and constitutional principles to provide for more evidence-based immigration policy.

Cite as: Angela Banks, The Need For Facts In Immigration Policymaking, JOTWELL (June 6, 2018) (reviewing Ming H. Chen, Leveraging Social Science Expertise in Immigration Policymaking, 112 Northwestern L. Rev. Online (forthcoming 2018), available at SSRN), https://lex.jotwell.com/the-need-for-facts-in-immigration-policymaking/.