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.
As historian Mae Ngai notes in the classic text Impossible Subjects: Illegal Aliens and The Making of Modern America “it seemed unconscionable to expel immigrants after they had settled in the country and had begun to assimilate.”
As Wadhia explains with the words of Ngai, “they settle, raise families and acquire property–in other words, they become part of the nation’s economic and social fabric.” (P. 30.) Thus, deportation was not appropriate for long-term residents regardless of their immigration status or their actions within the country.
Wadhia’s article provides an incredibly useful overview of the various legal tools that have been used historically, and today, to provide relief to long-term resident non-citizens. The article begins with registry and ends with an order of supervision. Each tool offers a different type of relief, but each is available based on the non-citizens’ long-term residence in the United States. The additional tools addressed are the pathway to citizenship created in the 1986 Immigration Reform and Control Act, suspension of deportation, cancellation of removal, the 1997 Nicaraguan Adjustment and Central American Relief Act, temporary protected status, general deferred action, and the 2012 Deferred Action for Childhood Arrivals program. These tools vary in whether or not the recipients obtain lawful permanent residence status, permission to reside in the United States temporarily, or a promise not to deport for a specified period of time along with work authorization.
The political challenges which the United States of America is currently facing regarding the fate of approximately 11 million unauthorized migrants are not new. Long-term residence has historically been a basis for viewing individuals as members of our national community and providing a pathway to lawful immigration status. The American polity recognized presence and the resulting connections as paths to membership. Even though this approach to membership has not been applied equally to all immigrant groups, it is a principle that has been operationalized in our legal system. The political reality is that almost 11 million individuals are not going to be deported from the United States en masse. Therefore, it is important to discuss options for recognizing the de facto membership of this established population rather than allowing them to languish with uncertainty, limited employment options, and limited opportunities for social and political engagement. This article and Wadhia’s important book, Banned: Immigration Enforcement in the Time of Trump (2019), provide important insights on the role and use of discretion in responding to this challenge. Ultimately a legislative response is necessary to provide unauthorized migrants with durable solutions, but Wadhia outlines a wide range of statutory options that demonstrate that long-term residence is a compelling basis for providing a durable solution.
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.
From this definition, the article identifies four key areas of concern around the use of technologies in migration governance, offering a foundational map that calls for future researchers to engage. The first concern Molnar raises is the privacy breaches arising from data collection, ranging from the monitoring of mobile phone records to analysis of social media to geotagging. She next examines concerns around biometrics and consent in conditions of unequal bargaining power, offering the disturbing example of refugees in Jordan who were required to submit to iris scanning in order to receive their weekly food rations. Third, Molnar describes the use of technology in surveillance, explaining that the militarization of the border through the use of drones, robots, and remote sensors as border control pushes migrants to more dangerous routes that are more likely to lead to death and serious injury. Finally, the article explores automated decision-making, discussing ICE’s bail determination algorithm and “Extreme Vetting Initiative.” Each of these topics is crying out (loud enough to be heard over the firehose) for future research by Molnar and others.
The article concludes with an explanation of why these developments are particularly concerning in the migration management arena. The pace of technological innovation combined with the dearth of transnational regulatory frameworks present a potent recipe for abuse when baked into migration’s “discretionary space of opaque decision-making.” Molnar explicitly links these concerns with the use of migration management as an experimental forum with the use of data collection and tracking by genocidal regimes in Germany and Rwanda. She explains that there are no legally binding international agreements governing the ethical use of AI in migration management; the existing piecemeal guidelines and task forces are insufficient to face the task at hand. In particular, Molnar notes the need for specificity in legal standards to regulate AI in the migration space.
She suggests a human rights framework as a potential solution. Though less optimistic about this proposal given human rights law’s limited protections for administrative decision-making as well as its lack of specificity, I am indebted to Molnar for pushing forward the conversation and certainly agree that “a more rigorous global accountability framework is now paramount.” An alternative route might be to pressure big technology companies with specific standards set by an independent body, but the most important next step is to dive into the project that Molnar has laid out for immigration scholars. As she aptly notes, “the complexity of human migration is not easily reducible to an algorithm.” Those of us with the relevant substantive knowledge must now turn our attention to figuring out how to harness the potential firehose of these new technologies for the benefit of humans on the move, in all of their brilliant complexity.
Cite as: Jaya Ramji-Nogales, Watch This Space: AI at the Border
(March 20, 2020) (reviewing Petra Molnar, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective
, 8 Cambridge Int’l L. J.
305 (2019)), https://lex.jotwell.com/watch-this-space-ai-at-the-border/
Immigration lawyers search for ways to squeeze fairness out of a system that bristles at the concept. Professor Marouf’s article, Invoking Common Law Defenses in Immigration Cases, is a wonderful contribution to this immigration law tradition of creatively searching for fairness in the system. The harshness of immigration law creates the need for Professor Marouf’s contribution. The value of her contribution stems not only from her creative approach, but because her efforts serve as a reminder that immigration law desperately needs reform to become fair.
Professor Marouf is driven to explore the applicability of common law defenses in immigration cases precisely because immigration law is not fair. If consequences were proportional, if more robust relief from removal were available, or if the grounds of removal were not so broad, there would be less of a need for creative approaches such as Professor Marouf’s. As Professor Marouf states in her article, “all possible defenses must be explored.”
Immigration law is harsh. The grounds for removal (deportation) are broad and often no statute of limitations applies. The law fails to incorporate proportionality. There is a one-size-fits-all punishment associated with a variety of immigration violations: removal. There is no graduated system of consequences. Also, equities play a very small role in immigration law. Even the existence of a close US citizen relative, such as a spouse or child, cannot, on its own, cancel removal. The law demands a showing of exceptional and extremely unusual hardship to the US citizen relative. Hardship caused by separation alone is not enough.
Additionally, immigration law’s progression has been stunted by a reluctance to recognize rights accepted in other contexts. For example, the Supreme Court has given Congress and the President wide constitutional latitude in immigration law based on the perception that immigration law is somehow different from other areas of law. The grounds for removal are broad, removal is the ubiquitous punishment, relief from removal is hard to obtain, and policy choices about immigration receive little judicial supervision.
Immigration lawyers try to blunt the force of an unfair system. For example, because there is so little statutory relief from removal, immigration attorneys may seek out prosecutorial discretion for a client. If the government does not begin removal proceedings, then the client can avoid the harsh statutory results. Adjudicating ad hoc requests for prosecutorial discretion is not transparent, however, and reliance on prosecutorial discretion will be fruitless during a presidential administration that refuses to be discretionary in its prosecution. In her article, Professor Marouf contributes to this ongoing effort to ease the harshness of immigration law by exploring how common law defenses might apply in immigration law. Specifically, she looks at necessity, self-defense, duress, lack of capacity (infancy and insanity), entrapment by estoppel, equitable estoppel and laches. Professor Marouf persuasively argues that these common law defenses have a role to play in civil immigration law. She asks why these defenses, which certainly are not novel in other areas of law, have not taken more root in immigration law.
According to Professor Marouf, there are two main scenarios where common law defenses should be considered in immigration cases. The first is where the Immigration and Nationality Act attaches immigration consequences to unlawful conduct without requiring that conduct to be adjudicated unlawful by any court. The statute calls on civil immigration adjudicators to judge the lawfulness of acts within the civil immigration proceeding. Professor Marouf argues that civil immigration adjudicators should consider common law defenses to determine whether the conduct was, in fact, unlawful. For example, some behavior bars a person from receiving asylum. If a common law defense applies, then a bar to asylum is not appropriate. The second category includes situations where the Immigration and Nationality Act provides for no mens rea requirement. One of Professor Marouf’s examples is the provision rendering an individual removable if he or she made a false claim to citizenship. Could infancy be raised as a defense?
Professor Marouf also argues that if and when common law defenses are incorporated in immigration law, it should be done in a transparent way. She argues that the agency appellate body, the Board of Immigration Appeals, should establish explicit standards “for establishing common law defenses in removal proceedings.” Here, Professor Marouf reminds us of another major problem facing immigration law, that immigration law can be very opaque. Finding (or forcing) fairness into the system often involves a case by case approach where lawyers rely on novel theories or obscure internal agency documents. As Professor Marouf points out, there has to be a better way.
I wonder, though, if Professor Marouf is looking to the best source to make her goals a reality. I question whether the Board of Immigration Appeals is the best place to look for an ally in transparently establishing the use of common law defenses in removal cases. The Board has never been independent (its adjudicators are mere employees of the Department of Justice), and its independence is even further squeezed in the Trump Administration. Also, President Trump’s Attorneys General have enthusiastically embraced their power to certify Board decisions to themselves to overrule Board precedent. Therefore, even if the Board of Immigration Appeals did establish the use of common law defenses in immigration cases, that precedent could be easily overruled by the attorney general.
Perhaps a two-pronged approach is best. Push for the Board to recognize common law defenses, but also work towards statutory reform. Congress must act. Reform of the Immigration and Nationality Act should include narrowing the grounds of removal, creating consequences other than removal, and allowing adjudicators to consider equities to cancel removal. With statutory reform, immigration attorneys will not need to spend as much time creatively searching for fairness.
At last—an article that squarely confronts the unquestioned authority of nation states to exclude economic migrants, and that moves the discussion beyond the red cape of open borders. Tendayi Achiume deconstructs the stone foundations of sovereignty in her ambitious and thought-provoking article, Migration as Decolonization.
Above the fever pitch of international debate surrounding global migration, one truth seems unassailable: that it is the prerogative of the sovereign state to exclude economic migrants. Faced with this unbreachable barrier, the battle around immigration moves elsewhere, pitched instead around how broadly to define the categories of those privileged to cross international borders—which citizens, residents, workers, humanitarian refuge-seekers, among others. Separated from the sound and fury of this debate is a silence around when purely economic migrants—“those who enter the territory of a foreign state in order to pursue better life outcomes”—have any legal claim to cross borders.
Achiume’s thesis is that the process of decolonization, which is ensnared in inequitable neocolonial relationships, must continue through the right of individual self-determination through economic migration. This right has boundaries. It belongs to individuals from nations subjected to the inequity-producing rules and institutions of colonization, who seek to better themselves within nations that hold “colonial advantage” over the country from which the individual originates. The journey to this conclusion takes three moves.
The first move is to reconceptualize traditional notions about sovereignty. Exclusion of economic migrants has long been sanctified as a sovereign power. Sovereign power to exclude makes sense when those excluded are political strangers. In the absence of some higher humanitarian reason to admit the stranger, there is no obligation under domestic or international law for a nation state to open the door. This framework narrows arguments for new legal pathways to admission for the political stranger other than expansion of established but exceptional criteria for admission, such as refugee status.
The article invites us to view the relationship between the nation state and the self-determining individual in a different framework, one that calls into question these accepted notions of the independent sovereign and the power to exclude. It turns to the history of colonization to shed light on the perseverance of legal and political institutions that maintain longstanding interconnections among colonized and colonizing nations and peoples.
This history highlights two related aspects of colonization. First, both law and migration were necessary elements in establishing what Achiume calls “colonial advantage,” defined as “the economic and political dominance of colonial powers at the expense of colonies” during colonization. (Pp. 1535-36.) Achiume posits that “reaping the full benefits of colonial expansion required specific transnational arrangements and distribution of labor and managerial personnel.” (P. 1538.)
The article describes how law served as the chassis for colonial advantage, based on layers of international and bilateral law among European nations, and agreements involving European private corporations legitimized by colonial law. Colonial migration was the means of exerting colonial power, riding on this legal and contractual chassis. This was no small stream of migrants. Between the 19th century and the first half of the 20th, the European colonial project enabled the emigration of approximately 62 million Europeans to colonies across the world. Achiume posits that these Europeans were the original economic migrants, that colonial migration was in fact a fundamental technology for the success of the enterprise. When Europeans “travelled out to the non-European world they traversed it and appropriated it relying on justifications that First World states now use to militarize their borders against today’s economic migrants.” (P. 1537.)
The result of the European colonial project, through law and migration, was to bring European and colonial peoples together as a transnational political community in a form that benefited Europeans politically and economically at the expense of the colonized subjects. These political communities did not evaporate upon independence. They continue to shape relationships between colonizing and formerly colonized communities. They are “politically interconnected in messy, complex ways determined significantly by historical imperial projects and their legacies.” (P. 1533.)
The shift to independence of colonized communities opened the way for former colonizing nations to exclude economic migrants from former colonies based on the justification that the two nations were now independent sovereigns. Social contract theory “locates the formation of political community in the putative mutual consent of individuals to live under common subjection to a shared government.” (P. 1547.) This meant that once those governments parted ways, the former colonial subjects were formally excluded from the political community and had no claim to physical inclusion.
Achiume contests this theory, outlining instead a de facto political community arising from the subjugation of colonized peoples:
[T]he posited political community (neocolonial empire), distinctively encompasses members whose induction into the community was decidedly coerced. This recalls the particular harm of colonialism…which is that it forged former colonizing and colonized peoples into a political association or community in which the latter were subordinate to the former, notwithstanding the full and equal personhood of Third World individuals. The failure of formal decolonization maintains the political association between Third and First World in a de facto political community of de facto co-sovereigns mutually instrumental to the prosperity of neocolonial empire, and mutually subjugated by the effective collective sovereigns of neocolonial empire: First World nation-states. (P. 1547.)
Decolonization did not erase colonial relationships founded on subjugation, as illustrated by the continuance after independence of property ownership established during colonial rule. International instruments and organizations affirmed the international and domestic legal structures that maintained those rules, creating quasi-sovereignty. As Achiume explains, “Modern international law—including the UN Charter itself—preserved colonial advantage for colonizing powers even as it professed the formal political independence of former colonies and the equality of all sovereign states, including these former colonies.” (P. 1543.) Legal doctrines that preserved this advantage included international rules that prevented and continue to prevent reparation or remediation of systems that sustained colonial-era exploitation of national resources in colonized nations, including “protecting the property rights of colonial minorities who had secured these rights through the colonial subordination and massacre of Africans.” (P. 1545.)
The sovereignty doctrine itself, the article posits, is chief among these sustaining neocolonial international legal doctrines. The result is quasi-sovereignty, pairing “Third World formal national political independence with Third World structural political and economic subordination to First World nation-states and the post-World War I international economic and financial institutions dominated by the latter.” This is an informal empire, one in which formerly colonized nations remain subordinate to First World nations.
Having redefined sovereignty, the article’s second move is to propose a way to continue the process of decolonization by stepping down from the level of nation states to examine the individual’s role. The article proposes that when nation states are interconnected in ways that create quasi-colonial relationships, law should recognize legitimate avenues for individuals to migrate from the quasi-colonized to the quasi-colonizing nation. Seen in the light of inequitable global interconnection arising from colonization, the goal of decolonization becomes—not independence—but more equitable interconnection.
The First World nation-state, by virtue of its beneficiary status within neocolonial empire and the effectiveness of its sovereignty (secured in part through Third World subordination), has no more right to exclude Third World persons from its institutions of equal political membership than it has over its de jure citizens, where the goods of neocolonial empire are at stake. (P. 1547.)
There are lots of places this argument could go, including questions about what forms inclusion in the political membership of First World nations might take. The focus of the article, however, remains on migration as one of the main strategies that enabled colonization in the first place. If political equality is the goal of nation-state decolonization, that goal may have to be pursued through individual approaches when purely structural approaches have failed. “Whereas decolonization is typically considered a practice of political collectives—the nation-state in particular—this Article proposes that in light of how badly this arrangement continues to fail Third World peoples, individuals among them can take actions that we should understand as de-colonial.” (P. 1552.) When economic migration enhances individual self-determination within neocolonial empire, where it is responsive to the conditions of neocolonial subordination, it should be understood as attempted decolonization on the individual level.
This is migration as decolonization. The article reframes economic migration as acts of opposition by individuals in subordinate positions within neocolonial relationships, understanding them as acts that are responsive to historically rooted political inequality. This personal pursuit is therefore also a pursuit of political equality, and a matter of corrective distributive justice.
Migration as Decolonization begins geographically and historically with European colonization, but it ends with the application of its thesis to First World nations like the United States, itself a former colony. This is the article’s third move, and it divides the issue into three categories. The first, following directly from the nature of colonization, is that First World nations like Britain have no right to exclude citizens of their own former colonies when subjugating relationships persevere. Second, the move from postcolonial independence to neocolonial empire and interconnection opens the way to a much more expansive conception of who “can make the political equality demands that obviate right to exclude claims.” (P. 1561.) Thus, “Britain should be seen as neocolonially connected to, and in a relationship of domination over, Third World citizens of nation-states formerly colonized by its European counterparts, in ways that produce co-sovereign relations even among peoples the British did not formally colonize.” (P. 1561.) This is not limited to Britain; it applies to all former colonial powers.
This vision of co-sovereignty that extends beyond formal colonization leads to the third category, which addresses the prerogative to exclude claimed by First World nations like the United States with a far more mixed history of formal colonization, but that benefit from the creation and maintenance of a neocolonial empire. That neocolonial structure takes the form of a multilateral, joint enterprise among First World nation-states, and provides structural advantage to First World nations states collectively. The article argues that the creation and domination of these multilateral institutions and inequitable interconnections between nations require the same openness to inclusion of Third World quasi-citizens.
What I like (lots) about this piece, aside from its elegant prose, is that it wrenches into view a reality of inequality that has seemed so settled that we walk by it without glancing up. Achiume takes on the question of economic migration and stares it in the face. She loops her fingers through the lapels of international law and turns it—and us—to face the legacy of colonialism and its modern embodiment in the law of sovereignty. Standing on the shoulders of international legal scholars who have traced the outlines of neocolonialism, she proposes turning to individual self-determination to move the project forward. Some may disagree with the article’s proposal; good scholarship is not a popularity contest. Big ideas, though, lead to bigger conversations. This is a conversation worth having.
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
(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/