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Shining a Light on Shadow Sanctions

Shalini Bhargava Ray, Immigration Law’s Arbitrariness Problem, 121 Colum. L. Rev. 2049 (2021).

In immigration law, where the apex penalty is deportation, proportionality is absent. We tend to think of proportionality in punishment as requiring that the severity of a penalty track the severity of the offense, minus mitigating circumstances. The coin of the realm in immigration law is immigration status, so mitigating circumstances would in theory focus on the noncitizen’s particular qualities, such as length of residence in and ties to the United States. In Immigration Law’s Arbitrariness Problem, published in the Columbia Law Review, Shalini Bhargava Ray argues for sanctions better tailored to these considerations.

I like this article (lots) because for one thing, it challenges my own scholarship advocating for proportionality in immigration law and centralizing deportation as the sole immigration penalty. (I’m not alone. Angela Banks, Mike Wishnie, Maureen Sweeney, and Jason Cade (and others) have also proposed proportionality in deportation, and they’re no slouches). The article’s first contribution is to challenge the notion that proportionality is a fix for deportation’s ills. Proportionality proponents tend to point to the criminal justice system’s employment of proportionality in sentencing but, as Bhargava Ray observes, criminal law is replete with “overpunishment and overcriminalization” and so not a model of proportionality as path to justice. Besides, courts tend to hate the proportionality argument, which is why it tends to fail.

Second, Bhargava Ray challenges the scholarly obsession with deportation, pointing out that immigration agencies’ implementation of the Immigration and Nationality Act “involves a spectrum of penalties short of deportation” that create a “shadow system” of sanctions. She’s right, although we don’t tend to think about it that way. She explains that the immigration bureaucracy uses discretionary tools of lenience when deportation looms. These tools include enforcement priorities, deferred action, administrative closure, and post-order forbearance, and they are doled out by agency officials on an ad hoc basis. This “shadow system” means that immigrants, their advocates, and the public have no idea when these leniency tools, dubbed “shadow sanctions” are imposed in lieu of deportation and why. It’s not that the government gives no good reason for when it applies or withholds lenience. It’s that it gives no reason. At all.

That’s a blueprint for arbitrary government action. Bhargava Ray proposes that the government must satisfy the fundamental norm requiring a sufficient justification for a particular penalty. She suggests that we rummage in the toolbox of the bureaucratic apparatus of immigration law itself to find the “informal, discretionary tools” that agencies use to avoid deportation and impose “shadow sanctions.” How does one go about shining a light on shadow sanctions? By drilling down into administrative law doctrines and concepts such as notice-and-comment rulemaking, interpretive guidance and centralized discretion, and procedural innovation to render these shadow sanctions more available, open, and consistent. Shining a light on shadow sanctions will promote “reasoned immigration administration.” Then we can lay the foundation for a reason-giving infrastructure in immigration law.

Hand me that hammer.

Editor’s Note: for an earlier review, see Mila Sohoni, Immigration Law’s “Shadow Dockets”, JOTWELL (November 29, 2021).

Cite as: Juliet Stumpf, Shining a Light on Shadow Sanctions, JOTWELL (July 8, 2022) (reviewing Shalini Bhargava Ray, Immigration Law’s Arbitrariness Problem, 121 Colum. L. Rev. 2049 (2021)), https://lex.jotwell.com/shining-a-light-on-shadow-sanctions/.

Why Don’t Policymakers Speak Out About Migrants?

Ava Ayers, Missing Immigrants in the Rhetoric of Sanctuary, 2021 Wis. L. Rev. 473 (2021), available at SSRN.

Ava Ayers asks us to think about a hypothetical policy that says, “We must protect our children from violent crime because children are key drivers of economic well-being.” Professor Ayers aptly describes this language as “creepy.” Why, then, do politicians often discuss immigration by emphasizing what migrants can do for us, rather than in terms that recognize the agency, rights, and intrinsic value of individual migrants? While the effects of immigration are a legitimate concern, the rhetoric of politicians often leans on a transactional approach to immigration, rather than one based on moral grounds. While the reluctance to highlight what is best for migrants may be understandable given political calculations, Professor Ayers pushes us to think about what is lost by ignoring opportunities to say that undocumented individuals matter, that they are a part of the community, and that they are worthy of the concern of public leaders. Professor Ayers’ approach focuses on the way that policy reflects “attitudes about the value of human beings.” The law is about more than just consequences.

In Missing Immigrants in the Rhetoric of Sanctuary, Professor Ayers examines the rhetoric used by local and state policymakers when crafting sanctuary policies. While “sanctuary” has no strict definition, it generally refers to policies that resist immigration enforcement or policies that withhold state and local cooperation with immigration enforcement. Some sanctuary policies involve active resistance, while others are more passive. All sanctuary policies are meant to protect individual noncitizens. But, as Professor Ayers has found, the justifications for sanctuary policies are at times expressed in language that emphasizes what sanctuary policies can achieve for those who are not at risk of deportation. In other words, policymakers, at times, do not make those who will benefit from a sanctuary policy the center of their rhetoric.

The rhetoric surrounding sanctuary policies is especially worthy of examination because these policies represent strong objections to federal enforcement of immigration law. As Professor Ayers observes, if policymakers in favor of sanctuary policies shy away from openly discussing the interests of noncitizens, who will? Professor Ayers is focused not on the end result- the sanctuary policy- but the rhetoric used to get there. While focusing on the benefits to voters may seem like a pragmatic approach, Professor Ayers argues that politicians should embrace their influence to help change the moral norms surrounding migration.

Professor Ayers shows us examples of rhetoric where arguments about public safety, economic well-being, and family unity are not focused on the needs or rights of the migrants themselves, but rather what sanctuary policies can do for us. The “us” signifies a division in the community and that those who directly benefit from sanctuary policies are somehow either not a part of the community or are not full members. Many individuals seeking sanctuary have lived in the United States for years and live in mixed-status families. Professor Ayers’ article raises important questions about whose well-being counts and who is included in community identity

Professor Ayers recognizes a danger of ignoring moral standing and by defining undocumented individuals as “other.” By focusing on transactional value, policies “tend to instrumentalize undocumented people.” Undocumented individuals are more than a means to an end. Also, “if a certain group of people is routinely treated as instrumental, and never treated as an end in themselves, then that group has been dehumanized.” Instrumentalization risks “reinforcing the idea that undocumented people’s interests do not deserve to be considered by policymakers or by anyone else.”

It is not clear whether policymakers use the transactional rhetoric because it is their preferred language or whether they use this rhetoric as a part of a political calculation to make sanctuary policies more acceptable to voters. The rhetoric of the policymakers, Professor Ayers argues, can be contrasted with the rhetoric of activists, which focuses on the needs of migrants and considers even undocumented individuals to be community members.

Professor Ayers’ observations about rhetoric in the sanctuary context have significance in other aspects of immigration law as well. Politicians make arguments in favor of legalization programs by emphasizing what those programs can do for us. This rhetoric emphasizes a transactional approach to immigration; an approach that at its core, whether or not intentionally, sends the message that migrants are only worthwhile if they do something for us. Professor Ayers is pushing us to think about why arguments about benefits to the migrants themselves are taboo and to recognize “what is lost through this shying away.”

Thinking about why policymakers do not focus on arguments about benefits to migrants themselves is important because, as Professor Ayers says, “rhetoric shapes norms that determine our society’s willingness to welcome noncitizens and decisions about how we treat them.” It is as if policymakers are restraining themselves, perhaps because of some conventional wisdom about what the American electorate will accept. This restraint is detrimental, according to Professor Ayers.

Professor Ayers acknowledges that some in her study did ignore the conventional wisdom and spoke about how sanctuary policies benefit migrants themselves. Arguments about benefits to the rest of society are not illegitimate, but Professor Ayers’ inquiry shows us that the missing rhetoric is worthy of examination. One aspect of Professor Ayers’ inquiry that could be further developed is her collection of sanctuary policies. Professor Ayers mentions that she reviewed 200 sanctuary policies in her research but does not give us further detail on how many of those policies use inclusive rhetoric versus how many do not.

Nevertheless, Professor Ayers astutely points out that as long as some policymakers are using this rhetoric, we need to stop and think about it. Why would policymakers shy away? How can we change the rhetoric in the hope of recognizing migrants for their intrinsic value? As Professor Ayers argues, changing the rhetoric holds promise for changing the norms that govern our national conversations on immigration.

Theorizing Transnational Resistance “From the Inside Out”

Ama Ruth Francis, Global Southerners in the North, 93 Temp. L. Rev. 689 (2021).

In Global Southerners in the North, Ama Ruth Francis offers a new theoretical angle on the long-standing and crucial question of how to mobilize popular opinion and legal power on behalf of migrants who lack political voice. Her contribution decenters the state as the key actor in international law, and suggests instead that scholars concentrate on individuals and sub-state spaces. Focusing on climate change migration, Francis suggests that the way to address the severe power asymmetries between those responsible for and those most impacted by the changing climate is to reconceptualize the Global South to include all people and spaces rendered expendable by racial capitalism. She builds on the Third World Approaches to International Law (TWAIL) literature to argue that international law should be theorized as a shared commitment that can be furthered by political agents – in other words, that states are not the only actors capable of creating international law.

Francis begins her analysis by noting that the Global South is not a monolithic bloc; there are vast differences across and within states. For example, among the BRICS nations (Brazil, Russia, India, China, and South Africa), China is a major emitter even though it remains part of the Global South. Moreover, within states in the Global North and the Global South, racial capitalism creates significant gulfs between rich and poor that underlie disparities in both emissions and community resilience in the face of climate change. She describes the TWAIL literature on international environmental law that discusses the history of colonial expansion and domination linked to environmental degradation, and explains how this project of global economic inequality was justified and continues to be bolstered by international law.

Francis underlines the importance of this groundwork, but suggests that the Global South should be defined by material conditions rather than geographic terms, a move that encompasses individuals and sub-state spaces. Drawing from Balakrishnan Rajagopal’s framing of the Global South as a contestation of power formations, she suggests that we can think of the Global South as deterritorialized political practice that creates space for counterhegemonic discourse. Francis describes these Global Souths in the north as racial capitalism’s externalities, highlighting the glaring expendability of some individuals and spaces in the climate change context, and noting how those distinctions are drawn on racial grounds.

Though Francis is perhaps more sanguine than I am about the promise of international human rights law, and in particular of the Teitiota decision, she demonstrates ably the ways in which climate migration highlights the limits of that body of law. Despite obligations to protect individuals’ human rights regardless of immigration status, we see expendability drawn along racial lines. Francis explains that human rights law is incapable of enforcing the rights of climate migrants because such a step would require calling out Global North responsibility for climate change.

To bridge that gap, Francis suggests a transnational alliance of Global Southerners as political agents with the capacity to shift international law. Drawing from Harold Koh’s transnational legal process theory, she explains that “international law is constituted through a dynamic interplay between domestic and international legal norms, and those domestic norms are created through domestic political processes.”  Francis argues that Global Southerners in the North can leverage rights discourse to begin to shift international legal norms through domestic legal processes.  I would add that they might even start to frame climate justice measures as duties, perhaps drawing on the right to solidarity. Francis suggests measures to operationalize the theory, including climate action in domestic courts, transnational advocacy efforts, and drafting domestic legislation.  In other words, rather than invoking international law in domestic courts, she makes the case for transnational coordination of domestic climate efforts as a means of reforming international legal standards over time.

Francis offers an interesting and creative route forward for climate migrants seeking redress under international law. This article strikes me as a promising first step in a broader research agenda. A follow-on article, for example, could engage in more detail with both the idea of Souths and Southerners in the Global North as well as Norths and Northerners in the Global South. It could also expand on the operational component: if the Global North is defined as the defense of global capitalism and economic inequality, how do we identify the actors opposed to that approach and what steps can be taken to mobilize a unified political voice amongst them? Perhaps most importantly for this readership, Francis offers a role for scholars in identifying, describing, and uplifting the role of social movements in shaping not just legal discourse but also international law and policy.

Cite as: Jaya Ramji-Nogales, Theorizing Transnational Resistance “From the Inside Out”, JOTWELL (September 7, 2021) (reviewing Ama Ruth Francis, Global Southerners in the North, 93 Temp. L. Rev. 689 (2021)), https://lex.jotwell.com/theorizing-transnational-resistance-from-the-inside-out/.

Follow the Money: Capital Controls as Migrant Control

Shayak Sarkar, Capital Controls as Migrant Controls, 109 Cal. L. R. 799 (2021).

When I picture immigration enforcement, my mind’s eye sees walls bisecting dusty hills, “POLICE” slashed across ICE uniforms, sheriffs with immigrant detainers, and the bright painted bricks and silvery wire of detention facilities. I don’t see money.

At least, I didn’t. Then I read Shayak Sarkar’s Capital Controls as Migrant Controls. Now, like a Sixth Sense, when I picture immigration control, I see money. I see it everywhere, walking around. Capital Controls will shift your perspective on the relationship between how we control capital and how capital is a tool of immigration control.

I am a sucker for legal history, and Capital Controls delivers. The article narrates the arc of financial regulation theory—from “financial liberalization,” advocating for the removal of capital controls to expand development, to a 180-degree-Keynesian turn toward stronger financial borders to prevent flows of foreign capital from exacerbating domestic financial problems. Financial borders were also promoted as a way to address national security concerns. The narrative arc alights on the current state of affairs in which capital controls have largely fallen to the wayside over the last few decades. Now, scholars of finance, political science, and law critique the asymmetry between human and capital movement, as with Nobel Laureate Gary Becker advocating for lifting border controls to match more closely the movements of goods, services, and capital.

Immigration scholars have expended many pixels examining how the law of immigration admissions and welfare have drawn lines between citizen haves and noncitizen have-nots. Sarkar adds a wholly new dimension, exploring “the law’s disparate treatment of migrant wealth and the institutions responsible for creating and enforcing such laws.” As he points out, “ordinary people crossing borders …. accumulate capital, whether that crossing occurs lawfully or unlawfully.” That is, noncitizens are no different from citizens in moving money from one place to another in order to live, provide for family, work, and operate in a society organized around capital. Much of that money flows across borders.

Controlling the particular ways that migrants move money, says Sarkar, constitutes a form of migration control. Capital controls distinguish migrants from citizens “by regulating a migrant’s access to their own money.” The article examines three forms of capital controls acting as migrant controls. The first is the popcorning of federal and state proposals to tax remittances that noncitizens use to transfer money earned in the United States to their country of origin. Oklahoma is the only state thus far to have passed actual legislation; other proposals would base taxation on either the cross-border destination of the capital or the immigration status of the sender, or both. Most seek to constrict or prevent the cross-border entry of undocumented noncitizens.

Second, the U.S. government conditions an undocumented immigrant’s receipt of earned Social Security benefits on leaving the United States. As Sarkar points out, these provisions press for expelling migrants themselves. They “create a Faustian bargain: relinquish your adopted homeland or relinquish your capital.” This condition operates as a form of migrant control, but also imposes a collateral consequence on the United States of expelling the capital from the country.

Last, post-9-11 legislation compels banks and similar institutions (also known as “insured depository institutions”) to “identify” their customers, but without saying much about how. Inspired by the employment eligibility requirements of the Immigration Reform and Control Act, the law largely leaves it to banks to figure out how to comply with the identity verification requirements. The law provides few guidelines and no determinative list of acceptable documentation of the sort that is a feature of the employment verification system (itself a flawed and much-critiqued enforcement system). These identity requirements have resulted in suspended accounts due to uncertainty about a noncitizen customer’s identification. They have also created a division based on citizenship status between those with access to the relative security of a bank and those who cannot access such services or perceive them as a part of the immigration enforcement infrastructure.

These financial controls act to regulate both migrants and migration. They screen out those whom governmental or private institutions deem undesirable, burdening movement into or within the United States and pushing outward migration of those deemed undesirable. By drawing distinctions based on citizenship status, they also communicate that noncitizens occupy a less favored tier on the membership scale in the community to which they have moved.

What I like (lots) about this article, beyond pulling the scales from my eyes about the significance of capital regulation as a means of migration control, is that it applies a seemingly orthogonal area—the law and policy of finance—to immigration law. It also contributes in a new way to the substantial literature on the private and subfederal enforcement of immigration law. The collage in my mind’s eye of immigration enforcement was mostly composed of images of federal agencies employing brute-force methodologies for controlling the movement of people through a crimmigration and securitization framework. Sarkar takes us into the liminal world of financial controls populated not with ICE and the Customs and Border Patrol but rather with private institutions such as banks, state and local regulators, and financial and welfare agencies like the Social Security Administration and the IRS.

Cite as: Juliet Stumpf, Follow the Money: Capital Controls as Migrant Control, JOTWELL (August 5, 2021) (reviewing Shayak Sarkar, Capital Controls as Migrant Controls, 109 Cal. L. R. 799 (2021)), https://lex.jotwell.com/follow-the-money-capital-controls-as-migrant-control/.

A Positive Immigration Agenda for Racial Justice

Kevin Johnson, Bringing Racial Justice to Immigration Law, 116 Nw. U.L. Rev. 1 (2021).

Since the summer of 2020, Americans have been having more explicit discussions about racial hierarchy in the United States and the role of law enforcement in maintaining such hierarchy. Kevin Johnson’s forthcoming essay, Bringing Racial Justice to Immigration Law, brings that conversation to immigration law. Johnson argues that Congress, but ultimately the Supreme Court, needs to explicitly address the racial animus that has motivated the structure of immigration law in the United States. Through an examination of immigration history, the emergence of a robust immigrant rights movement, and the significant backlash from the Trump Administration, Johnson demonstrates that a positive agenda for immigration reform is required in order for the country to move towards a more just immigration system, rather than simply reverting to the pre-Trump immigration system, which was not a model for justice.

Johnson’s essay begins by mapping the racially discriminatory foundations of immigration law and the minimal role that courts have played in acknowledging and remedying such discrimination. The essay then discusses the emergence of the robust immigrant rights movement despite the fact that non-citizens are not eligible to vote. A response to the growth of the immigrant rights movement was a backlash by the Trump Administration. The next section of the essay explores the efforts undertaken by the Trump Administration to “maintain and reinforce the racial caste quality of the immigration system.” (P. 3.) The essay ends with an appreciation for the immigrant rights movement, and the claim that the goals sought by the movement will only be “meaningful, lasting, and truly transformative” if the Supreme Court jurisprudence shifts to require robust constitutional review of immigration laws and “allows the courts to serve as a check on racial animus.” (P. 3.)

Bringing Racial Justice to Immigration Law is a timely and important piece because it draws attention to the role of racial animus in the structure of U.S. immigration law. Scholars often recount the xenophobic concerns that have motivated the country’s immigration law, but it is rarely referred to as feature of the system. Rather it is examined as a bug. Johnson’s piece requires readers to rethink that analysis.

Acknowledging the structural challenges within U.S. immigration law leads Johnson to highlight two important features of a positive immigrant rights agenda. The first is legislative reform because at present it is “likely the only way to attempt to bring greater racial justice for immigrants.” (P. 11.) Congress could enact the DREAM Act, comprehensive immigration reform, and reform the immigration bureaucracy. These would bring about important changes that would positively impact the lives of millions of individuals. However, Johnson explains that these types of reforms will be vulnerable to the goals and perspectives of the next political majority because courts exercise such minimal review of substantive immigration law.

Therefore the second claim is that the Supreme Court must require “constitutional review of the immigration laws and allow[] the courts to serve as a check on racial animus.” (P. 3.) As Johnson details in his essay, the Supreme Court established an extremely deferential standard of review for immigration cases in the 1800s that limits the courts from reviewing substantive challenges to immigration laws, particularly in the area of Equal Protection challenges. Therefore the political branches can, and have, enacted immigration restrictions rooted in racial animus and the courts have failed to acknowledge the racial animus or strike down the laws or policies. As Johnson explains, “[t]he immigration laws’ immunity from constitutional review encourage Congress to act on its worst instincts and prevent a dialogue between the judicial, legislative, and executive branches about the constitutional constraints on immigration law and policy.” (Pp. 12-13.) Meaningful change within immigration law will require substantive changes to the law, but also significant changes in the role of the courts as a check on the political branches.

As Congress considers the various immigration bills before it, it is important to remember that “[w]ithout constitutional constraints, the nation can expect repeated episodes of anti-immigrant sentiment fueled by racial animus, with the Trump presidency simply making the most recent and extreme one.” (P. 13.)

Cite as: Angela Banks, A Positive Immigration Agenda for Racial Justice, JOTWELL (July 7, 2021) (reviewing Kevin Johnson, Bringing Racial Justice to Immigration Law, 116 Nw. U.L. Rev. 1 (2021)), https://lex.jotwell.com/a-positive-immigration-agenda-for-racial-justice/.