Tag Archives: Immigration
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
(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/
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.
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.
Ming Hsu Chen, The Administrator-in-Chief: The President and Executive Action in Immigration Law
, 69 Admin. L. Rev.
347 (2017), available at SSRN
Professor Ming Chen’s Administrator-In-Chief: The President and Executive Action in Immigration Law is an ambitious effort to peer inside the relationship between a president and administrative agencies. It is the executive branch equivalent to the legislative sausage. Professor Chen concludes that a president is on strongest footing when he “promot[es] practices of good government in agencies rather than trying to substitute his policymaking judgments for those of the agency.” (P. 359.) The article emphasizes that the president should focus on his control over three things: (1) coherent federal policy; (2) centralized agency discretion, ensuring consistency, and (3) coordinating actions across all agencies. The article concludes that procedural choices matter; the president should work hard to set a procedural example and to use his influence to encourage procedural choices that will strengthen the legitimacy of policies. Professor Chen argues that the normative justifiability of presidential policymaking rests on whether the president is promoting coherency, consistency and coordination.
While three case studies from the Obama Administration’s approach to immigration law guide the article’s analysis, the analysis includes lessons for any president. In developing these case studies, Professor Chen conducted interviews with government officials and immigration advocates. The subject of the first case study is President Obama’s use of agency guidance documents to announce the Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans (“DAPA”) policies. The second case study focuses on President Obama’s attempts to set removal and detention priorities. Professor Chen walks us through several incarnations of enforcement policies that attempted to express President Obama’s priorities for detention and removal. These policies called on local law enforcement to share information about individuals with federal immigration agents and to detain individuals while waiting for federal immigration officials to travel to a jail to take custody of an individual. The third case study examines the Obama Administration’s efforts to respond to a surge of asylum seekers at the Mexican border.
These case studies reveal the extremely complicated nature of the immigration bureaucracy. Not only is the organizational chart complex, but the dispersion of immigration functions makes achieving coherency, consistency and coordination an awesome challenge. The immigration bureaucracy not only consists of three separate entities within the Department of Homeland Security (Customs and Border Protection, Immigration and Customs Enforcement, and United States Citizenship and Immigration Services), but the Department of Justice, the Department of State, and the Department of Labor each play roles as well. Each agency has its own mission and culture. The reality is even more complex, though, as Professor Chen’s research reveals competing cultures within agencies. Professor Chen describes different cultural forces at work within Homeland Security and also the challenges President Obama faced in fighting ingrained agency culture. The amount of inter- and intra-agency coordination and massaging necessary to change course is mind-boggling. Professor Chen’s article reminds us that no matter how difficult, this type of management can be crucial, and the president is in the best position to do it.
For DACA and DAPA, Professor Chen concludes that President Obama “somewhat succeeded in promoting a coherent system of enforcement practices.” (P. 411.) Both DACA and DAPA aimed to create a coherent policy of how the executive branch would exercise its prosecutorial discretion. Two things stood in the way and rendered the effort only somewhat successful, according to Professor Chen. First, the President faced strong headwinds in the form of agency cultural resistance to the policies. Second, in the case of DAPA, the procedural choice to use a guidance document instead of notice and comment rulemaking factored into the policy’s legal downfall. For both the detainer policies and the response to the surge in asylum applicants at the border, Professor Chen relays failures of coherency, consistency and coordination. According to Professor Chen, procedural missteps greatly contributed to those failures.
Professor Chen deserves a lot of credit for taking on this project. Her valuable insights allow us to peer into the relationship between President Obama and immigration agencies. Her article also serves as an important bridge between immigration law and administrative law generally. She ties specific immigration law case studies to larger administrative law issues, including the president’s proper relationship with agencies. Her detailed explanation of the immigration bureaucracy and the cultural challenges within it on their own are significant contributions. The article’s ambition, however, is also its soft spot. This is a very dense article that attempts to accomplish much and sometimes gets in its own way by attempting to touch on too many related topics. This left me, at times, unsure of the article’s main focus. On some points I was unsatisfied. For example, the article mentions the ongoing debate about the legitimacy of the administrative state, but left me without a clear explanation of how the call for greater attention to the president’s procedural power fits into that debate. Also, I believe that Professor Chen intends for her focus on procedure to be solely normative, but I am not sure and I would like to know where she sees the existing legal boundaries.
What is clear, however, is Professor Chen’s call for the president to be a staunch defender of procedure who encourages coherency, consistency and coordination across the executive branch. She makes suggestions for how a president can better achieve those goals and her case studies provide important lessons.
Cite as: Jill Family, Procedure Matters
(November 30, 2017) (reviewing Ming Hsu Chen, The Administrator-in-Chief: The President and Executive Action in Immigration Law
, 69 Admin. L. Rev.
347 (2017), available at SSRN), https://lex.jotwell.com/procedure-matters/
Kerry Abrams, Family Reunification and the Security State
(forthcoming, 2017), available at SSRN.
Many Americans believe that one of the functions of United States immigration law is to facilitate family reunification. For example, the idea that if a non-citizen marries a United States citizen that person can reside in the United States with their U.S. citizen spouse. Yet another function of U.S. immigration law is border control to protect national security. Consequently, if the United States government deems a non-citizen a security threat, regardless of their relationship to a U.S. citizen, that non-citizen could be denied entry to the United States. The relationship between these two immigration law functions—family reunification and national security—has varied throughout American history.
Kerry Abrams’ forthcoming article, Family Reunification and the Security State, provides a framework for understanding the “shifting and complex relationship” between these two immigration law functions. (P. 1.) Professor Abrams identifies three periods of U.S. history in which the relationship between these two immigration law functions has varied. During the age of the unitary family there was little tension between the two immigration law functions, and family unity was paramount. In the subsequent age of security, the State’s concern about national security threats increased and family reunification was subordinated to border control. We are currently in the age of balancing in which family rights are viewed as individual constitutional rights that must be balanced with the State’s interest in border control. The implications of these shifts are highly visible today as citizens challenge President Trump’s executive order limiting migration from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen based on their interest in family reunification.
The age of the unitary family was one in which the family was understood to be a single legal identity—that of the husband and father. During this time period the State’s interest in border control was limited. The State was primarily interested in “expand[ing] its borders and settl[ing] new territory.” (P. 4.) Viewing the family as a unitary legal entity, and allowing the migration of all family members, assisted the State in achieving this goal.
Professor Abrams notes that the even though transformations were taking place at the state level that undermined the idea of the unitary family, such as married women property acts, “the common law theory of marital unity was still so powerful that family unity was treated with extraordinary deference.” (P. 6.) Professor Abrams uses the story of Chung Toy Ho and Wong Choy Sin to illustrate the deference granted to the idea of the unitary family. Chung Toy Ho and Wong Choy Sin were the wife and child of Chinese merchant Wong Ham. During the era of Chinese exclusion laborers were excluded, but others like merchants could migrate to the United States. Yet federal law did not specify that merchants could bring their family members with them. Judge Deady of the United States District Court of Oregon heard their case and concluded that China and the United States could not have intended to prohibit merchants from bringing their wives and children with them when they could bring their servants. He noted that “[t]he company of the one, and the care and custody of the other, are his by natural right; and he ought not to be deprived of either, unless the intention of congress to do so is clear and unmistakable.” (P. 7.) Judge Deady concluded that Chung Toy Ho and Wong Choy Sin were admissible based on their familial relationship to Wong Ham.
The family unity principle at work during this time period did not provide migration opportunities for all families. This principle protected the family that was “married and monogamous.” (P. 7.) Yet for the families that were within the accepted conception of family, the idea of family unity was “strong enough to override serious government interests in border protection and immigration policy.” (P. 8.)
This presumption shifted during the age of security when the State’s interest in national security increased significantly. The age of security corresponds with post-World War I America—a time when there was significant suspicion of the foreign-born population. The plenary power doctrine was used to outweigh an individual’s interest in family unity in large part because “[a] spouse might not be just a spouse but a spy.” (P. 12.) In several cases the spouses of U.S. citizens were denied entry to the U.S. because they were deemed security risks.
Professor Abrams argues that we are currently in the age of balancing. Within the last twenty years, two developments ushered in this age. First, the constitutionalization of family rights, and second, less acceptance of the plenary power doctrine in its strongest form. These two developments have created a context in which an individual’s right to family life is legally cognizable and the State’s interest in border control and national security is appropriately reviewed by courts. While the plenary power doctrine has not died, it is much more “malleable and nuanced” today, which means that the State’s interest in national security does not automatically trump an individual’s right to family life. (P. 18.) Rather courts are increasing engaged in balancing the individual and State interests at issue. Professor Abrams concludes that “[t]he development of a modern family reunification right has occurred slowly but is now ripe enough to be poised for affirmative recognition by our courts.” (P. 25.)
The history that Professor Abrams provides is particularly timely as courts are faced with several challenges to President Trump’s executive order addressing migration from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. Family members residing in the United States have challenged the executive order as a violation of their right to family life as family members are denied entry to the U.S. based solely on their nationality. In an age of balancing courts may provide more review of the executive order to balance the President’s concerns about national security with United States citizens’ interest in family reunification.