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Protecting the Right to Family Life in Immigration Law

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.

Cite as: Angela Banks, Protecting the Right to Family Life in Immigration Law, JOTWELL (October 16, 2017) (reviewing Kerry Abrams, Family Reunification and the Security State (forthcoming, 2017), available at SSRN), https://lex.jotwell.com/protecting-the-right-to-family-life-in-immigration-law/.

Living in Liminal Legality

Jennifer M. Chacón, Producing Liminal Legality, 92 Denver U. L. Rev. (forthcoming), available at SSRN.

Jennifer Chacon’s Producing Liminal Legality is a must read, and not only because the title so aptly reflects the liminality of the article itself. The work is betwixt and between criminal and immigration law, between formal and functional analysis, pointing back in history and forward towards social change. It appears in a symposium issue, itself a liminal form of academic discourse, suspended between the immediacy of the academic blog post and the timeless stand-alone academic article. In light of the seemingly permanent status of liminal legality, this article promises to be both hot and timeless, with an illumination in every section.

Chacón draws from the cresting edge of the social science around liminal legal subjects, using it to uncover and critique the legal mechanisms that produce liminal legality. She describes the liminal legal statuses that are proliferating within immigration law and beyond it. Liminal legal categories function in two ways: “to effectuate administrative resource conservation through community-oriented risk management strategies” and to allow governmental actors to assert control over identified populations in ways that avoid the rights-protective schemes of the twentieth century.

The piece begins with a taxonomy of liminal legal status. Liminal status is rooted in the experiences of marginalized noncitizens and the ever-present threat of being plucked away from one’s settled life through a contemporary form of banishment. Central examples of liminal statuses are the administrative granting of immigration parole and “deferred action,” two feats of affirmative administrative inaction. A noncitizen granted parole or deferred action experiences “a reliance on administrative grace to effectuate freedom from banishment, an obligation to pay one’s way to prevent that banishment, experiences of heightened monitoring by governmental actors, and a related vulnerability to control, exclusion, and abuse by private actors.” (P. 709.) This is two moves in one: Chacón reveals how an official decision not to act serves to create a pseudo-status, or what Geoffrey Heeren calls “The Status of Nonstatus.” More, Chacón evokes in the reader a sense of what it’s like to exist in such a state of liminal grace, simultaneously suspended by mere inaction and locked in a Damoclean suspense.

Chacón’s next conceptual move is to expand the class of those living in liminal legality beyond the group on the edge of banishment. She reveals as liminal the groups of noncitizens who have seemingly more stable legal privileges, such as lawful permanent residents “who live in heavily policed, restrictionist jurisdictions and who have old criminal convictions that might appear to render them deportable” and who “may experience greater liminality and a greater likelihood of banishment than an unauthorized noncitizen who is a low priority for removal and lives in a more immigrant-friendly jurisdiction.” (P. 732.) Liminality, then, is less dependent on formal immigration status categories than on the functional elements of time, place, and social context.

Liminality then crosses the citizenship divide to include citizens embedded in immigrant communities as well as citizens who don’t, but who nonetheless have regular contact with law enforcement officials. This is an important move, because it expands the map of liminal status in several ways. First, it illuminates how the operation of liminal legality is not confined to noncitizens, but affects citizens as well. Second, it demonstrates how the commonality of contact with law enforcement is a more accurate predictor of legal liminality than which system of governance—immigration or criminal justice—is operating on an individual.

Chacón advocates for using liminal legality because its transubstantive nature offers advantages over topical frames like “crimmigration.” She would return crimmigration scholarship to its original grounding in membership theory, thereby “reinvigorating the discussion of the role that race, class, and place play in structuring governance strategies both at the border of criminal and immigration law and beyond it.” (P. 764.)

This is why I think Producing Liminal Legality is such an important work for the current moment. Returning to membership theory with a transubstantive legal analysis like liminality is one way to stem the tide of immigration exceptionalism that the Executive Branch is now relying on to maximize its ability to exclude groups like Muslims and refugees. Also, Chacón uses the notion of liminality to make a series of connections that immigration scholarship often struggles with: the tenuousness of distinctions among the authorized citizenship and immigration statuses, the governance functions played by the interlacing of criminal and immigration law, and the role of race, class, and place in that complex interlacing. Having erased the citizenship line as a significant analytical boundary, and exchanged it for the level of governance through law enforcement that an individual or community experiences, the presence of race and class come into focus like elephants in a room.

Cite as: Juliet Stumpf, Living in Liminal Legality, JOTWELL (July 3, 2017) (reviewing Jennifer M. Chacón, Producing Liminal Legality, 92 Denver U. L. Rev. (forthcoming), available at SSRN), https://lex.jotwell.com/living-in-liminal-liability/.

Who Should Set the Anti-Trafficking Agenda?

As immigrant communities and immigrants’ rights advocates stare down the barrel of the Trump administration, anti-trafficking appears to be the sole immigration-related issue that might gain bipartisan traction. As has historically been the case with refugees and asylum seekers, Democrats and Republicans may find common ground in concern over the situation of trafficked individuals, especially those subject to sexual trafficking. Refugee advocates and scholars have long raised concerns about the impact of collaborations with strange bedfellows on law and policy-making. Janie Chuang’s article, Giving as Governance? Philanthrocapitalism and Modern-Day Slavery Abolitionism, raises a similar set of worries around the anti-trafficking agenda, introducing a new character to the cast: the philanthrocapitalist. This piece presents a comprehensive and thoughtful set of concerns about the outsized and largely unaccountable role of a new generation of hyperengaged donors in shaping the anti-trafficking policy agenda.

In Prof. Chuang’s words, philanthrocapitalism is a “relatively new form of philanthropy, born of a new generation of the ultra-rich who aspire to use their business skills to fix the world’s social problems.” She explains that these donors play a much more direct role in shaping responses to societal issues than philanthropists in previous eras, who gave money to support third parties’ efforts to effect social change. This is a sound analysis, though it then raises the question of whether these are differences of degree or of kind. Philanthropists have always had some control over policymaking agendas through their selection of projects and varying levels of control through reporting and funding mechanisms. What is different about these new philanthrocapitalists?

Prof. Chuang provides several answers to this question through the case study of trafficking. The most meaningful difference is that for previous generations of philanthropists, external critiques of the organizations they funded were not viewed as criticisms of the donors themselves. This is a distinction in kind; because the policy work is directly identified with a very wealthy donor, philanthrocapitalism quells critique in a new and substantially more dangerous way. Another concern raised by Prof. Chuang, that philanthrocapitalists, as successful market actors, are more likely to focus on changing individual behaviors of actors rather than the “structures that undergird global labor markets and labor relations,” is apt, but a difference of degree. Other philanthropists, past and current, have often been marked by a similar hesitance to fund projects that undermine the foundations of their financial success; the same is true for government funding and policymaking. Similarly, Prof. Chuang’s charge that philanthrocapitalists lack accountability constraints is one that could be applied, though less powerfully, to non-governmental organizations funded by philanthropies. These organizations are not subject to democratic processes, and the accountability mechanisms that exist are limited to those created and enforced by donors.

Set in the context of the anti-trafficking movement, Prof. Chuang argues that the dominance of philanthrocapitalism has had particularly pernicious results. She explains that philanthrocapitalists have promoted a discourse equating trafficking and forced labor with slavery. Though powerful rhetorically, this framing focuses attention on the actions of individuals, both traffickers and the trafficked. It thereby absolves the state and corporations for their roles in constructing and perpetuating global economic structures that push individuals to migration as an economic strategy. The “modern-day slavery” frame also enables a crime-control approach to traffickers, and a victimhood approach to the trafficked, who become subjects of rescue and pity rather than agency-bearing individuals.

Prof. Chuang explains that the anti-trafficking movement is currently grappling with the choice between a criminalization approach or a broader strategy that would challenge global systems of exploitation. The corollary concern, of course, is that philanthrocapitalists have outsized power to influence this decision. Prof. Chuang identifies several problems with their dominance of the marketplace of ideas. First, philanthrocapitalists have deep faith and investment in the ability of markets to determine the effectiveness of social programs. In other words, they’re using capitalist tools to fix the shortcomings of the capitalist system. Again, it seems that other philanthropies and state programs would fall into a variation of this critique; these actors are similarly unlikely to present radical challenges to “the current economic and political status quo of global capitalism.” However, a starker difference arises from philanthrocapitalists’ embrace of market-based tools; in particular, Prof. Chuang notes their embrace of quantifiable metrics to assess social programs. This approach, which risks essentializing the complexities of social problems, seems to present a difference in kind from the approaches of other philanthropists, who might encourage the use of metrics but not likely to the exclusion of other assessment methods. An even more concerning shift in kind is the concentration of power in the hands of a few individuals who may own or donate generously to media outlets. The core of Prof. Chuang’s critique of philanthrocapitalism lies here in the consolidation of policymaking authority by a few powerful individuals who are able to effectively quell traditional avenues of criticism and accountability.

Prof. Chuang completes her analysis with a specific case study of the Walk Free Foundation (WFF), which exemplifies many of the concerns she raises earlier in the paper. WFF aims to “end modern slavery” through the use of indicators, namely its annual Global Slavery Index, to measure the problem; the coordination of funds via a public-private partnership; and the vehicle of corporations as change agents. While Prof. Chuang’s critique of the use of ill-defined and unevenly applied indicators to set governance agendas was compelling, her concern about the abandonment of categories separately defined and regulated under international law in favor of the term “modern-day slavery” assumed a rationality to the law and its categories that this reader was less inclined to take at face value.

Otherwise, Prof. Chuang’s concerns are borne out in concrete example. WFF seeks to criminalize the behavior of traffickers and encourage ethical corporate behavior but fails to even raise, let alone enforce, two crucial tools in protecting workers against exploitation: labor standards and inspections. Prof. Chuang also raises a broader point about development discourse: WFF assumes that as economic development increases, slavery will decrease, an approach that points the finger at the global South for the problem of trafficking while absolving the global North of responsibility for global economic inequality that makes migration a crucial economic strategy for the poor. She traces the disturbing muting of critical perspectives and lack of accountability with regard to the work of WFF, though her proffered counterexample, of Humanity United allowing NGOs to set the agenda, retained versions of these accountability and democratic legitimacy problems.

Prof. Chuang closes with a powerful critique of philanthrocapitalism: that needs are determined from the top down, with a preference for dramatic and quick results rather than long-term projects leading to sustainable systematic change. She has made a convincing case to support this argument, though many of her criticisms can also be levied, to a lesser degree, against traditional philanthropies and state-based governance and policymaking. The quest for bottom-up policymaking is noble and necessary, but the challenges of creating real democratic accountability in setting the anti-trafficking agenda remain substantial, as they do more broadly when it comes to global governance of migration.

Cite as: Jaya Ramji-Nogales, Who Should Set the Anti-Trafficking Agenda?, JOTWELL (March 8, 2017) (reviewing Janie Chuang, Giving as Governance? Philanthrocapitalism and Modern-Day Slavery Abolitionism, 62 UCLA L. Rev. 1516 (2015)), https://lex.jotwell.com/who-should-set-the-anti-trafficking-agenda/.

Problems Beyond Deportation

For undocumented immigrants, deportation is a constant looming threat. Given the harsh and broad categories of things that an immigrant can do to become deportable, the unfairness of the deportation adjudication system, and the devastating consequences of deportation, it makes sense that immigration law scholars focus on the phenomenon of deportation. Nathalie Martin, whose primary scholarly focus is not immigration law, reminds immigration law scholars that, unfortunately, there are many problems to explore beyond deportation.

Martin explores themes of scarcity by reporting on what she learned through a qualitative study of 50 undocumented immigrants in New Mexico. The study, funded by the National Conference of Bankruptcy Judges, investigates the banking and credit habits of undocumented immigrants through a snowball sampling technique. In Survival in the Face of Scarcity, Martin uses data from the study to explore how issues of scarcity are compounded for a population without legal status. As Martin explains, her findings “show a perfect storm” (P. 109) where individuals with limited rights are fearful to assert any legal rights they have.

Scarcity means having less than one needs. Martin adopts Sendhil Mullainathan and Eldar Shafir’s work on scarcity theory to help frame her study results. In her study population, Martin recognizes the bandwith tax (P. 111) discussed by Mullainathan and Shafir. The “drastic economic scarcity” (P. 114) of her subjects clearly was taking its toll, mentally and emotionally, especially in terms of the ability to cope with unplanned expenses. This economic scarcity itself was not surprising; , more surprising to Martin was the discovery that her subjects categorized unplanned expenses differently than she did. To her subjects, job loss was an expected event. Martin concluded that creating a budget as an undocumented immigrant “just doesn’t work.” (P. 119.)

After exploring how scarcity affects her study population, Martin argues strict immigration laws that allow no hope of regularizing status, the threat of deportation, and ineffective consumer protection laws create a scarcity tornado that is difficult to escape. Martin’s subjects know that they are vulnerable. They know that their lack of legal immigration status means they do not have a level hand in economic transactions or in employment relationships. This makes them hesitant to exercise any legal rights they may have outside of immigration law, either informally (for example, complaining about a billing error) or more formally through the courts.

Participants in the study were asked “if they feel comfortable using the court system to right a wrong.” (P. 130.) Only 32% answered yes. For 42% of the study participants, court was not an option, and 26% were not sure if they would use the court system. Participants expressed fear of deportation or an acceptance that a lack of legal status means one should not expect fair treatment as reasons not to pursue a legal claim. This means that fear of deportation (even if wholly unrelated to a potential legal claim) and a general sense of second-class status keep the individuals in Martin’s study from vindicating the legal rights that they do have in the employment, contract, and landlord-tenant contexts.

Interestingly, despite the scarcity in which they live, participants in Martin’s study expressed reluctance to accept government benefits. Undocumented immigrants are ineligible for most kinds of government aid. Even when an individual or someone in the individual’s mixed status family might be eligible for a benefit, Martin reports that the study participants expressed a strong preference to make it on their own.1

Martin’s study reminds us that being an undocumented immigrant is not easy. This may seem like a simple lesson, but it is one that bears repeating. While Martin’s study group is only a small slice of the undocumented population, Martin’s study helps to rebut misleading political discourse that promotes a narrative that it is uncomplicated to be undocumented in the United States. Of all the challenges identified by Martin, the one that perhaps should be most disconcerting to law professors is a grudging acceptance that the vindication of legal rights is not practical. This is a major problem beyond deportation. Martin’s study prompts us to ask whether this is an acceptable status quo.

And here is where immigration advocates, policymakers, and scholars will step in with their expertise. The immigration laws of the United States are badly in need of reform. That reform must include a path to legalization for undocumented immigrants. Only then will Martin’s study participants be able to begin to escape the scarcity and vulnerability that negatively impacts their lives and the lives of their U.S. citizen relatives.

  1. Nathalie Martin, Giving Credit Where Credit is Due: What We Can Learn from the Banking and Credit Habits of Undocumented Immigrants, 2015 Mich. L. Rev. 989, 1022-24 (2015). []
Cite as: Jill Family, Problems Beyond Deportation, JOTWELL (January 6, 2017) (reviewing Nathalie Martin, Survival in the Face of Scarcity: The Undocumented Immigrant Experience, 58 Ariz. L. Rev. 103 (2016)), https://lex.jotwell.com/problems-beyond-deportation/.

Undocumented Migrants and International Law

Jaya Ramji-Nogales, “The Right to Have Rights”: Undocumented Migrants and State Protection, 63 Kan. L. Rev. 1045 (2015).

International human rights are often described as universal rights. The universality of this legal regime leads many people to view it as an appropriate resource for addressing the plight of undocumented migrants. Yet the legal protections provided within the international human rights regime are often unavailable to undocumented migrants, or the rights that are most important to them are not protected. International and immigration law scholars rarely acknowledge these limitations, which makes Professor Jaya Ramji-Nogales’ article such an important contribution. “The Right to Have Rights”: Undocumented Migrants and State Protection provides an excellent analysis of the limits of international human rights law in protecting undocumented migrants.

Two of the central challenges that undocumented migrants face are vulnerability within their states of residence due to their limited “recourse against exploitation due to fear of deportation” and “the rupture of family and community ties through deportation.” (P. 1050.) The rights to territorial security (by which Ramji-Nogales means the right to remain in one’s state of residence), family unity, and the absence of discrimination due to immigration status are important rights for addressing undocumented migrants’ central challenges.

To examine the ability of international human rights law to address these challenges, Ramji-Nogales uses Hannah Arendt’s critique of human rights law in The Origins of Totalitarianism as a template. Accordingly, Ramji-Nogales explores (1) the fact that sovereign states decide what rights will be protected and how; (2) the idea that certain groups’ rights are exceptional and protected outside of the domestic legal order; and (3) that individuals’ dependence on sovereign states to protect their individual rights limits the ability of international human rights law to protect undocumented migrants. Arendt found these factors hindered protecting the rights of minorities and stateless individuals, and Ramji-Nogales finds the same for undocumented migrants.

First, while international human rights are conceptualized as universal rights, they actually exclude the rights that are the most important to undocumented migrants. International human rights treaties are state-created instruments, and as a result, “sovereignty interests are deeply embedded in these treaties.” (P. 1060.)

Second, undocumented migrants are exceptional and outside of the international human rights regime. In a number of critical ways, international human rights treaties exclude undocumented migrants from protection. For example, no international human rights treaty supports a narrow right to territorial security. The United Nations Human Rights Committee (“HRC”) is the body responsible for interpreting the International Covenant on Civil and Political Rights (“ICCPR”). The HRC has noted that the ICCPR “does not recognize the rights of aliens to … reside in the territory of a State party.” (P. 1051.) The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families “states in no uncertain terms that it does not offer any right to ‘regularization’ for undocumented migrants or their families.” (Id.) The universal claims of the international human rights framework are only plausible if undocumented migrants are understood as being legitimately outside of the system.

Finally, human rights protection depends on state enforcement, and undocumented migrants “have no political voice, and are largely excluded from legal protections in their host states.” (P. 1061.)  In order for the international human rights regime to be useful for undocumented migrants, the state protection gap has to be addressed. In a state-created system, state interests significantly shape what substantive rights will be protected and how. Additionally, the enforcement of protected rights depends on having a state act on one’s behalf.

Ramji-Nogales proposes three responses to the state protection gap. First, undocumented migrants could utilize a social movement approach in which they build networks, exchange information, publicize issues that are important to them, and engage in protests. This approach would allow undocumented migrants to “openly challenge the political determinations that define the scope of international human rights law” without relying on the state (P. 1063).

Second, migrant-sending states could demand better treatment of their nationals in receiving states. Undocumented migrants’ home states would discuss the harms their nationals face and work to have receiving states recognize as rights the issues important to undocumented migrants.

Finally, Ramji-Nogales discusses a multilateral approach in which a number of migrant-sending states create a “permanent institution to contextualize the situation of undocumented migrants and advocate for equal treatment.” (P. 1064.) This strategy would differ from current multilateral approaches to coordinate state migration action because it would “aim to radically restructure discussion around the undocumented.” (Id.)

Ramji-Nogales acknowledges the challenges and shortcomings for each of these responses: the coordination challenges involved in organizing a social movement; the comparative power differential between social movements and states; the limited political power of migrant-sending states vis-à-vis receiving states; and the conflicting interests that sending states may have because they simultaneously may be both sending and receiving states.

While none of these responses to the state protection gap offer a guaranteed solution, they begin an important conversation for immigration and international human rights law scholars. Until recently there has been little acknowledgement of the very limited role that international human rights law has been able to play in addressing the needs of undocumented migrants. By identifying specific substantive and institutional challenges, Ramji-Nogales provides a framework that immigration and international human rights scholars and advocates can use to reimagine an international legal regime that is truly universal.

Cite as: Angela Banks, Undocumented Migrants and International Law, JOTWELL (June 30, 2016) (reviewing Jaya Ramji-Nogales, “The Right to Have Rights”: Undocumented Migrants and State Protection, 63 Kan. L. Rev. 1045 (2015)), https://lex.jotwell.com/undocumented-migrants-and-international-law/.