Tag Archives: Immigration
Oct 2, 2024 Juliet StumpfImmigration
“History,” Max Beerbohm said, “does not repeat itself. The historians repeat one another.”
This quote may (or may not) be an entirely accurate reflection of stare decisis, the notion that stability in the law relies on courts faithfully following past precedent. But the quote makes room for the recognition that stare decisis carries racist precedent from centuries past to perpetuate modern systemic racial subordination in modern immigration law. Ahilan Arulanantham’s Reversing Racist Precedent, forthcoming in the Georgetown Law Journal, proposes a systemic disinfectant for this problem: applying constitutional limitations on race-based state action to racist judicial precedent.
Reams of scholarship have excoriated the nineteenth century cases establishing that Congress and the executive branch are largely freed from constitutional fetters when making immigration law and policy. Every immigration law student learns that the extraordinary power that the political branches wield over immigration law is grounded in extraconstitutional sovereignty, bulwarked by considerations of foreign policy and national security. The Supreme Court articulated this power in the 19th century Chinese Exclusion Cases, Chae Chan Ping and Fong Yue Ting.
Reading these cases, students are often struck by the baldness of its anti-Chinese rhetoric. The Court’s considerations of foreign policy and national security arose from its characterization of Chinese American communities within the United States as “vast hordes of Chinese people” whose “crowding in upon us” was a “form [of] aggression and encroachment.” The Court affirmed Congress’s conclusion that “the presence of foreigners of a different race in this country, who will not assimilate with us,” was “dangerous to [the] peace and security” of the United States. This apparent refusal of a racial group to assimilate constituted a national threat despite the absence of “actual hostilities with the nation of which the foreigners are subjects.” The Court’s characterization of these communities as dangerous cells of insidiousness anchored its reasoning that Congress is entirely unfettered when legislating the why or how of exclusion and deportation.
The Chinese Exclusion cases illustrate the obvious: America’s judiciary did not escape our history of open racism. Dusty tomes harboring openly racist opinions fill the shelves of law school libraries. Stare decisis recycles these precedents, Arulanantham points out, handing them across the decades into neutrally-framed modern precedent that continues to rely on them. Merely dropping the open racism of these precedents, he argues, is not sufficient to disinfect modern case law from older precedent that grounded its reasoning explicitly on race. Since that era, modern constitutional law requires scrutiny of state action grounded on intentional racial discrimination.
Arulanantham proposes turning the same constitutional lens on the third branch. He argues that courts must apply the prohibition against state action motivated by racial animus to its own decisions, stripping those infected with racial prejudice of precedential force. This approach, he claims, will go far to address legal rules infected with racial discrimination.
Arulanantham’s approach is both straightforward and innovative. It proposes using constitutional precedent (stare decisis) to scrutinize the doctrine of stare decisis. Beginning as far back as 1873, the Supreme Court has struck down facially neutral rules motivated by discriminatory purpose. Under the modern constitutional formulation, if invidious race discrimination played a role in even facially neutral government action, that action is unlawful unless the government can show it would have made the same decision without discriminatory intent.
How would this work in practice? Arulunantham explains that “when one party relies on a precedent infected by racism, the other should be able to challenge reliance on that precedent as inconsistent with the Constitution’s prohibition against discrimination. Success would result in the court disregarding the precedent.” (P. 444.)
This is not just an innovation in advocacy strategy, nor merely a way to prevent modern court cases from relying on outdated notions of racial inferiority. Arulanantham also holds out the possibility of disrupting structural racism itself. “In a common law system built on stare decisis,” he explains, “rules enacted with invidious racist intent may naturally persist for decades or more, even where the lawyers and judges following them today harbor no present racist intent.” (P. 444.) Without this brake on stare decisis, racially-based rules will continue to influence American jurisprudence. “In other words,” he points out, “absent an exception for racist precedents, stare decisis doctrine itself functions as a structure that perpetuates racism.” (P. 444.)
Arulanantham concludes that judges should not be exempt from constitutional prohibitions against discrimination, noting that other judicial acts such as jury selection and some court orders already receive such scrutiny. Perhaps most famously, Shelley v. Kraemer relied on the notion that judicial decisions constituted state action when they upheld private agreements in the form of racially restrictive covenants.
The article deftly addresses two major objections to the thesis. The first is purely practical. Given how widespread racially discriminatory views were throughout American history, does that mean that every opinion written by a judge with racist views must be discarded? That’s a lot of dusty tomes.
The answer is no. Racist judges, he recognizes, may still produce good legal rules, such as the ancient writ of habeas corpus. “If a judge who happens to harbor racist views issues a decision, but there is no evidence that racism played a role in that decision,” Arulanantham explains, “the fact that the author held racist views” would not doom the precedent. (Pp. 470-471.)
This is consistent with established approaches to assessing discrimination. Discriminatory views are not actionable unless they come to ground and influence the actor’s conduct, though those views can still constitute evidence of a judge’s invidious intent. And the assessment of discrimination would focus not on the whole opinion but on the relevant legal proposition. Thus, a neutral standard of review may survive while a substantive holding driven by racial animus in the same opinion would fall. Even the much-maligned Korematsu case, he observes, produced the modern strict scrutiny rule for assessing racial classifications.
Just as daunting is the towering body of “second-generation cases”—more modern cases that rely on the older explicitly racist cases. This may be the proposal’s greatest obstacle, but it also holds its greatest promise. Arulanantham first recommends an established test in antidiscrimination law, allowing the later case to stand “so long as it provides race-neutral reasons for the rule endorsed in the prior case,” and “the later case would have adopted the rule even as a matter of first impression.” (P. 476.) A more stringent measure would require the second-generation case to also “acknowledge that the prior case was motivated by racial animus and explicitly choose to readopt the rule from the prior case, notwithstanding its racist origins.” (P. 476.) This second approach would preclude use of the modern case unless it had actually confronted the racism in the original decision and adopted the rule for neutral reasons. The acknowledgement ensures disinfection of the case from the racism of the original case.
Arulanantham does not choose between these approaches. His point is that either approach would begin the critical project of disinfecting racist precedent from the law.
I leave it to you to explore how the author applies these ideas to the Chinese Exclusion Cases in immigration law, connecting those earliest cases to modern Supreme Court precedent that supported the Muslim ban, immigration detention, and immigrant admissions. What I liked (lots) about the article was the clean simplicity of its proposition that judges focus the constitutional lens on their own judicial products. And I loved the way the article turns a mirror on stare decisis itself, applying stare decisis to stare decisis, and pushing us to recognize its structural role in structural racism.
Aug 9, 2024 Jaya Ramji-NogalesImmigration
Immigration law as a field of scholarly inquiry is largely critical of the status quo, with much of the literature describing inequities authorized by law and implemented through policy. An increasing number of these works foreground the work that race performs in perpetrating and perpetuating injustice in the immigration system. Yet there remains a profound silence around the question of blackness in migration. Modern Migrations, Black Interrogations begins to dismantle that silence, presenting the reader with “the unasked question” in the field of migration studies. (P.1.) This critique of antiblackness upends existing assumptions and presents important new directions for scholarly inquiry in immigration law.
As the Introduction to this edited volume explains, blackness should be the starting point for any study of mobility. But we cannot just “add blackness and stir”; the editors insist that we must begin by interrogating the antiblackness at the heart of the U.S. immigration system. (P. 11.) It is only through this more profound inquiry that we can begin to understand all borders and bordering processes, and to combat the antiblack violence enabled and obscured by the vast silence that greets questions of blackness and mobility. (Pp. 1, 14).
The critique of antiblackness offers a rich and productive vantage point from which to trouble questions of mobility and borders. As a “constantly regenerating and mutating feature of the present-day organization of social relations,” (P. 5) antiblackness is a necessary foundation for immigration scholars. One important aspect of this theoretical perspective is the understanding of societal progress as “movement towards a world expunged of blackness” (P. 6.) Blackness is defined in opposition, in “a painful, antithetical relationship,” to European modernity. (P. 65.) When it comes to immigration, blackness is situated outside the immigrant/citizen frame, beyond the path of progress toward citizenship. (P. 64.) This presents a vexing problem for the modern liberal state; while Blacks are viewed as unable to assimilate, at the same time, they cannot be deported. (P. 71.) Blackness can, however, be deployed as a “racial border to police other racialized groups,” with assimilation measured as one’s distance from blackness (Pp. 16-17.)
An antiblackness framing also offers a new lens on the history of U.S. immigration law. In one example, the editors offer connections between the 1798 Alien and Sedition Acts and fears arising from Haitian revolution and potential support for slave revolt in the United States. (Pp. 8-9.) The motivation underlying these Acts, which were the first federal restrictions on immigration, have commonly been depicted as unrelated to race in that they limited the admission of French migrants. This case study presents just one example of how an antiblackness lens can open up new understandings of the history of immigration restrictionism.
In addition to the critical frame of antiblackness, the editors offer a far more complete understanding of Black mobility than is generally presented in the literature. They persuade the reader that blackness must be a starting point for analyzing bordering processes and understanding relevant concepts such as inclusion and exclusion. (P. 17.) Black mobility is a story, the editors remind us, of territorial alienation and forced hypermobility. (Pp. 80-81.) Blackness is “inextricably bound up with the ruptures that produce [the] radically depersonalized placeless condition,” without an understanding of which we cannot begin to comprehend, let alone theorize, migration. (P. 80.) Migration has been a “series of traumatic displacements” that prevent Black people from “experiencing time and occupying space on their own terms.” (P. 81.) This means that the only way out is “a flight from society itself” by “creating a rupture with a given structure of social relations.” (P. 92.) In other words, the only solutions are radical ones; tinkering with the status quo will simply reproduce antiblackness.
The book also reminds us that Black mobility is a story of resistance. The persistent mobility of Black people is nothing short of astonishing given the powerful and pervasive efforts to control Black movement. Unauthorized movement has been a potent form of resistance to enslavement and Jim Crow. (P. 10.) This Black mobility has consistently been received as a threat to the border itself and ultimately, “civilization.” (P. 16.)
By this point, it should not be hard for the reader to discern how the antiblackness critique presented by the book challenges the received wisdom on migration. The editors remind us that freedom of movement presupposes Black captivity, and that Black mobility is the “experience of being radically uprooted.” (P. 66.) This recognition provides a more complete picture of all borders, namely “the understanding that, in order for migration to be a decision, the right not to migrate must also be a valid option.” (P 12.) The book offers profound resistance to what has been labeled the “mobility bias” and the linear progress narrative of migration. (P. 13.) It is also a forceful reminder of the importance of interrogating silences around blackness and mobility, and of the powerful fruits of that inquiry.
Dec 5, 2023 Angela BanksImmigration
Gun violence remains a serious issue in the United States. The Gun Violence Archive reports that between January 1, 2023, and May 1, 2023 there have been 185 mass shootings that injured 744 people and killed 252 people. In 2008, the United States Supreme Court held that the Second Amendment protects an individual right to possess firearms, separate and apart from militia service in Heller v. District of Columbia. This right is held by “the people.” Yet, the Court has simultaneously held that noncitizens are not part of “the people” guaranteed a right to bear arms. In the Second Amendment context “the people” has been defined as citizens. Pratheepan Gulasekaram’s forthcoming article in the Vanderbilt Law Review explores the Supreme Court’s expansion of individual gun rights while shrinking the Court’s conception of “the people.” Gulasekaram offers a more capacious interpretation of “the people” and his analysis offers an approach for noncitizen inclusion in other core constitutional rights.
The Second Amendment’s “People” Problem begins with a history of federal regulation of gun possession and noncitizens. Gulasekaram demonstrates how the restrictions implemented stemmed from a desire to limit specific ideologies and subversive activities. Noncitizens in this context were viewed as threats to the constitutional order. Under a pre-Heller Second Amendment that focused on organized armed defense of the constitutional order, noncitizens viewed as a threat could not be viewed as “the people” who would protect the constitutional order. In Part II, Gulasekaram demonstrates how Heller’s emphasis on an individual right to self-defense does not lend itself to the same wholesale exclusion of noncitizens from “the people.” Part III presents Gulasekaram’s argument that once the right to bear arms is rooted in an individual right based on self-protection, the rationale for connecting gun rights to citizenship status disappears.
Part I of The Second Amendment’s “People” Problem does an excellent job demonstrating that historical limitations on noncitizen gun ownership were rooted in “baked-in social hierarchies and stereotypes.” (P. 8.) Gulasekaram explores how the initial regulation of gun possession by disfavored groups “either conflated citizenship with race, or traded on the notion that immigrants were the source of anti-American and subversive ideologies.” (Pp. 7-8.) Federal immigration law in the early 1900s reflected concerns about noncitizens and anti-American ideologies. For example, the 1903 Immigration Act prohibited the entry and naturalization of “anarchists.” In 1918, Congress passed the Alien Anarchists Exclusion Act, which banned the entry of individuals who advocated or taught the overthrow of the American government and allowed for their deportation. The growing connection between noncitizens and dangerousness allowed California to enact a law in 1923 banning “unnaturalized foreign-born person[s]” from possessing firearms.”
Another important contribution made in Part I is illustrating the role of the powerful gun lobby in encouraging lawmakers to regulate immigrants rather than firearms. Building on the growing concerns about noncitizens’ anti-American ideology, in the 1920s and 1930s the United States Revolver Association (“USRA”) deployed campaigns arguing that significant gun regulation was anti-American and rooted in foreign ideologies. Advocacy campaigns argued that “[r]ather than regulate firearms, Congress should regulate the source of the true danger: immigrants.” (P. 11.) The National Rifle Association continued these themes, arguing that expansive gun rights should exist for “citizen sportsmen, hunters, and private owners,” and that regulation could and should exist for “undesirable aliens” and “Fifth Columnists.” (P. 12.)
In Part II, Gulasekaram argues that the grounding of the Second Amendment in a right to self-defense invites a new examination of “the people” who are guaranteed the right to bear arms. One important part of the analysis Gulasekaram offers in this section is how the Court’s analysis of “the people” is based on the Court’s 1990 decision in United States v. Verdugo-Urquidez. Construing the Fourth Amendment, the Court defined “the people” as those individuals who are “part of the national community or who have otherwise developed sufficient connection to the country to be considered part of that community.” Gulasekaram notes how in Heller the Court changed “national community” to “political community” and eliminates the alternative approach based on “sufficient connection to the country.” (P. 19.) These modifications make it possible to interpret “the people” as citizens.
Part III offers a new approach to “the people” that is rooted in the justification for an individual right to bear arms offered in Heller and reinforced in New York State Rifle & Pistol Assn v. Bruen. Those cases decouple the right from organized community protection of the state, or from the state, and base it instead on the right to protect individuals from private violence. Based on this approach to the Second Amendment, “the people” are “all those who may need arms for protection of self, loved-ones, or home.” Gulasekaram notes that the rights of citizens and noncitizens are often inextricably linked. Many immigrant families are mixed-status families, and depriving noncitizens of the right to self-defense through firearms will also deprive citizens of their right to self-protection. Gulasekaram does not argue that “the people” has no limitations, or that firearm regulation is impossible. Rather he argues that as a right of self-defense “immigration status bears no relationship either to the need for protection nor the ability to wield a firearm safely, in the way status as a minor or mental-illness might.” (P. 49.) Gulasekaram contends that limitations on Second Amendment rights should “closely track the inability of governments to ensure the safe, non-criminal use of the firearm.” (P. 50.)
The Second Amendment’s “People” Problem does an excellent job of demonstrating the internal tensions within the Court’s jurisprudence defining “the people” for Second Amendment purposes and detailing the history of limitations on noncitizen gun ownership. These insights raise significant questions about the accuracy and wisdom of defining noncitizens out of “the people.” The approach Gulasekaram offers provides a model for rethinking noncitizens’ constitutional rights.
Jun 15, 2023 Juliet StumpfImmigration
Keeping secrets is so middle school.
When the secret is law, though, the problems mature and proliferate. Faiza Sayed’s The Immigration Shadow Docket uncovers a nest of secret law in the Board of Immigration Appeals (BIA)’s practice of deciding almost 100% of its cases as unpublished, nonprecedential decisions. These decisions are available to government lawyers but not to immigrants or their lawyers, and that makes steam come out of my head.
The BIA decides about 30,000 cases each year, but publishes only 30 of them. Those published decisions are authored either by three-member panels, or by the Board en banc, and they lay out the legal reasoning and findings of the Board. The few published decisions are accessible to the public and citable.
The remaining tens of thousands of decisions of immigration cases are issued by single members of the Board. Sayed calls this the “immigration shadow docket.” The vast majority are summary affirmances and orders, and they cannot be cited as precedent—at least, not by advocates for immigrants. In practice, however, government attorneys and immigration judges access them and cite them in briefs and decisions. Thus, the steam.
Sayed describes one gesture that the BIA has made towards public access to some unpublished decisions, which sounds like a law librarian’s nightmare. A sliver—less than 6%—of the unpublished decisions are publicly accessible. They’re accessible, that is, only to members of the public willing to travel to the room where they reside (in hard copy only) in Falls Church, Virginia. Once there, the visitor discovers that the decisions are organized solely by month and year. There is no index nor topical filing system. As Sayed notes, “The only way to find decisions on a particular topic was to leaf through them, one by one.” (P. 911.) One imagines her there, leafing metronomically, sharing a table with bleary-eyed immigration lawyers with beards down to their toes.
Electronic versions of unpublished decisions reside on the internal BIA case database and some other immigration court locations where government counsel and immigration judges can find them. Although FOIA litigation has resulted in a settlement allowing for staggered disclosure of certain past and future unpublished decisions, many categories remain undisclosed and individual FOIA requests are often denied. Because of the inequality in access to Board decisions, the government and the adjudicator can tap into the secret law while it remains hidden from the public. The unpublished decisions are not minor procedural issues or ministerial decisions. They are adjudications of whether an individual may stay or must go. They are determinations that impact the future of individuals and families. At that volume, they are decisions about who will compose our communities.
Other courts, most famously the Supreme Court, also have shadow dockets—categories of orders, affirmances, and denials that are non-precedential but impact a significant volume of cases. These shadow dockets have been the subject of critique and efforts at reform. Sayed describes these in the article and relies on some of them in her suggestions for BIA reform.
But the BIA’s practice takes the shadow docket to a new height. In contrast to publication practices of the Supreme Court and federal appellate courts, almost 100% of the BIA’s decisions are on the shadow docket. The difference between the federal courts’ shadow dockets and the BIA’s body of secret law is that nearly all of the Board’s decisions are unpublished, and the federal courts have responded to critique by enacting reforms.
Having a secret body of immigration law calls into question the legitimacy of the immigration adjudication system. The article brings to light the existence of inconsistent outcomes in cases that should have the same result, such as two cases that determined both that a specific organization was a terrorist group and that it was not, resulting in a removal determination for one non-citizen but not the other. Sayed also points out that the nature of the shadow docket encourages “low-quality opinions that are thinly reasoned or lack reasoning entirely” and “error-prone decision-making.” (P. 920.)
Sayed’s long list of concerns about the existence of the shadow docket is compelling. She notes the high stakes of BIA decisions when removal orders mean banishment from the United States. Because of the severe restrictions on federal court review and jurisdiction, the BIA is essentially the Supreme Court for most immigration cases. Lack of a right to appointed counsel, among other barriers, means that the odds are stacked against the indigent non-citizen in immigration court. Even with counsel, how well can an attorney represent a client when the law is inaccessible to her? How is the public to comply with the law, or advocate for changes in law, if the law itself is secret?
But her larger point is the takeaway here. Secret immigration law stunts the development of immigration law itself. The Board is tasked with providing guidance about the meaning of immigration law and effecting uniformity in immigration law nationally. This is an impossible task when only 30 of those 30,000 decisions are published. As Sayed concludes: “shadow docket decision-making defies important principles of administrative governance, including notice, justification, coherence, and procedural fairness, and undermines political accountability and judicial review.” (P. 898.)
Apr 12, 2023 Jaya Ramji-NogalesImmigration
Scholarly examinations of sanctuary for immigrants tend to focus on destination states in the Global North, where the concept implicates support for the immediate needs of immigrants in a specific location—such as a church, or throughout a city—and in some cases policy advocacy efforts. Few scholars writing in the Global North have explored how this concept translates to the Global South, where most migration and transit occurs, and where a substantial amount of work is happening to support migrants despite the more profound costs to those residing in countries with more limited resources. Alexandra Délano Alonso offers the reader a shift in the epistemology of migration, taking us to locations in the Global South where this work is taking place. In Sanctuary in Countries of Origin: A Transnational Perspectives, she investigates the concept of sanctuary through a case study of her home country of Mexico, determining that the term is an uneasy fit and that the practice of sanctuary is more transformative in the Mexican context.
Délano begins with an examination of historical sanctuary practices in Mexico, noting that, much like in the United States, the main actors have been migrant shelters, churches, and community organizations, but that Mexicans are more likely to use the terms hospitality, shelter, and welcome to describe the support offered to migrants. Given that the Spanish definition of sanctuary tends to focus narrowly on religious spaces, she questions its political power in popular discourse. Délano also asks the key question about sanctuary that Mexicans raised in response to the Central American caravans in 2018, namely, whether sanctuary can exist in a location that is unsafe and under-resourced even for locals. She also explores the complexity and contradiction in the political discourse around these caravans, noting an about-face between governments, from a discourse of hospitality for asylum seekers to the assertion just a few months later that Mexico is not a sanctuary or a “country of open doors” by the administration of Andrés Manuel López Obrador.
The article offers three case studies to explore the discourse and practice of the sanctuary in Mexico. It begins with a description of Mexico City’s efforts, in conjunction with cities such as Chicago and Los Angeles, to respond to returning citizens and resist the anti-immigrant actions of the Trump administration by labeling itself a sanctuary city. Délano explains that the term sanctuary was not politically effective in this setting and that Mexico City eventually relabeled itself, becoming instead a city of hospitality and human mobility.
The article next explores the richest of the three case studies, namely the migrant shelters in Mexico that seek to offer hospitality with dignity. This approach, which includes basic needs such as food and shelter, is distinguishable from sanctuary as practiced in the Global North in that it views “integration as a process of liberation and mutual recognition.” (P. 91.) In other words, dialogue around the structural discrimination, violence, and poverty that affect both locals and migrants is baked into the hospitality process. The goal of this practice is to create political consciousness, enabling migrants to leave behind the status of victim and instead become “protagonists of their own liberation.” (P. 91.) Sanctuary thus becomes encounter and solidarity leading to mutual transformation rather than a practice of citizens bestowing charity upon migrants.
The final case study examines post-deportation sanctuary. Like the first case study, this is an interesting application of the concept to citizens who require assistance to successfully reintegrate into their native country. Délano describes the stigma that attaches to deportees and explains the role that community organizations play in offering support for their immediate as well as medium and long-term needs. She labels these practices “holistic accompaniment”; in addition to food and clothing upon arrival, the groups help to find employment, offer mental and emotional health care, and create community spaces. This is a much longer-term approach than government services that are provided only at arrival. Similar to the migrant shelters described in the prior case study, groups such as Otros Dreams en Acción engage in the praxis of mutual aid, solidarity, and advocacy to dismantle a range of inequalities–economic, social, and political inequality–that harm not only returnees but also their communities. The actors in this final case study were more comfortable deploying the concept of sanctuary, likely because of the time they had spent in the United States.
This thoughtful article looks to the Global South to offer a “more dynamic, self-critical, expansive, and transformative practice of sanctuary.” (P. 95.) In Mexico, we can see practices of hospitality and solidarity that aim to create new forms of community that can alter systems in ways that improve the well-being of migrants and locals alike. Stepping away from the framework of sanctuary in the United States (in which citizens offer aid and non-citizens are victims and recipients of assistance) a turn to the Global South as a site of knowledge production enables a more radical approach that offers the promise of emancipating all of us, citizens and non-citizens alike.
