Tag Archives: Immigration
Oct 20, 2022 Angela BanksImmigration
In September of 2021, Haitian migrants, attempting to return to a migrant camp in Del Rio, Texas, were met with U.S. Border Patrol agents on horseback with whips. The Haitian migrants had gone to Mexico to obtain food for their families, as there was insufficient food at the camp. Upon their return, Border Patrol agents attempted to push the Haitian migrants back across the Rio Grande to Mexico. One viral image showed a Border Patrol agent on horseback holding a whip and grabbing a Haitian migrant by the back of his shirt. Kit Johnson’s recent article, Women of Color in Immigration Enforcement, raises interesting questions about whether or not the growing number of women of color in immigration enforcement could positively impact the “use-of-force culture in the federal immigration enforcement context.” (P. 997.)
Johnson’s article introduces new demographic data about immigration enforcement officers that demonstrates that the majority of female immigration enforcement officers are women of color. In light of this new information, Johnson introduces a research agenda to examine the impact and experiences of women of color within immigration law enforcement. While scholars have explored the experience and impact of Latinx immigration enforcement officers, the experience and impact of women of color specifically has not been explored. Now that more granular demographic data is available, women of color can be the focus of analysis.
The article begins with an overview of the functions of three key immigration enforcement offices within the Department of Homeland Security (“DHS”): the Office of Field Operations (“OFO”) within U.S. Customs and Border Protection (“CBP”), U.S. Border Patrol (“USBP”) within CBP, and Enforcement and Removal Operations (“ERO”) within U.S. Immigration and Customs Enforcement (“ICE”). After describing and contextualizing the work of these agencies, Johnson details the legal tools that have led to the diversification of immigration enforcement. Federal legislation, like Title VII of the Civil Rights Act of 1964, Executive Orders, and agency rulemaking have prohibited employment discrimination within the federal government, encouraged increasing the number of Latinx individuals employed by the federal government, and promoted federal employment as a place of “equal opportunity, diversity, and inclusion.” (P. 1008.) Due to Management Directive 715 by the Director of the Federal Sector Programs Office of Federal Operations Equal Employment Opportunity Commission DHS was obligated to “identify barriers to creating a more diverse immigration workforce.” (Id.) This led to efforts to recruit more enforcement officers who are people of color and/or women. (P. 1009.)
Recent data suggests that the DHS efforts have successfully diversified some of the immigration enforcement agencies. For example, 13 percent of ICE officers are women, as are 19.6 percent of CBP officers. Compared to local police departments, where 12.6 percent of officers are women, ICE is in line with national figures and CBP is ahead. (P. 1011.) Yet, U.S. Border Patrol is significantly lower at 5.5 percent female officers. (Id.) The insight offered by Johnson’s essay is that the majority of the women within immigration law enforcement are women of color. For example, 55.1 percent of female CBP officers, 58 percent of female ICE ERO officers, and 54.1 percent of female U.S. Border Patrol officers identify as women of color. (P. 1012.) Johnson also notes that a greater percentage of female immigration enforcement officers identify as Black, Latinx or multi-racial than male officers working for CBP, ICE, and the U.S. Border Patrol. (Id.)
There is little research examining the impact that the diversification of immigration enforcement along the lines of race, ethnicity, and gender has had. Johnson offers a framework to begin this analysis. Applying David Alan Sklansky’s framework for evaluating the effects of diversity within local law enforcement to immigration enforcement, Johnson examines (1) competency effects, (2) community effects, and (3) organizational effects. Competency effects explore the “skills and abilities of the workers.” Community effects examine the implications “for the relationship between the agency and the community it works with.” Organization effects look at the “ways in which employees affect their workplace.” (P. 1013.) Johnson’s essay begins to analyze these factors but acknowledges that additional empirical research is needed to address the organizational effects properly. Additional issues to address in future research would be: Why does the U.S. Border Patrol have such low numbers of women across the law enforcement spectrum? Why does CBP have higher numbers of women within immigration law enforcement and local law enforcement more broadly? Finally, it would be interesting to see how the immigration enforcement figures compare to other federal law enforcement agencies. It is possible that the organizational culture of each of these immigration enforcement agencies provides insights. Yet additional research is necessary to determine how different the agency cultures are, and what if any impact it has on the demographics of the officers.
In light of the images seen by the world in the Fall of 2021, Johnson’s call for increased scholarly attention to the growing number of women of color within immigration enforcement is timely. In addition to the question she identifies for further research, I would add the following: with regard to community effects, what are the strategies and techniques used by female officers that enable them to de-escalate situations successfully? To what extent can this lead to new forms of training that could have organizational effects? Additional organizational effects to explore would be, does an increase in the number of women and/or women of color within an enforcement agency change other aspects of the culture?
Jul 8, 2022 Juliet StumpfImmigration
In immigration law, where the apex penalty is deportation, proportionality is absent. We tend to think of proportionality in punishment as requiring that the severity of a penalty track the severity of the offense, minus mitigating circumstances. The coin of the realm in immigration law is immigration status, so mitigating circumstances would in theory focus on the noncitizen’s particular qualities, such as length of residence in and ties to the United States. In Immigration Law’s Arbitrariness Problem, published in the Columbia Law Review, Shalini Bhargava Ray argues for sanctions better tailored to these considerations.
I like this article (lots) because for one thing, it challenges my own scholarship advocating for proportionality in immigration law and centralizing deportation as the sole immigration penalty. (I’m not alone. Angela Banks, Mike Wishnie, Maureen Sweeney, and Jason Cade (and others) have also proposed proportionality in deportation, and they’re no slouches). The article’s first contribution is to challenge the notion that proportionality is a fix for deportation’s ills. Proportionality proponents tend to point to the criminal justice system’s employment of proportionality in sentencing but, as Bhargava Ray observes, criminal law is replete with “overpunishment and overcriminalization” and so not a model of proportionality as path to justice. Besides, courts tend to hate the proportionality argument, which is why it tends to fail.
Second, Bhargava Ray challenges the scholarly obsession with deportation, pointing out that immigration agencies’ implementation of the Immigration and Nationality Act “involves a spectrum of penalties short of deportation” that create a “shadow system” of sanctions. She’s right, although we don’t tend to think about it that way. She explains that the immigration bureaucracy uses discretionary tools of lenience when deportation looms. These tools include enforcement priorities, deferred action, administrative closure, and post-order forbearance, and they are doled out by agency officials on an ad hoc basis. This “shadow system” means that immigrants, their advocates, and the public have no idea when these leniency tools, dubbed “shadow sanctions” are imposed in lieu of deportation and why. It’s not that the government gives no good reason for when it applies or withholds lenience. It’s that it gives no reason. At all.
That’s a blueprint for arbitrary government action. Bhargava Ray proposes that the government must satisfy the fundamental norm requiring a sufficient justification for a particular penalty. She suggests that we rummage in the toolbox of the bureaucratic apparatus of immigration law itself to find the “informal, discretionary tools” that agencies use to avoid deportation and impose “shadow sanctions.” How does one go about shining a light on shadow sanctions? By drilling down into administrative law doctrines and concepts such as notice-and-comment rulemaking, interpretive guidance and centralized discretion, and procedural innovation to render these shadow sanctions more available, open, and consistent. Shining a light on shadow sanctions will promote “reasoned immigration administration.” Then we can lay the foundation for a reason-giving infrastructure in immigration law.
Hand me that hammer.
Editor’s Note: for an earlier review, see Mila Sohoni, Immigration Law’s “Shadow Dockets”, JOTWELL (November 29, 2021).
Feb 23, 2022 Jill FamilyImmigration
Ava Ayers, Missing Immigrants in the Rhetoric of Sanctuary, 2021
Wis. L. Rev. 473 (2021), available at
SSRN.
Ava Ayers asks us to think about a hypothetical policy that says, “We must protect our children from violent crime because children are key drivers of economic well-being.” Professor Ayers aptly describes this language as “creepy.” Why, then, do politicians often discuss immigration by emphasizing what migrants can do for us, rather than in terms that recognize the agency, rights, and intrinsic value of individual migrants? While the effects of immigration are a legitimate concern, the rhetoric of politicians often leans on a transactional approach to immigration, rather than one based on moral grounds. While the reluctance to highlight what is best for migrants may be understandable given political calculations, Professor Ayers pushes us to think about what is lost by ignoring opportunities to say that undocumented individuals matter, that they are a part of the community, and that they are worthy of the concern of public leaders. Professor Ayers’ approach focuses on the way that policy reflects “attitudes about the value of human beings.” The law is about more than just consequences.
In Missing Immigrants in the Rhetoric of Sanctuary, Professor Ayers examines the rhetoric used by local and state policymakers when crafting sanctuary policies. While “sanctuary” has no strict definition, it generally refers to policies that resist immigration enforcement or policies that withhold state and local cooperation with immigration enforcement. Some sanctuary policies involve active resistance, while others are more passive. All sanctuary policies are meant to protect individual noncitizens. But, as Professor Ayers has found, the justifications for sanctuary policies are at times expressed in language that emphasizes what sanctuary policies can achieve for those who are not at risk of deportation. In other words, policymakers, at times, do not make those who will benefit from a sanctuary policy the center of their rhetoric.
The rhetoric surrounding sanctuary policies is especially worthy of examination because these policies represent strong objections to federal enforcement of immigration law. As Professor Ayers observes, if policymakers in favor of sanctuary policies shy away from openly discussing the interests of noncitizens, who will? Professor Ayers is focused not on the end result- the sanctuary policy- but the rhetoric used to get there. While focusing on the benefits to voters may seem like a pragmatic approach, Professor Ayers argues that politicians should embrace their influence to help change the moral norms surrounding migration.
Professor Ayers shows us examples of rhetoric where arguments about public safety, economic well-being, and family unity are not focused on the needs or rights of the migrants themselves, but rather what sanctuary policies can do for us. The “us” signifies a division in the community and that those who directly benefit from sanctuary policies are somehow either not a part of the community or are not full members. Many individuals seeking sanctuary have lived in the United States for years and live in mixed-status families. Professor Ayers’ article raises important questions about whose well-being counts and who is included in community identity
Professor Ayers recognizes a danger of ignoring moral standing and by defining undocumented individuals as “other.” By focusing on transactional value, policies “tend to instrumentalize undocumented people.” Undocumented individuals are more than a means to an end. Also, “if a certain group of people is routinely treated as instrumental, and never treated as an end in themselves, then that group has been dehumanized.” Instrumentalization risks “reinforcing the idea that undocumented people’s interests do not deserve to be considered by policymakers or by anyone else.”
It is not clear whether policymakers use the transactional rhetoric because it is their preferred language or whether they use this rhetoric as a part of a political calculation to make sanctuary policies more acceptable to voters. The rhetoric of the policymakers, Professor Ayers argues, can be contrasted with the rhetoric of activists, which focuses on the needs of migrants and considers even undocumented individuals to be community members.
Professor Ayers’ observations about rhetoric in the sanctuary context have significance in other aspects of immigration law as well. Politicians make arguments in favor of legalization programs by emphasizing what those programs can do for us. This rhetoric emphasizes a transactional approach to immigration; an approach that at its core, whether or not intentionally, sends the message that migrants are only worthwhile if they do something for us. Professor Ayers is pushing us to think about why arguments about benefits to the migrants themselves are taboo and to recognize “what is lost through this shying away.”
Thinking about why policymakers do not focus on arguments about benefits to migrants themselves is important because, as Professor Ayers says, “rhetoric shapes norms that determine our society’s willingness to welcome noncitizens and decisions about how we treat them.” It is as if policymakers are restraining themselves, perhaps because of some conventional wisdom about what the American electorate will accept. This restraint is detrimental, according to Professor Ayers.
Professor Ayers acknowledges that some in her study did ignore the conventional wisdom and spoke about how sanctuary policies benefit migrants themselves. Arguments about benefits to the rest of society are not illegitimate, but Professor Ayers’ inquiry shows us that the missing rhetoric is worthy of examination. One aspect of Professor Ayers’ inquiry that could be further developed is her collection of sanctuary policies. Professor Ayers mentions that she reviewed 200 sanctuary policies in her research but does not give us further detail on how many of those policies use inclusive rhetoric versus how many do not.
Nevertheless, Professor Ayers astutely points out that as long as some policymakers are using this rhetoric, we need to stop and think about it. Why would policymakers shy away? How can we change the rhetoric in the hope of recognizing migrants for their intrinsic value? As Professor Ayers argues, changing the rhetoric holds promise for changing the norms that govern our national conversations on immigration.
Sep 7, 2021 Jaya Ramji-NogalesImmigration
In Global Southerners in the North, Ama Ruth Francis offers a new theoretical angle on the long-standing and crucial question of how to mobilize popular opinion and legal power on behalf of migrants who lack political voice. Her contribution decenters the state as the key actor in international law, and suggests instead that scholars concentrate on individuals and sub-state spaces. Focusing on climate change migration, Francis suggests that the way to address the severe power asymmetries between those responsible for and those most impacted by the changing climate is to reconceptualize the Global South to include all people and spaces rendered expendable by racial capitalism. She builds on the Third World Approaches to International Law (TWAIL) literature to argue that international law should be theorized as a shared commitment that can be furthered by political agents – in other words, that states are not the only actors capable of creating international law.
Francis begins her analysis by noting that the Global South is not a monolithic bloc; there are vast differences across and within states. For example, among the BRICS nations (Brazil, Russia, India, China, and South Africa), China is a major emitter even though it remains part of the Global South. Moreover, within states in the Global North and the Global South, racial capitalism creates significant gulfs between rich and poor that underlie disparities in both emissions and community resilience in the face of climate change. She describes the TWAIL literature on international environmental law that discusses the history of colonial expansion and domination linked to environmental degradation, and explains how this project of global economic inequality was justified and continues to be bolstered by international law.
Francis underlines the importance of this groundwork, but suggests that the Global South should be defined by material conditions rather than geographic terms, a move that encompasses individuals and sub-state spaces. Drawing from Balakrishnan Rajagopal’s framing of the Global South as a contestation of power formations, she suggests that we can think of the Global South as deterritorialized political practice that creates space for counterhegemonic discourse. Francis describes these Global Souths in the north as racial capitalism’s externalities, highlighting the glaring expendability of some individuals and spaces in the climate change context, and noting how those distinctions are drawn on racial grounds.
Though Francis is perhaps more sanguine than I am about the promise of international human rights law, and in particular of the Teitiota decision, she demonstrates ably the ways in which climate migration highlights the limits of that body of law. Despite obligations to protect individuals’ human rights regardless of immigration status, we see expendability drawn along racial lines. Francis explains that human rights law is incapable of enforcing the rights of climate migrants because such a step would require calling out Global North responsibility for climate change.
To bridge that gap, Francis suggests a transnational alliance of Global Southerners as political agents with the capacity to shift international law. Drawing from Harold Koh’s transnational legal process theory, she explains that “international law is constituted through a dynamic interplay between domestic and international legal norms, and those domestic norms are created through domestic political processes.” Francis argues that Global Southerners in the North can leverage rights discourse to begin to shift international legal norms through domestic legal processes. I would add that they might even start to frame climate justice measures as duties, perhaps drawing on the right to solidarity. Francis suggests measures to operationalize the theory, including climate action in domestic courts, transnational advocacy efforts, and drafting domestic legislation. In other words, rather than invoking international law in domestic courts, she makes the case for transnational coordination of domestic climate efforts as a means of reforming international legal standards over time.
Francis offers an interesting and creative route forward for climate migrants seeking redress under international law. This article strikes me as a promising first step in a broader research agenda. A follow-on article, for example, could engage in more detail with both the idea of Souths and Southerners in the Global North as well as Norths and Northerners in the Global South. It could also expand on the operational component: if the Global North is defined as the defense of global capitalism and economic inequality, how do we identify the actors opposed to that approach and what steps can be taken to mobilize a unified political voice amongst them? Perhaps most importantly for this readership, Francis offers a role for scholars in identifying, describing, and uplifting the role of social movements in shaping not just legal discourse but also international law and policy.
Aug 5, 2021 Juliet StumpfImmigration
When I picture immigration enforcement, my mind’s eye sees walls bisecting dusty hills, “POLICE” slashed across ICE uniforms, sheriffs with immigrant detainers, and the bright painted bricks and silvery wire of detention facilities. I don’t see money.
At least, I didn’t. Then I read Shayak Sarkar’s Capital Controls as Migrant Controls. Now, like a Sixth Sense, when I picture immigration control, I see money. I see it everywhere, walking around. Capital Controls will shift your perspective on the relationship between how we control capital and how capital is a tool of immigration control.
I am a sucker for legal history, and Capital Controls delivers. The article narrates the arc of financial regulation theory—from “financial liberalization,” advocating for the removal of capital controls to expand development, to a 180-degree-Keynesian turn toward stronger financial borders to prevent flows of foreign capital from exacerbating domestic financial problems. Financial borders were also promoted as a way to address national security concerns. The narrative arc alights on the current state of affairs in which capital controls have largely fallen to the wayside over the last few decades. Now, scholars of finance, political science, and law critique the asymmetry between human and capital movement, as with Nobel Laureate Gary Becker advocating for lifting border controls to match more closely the movements of goods, services, and capital.
Immigration scholars have expended many pixels examining how the law of immigration admissions and welfare have drawn lines between citizen haves and noncitizen have-nots. Sarkar adds a wholly new dimension, exploring “the law’s disparate treatment of migrant wealth and the institutions responsible for creating and enforcing such laws.” As he points out, “ordinary people crossing borders …. accumulate capital, whether that crossing occurs lawfully or unlawfully.” That is, noncitizens are no different from citizens in moving money from one place to another in order to live, provide for family, work, and operate in a society organized around capital. Much of that money flows across borders.
Controlling the particular ways that migrants move money, says Sarkar, constitutes a form of migration control. Capital controls distinguish migrants from citizens “by regulating a migrant’s access to their own money.” The article examines three forms of capital controls acting as migrant controls. The first is the popcorning of federal and state proposals to tax remittances that noncitizens use to transfer money earned in the United States to their country of origin. Oklahoma is the only state thus far to have passed actual legislation; other proposals would base taxation on either the cross-border destination of the capital or the immigration status of the sender, or both. Most seek to constrict or prevent the cross-border entry of undocumented noncitizens.
Second, the U.S. government conditions an undocumented immigrant’s receipt of earned Social Security benefits on leaving the United States. As Sarkar points out, these provisions press for expelling migrants themselves. They “create a Faustian bargain: relinquish your adopted homeland or relinquish your capital.” This condition operates as a form of migrant control, but also imposes a collateral consequence on the United States of expelling the capital from the country.
Last, post-9-11 legislation compels banks and similar institutions (also known as “insured depository institutions”) to “identify” their customers, but without saying much about how. Inspired by the employment eligibility requirements of the Immigration Reform and Control Act, the law largely leaves it to banks to figure out how to comply with the identity verification requirements. The law provides few guidelines and no determinative list of acceptable documentation of the sort that is a feature of the employment verification system (itself a flawed and much-critiqued enforcement system). These identity requirements have resulted in suspended accounts due to uncertainty about a noncitizen customer’s identification. They have also created a division based on citizenship status between those with access to the relative security of a bank and those who cannot access such services or perceive them as a part of the immigration enforcement infrastructure.
These financial controls act to regulate both migrants and migration. They screen out those whom governmental or private institutions deem undesirable, burdening movement into or within the United States and pushing outward migration of those deemed undesirable. By drawing distinctions based on citizenship status, they also communicate that noncitizens occupy a less favored tier on the membership scale in the community to which they have moved.
What I like (lots) about this article, beyond pulling the scales from my eyes about the significance of capital regulation as a means of migration control, is that it applies a seemingly orthogonal area—the law and policy of finance—to immigration law. It also contributes in a new way to the substantial literature on the private and subfederal enforcement of immigration law. The collage in my mind’s eye of immigration enforcement was mostly composed of images of federal agencies employing brute-force methodologies for controlling the movement of people through a crimmigration and securitization framework. Sarkar takes us into the liminal world of financial controls populated not with ICE and the Customs and Border Patrol but rather with private institutions such as banks, state and local regulators, and financial and welfare agencies like the Social Security Administration and the IRS.
