Category: Immigration


Analogous or Not?

Suppose that a family enters an area of land when they have no legal right to do so. They stay and live there for years using the property for lawful purposes (apart from their continuing trespass). At some point, the actual owner or authority returns and tries to kick them out.

Am I describing a case of adverse possession (where the squatter may well get title) or a case of illegal immigration (where deportation is the result)? This comparison raises some interesting questions, though the idea is not original to me. See Timothy J. Lukas & Minh T Hoang, “Open and Notorious: Adverse Possession and Immigration Reform,” 27 Wash. U. J. L. Pol’y 123 (2008); Monica Gomez, “Immigration by Adverse Possession: Common Law Amnesty For Long-Residing Illegal Immigrants in the United States,” 22 Geo. Immigr. L. J. 105 (2007).

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The Supremes Speak

This week, the Supreme Court took the rare step of deciding an asylum case, Negusie v. Holder, which examines the availability of a duress exception to the persecutor bar. The Court has decided very few asylum cases in its history, and when it does so, the result is often messy. The Negusie decision is no exception– while Justice Kennedy commands a majority of six, the proliferation of concurrences and dissents doesn’t inspire confidence in the unity of the court. It does, however, make for a fun read for immigration law junkies as well as for aficionados of administrative law and moral philosophers.

First, for the admin law types, this case continues and amplifies recent tussles in the immigration field over who has the authority to interpret the Immigration and Nationality Act — the federal courts or the Board of Immigration Appeals (the administrative entity charged with reviewing immigration court decisions and establishing national uniformity in immigration law). Kennedy’s majority opinion gives some deference to the administrative agency (deference that, in my opinion, is misplaced, given the dysfunctional nature of the Board, which I’ve discussed in more detail here), finding that while the Board misapplied precedent in interpreting the statute to preclude a duress exception to the persecutor bar, it should be allowed to reinterpret the statute free from this error. But as Scalia notes in his concurrence, the tone of the opinion indicates that Kennedy thinks the Board should come down in favor of a duress exception. Scalia disagrees with this approach, arguing that the Board “deserve[s] to be told clearly whether we are serious about allowing them to exercise . . . discretion, or are rather firing a warning shot across the bow.”

Stevens and Breyer, on the other hand, think the warning shot isn’t clear enough, finding that the question of whether the duress exception exists is one for the courts, and that the role of the administrative agency should be to determine how to apply the standard to be used in deciding whether participation in persecution was voluntary or coerced. Thomas doesn’t explicitly address whether the authority to interpret this provision of the statute should lie with the courts or the administrative agency; he thinks that the Board’s underlying decision was correct because the language of the statute doesn’t contain a duress exception.

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Privacy’s Inegalitarian Path: Immigrants in a Post-9/11 World

120px-Arrest2_lg.jpgThe concept of privacy is often invoked for inegalitarian purposes. For over two hundred years, a husband’s privacy and that of his household prevailed over a battered wife’s interests: wife beaters were immunized from prosecution because courts refused to look into the “home closet.” Today, immigrants increasingly fall prey to privacy intrusions. As Raquel Aldana, Anil Kalhan, and Michael Wishnie brought alive at the AALS panel on Defamation and Privacy, immigrants and noncitizens have few privacy protections in our post-9/11 environment. Raquel Aldana highlighted the various ways that privacy policies negatively impact immigrants. Private landlords, hospitals, employers, and welfare offices can demand information on an individual’s immigration and citizenship status, which can produce harassment and discrimination. The Department of Justice plans to add DNA from tens of thousands of immigrants to its CODIS database, which would remain on file permanently for immigration violators (whereas genetic profiles from arrestees could be removed from the CODIS database if they are not convicted). According to Blurring The Lines: A Profile of State and Local Policy Enforcement of Immigration Law Using the National Crime Information Center Database, 2002-2004, the FBI’s criminal history database known as NCIC now includes civil enforcement immigration records, ending a decades-long policy that NCIC only included criminal data. Because NCIC is filled with inaccurate civil immigration information, over 40% of NCIC immigration hits were false positives, leading to unecessary arrests and harassment especially of Latin American nationals.

According to the panel, such privacy policies reflect “immigration exceptionalism”–citizens care little about the privacy of authorized or unauthorized immigrants and noncitizens because such treatment has no application to them. According to Michael Wishnie, the erosion of immigrants’ privacy is arguably illegal. For instance, the entry of civil immigration data into NCIC is not authorized by the NCIC statute, Section 534 of Title 28. Such diminished privacy protections also may not be in society’s best interests. Anil Kalhan made a compelling argument that requiring the disclosure of immigration and citizenship status exacts societal costs as well as individual costs. Individuals are more vulnerable to racial profiling, discrimination, and harassment while their targeted community suffers feelings of fear and shame, leading to a chilling of pro-social behaviors such as the reporting of crime. Kalhan’s The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement published by the U.C. Davis Law Review can be found here.


The Economy and Immigration

Following up on Frank’s excellent post on outward manifestations of the financial crisis, here are a couple of less obvious ways that the meltdown might affect immigrants. First, the counterintuitive: immigrants may end up with more money in their pockets. Second, the ugly: we may see an increase in hate crimes against immigrants.

The obvious answer to the question of how the economy will impact immigration is that it will decrease border crossings –fewer jobs across the board and particularly less disposable income in the hands of those who pay immigrants to work in their homes will mean less demand for labor. Combined with harsh workplace raids and tightening borders, we’d expect the financial crisis to result in a decrease in immigration. While that was the trend at the beginning of the meltdown, the recent strength of the dollar may end up reversing this expected outcome. As AP reports today, remittances to Mexico in October increased by 13% over October 2007, as a strengthened dollar bought more weakened pesos. Dilip Ratha of the World Bank predicts that this phenomenon might actually lead to an increase in immigration to the U.S., especially as inflation and unemployment climb in Mexico.

Particularly with an increase in immigration, the ugly side of the economic crisis may be an increase in hate crimes against immigrants. The FBI reports that hate crimes against Latinos have increased dramatically — by 40 percent — from 2003 to 2007 (while the Latino population grew by only 16 percent). Call it the “Lou Dobbs” effect; as xenophobic vitriol and resulting anti-immigrant sentiment has increased, so has violence against immigrants or those who appear to be immigrants. Add that to an economy in free-fall, and the result may be highly combustible. As we saw in Long Island last month and Pennsylvania earlier this year, horrifying pastimes such as “beaner hopping” may proliferate as hate-mongering politicians and journalists scapegoat immigrants for job losses and other woes. Vigilant enforcement of hate crime statutes may alleviate some of the simmering tensions, but effective change will require more flattering portraits of immigrants in the popular media and public eye.


A Dangerous Combination: A Politicized Bench and Diluted Judicial Review

Over the summer, a number of sources reported on the Justice Department’s politicization of the immigration bench during the Bush administration. In July, the DOJ’s Inspector General and Office of Professional Responsibility released an investigative report concluding that Justice officials had illegally vetted immigration judges based on their political ties and ideological views. In August, the New York Times published an analysis of the records of the judges appointed under the illegally politicized system, which suggested that these judges disproportionately ruled against asylum-seekers in comparison to their peers appointed under the applicable civil service system.

However, these reports only skim the surface of the DOJ’s changes to the immigration system over the last seven years, and their lopsided effects. Shortly after September 11, 2001, the DOJ implemented expansive “streamlining” rules to the system of immigration adjudication at the agency which had significant consequences for asylum-seekers, agency decision making, and federal courts. (The DOJ oversees the nation’s immigration courts and system of administrative appeals).

Shruti Rana’s superb article, Streamlining the Rule of Law: How the Department of Justice is Undermining Judicial Review of Agency Action, coming out in the Illinois Law Review, analyzes how these streamlining rules, intended to speed up the deportation process and reduce the backlog of cases pending at the agency, instead stripped the immigration system of critical checks and balances and undermined judicial review. The article traces how the politically-vetted judges were installed just as the DOJ sought to grant these judges increasingly unfettered discretionary power. As the agency’s decisions grew increasingly arbitrary and inscrutable, immigration appeals flooded the federal courts, rising to nearly 20% of the federal docket (and now make up 90% of administrative appeals in the federal courts). The article explores the resulting clash between judicial review and agency discretion, and its implications for the vitality of judicial review.


The Incredible Shrinking European Union

flageuro.gifIt’s official: the European Union released a report last week projecting that deaths will outnumber births in its 27 member states by 2015, only seven years from now. While the population in some E.U. nations (including Cyprus, Ireland, Luxembourg, and the United Kingdom) will continue to grow between now and 2060, dramatic declines will be seen in the populations of countries such as Bulgaria, Latvia, Lithuania, and Romania. Migration will continue to increase the E.U. population until 2035, but after that date, the population will begin to decline. By 2060, 30% of Europe’s population will be 65 and older, and 12% will be aged 80 and older. “In other words, there [will] be only two persons of working age for every person aged 65 or more in 2060, compared with four persons to one today.”

Particularly in those nations that rely heavily on taxes to fund social expenditures, this population decline could have dramatic impacts on welfare, social security, health care, and public school funding. But of course, I’m most interested in the impact these demographic changes may have on immigration laws. Will “Fortress Europe” become more welcoming to immigrants? What impact might more liberal European immigration policies have on U.S. immigration laws? To be sure, increased immigration alone will not solve the complex problems resulting from the “greying of Europe”, but what will happen if the current restrictionist laws remain in place? Stay tuned . . .

Cross-posted at IntLawGrrls


Citing Wikipedia — Harmless Error?

Nohat-logo-nowords-bgwhite-200px.jpg A warm thank-you to Concurring Opinions for the invitation to return as a guest blogger! I enjoyed myself so much last time that I couldn’t resist returning despite being on leave.

On to the juicy stuff. Much of my scholarship focuses on documenting and analyzing the disastrous state of our immigration system. I’m not alone in my fascination with this topic; in July, the Department of Justice’s Office of the Inspector General released a report on politicized hiring, over one third of which is devoted to immigration courts and the Board of Immigration Appeals, and the Government Accountability Office will soon release a report documenting the countless problems with the immigration courts.

Moreover, I know that all of you law professors out there have received at least one student paper (if not multiple papers) that cites Wikipedia. This is one of my pet peeves and always garners a “FIND PRIMARY SOURCE!!” notation in the margins. But now I have an Eighth Circuit case, Badasa v. Mukasey, to which I can refer my students. Yes indeed, the Department of Homeland Security trial attorney submitted “information from an Internet website known as Wikipedia”, to be fair, among other documents, to establish the meaning of the term laissez-passer. (Note that the relevant Wikipedia page even warns the reader: “This article does not cite any references or sources.”)

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Faces in the Immigration Debate

spiderman.jpgStates are passing more immigration laws, and the federal government has done some extraordinary raids recently:

[On May 12] [f]ederal immigration agents raided the Agriprocessors factory, arresting nearly 400 workers, most of them men, for being in the United States illegally. Within minutes of the raid, with surveillance helicopters buzzing above the leafy streets, the wives and children of Mexican and Guatemalan families began trickling into St. Bridget’s Church, the safest place they knew. . . .

Father Ouderkirk [of St. Bridget’s] said in an interview . . . . “This has happened after 10 years of stable living. These people were in school. They were achieving. It has ripped the heart out of the community and out of the parish. Probably every child I baptized has been affected. To see them stunned is beyond belief.”

I have no idea what our general policy on immigration should be–suffice it to say that the Wall Street Journal editorial page’s emphatic support for nearly open borders leaves me leery of that kind of extremism. But I also agree with Father Ouderkirk that sudden interventions like the Iowa raid are in no one’s best interests. The dream of providing a better life for one’s family by working hard is the most genuine and pervasive form of heroism available today, as artist Dulce Pinzon writes:

The Mexican immigrant worker in New York is a perfect example of the hero who has gone unnoticed. It is common for a Mexican worker in New York to work extraordinary hours in extreme conditions for very low wages which are saved at great cost and sacrifice and sent to families and communities in Mexico who rely on them to survive.

The Mexican economy has quietly become dependent on the money sent from workers in the US. Conversely, the US economy has quietly become dependent on the labor of Mexican immigrants. Along with the depth of their sacrifice, it is the quietness of this dependence which makes Mexican immigrant workers a subject of interest.

The randomness of raids like that on Agriprocessors seems to make them less about realizing the rule of law than about striking fear into those at the bottom of America’s economic pyramid.

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Posner on Immigration Courts and Judges

Picswiss_BE-98-17_Biel-_Gerechtigkeitsbrunnen_%28Burgplatz%29.jpgJudge Posner has previously voiced his displeasure with immigration judges “the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.” This week he has re-stated this view in a speech to the Chicago Bar Association. Judge Posner has called the system “inadequate.” Per the National Law Journal, Posner identified several areas of concern

–better training in international law

–reliance on the State Department for information about international issues

–a need for clinics to improve the immigration bar

–expanded membership of the Board of Immigration Appeals

–conferences so that judges can compare experiences and improve the system

–barriers to understanding the applicant including a lack of familiarity with body language and the need for interpreters

These problem add up to Judge Posner’s conclusion that “personal values and biases” drive the decisions and that “perfunctory review” is often all that occurs.

Despite the problems specific to immigration judges, the basic question of judges relying on instinct seems to haunt all judges. In other words, Judge Psoner may be onto a problem that has both subject matter sources and has its roots in the way judges make decisions in general. There is some good literature on the general question of judicial decision making.

One of the fun parts of my job is co-chairing my school’s colloquium committee which means inviting folks to share their work. Last week Chris Guthrie of Vanderbilt Law School presented his work “Inside the Trial Judges Mind.” The work questions whether formalist or realist understandings of decision making properly explain judging. In their stead, the paper offers an “’intuitive-override’ model of judging. According to this model of judicial behavior, judges generally make intuitive decisions, but sometimes override their intuitive responses with deliberation.” It was a fascinating talk and the work opens many questions about how our system of justice works. For those wishing to read more of Chris’s work here is his SSRN page. The piece that may be of most interest is Blinking on the Bench: How Judges Decide Cases co-authored with Jeffrey J. Rachlinski and Andrew J. Wistrich. The article just came out in the Cornell Law Review.

Image: WikiCommons

Author: Roland Zumbühl (Picswiss), Arlesheim

License: GNU Free Documentation License, Version 1.2


Sartorial Exclusion

April is the criminalest month here at Co-op. Thanks to the regular bloggers for the invitation to visit; I’m pleased to join other criminal law professors as a guest. With so many criminal law specialists on board, perhaps no one will mind if I stray from the criminal law and say something about top hats, ascots, and immigration policy.

Top hat1.JPGSunday’s New York Times featured a story about Sebastian Horsley, a British author and self-proclaimed dandy who was recently denied entrance to the United States on the grounds of moral turpitude—and possibly, for wearing a ten-inch top hat. A customs spokesperson cited Mr. Horsley’s past arrests for drugs and prostitution. But Mr. Horsley’s attire also attracted attention.

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