Category: Immigration


Red State Federalism

It is a great pleasure to be a guest blogger.  My current interests center around federalism.  My posts likely will as well.  Here goes.

Did a vision of progressive federalism die in the desert of Arizona?  No, but the recent (anti-)immigration legislation there reveals the Grand Canyon dividing the concept of federalism from particular policy outcomes.

In the wake of a conservative resurgence in national politics, some commentators (including this one) noted the progressive potential of federalism.  We cited examples of “blue state federalism,” in which states stepped into the breach left by federal inaction and provided innovative solutions for problems ranging from climate change to predatory lending, from gay rights to health care.  Here, and elsewhere, I argued that a key to understanding the achievements of the states was to abandon outdated notions of distinct and non-overlapping realms of state and federal prerogative (bye bye dual federalism).  Climate change was not really a federal issue or really a state issue.  Rather, federalism provided an opportunity for both the states and the federal government to address pressing concerns.  Federalism functioned through the dynamic overlap and interaction of state and federal authority.  Or so I argued in my book, Polyphonic Federalism: Toward the Protection of Fundamental Rights.

But where does this leave Arizona?  Or for that matter, the lawsuits filed by numerous state attorneys general against federal health care legislation.  Are these examples of illegitimate state meddling in federal matters or ongoing expressions of dynamic or (as I term it) polyphonic federalism?  The answer is yes.

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Illegal Immigration and Fugitive Slaves

One way of thinking about the new Arizona statute on illegal immigration is through a comparison with the debate over state regulation of fugitive slaves during the antebellum period.  Now before the angry comments start pouring in, I’m not saying that people who favor more border security are like slaveowners or that those who are here illegally are like slaves.  What I mean is that in both cases there was a controversial issue that turned on whether there should be exclusive federal authority or a diverse set of state policies.

The Fugitive Slave Clause of the Constitution was implemented initially by the Fugitive Slave Act of 1793.  By the 1830s, though, a number of free states passed laws that made it a crime to catch or aid in the capture of fugitive slaves.  Other free states insisted on certain procedural protections for those alleged to be fugitives, otherwise free African-Americans would be subject to what amounted to legalized kidnapping.

In Prigg v. Pennsylvania, the Supreme Court held that these state statutes were invalid because the Fugitive Slave Clause (even though it was not in Article One, Section 8) gave the federal government exclusive power over the subject.  In other words, states could not legislate at all on this topic — either to help or hinder slave captures.  Chief Justice Taney concurred but argued that state laws that furthered the federal policy by giving aid to slave catchers were not unconstitutional.  One could view the Court’s position as a compromise that attempted to take the entire topic off of the topic even though it was probably inconsistent with preemption principles.  Moreover, in practice slave catchers in the North could not operate well without the protection of state law or the aid of state officials.  (Indeed, Prigg contained language similar to the modern Supreme Court’s anticommandeering doctrine.)

Now we have a similar issue.  States like Arizona want to crack down on illegal immigration.  Others want to be sanctuaries for them and refuse to cooperate with deportations.  One solution to this would be to say that all state regulation of the subject is barred.  That is not neutral with respect to outcomes, but it would channel all reform efforts to Washington.  Or courts could say that only state laws that assist immigration policy as set by Congress is permissible.  Of course, that would require someone to determine what that policy is.  The major problem in immigration policy, it seems to me, is that the country is uncertain what it wants.  Is illegal immigration a harm or a benefit?  Should we be deporting people or giving them amnesty? Thus, courts that go with something other than “states can’t regulate this at all” might have a hard time reasoning their way to a conclusion.


A Well-Founded Fear of School?

Tuesday’s Washington Post discusses an intriguing asylum case: an immigration judge in Memphis granted asylum to a German couple who fled their homeland to avoid its mandatory schooling policy.  Uwe Romeike, along with his wife and five chilren, are evangelical Christians who had decided to homeschool their children both because they believed the public school curriculum to be “against Christian values” and because their children faced violence, bullying, and peer pressure in public schools.  The Romeikes took their children out of school in their home state of Baden-Wuerttemberg in 2006, and paid fines of approximately $10,000 over 2 years for doing so.  That state constitution requires that children attend public or private schools; parents who refuse to comply can face fines or even jail time, or in severe cases, Germany’s highest appellate court ruled that social service officials could remove children from their parents.

There are so many interesting angles to the decision that it’s hard to know where to start.  Some might question whether the ability to choose how to school one’s child is a fundamental human right that should be protected by asylum law.  The German consul for the Southeast U.S. noted that “German parents have a wide range of educational options for their children.”  Should the Romeikes be sent back to Germany on the assumption that they could find a religious school that provided instruction acceptable to their value system?  Under U.S. asylum law, if internal relocation is an option to avoid persecution, applicants must move within their own country to find safety before coming to the United States.  The Romeikes had the option not only of relocating within Germany but also, as citizens of the European Union, of living and working in any member state (some of which allow home schooling and others of which surely offer affordable education that accords with evangelical religious values).

The involvement of the German consul also raises questions about the appropriateness of immigration court as a messenger in foreign affairs.  Romeike’s lawyer said that he took on the case in part because he hoped to influence public opinion in Germany, while the consul defended the law as a policy decision that “ensures a high standard of learning for all children.”  Should our immigration courts be questioning the policy judgments of solidly democratic nations with robust and procedurally fair legal systems?  Asylum has for many years been used as a political tool, for better or for worse, but this seems one step too far.  In any case, I’m interested in readers’ thoughts — are the Romeikes modern-day pilgrims, or is this just another misguided decision by our dysfunctional immigration courts?


The Yale Law Journal, Vol. 119, Issue 3 (December 2009)

The Yale Law Journal

December 2009 | Volume 119, Issue 3


Integration through contract?

contractThough European states have received increasing numbers of immigrants over the past few decades, they have failed to integrate these immigrants as successfully as traditional immigrant-receiving nations such as the United States and Canada.  There are undoubtedly many factors that contribute to this differential in integration success rates, but access to education and employment may be the most important.  Examining these measures, a recent OECD report found that the children of migrants living in Europe have significantly worse education and labor market outcomes than the children of migrants in the United States, Canada, Australia, and New Zealand.

So what then should we make of German Immigration Commissioner Maria Boehmer’s proposal to address Germany’s integration problem through contracts?   Expected to be introduced during the current legislative period, these contracts will explain the services and assistance available to immigrants while requiring immigrants to learn German and avow their support for liberal values such as freedom of expression and equality of women.  Dr.  Boehmer acknowledges that the key to integrating immigrants is access to schooling and employment markets (the latter through recognition of qualifications from abroad). Read More


A Note on Comprehensive Immigration Reform

For several years, “comprehensive” immigration reform has been discussed in the U.S. Congress and among the general public.   Supporters contend that enforcement-only measures — such as extending the border fence, increasing the number of Immigration & Customs Enforcement officers, efforts to increase deportations, etc. — will not address the true causes of immigration, especially the thirst of the American economy for relatively inexpensive labor.   Although “comprehensive” immigration reform has meant many things to many people, reform proposals often include a regularization program for certain group of undocumented immigrants (i.e., the dreaded “amnesty”), some kind of guest worker program supported by agricultural and other employers, and increased immigration enforcement measures.  Some proposals also have included increasing the number of visas to eliminate long lines in certain visa categories and increased employment visas. 

In the spring of 2006, hundreds of thousands of people — U.S. citizens as well as immigrants — marched in cities across the United States, protesting the tough-on-immigrants Sensenbrenner bill passed by the U.S. House of Representatives in December 2005.  Two U.S. Senators, including now-President Barack Obama, participated in the marches.

President Obama long has supported comprehensive immigration reform.  Supporters of reform were buoyed by his election, feeling that comprehensive immigration reform just might finally be on the horizon.  Well, it just may — or may not — be.

Immigration reform is politically difficult in the best of times — and these most definitely are not the best of times economically in the United States.  Although some members of Congress — Congressman Luis Gutíerrez immediately comes to mind, continue to push for immigration reform, the economy and health care reform now seem to dominate the Congressional legislative agenda.

As the old Brooklyn Dodgers slogan (“Wait until next year!”) went, some members of the Obama administration have argued for restraint and to wait until next year.  But, next year is an election year in Congress.  Enacting legislation on a contentious issue that touches on volatile issues of race and class, seems unlikely in an election year.

At the same time, the Obama administration seems devoted to pursuing more and more immigration enforcement measures.  For discussion of the latest measure, click here.  Department of Homeland Security Secretary Janet Napolitano does not seem to have found an enforcement measure that she does not like.   The political calculus  appears to be that, by so doing, the administration will gain the public trust on enforcement and then be in a better position to seek immigration reform that benefits immigrants.  This strategy was pursued — very unsuccessfully — by the Bush administration — more and more enforcement.  We saw infamous workplace raids in New Bedford, Massachusetts and Postville, Iowa, record levels of deportations year after year, aggressive positions in the courts (while always disputing the court’s jurisdiction), and the like.   The Bush administration ended up with more (and more) enforcement and no immigration reform.

This is precisely the risk that the Obama administration runs.  As it fashions and implements more and more immigration enforcement measures, it may never be able to push balanced immigration reform through Congress.  And delay is dangerous because there is always some reason to put off a national debate on a controversial issue.

Hopefully, the Obama administration knows what it is doing politically on immigration.  Latinos, immigrant rights advocates, and employers have been patient for now.  But, they all have seen what happens when immigration is put off until the second term of a Presidency.  As President Bush acknowledged, such delay was a mistake before — and, many think, a mistake now.


The Supreme Court’s Immigration Cases From Last Term

Last Term, the U.S. Supreme Court decided four immigration-related cases. The Court rarely takes so many immigration cases, which suggests that it – like the general public – views immigration as an important issue. In the four decisions, the Court also addressed some conflicts on immigration law among the circuits.

The U.S. government lost three out of four of the immigration cases before the Supreme Court. This is a relatively low win percentage for the government in immigration cases, especially in light of the fact that the proverbial deck is often stacked against noncitizens — the immigration laws are not particularly generous to immigrants and the courts frequently afforded broad deference to the immigration bureaucracy. It thus at first glance may seem surprising in some respects that the Roberts Court sided with noncitizens in 75 percent of the cases. A closer look reveals that the Supreme Court pretty closely followed the law and precedent and rejected positions of the Bush administration that pushed the limits.

Identity Theft

The U.S. government has increasingly used identity theft statutes as a tool against undocumented immigrants. The Supreme Court limited the U.S. government’s power to use that tool in Flores-Figueroa v. United States. The decision below, which held for the United States, was unanimously reversed and remanded in an opinion by Justice Breyer. The Court held that prosecutors must prove that defendants knew that fraudulent Social Security numbers or other documents they used belonged to a real person as opposed to an identity being fabricated. In a fairly routine manner, the Court interpreted the language of the statute and in effect applied the traditional rule of lenity, resolving statutory ambiguities in favor of the criminal defendant.

Flores-Figueroa v. U.S. clarifies what federal prosecutors must prove in order to obtain a conviction for criminal identity theft under federal law. The Bush administration had increasingly – and aggressively — used identity fraud criminal charges in immigration enforcement. An infamous example is the raid on the Agriprocessors kosher food plant in Postville, Iowa in May 2008, in which hundreds of undocumented workers faced criminal identity theft charges (as opposed to simply being deported, as had generally been the past practice in immigration raids). The Court resolved the conflict that had emerged in the federal appellate courts over the government’s burden of proof in aggravated identity theft cases.

Stays of Removal Pending Appeals

Noncitizens facing deportation who lose appeals of removal orders in the Board of Immigration Appeals often seek a stay of removal while an appeal is pending in the court of appeals. The question in Nken v. Holder was whether 1996 reforms to the immigration statute continued to permit such stays, which until that time had been routinely granted. As a practical matter, many appeals would be abandoned or mooted if the noncitizen were deported.

Chief Justice Roberts, in a workmanlike opinion, wrote for the 7-2 majority:

“This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals [for the Fourth Circuit] concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria.” In so holding, the Court resolved a split between the Fourth and Eleventh Circuits, on one side, and the Second, Third, Fifth Sixth, Seventh, and Ninth Circuits on the other. Justice Alito, joined by Justice Thomas, dissented, emphasizing that “[t]he Court’s decision nullifies an important statutory provision that Congress enacted when it reformed the immigration laws in 1996.”
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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.