Immigration Law
The Invention of Immigration Exceptionalism
Everyone believes that immigration law has been exceptional since its late nineteenth-century birth—insulated from judicial review by the Court’s creation of the “plenary power doctrine.” But early immigration law was actually ordinary public law. Recovering this reality has profound implications for scholars of immigration and public law alike.
Resisting Mass Immigrant Prosecutions
Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This Article documents, analyzes, and draws lessons from immigrants’ defiance. In particular, the battles in California and Texas reveal several effective legal strategies for immigrant defendants to resist mass criminalization.
The End of Asylum Redux and the Role of Law School Clinics
The Biden Administration has perpetuated many of the prior administration’s hostile policies undermining access to asylum at the southern border. This Essay first examines these policies and then identifies emerging opportunities for law school clinics to address these new challenges, including by serving asylum seekers south of the U.S.-Mexico border.
Transformative Immigration Lawyering
Two deep-seated tendencies in U.S. immigration law are obstructing the expansive reforms long sought by movement actors: incrementalism and path dependence. This Essay recommends that law clinics counter these forces by setting ambitious goals for structural change and by equipping students with knowledge and skills needed for transformative lawyering.
Policing the Polity
Interior immigration enforcement reaches well beyond deportation. In practice, it also offers a rationale for policing U.S. residents stereotyped as foreign. This Essay shows how a “deportation-centric” approach limits the ability of courts to recognize and redress unjustified surveillance, and it argues for a different framework.
Executive Defiance and the Deportation State
Can federal administrative agencies defy the courts? As this Feature demonstrates, executive defiance of judicial authority is already afoot in the immigration system, and in ways that implicate multiple dimensions of the deportation state as well as the evolving relationship between the executive and judicial branches in immigration law.
The Problem with Public Charge
This Note seeks to identify the causes of “public charge” confusion. Mapping the exclusion’s history reveals how Congress and the courts have left the administrative state a near-impossible task: reconciling public charge with evolving commitments to public welfare. Drawing on archived Clinton-era negotiations, I offer a path forward.
The Denaturalization Consequences of Guilty Pleas
At a critical time when thousands of citizens face potential denaturalization, this Essay proposes an extension of the Supreme Court’s decision in Padilla v. Kentucky to protect the rights of U.S. citizens who are facing denaturalization as a result of pleading guilty to a criminal offense.
Ending Bogus Immigration Emergencies
Justice Jackson warned in Korematsu that the decision was “a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Seventy-five years later, President Trump has picked up that doctrinal weapon. This Essay identifies three reforms that would unload it.
Ending Citizenship for Service in the Forever Wars
For centuries, noncitizens serving in the U.S. Armed Forces during periods of hostilities have been rewarded with a special pathway to citizenship. This Essay explores how two policies enacted since 2017 are blocking this pathway and reflects on the implications of this shift for the meaning of citizenship.
The Rise and Fall of Administrative Closure in Immigration Courts
For over three decades, immigration judges used administrative closure as a case-management tool to encourage efficiency and fairness. After then-Attorney General Sessions ended this practice, the U.S. immigration-court system has faced severe and unjustifiable consequences. This Essay argues for a legislative solution to revive administrative closure.
Detention and Deterrence: Insights from the Early Years of Immigration Detention at the Border
This Essay examines the early years of U.S. immigration detention, arguing that such detention was brief and limited in purpose. This history has important constitutional implications for current immigration policy, questioning its use of lengthy detention to deter immigrants from pursuing their claims to remain in the United States.
Abolish ICE . . . and Then What?
This Essay proposes a blueprint for a new humane and effective immigration-enforcement system that could follow the dissolution of ICE. It explores the irredeemable defects of ICE and its enforcement paradigm and suggests realistic mechanisms to increase compliance with immigration laws without detention or mass deportation.
The Claims of Official Reason: Administrative Guidance on Social Inclusion
Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally relevant reliance interests.
Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches
This Essay traces the historical evolution of the border search exception to the Fourth Amendment to argue that CBP and ICE are currently operating outside constitutional constraints and proposes a tiered approach, restricted in scope and requiring increasing levels of protections the more invasive the search becomes.
A Legal Sanctuary: How the Religious Freedom Restoration Act Could Protect Sanctuary Churches
Over the last three decades, the doctrine and political valence of protections for religious exercise have shifted significantly. This Note analyzes how those changes provide new legal protections for sanctuary churches, demonstrating how religious freedom statutes can protect marginalized individuals and serve progressive causes.
In the Shadow of Child Protective Services: Noncitizen Parents and the Child-Welfare System
The noncitizen parent exists between two often-conflicting legal identities: that of an immigrant and that of a parent. This Essay argues that state child services should strive to mitigate the tension between these identities and take an active role in shielding these parents from immigration consequences of family-law proceedings.
First-Person FOIA
This Article reveals that Freedom of Information Act requests at seven federal agencies are dominated by individuals seeking records about themselves, including immigration, investigation, and medical records. Yet FOIA is ill-suited to meet the vital needs of first-person requesters, and these requests may be crowding out FOIA’s intended purpose.
Local Action, National Impact: Standing Up for Sanctuary Cities
Over the past year, cities have emerged as crucial sites of resistance. Using San Francisco and the sanctuary city litigation more broadly as a case study, this Essay argues that cities can and should take advantage of the Constitution’s federalism protections to resist federal intrusion onto local autonomy.