Justifying Resistance to Immigration Law: The Case of Mere Noncompliance

Constitutional democracies unilaterally enact the laws that regulate immigration to their territories. When are would-be migrants to a constitutional democracy morally justified in breaching such laws? Receiving states also typically enact laws that require their existing citizens to participate in the implementation of immigration restrictions. When are the individual citizens of a constitutional democracy morally justified in breaching such laws? In this article, I take up these questions concerning the justifiability of noncompliance with immigration law, focusing on the case of nonviolent – or mere – noncompliance. Dissenting from Javier Hidalgo’s view, I argue that the injustice of an immigration law is insufficient to make mere noncompliance justified. Instead, I contend that only if an immigration law lacks legitimate authority are individuals justified in breaching it, since the subjects of an institution with legitimate authority are under a content-independent moral duty to comply with its rules. I further argue that a constitutional democracy’s regimes of law regulating immigration and requiring its citizens’ participation in implementing these regulations have legitimate authority. Nevertheless, when a particular immigration law is egregiously unjust, its legitimacy is defeated

Permanent Legal Immigration to the United States: Policy Overview

Four major principles currently underlie U.S. policy on legal permanent immigration: the reunification of families, the admission of immigrants with needed skills, the protection of refugees, and the diversity of admissions by country of origin. These principles are embodied in federal law, the Immigration and Nationality Act (INA) first codified in 1952. The Immigration Amendments of 1965 replaced the national origins quota system (enacted after World War I) with per-country ceilings, and the statutory provisions regulating permanent immigration to the United States were last revised significantly by the Immigration Act of 1990. The critiques of the permanent legal immigration system today are extensive, but there is no consensus on the specific direction the reforms of the law should take. As the Congress considers comprehensive immigration reform (CIR), many maintain that revision of the legal immigration system should be one of the major components of a CIR proposal. This primer on legal permanent immigration law, policies, and trends provides a backdrop for the policy options and debates that may emerge as Congress considers a revision of the legal immigration system

Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution

The relationship of immigration law to the Constitution has long been incoherent. One result is that there is little clarity on the appropriate standard of review for constitutional violations when aspects of immigration law and policy are challenged in the federal courts. This Article advances the Commerce Clause as the anchor of a new understanding of the link between the government\u27s immigration power and the Constitution. Despite the extensive early history of the Foreign Commerce Clause as the presumed source of the immigration power, it plays almost no role in immigration jurisprudence today, and few scholars have seriously considered its suitability for that role. More strikingly, none have explored the Interstate Commerce Clause as an appropriate source of the immigration power, one that could open the door to a normalization of constitutional analysis in the immigration context. The Article argues that both the Foreign and the Interstate Commerce Clauses should be understood to undergird the contemporary immigration power, and suggests that acknowledging immigration’s relationship to the Commerce Clause clears a path to more routine constitutional review of immigration law and policy

Authority of State and Local Police to Enforce Federal Immigration Law

[Excerpt] This report discusses the authority of state and local law enforcement to assist in the enforcement of federal immigration law through the investigation and arrest of persons believed to have violated such laws. It describes current provisions in federal law that permit state and local police to enforce immigration law directly, analyzes major cases concerning the ability of states and localities to assist in immigration enforcement, and briefly examines opinions on the issue by the Office of Legal Counsel (OLC) within the Department of Justice. This report does not discuss legal issues raised by states and localities enacting their own immigration-related laws, including measures intended to supplement federal law through the imposition of additional criminal or civil penalties

Deconstructing and Reconstructing Rights for Immigrant Children

Children rights advocates and scholars alike continue to call for the development of innovative and alternative rights models, which specifically provide for an expansive conceptualization of children’s rights. Central to their calls for reform is a simultaneous recognition that children’s rights must embody agency – a child’s voice (a proxy for autonomy) – free from governmental interference, as well as the establishment of certain fundamental “needs” that place an affirmative obligation on the State to ensure the child has, and affirmatively provide, when necessary. Reimagining children’s rights also requires reforming our laws in such a way that reflects children as inimitable rights holders possessing unique positive rights. Yet, in U.S. immigration law, children are still most often seen as illegal migrants and their status as alien is continually prioritized over their status as children. With a few notable exceptions, immigration law has been stagnant to adopt dynamic models that incorporate rights models that are informed by the developmental needs of children. This Article contributes to the much-needed discourse about how children’s rights should be understood and realized in immigration law. Unlike other areas of the law, U.S. immigration law still affords no legal distinction between children and adults when adjudicating potential forms of relief. Procedurally there are no compulsory child specific accommodations for immigrant children, as there are in family or juvenile court. Moreover, children are held to the same credibility and evidentiary burdens as adults. This Article concludes that international human rights law, specifically the Convention on the Rights of the Child, articulates a workable, comprehensive, framework of children’s positive (or welfare) and liberal rights that can and should be implemented in U.S. immigration law. Specifically, immigration law must at a minimum prohibit the return of a child to a country where the child would face irreparable harm; permit children when appropriate to petition for immigration relief on their own behalf; provide experts trained in child welfare and immigration law to assess the best interests of the child; and provide free legal counsel to children facing deportation

The Contradiction of Crimmigation

This essay argues that we should find Crimmigration, which is the collapsing of immigration law with criminal law, morally problematic for three reasons. First, it denies those who are facing criminal penalties important constitutional protections. Second, it doubly punishes those who have already served their criminal sentence with an added punishment that should be considered cruel and unusual (i.e., indefinite imprisonment or exile). Third, when the tactics aimed at protecting and serving local communities get usurped by the federal government for immigration enforcement purposes, they often undermine these original aims or get used in ways that conflict with the U.S. Constitution. These concerns should prompt us therefore either to reject the government’s plenary power over immigration or require the federal government to be more consistent about maintaining the separation between criminal law and immigration law

Construction of Race and Class Buffers in the Structure of Immigration Controls and Laws, The Symposium: Citizenship and Its Discontents: Centering the Immigrant in the Inter/National Imigination: Part II: Section Three: Rethinking Agency: Global Economic Restructuring and the Immigrant

In the midst of current anti-immigration sentiment, which is motivating dramatic changes in the United States immigration laws, there exists the myth that prior immigration laws were more equitable and humanitarian. Yet historical analysis reveals that immigration law has been put to uses far from idyllic, and has always been concerned with the racial makeup of the nation. Specifically, national preoccupation with the maintenance of a White country is reflected in immigration law. The continued national preference for White immigrants is explicitly featured in the visa profiling codes of U.S. embassies and consulates. This Essay employs a race-conscious lens to analyze the way in which immigration law has been structured to perpetuate a racial hierarchy which privileges Whiteness, primarily by preferring White immigrants to immigrants of color, and secondarily by drafting immigrants of color to form a middle-tier buffer and, alternatively, to provide a bottom-tier surplus labor supply

The Duty to Disobey Immigration Law

Many political theorists argue that immigration restrictions are unjust and defend broadly open borders. In this paper, I examine the implications of this view for individual conduct. In particular, I argue that the citizens of states that enforce unjust immigration restrictions have duties to disobey certain immigration laws. States conscript their citizens to help enforce immigration law by imposing legal duties on these citizens to monitor, report, and refrain from interacting with unauthorized migrants. If an ideal of open borders is true, these laws are unjust. Furthermore, if citizens comply with their legal duties, they contribute to violating the rights of migrants. We are obligated to refrain from contributing to rights-violations. So, citizens are obligated to disobey immigration laws. I defend the moral requirement to disobey immigration laws against the objection that disobedience to the law is excessively risky and the objection that citizens have political obligations to obey the law

\u3ci\u3eChevron\u3c/i\u3e Without the Courts? The Supreme Court\u27s Recent \u3cem\u3eChevron\u3c/em\u3e Jurisprudence Through an Immigration Lens

The limits of administrative law are undergoing a seismic shift in the immigration arena. Chevron divides interpretive and decision-making authority between the federal courts and agencies in each of two steps. The Supreme Court may now be transforming this division in largely unrecognized ways. These shifts, currently playing out in the immigration context, may threaten to reshape deference jurisprudence by handing more power to the immigration agency just when the agency may be least able to handle that power effectively. An unprecedented surge in immigration cases—now approximately 90% of the federal administrative docket—has arrived just as the Court is whittling away the judicial role while expanding agency authority, significantly transforming traditional deference doctrine. In its immigration docket, the Court is shifting the judicial role away from questions of statutory interpretation and towards a mere evaluation of when the agency’s interpretation should be granted deference. Assessment of the “reasonableness” of the agency’s action has given way to marking the outer boundaries of agency action, merging the court’s traditional oversight analysis into a form of “arbitrary and capriciousness” review. The costs of the Court’s reformulation of Chevron are particularly visible in immigration law because recent legislation and structural changes at the immigration agency have already constrained judicial review. However, the reformulation of Chevron occurring in immigration law may threaten to remake administrative law generally. Unfortunately, these developments have received little scholarly attention. Understanding this transformation is imperative as ultimately we may be heading towards “Chevron without the Courts”—wherein the judicial interpretive role is being constrained in the very instances where agencies are least able to function effectively

Arbitrary Detention? The Immigration Detention Bed Quota

When President Obama took office in 2009, Congress through appropriations linked the U.S. Department of Homeland Security’s (DHS) funding to “maintaining” 33,400 immigration detention beds a day. This provision, what this Article refers to as the bed quota, remains in effect, except now the mandate is 34,000 beds a day. Since 2009, DHS detentions of non-citizens have gone up by nearly 25 percent. To accommodate for this significant spike over a relatively short period of time, the federal government has relied considerably on private prison corporations to build and operate immigration detention facilities. This Article takes a comprehensive look at the Congressional immigration detention bed quota. It details its legislative history, and the relationship between the quota and private prisons in the immigration detention system. It situates the provision in a conversation about quotas generally, both in the law enforcement context and also in relation to the significance of quotas in U.S. immigration law historically. The Article then examines the bed quota through the lens of foundational as well as present-day jurisprudence on immigration detention and the Due Process Clause of the Fifth Amendment of the U.S. Constitution. It also analyzes the quota through international human rights law, particularly the protections related to arbitrary detention and vulnerable migrants. The Article concludes with policy considerations that caution against Congress imposing the immigration detention bed quota