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Category: Immigration

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Naturalized and Native-Born Citizens

I’ve come across a curious case written by Justice Sutherland that may be of interest to immigration lawyers. Chung Fook v. White, 264 U.S. 443 (1924) involved a native-born American citizen who wife was a Chinese alien. She was denied entry to the United States because she was ill with some contagious disease (the opinion does not say what it was).  The relevant statute said the following:

“That if the person sending for wife or minor child is naturalized, a wife to whom married or a minor child born subsequent to such husband or father’s naturalization shall be admitted without detention for treatment in hospital.”

Chung Fook argued that if the wife of a naturalized citizen could be admitted and get medical treatment, then surely he, as a native-born citizen, could do the same for his wife.  The Court conceded that it was strange to say that a naturalized citizen possessed a right greater than a native-born citizen.  Nevertheless, “naturalized” could not be read to mean “native-born.” What explains this?  The answer is that immigration law at the time said that the wife of a native-born citizen was deemed a citizen for purposes of entry unless she was Chinese.  That was the effect of a provision that said that only people who could be naturalized could be deemed constructive citizens.  At this time, of course, Chinese aliens could not be naturalized.

Still, I think this is probably the only instance in our history where a native-born citizen was at a disadvantage to a naturalized one.

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Undocumented Migrants and the Failures of Universal Individualism

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. But a closer look at international human rights law reveals that it is extremely limited in its protections of the undocumented.  My draft article, Undocumented Migrants and the Failures of Universal Individualism, takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues the protections available to undocumented migrants international human rights law, which are far fewer than often assumed. The paper demonstrates through a detailed analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by stepping away from human rights law and offering a radically new approach to protecting undocumented migrants and other vulnerable populations.

This paper advances one of the first serious critiques of international human rights law. Though legal scholars have presented critical perspectives on domestic law for over thirty years, few academics have applied these critical methods to international law. The dearth of critical scholarship on international human rights law in particular is striking.   This draft article begins to fill that gap by exploring the politics and power interests that underlie international human rights law. It describes the limitations of the universal individualist approach to human rights, highlighting the ways in which false universalisms can obscure dominant power structures.

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Snowden’s asylum case: Be careful what you ask for

According to recwhistleent news reports, Edward Snowden, the whistleblower who leaked documents revealing the scope of the National Security Agency’s surveillance program, has applied for political asylum in at least twenty-one countries.  Though his applications have not been made public, Snowden has received at least three offers of asylum: from Bolivia, Nicaragua, and Venezuela.  The proffered grounds for these asylum grants have varied from Bolivian President Evo Morales, who presented it as a “fair protest” for preventing his presidential airplane from entering the airspace of several European countries; to Venezuelan President Nicolas Maduro, who saw a need to protect “the young American” against “persecution from the empire“; to Nicaraguan President Daniel Ortega, who remained vague on the details.

None of these explanations bears much relation to international refugee law, which, though rarely an arm’s length from politics, does require some rigorous legal analysis.  To be fair, each country has the right to grant asylum based on their own domestic law, which may be more generous than international refugee law standards.  (Though the terms “asylum” and “refugee status” are often used interchangeably, in the United States, the former technically refers to domestic law and the latter to international law.)  But given the legitimacy that the international legal standards might afford a claim like Snowden’s, it’s worth attempting a more thorough analysis of his asylum claim.

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Stanford Law Review Online: Of Arms and Aliens

Stanford Law Review

The Stanford Law Review Online has just published a Note by Anjali Motgi entitled Of Arms and Aliens. Ms. Motgi examines, in light of the Newtown tragedy in December, how the Second Amendment has continued to fuel debate over a topic of national importance: the rights of illegal immigrants.

Still, the questions that compelled the Tenth Circuit not to touch the Second Amendment issue—including whether gun ownership is a “private right[] not generally denied aliens, like printing newspapers or tending a farm,” or is, like voting, limited to citizens—must one day be answered. Meanwhile, district courts have offered their own analyses of the meaning of “the people.” And this issue is one that could potentially align normally opposed constituencies: conservatives who seek to prevent government abuse by supporting the fundamentality (and therefore the expansive scope) of the Second Amendment as an individual right, and progressives who seek to expand our notion of community by increasing the panoply of rights to which immigrants have access.

She concludes:

Behind all of this dwells the idea that we are a “people,” a notion that undergirds not just diverse areas of American jurisprudence but also our public imagination. Bracketing the controversy over what the Second Amendment protects—possession of semiautomatic assault rifles and large stores of ammunition or something less—to consider the co-occurrence of the Fourth Circuit ruling in Carpio-Leon and the Sandy Hook tragedy raises a peculiar juxtaposition around the “who” of this right: is a father who keeps a rifle at home to protect his wife and three children, or a ranch hand who carries a gun to guard farm animals against predators, less a member of “the people” than a suburban divorcée with a passion for trips to the shooting range? Whatever the Founders meant in drafting the Second Amendment, it seems improbable that they foresaw that it would become a locus for public dialogue about the boundaries of the national community.

Read the full article, Of Arms and Aliens at the Stanford Law Review Online.

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Naturalization Ceremony

I’m going to be attending my first naturalization ceremony soon, and I was surprised to see some of the questions they ask on the form that is required of people who have passed the citizenship test and are going to take the oath. For example:

“Since your interview, have you joined any organization, including the Communist Party, or become associated or connected therewith in any way?”

Why are we still asking people if they are communists? Has nobody looked at this form since the 1950s? Here’s another odd one:

“Since your interview, have you knowingly committed any crime or offense, for which you have not been arrested?”

Does anyone actually say yes? Or how about:

“Since your interview, have you practiced polygamy, received income from illegal gambling, been a prostitute, procured anyone for prostitution or been involved in any other unlawful commercialized vice, encouraged or helped any alien to enter the United States illegally, illicitly trafficked in drugs or marijuana, given false testimony to obtain immigration benefits, or been a habitual drunkard?”

The last bit about drunkenness sounds like something out of colonial times. Someone in immigration services really should review these questions.

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The Yale Law Journal Online: A Defense of Immigration-Enforcement Discretion

The Yale Law Journal Online has just published A Defense of Immigration Enforcement Discretion: The Legal and Policy Flaws of Kris Kobach’s Latest Crusade, an essay by David A. Martin. The essay disputes the legal claims set forth in a recent lawsuit that seeks to invalidate a policy of the Department of Homeland Security. The policy gives protection against deportation to unauthorized immigrants who came to the country as children, and the Department defends it as an exercise of prosecutorial discretion. The plaintiffs claim that no such discretion exists, because the Immigration and Nationality Act, as amended in 1996, requires that virtually all aliens who entered without inspection be detained and placed in removal proceedings whenever encountered by immigration agents. Closely examining the statutory language and drawing on the author’s own extensive involvement as General Counsel of the Immigration and Naturalization Service in the 1996 consideration of legislative amendments and administrative implementation, the essay makes the case that the plaintiffs’ argument misunderstands both Congress’s intent and consistent agency practice before and after those amendments.

Preferred Citation: David A. Martin, A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade, 122 YALE L.J. ONLINE 167 (2012), http://yalelawjournal.org/2012/12/20/martin.html.

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Stanford Law Review Online: The Hunt for Noncitizen Voters

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Fatma Marouf entitled The Hunt for Noncitizen Voters. Professor Marouf writes that recent efforts by several states to purge noncitizens from their voter rolls may prevent many more citizens than noncitizens from voting:

Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act. Two other states—Florida and Colorado—have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. Yet citizens may be more harmed by the new laws than noncitizens, especially since the number of noncitizens registering to vote has turned out to be quite small. Wrongfully targeting naturalized or minority citizens in the search for noncitizens could also have negative ramifications for society as a whole, reinforcing unconscious bias about who is a “real” American and creating subclasses of citizens who must overcome additional hurdles to exercise the right to vote.

She concludes:

Some of the laws require voters to show government-issued photo IDs, which 11% of U.S. citizens do not have. Some have placed new burdens on voter registration drives, through which African-American and Hispanic voters are twice as likely to register as Whites. Others restrict early voting, specifically eliminating Sunday voting, which African-Americans and Hispanics also utilize more often than Whites. In two states, new laws rolled back reforms that had restored voting rights to citizens with felony convictions, who are disproportionately African-American. Each of these laws is a stepping-stone on the path to subsidiary citizenship. Rather than creating new obstacles to democratic participation, we should focus our energy on ensuring that all eligible citizens are able to exercise the fundamental right to vote.

Read the full article, The Hunt for Noncitizen Voters at the Stanford Law Review Online.

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Stanford Law Review, 64.6 (2012)

Stanford Law Review

Volume 64 • Issue 6 • June 2012

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Stanford Law Review Online: Discrimination, Preemption, and Arizona’s Immigration Law

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Lucas Guttentag entitled Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View. The author discusses the upcoming Supreme Court ruling on the constitutionality of Arizona’s controversial immigration law, S.B. 1070. He argues that discrimination must be a crucial consideration in the Court’s review of the federal preemption challenge brought by the United States:

The Supreme Court is expected to decide within days whether Arizona’s controversial immigration enforcement statute, S.B. 1070, is unconstitutional. Arizona’s law is widely condemned because of the discrimination the law will engender. Yet the Court appears intent on relegating questions of racial and ethnic profiling to the back of the bus, as it were. That is because the Supreme Court is considering only the United States’ facial preemption challenge to S.B. 1070 under the Supremacy Clause. That preemption claim asserts that Arizona’s statute conflicts with the Immigration and Nationality Act’s federal enforcement structure and authority.

But discarding the relevance of discrimination as a component of that ostensibly limited preemption claim expresses the federal interest too narrowly. State laws targeting noncitizens should also be tested against another fundamental federal norm, namely the prohibition against state alienage discrimination that dates back to Reconstruction-era civil rights laws. In other words, the federal principles that states may not transgress under the Supremacy Clause should be defined both by the benefits and penalties in the immigration statute and by the protections embodied in historic anti-discrimination laws.

He concludes:

While the precise force and scope of the Civil Rights Laws with regard to non-legal resident aliens remain undetermined, and Arizona claims to be penalizing only undocumented immigrants, defining the federal interest solely through the lens of immigration regulation and enforcement is still too narrow. Federal law is not only about federal immigration enforcement—it is equally about preventing discrimination. Measuring state laws only against the intricacies of federal immigration statutes and policies misses this essential point.

Some Justices may recognize the broader non-discrimination interests presented in the federal government’s preemption claim. And even if the pending challenge does not enjoin any or all of the S.B. 1070 provisions, civil rights challenges will more directly raise the rights of immigrants, their families and communities. But that eventuality should not obscure the importance of understanding that the federal values transgressed by S.B. 1070 and similar laws encompass both immigration and anti-discrimination imperatives.

Read the full article, Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View by Lucas Guttentag, at the Stanford Law Review Online.

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Pretext, the Rule of Law, and the Good Official

Justice Scalia, author of Whren v. United States and Ashcroft v. al-Kidd (used with permission, www.courtartist.com)

How should citizens in a republic bound by the rule of law regard the pretextual use of law by state officials?  If the United States Supreme Court is any indicator of the answer in our own republic, we are pretty ambivalent about pretext. 

Sometimes we don’t care very much.  In its most well-known case on the subject, Whren v. United States (1996), the Court upheld the pretextual use of the traffic code (which was prolix enough to be violated sooner or later by just about any car on the road).  Whren’s car was stopped by a vice squad cop who had a hunch (but not probable cause to believe) that Whren had drugs in his car.  One lesson of this case is that you should always signal before making a turn.  Justice Scalia, writing for a unanimous Court, had another one: the police are free to do “under the guise of enforcing the traffic code what they would like to do for different reasons.”  In other words, a green light to pretextual traffic stops.

Sometimes, we care a great deal.  In Kelo v. City of New London (2005), the Supreme Court categorically rejected the idea that government officials may “be allowed to take property under the mere pretext of a public purpose, when [their] actual purpose was to bestow a private benefit.”  Likewise, interpreting Title VII in their concurrence in Ricci v. DeStefano (2009) (which concerned a city fire department), Justices Alito, Scalia, and Thomas highlighted the subjective component of liability in a civil suit for employment discrimination in a disparate-treatment case: the employer is liable if its facially legitimate reason for a decision turns out to be “just a pretext for discrimination.”  Justice Frankfurter long ago chastised the Court for sustaining a law “because Congress wrapped the legislation in the verbal cellophane of a revenue measure.”  The concept of limited and enumerated powers seems to suggest a general disapproval of pretext.

Does repeated pretextualism — whether one is making or enforcing the law — weaken the rule of law?  When tempted to use a law for an unintended purpose, how should the “good” official (read the adjective however you like) distinguish an innovative use from a destructive one?  My own motivation for this research stems from concern that using law to achieve an objective that the law was clearly unintended to achieve might do something destructive to the rule of law itself.  Maybe it does some harm to the official who wields power in that pretextual way, too, an official who may be the worst-placed government agent to exercise the sort of discretion that creative administration of the law demands.  Pretextualism may be habit-forming and, like cigarettes, unhealthy.

After the break, I’ll share my working definition of pretext and two cases separated by more than fifty years, but adopting the same pretextual technique to evade restrictions on government action.  One involves a Soviet spy whose case troubled the Supreme Court so much that the Court heard oral argument twice.  Surprisingly, that case foretold and influenced the “easy” Whren case.  The other involves a former college football player caught up in the current “War on Terror.”  That case, Ashcroft v. al-Kidd, was decided in May, also referencing Whren, but this time without such unanimity and with a lot more unease about pretext.

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