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States Taking Charge: Examining the Role of Race, Party Affliation, and Preemption in the Development of in-state tuition laws for undocumented immigrant students
Part I of this Article details both the legislative and legal history of undocumented immigrants’ access to education in the United States. Part II then describes the current U.S. state laws in effect regarding in-state tuition for undocumented immigrant students at state-funded colleges and universities. Part III further explores the development of laws and policies with a keen focus on potential correlations between (1) the racial composition of state legislatures and the passage of in-state tuition policies; (2) the race of governors and the passage of in-state tuition policies; (3) partisan composition of state legislatures and the passage of in-state tuition policies; and (4) party affiliation of governors and in-state tuition policies. Part IV describes the concept of preemption and discusses the extent to which preemption has impacted the state statutes identified in Part II of this Article. Finally, Part V discusses the practical and normative implications of this research.Ripples Against the Other Shore: The Impact of Trauma Exposure on the Immigration Process through Adjudicators
Immigration is currently a hot topic; discussion of immigration reform and the problems in our current system appear in the news virtually every day. There is widespread consensus that our current immigration system is “broken,” but there is little agreement on why and even less on what should be done to fix it. These are difficult and important questions, involving many complex interrelated factors. While I do not hope and cannot aim to answer them completely in this Article, I will argue that in doing so we must consider an often overlooked and generally understudied issue: the effects of trauma exposure in our immigration process and specifically on our immigration adjudicators, that is, immigration judges, Board of Immigration Appeals members, and United States Citizenship and Immigration Services officers. Despite the little attention paid to the effects of trauma exposure, this is a topic of great importance. If our goal is to have an immigration system that not only operates fairly and efficiently but also has a positive effect on all participants-—noncitizens, attorneys, adjudicators, and other officials, among them—-we must consider the ways that our current system causes psychological harm to those involved. Evidence of this harm in our legal system is abundant. It can be seen in the stories of noncitizens caught up in our immigration process, in the high levels of distress suffered by attorneys and judges, in the criticism of immigration judges and other officials, and in the general dysfunction of our immigration system. At the same time, the causes for this harm are only infrequently discussed. This Article will highlight one cause of such harm: trauma exposure. I have multiple goals for this Article. First, I want to continue the important work begun by the many others cited throughout the article of normalizing the discussion of the emotional dimension of lawyering and its impact in and on our legal system. Second, I want to highlight the very significant impact of a particular aspect of this emotional dimension, trauma, on the immigration process by exploring its effect on immigration adjudicators. Finally, I intend to set the stage for a future Article that will consider reforms to the immigration system to better manage the impact of trauma exposure.An Insurmountable Obstacle: Denying Deference to the Bia’s Social Visibility Requirement
In the last fifteen years, the Board of Immigration Appeals has imposed a requirement that persons seeking asylum based on membership in a particular social group must establish that the social group is “socially visible” throughout society. This Comment argues that the social visibility requirement should be denied administrative deference on several grounds. The requirement should be denied Chevron deference because Congress’s intent behind the Refugee Act of 1980 is clear and unambiguous and, alternatively, the requirement is an impermissible interpretation of the statute. The requirement is also arbitrary and capricious under the Administrative Procedures Act. This Comment argues that courts should instead follow the United Nations High Commissioner for Refugees’ definition of a particular social group, in which social visibility is one of two methods to establish a particular social group. An adoption of this framework would serve Congress’s intent to adhere to the United States’ international obligations.Federal Constraints on States’ Ability to License an Undocumented Immigrant to Practice Law
No court has decided whether an undocumented immigrant can be admitted to a state bar in a manner consistent with federal law. At the time of this writing, the issue is pending before the California Supreme Court. Federal law prohibits states from providing public benefits to undocumented immigrants. In its definition of a “public benefit,” 8 U.S.C. § 1621 includes any professional license “provided by an agency of a State . . . or by appropriated funds of a State . . . .” The law’s prohibitions, however, are not unqualified. The statute’s “savings clause” allows states to provide public benefits to immigrants unlawfully present through an affirmative enactment of state law. Current scholarship surrounding this issue has primarily focused on public policy implications. This Note sets out to answer the question of whether 8 U.S.C. § 1621 generally precludes states from issuing law licenses to undocumented immigrants, and if so, how a state may circumvent that prohibition. First, this Note addresses the threshold question of whether a law license is a public benefit under the federal statute. Contrary to the argument put forward by the Committee of Bar Examiners of the State Bar of California, I argue that the most straightforward reading of the statute includes law licenses within the category of prohibited public benefits. Second, this Note explores how a state could use the statute’s savings clause to provide law licenses to undocumented immigrants. By requiring an affirmative enactment of state law, Congress likely had in mind legislative enactments. I argue, however, that in the realm of bar admission where state supreme courts have plenary power to set requirements, a court rule allowing for eligibility of undocumented immigrants should be sufficient to trigger the statute’s savings clause.Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings
Today, an immigrant green card holder mandatorily detained pending his removal proceedings, without bail and without counsel, due to a minor crime committed perhaps long ago, faces a dire fate. If he contests his case, he may remain incarcerated in substandard conditions for months or years. While incarcerated, he will likely be unable to acquire a lawyer, access family who might assist him, obtain key evidence, or contact witnesses. In these circumstances, he will nearly inevitably lose his deportation case and be banished abroad from work, family, and friends. The immigrant's one chance to escape these cascading events is the off-the-record Joseph hearing challenging detention. If he wins the hearing and is released, he can then secure counsel, and if so, will likely win his case. Yet detained and most likely pro se, he may not even know a Joseph hearing exists, let alone win it, given the complex statutory analysis involved, regarding facts, witnesses, and evidence outside his reach. The immigration detention system today is unique in modern American law, in providing for preventive pretrial detention without counsel pursuant to underlying proceedings without counsel - let alone proceedings so complex that result in a deprivation of liberty as severe as deportation. In this Article, I call this the cascading constitutional deprivation of wrongful detention and deportation. I argue, under modern procedural due process theories, that this cascading constitutional deprivation warrants appointed counsel, notwithstanding traditional plenary power over immigration laws. In a post-Padilla v. Kentucky world where criminal defenders must now advise their clients on the same issues litigated at the Joseph hearing, I argue a right to appointed counsel for mandatorily detained immigrants pending removal proceedings is constitutionally viable and practically feasible.To Plea or Not to Plea: Retroactive Availability of Padilla v. Kentucky to Noncitizen Defendants on State Postconviction Review
The United States incarcerates hundreds of thousands of noncitizen criminal defendants each year. In 2010, there were about 55,000 "criminal aliens" in federal prisons, accounting for approximately 25 percent of all federal prisoners. In 2009, there were about 296,000 noncitizens in state and local jails. Like Jose, these defendants usually do not know that their convictions may make them automatically deportable under the INA. Under the Supreme Court's recent ruling in Padilla v. Kentucky, criminal defense attorneys have an affirmative duty to give specific, accurate advice to noncitizen clients regarding the deportation risk of potential pleas. This rule helps assure that, going forward, noncitizens will be in a position to make informed plea decisions. Knowing the potential consequences of a conviction, they may choose to go to trial, risking a longer sentence but possibly avoiding conviction and subsequent deportation. Unfortunately, for some noncitizen defendants, Padilla was decided too late; at the time Padilla was announced, they had already pleaded guilty, relying upon the advice of defense counsel who failed to advise them of the potential immigration consequences of their conviction. Under what circumstances should relief be available to such noncitizen defendants? This Note argues that courts should apply the rule of Padilla v. Kentucky retroactively on state postconviction review to at least the limited group of defendants whose cases were on direct review when Padilla was decided.Yick Wo at 125: Four Simple Lessons for the Contemporary Supreme Court
The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take legislative motivation more seriously in cases of persistent class discrimination. Finally, the Court cannot give sanction to any dominant group's view that the country's economic and social wealth belongs to them.¡Silencio! Undocumented Immigrant Witnesses and the Right to Silence
At a time referred to as "an unprecedented era of immigration enforcement," undocumented immigrants who have the misfortune to witness a crime in this country face a terrible decision. Calling the police to report that crime will likely lead to questions that reveal a witness's inmigration status, resulting in detention and deportation for the undocumented immigrant witness. Programs like Secure Communities and 287(g) partnerships evidence an increase in local immigration enforcement, and this Article argues that undocumented witnesses' only logical response to these programs is silence. Silence, in the form of a complete refusal to call the police to report crime or participate in local prosecutions, is a potent and defensible act of civil disobedience by the estimated twenty-two million imigrants in this country with anything less than full-citizenship status. There is a growing body of empirical evidence showing that local immigration enforcement leads to racial profiling, is unjustifiably expensive for local crime-fighting budgets, and results in the local immigrant population simply deciding not to call the police for any reason at all. This Article takes those arguments one step further, contending that immigrant communities can take matters into their own hands and protect themselves by choosing silence as an organized response to a regime that has rendered local police a threat, not a support, to millions of people within our borders. A commitment to silence by the immigrant community will lend a sense of urgency to these protests and spur real action from local law enforcement officials who appreciate the dangers of prioritizing immigration enforcement over community safety for all residents, citizen and noncitizen alike.Federal Employer Sanctions as Immigration Federalism
For low-skilled workers in much of the world, U.S. admission policies make illegal immigration the most viable means of entering the country. Low average schooling, which disqualifies many potential immigrants from employment-based visas, and long queues affecting family preference immigration from high-traffic countries, make the admission criteria outlined in the U.S. Immigration and Nationality Act (INA) prohibitive for most would-be immigrants to the United States. Perhaps due to this failure of immediate legal avenues, many immigrants enter the country illegally. Though many eventually gain legal status, in the meantime they live and work in the United States without documentation. "Illegal immigration thus accomplishes what legal immigration does not: It moves large numbers of low-skilled workers from a low-productivity to a high-productivity environment." Recognizing that job opportunities are a significant motivating factor in the decision to come to the United States, President Reagan signed the Immigration Reform and Control Act (IRCA) in 1986, the "centerpiece" of which was the country's first comprehensive federal employer sanctions law. "Conditioning U.S. jobs on proof of [work] authorization, so the logic went, would deter immigrants from coming to the United States for work reasons, encourage those that were here without meaningful job opportunities to return home, and over the long term reduce the rate of unauthorized migration." The Senate report for a version of the bill that became IRCA suggested that, while Third World development, closing the gap in wage disparity and working conditions, and the achievement of higher standards of living in sending countries were longterm goals that would help curb illegal immigration, the short-term cure was to eliminate the availability of the jobs that serve as a magnet. Prohibiting the hiring of unauthorized workers would be the most immediate way to cause meaningful change in the amount of unlawful migration to the United States. This Note explores the ways in which the failings of the current system of employer sanctions should render employer sanctions invalid for the same reasons that underlie preemption of state and local immigration enforcement laws. Because sanctions are intended to have a direct impact on inmiigration and require individual, private employers to enforce immigration law (without training!) as screeners of employees' eligibility and immigration status, IPCA's employer sanctions scheme results in an uneven and inconsistent application of what is meant to be a comprehensive federal scheme of immigration law. Moreover, if proposals to ramp up employer sanctions are successful, the potential for workplace discrinination will increase because employers, having access to only inadequate means of verifying work authorization, will face dueling liabilities under antidiscrimination and immigration law.The Legal Arizona Workers Act and Preemption Doctrine
in recent years, a spate of states passed laws regulating the employment of undocumented immigrants. This Note argues that laws that impose civil sanctions on employers that hire undocumented immigrants are preempted by both federal immigration law and federal labor law. The Note focuses specifically on the Legal Arizona Workers Act because it went into effect in 2008 and has amassed more than two years' worth of data on its enforcement, and because it is touted as the harshest state anti-immigration measure to date. This Note examines the law's impacts and argues that practitioners nationwide should challenge the Legal Arizona Workers' Act, as well as the proliferation of similar state laws that threaten civil rights, business and labor interests, and the supremacy of the federal Constitution.
