New Article: Wendy E. Parmet, Excluding Non-Citizens from the Social Safety Net, 49 Ga. J. Int’l & Comp. L. 525 (2021).
New Article: Wendy E. Parmet, Excluding Non-Citizens from the Social Safety Net, 49 Ga. J. Int’l & Comp. L. 525 (2021).
New Article: Jennifer J. Lee, Legalizing Undocumented Work, 42 Cardozo L. Rev. 1893 (2021). Abstract below:
An estimated eight million undocumented workers live as a subclass of workers in the United States. Their essential work is cast in a shadow of “illegality” because federal immigration law prohibits employers from hiring such workers. As a result, undocumented workers are relegated to low-paying jobs in specific industries, such as agriculture, construction, or domestic work. Employers can easily take advantage of such workers by paying them less than the minimum wage or requiring them to work under dangerous conditions.
New Article: Stephen Lee, The Economic Dimensions of Family Separation, 71 Duke L.J. 845 (2022). Abstract below:
Migrants in the United States experience varying degrees of harm related to family separation. This article focuses on the economic dimensions of these harms by focusing on transnational remittances, a topic that has generated significant scholarly attention. Within this story, remitters are pitched as heroes and remittances are held up as a critical, market-based solution for solving global poverty. Of course, this picture is incomplete. This account ignores remittance-sending countries and provides only a narrow account of law. This Article focuses on anti-money laundering policies, an important set of U.S. laws that regulate the remittance economy. Examining remittances from this perspective shows that anti-money laundering and antimigration policies form a joint project that regulates the relationship between migrants and their family members. While antimigration laws inhibit migrant mobility, anti-money laundering laws create uneven opportunities for transferring wage earnings to family members left behind on their journey. Recognizing the connection between these areas of the law leads to the Article’s broader contribution: identifying different ways that the law exacerbates or mitigates the economic harms related to family separation. Specifically, anti-money laundering policies help structure the conditions in which migrants engage in expression of affinity across borders, thereby showing the intertwined nature of economic and physical harms within transnational families.
New Article: Juan Esteban Bedoya, Note, Price Tags on Citizenship: The Constitutionality of the Form N-600 Fee, 95 N.Y.U. L. Rev. 1022 (2020). Abstract Below:
Proof of citizenship is of paramount importance. In the United States, the need for citizenship documentation is particularly acute in light of heightened immigration enforcement. For U.S. citizens born abroad, proof of citizenship can be obtained by submitting a Form N-600 to United States Citizenship and Immigration Services, which in turn provides a Certificate of Citizenship. Although these individuals are entitled to citizenship and all of its benefits by statute, they are required to pay $1170 in order to obtain this Certificate. This Note seeks to analyze the constitutionality of this exorbitant fee. Determination of citizenship confers with it important rights and several privileges, such as access to employment, the ability to vote and seek public office, and many other government benefits. Perhaps more importantly, determination of citizenship also confers protection—protection from detention, from removal proceedings, and from deportation. This Note analyzes the viability of a constitutional challenge to the $1170 filing fee through a procedural due process claim, the importance of which is underscored by the life-altering consequences of citizenship as well as the benefits and protections it affords. Simply put, access to the benefits of citizenship should not turn on a citizen’s ability to pay a prohibitively expensive fee; the Constitution demands greater protections.
New Article: Ava Ayers, Discriminatory Cooperative Federalism, Vill. L. Rev. (2021). Abstract Below:
Under the Equal Protection Clause, states can’t (with certain exceptions) discriminate against noncitizens. But Congress can. Sometimes, Congress tries to share this power to discriminate with states. This Article looks at cases in which Congress supports state discrimination using cooperative federalism. (The phrase “cooperative federalism” refers to a form of lawmaking in which Congress induces or allows states to play a role in federally-created regulatory schemes.) For example, multiple provisions of the Welfare Reform Act of 1996 aim to encourage states to deny public benefits to noncitizens. The Welfare Reform Act attempts to work around the Equal Protection Clause by sharing with the states Congress’s plenary power to treat noncitizens differently. It thus represents a form of cooperative federalism whose goal is discrimination. Cooperative-federalism schemes require the involvement of two actors, federal and subfederal, each subject to their own legal constraints. In the immigration context, discriminatory cooperative federalism is vulnerable to challenges aimed at the federal actions (like claims that Congress has impermissibly delegated its power) and challenges aimed at the states’ actions (like equal-protection challenges). Distinguishing the federal and state components of these challenges significantly clarifies the analytical picture, and, for advocates, the plan of attack.
New Article: Anita Sinha, A Lineage of Family Separation, forthcoming Brooklyn L. Rev. Abstract below:
Family separation is a practice rooted in U.S. history. In order to comprehensively examine the most recent execution of separating children from their parents under the Trump Administration’s “zero tolerance” policy, one must follow and understand this history. That is what this Article does. Examining the separation histories of enslaved, Indigenous, and immigrant families, it offers critical context of a reoccurring practice that has had devastating effects largely on communities of color, and across generations. By contextualizing the separation of migrant families crossing the U.S.-Mexico border under zero tolerance, this Article identifies narratives from colonial times to the present that consistently rely on racism, xenophobia, and paternalism to justify a practice that otherwise is extreme in its inhumanity.
These justification narratives are juxtaposed with counter-stories that resist and challenge the separation of families, including by humanizing those impacted and articulating the profound harm it causes to children, parents, and communities. These stories have been told through first-hand narratives, Congressional testimonies, research studies, media reports, and facts and allegations in lawsuits. Narratives describing the harm caused by separating families are a powerful element of putting the practices to an end. The historical record suggests that these narratives have typically gained potency in specific socio-political contexts that rendered them compelling enough to overcome the justifications for specific family separation policies.
Although these practices were brought to an end, systemic reform has been elusive. In the case of Indigenous family separation, legislation enacted to cease the practice failed to bring about substantial change, and has been diluted by persistent legal challenges. Historical family separation practices against enslaved and immigrant families have been replaced with systems that separate families for prolonged times or permanently. These include the present-day U.S. criminal legal and immigration systems, where the government separates children from their parents on a substantial scale as a collateral consequence of mass incarceration and widespread detention and deportation, with little to no scrutiny. The outrage that ended zero tolerance has not extended to these ongoing examples of family separation. In order to meaningfully address these practices, counter-stories urging the valuation of family integrity must be aligned with a societal will to challenge systems that, through racialized justifications, continue to separate mostly marginalized children from their parents.
New Article: Alessandra N. Rosales, Excluding ‘Undesirable’ Immigrants: Public Charge as Disability Discrimination, 119 Mich. L. Rev. 1613 (2021). Abstract below:
Public charge is a ground of inadmissibility based upon the likelihood that a noncitizen will become dependent on government benefits in the future. Once designated as a public charge, a noncitizen is ineligible to be admitted to the United States or to obtain lawful permanent residence. In August 2019, the Trump Administration published a regulation regarding this inadmissibility ground. Among its mandates, the rule expanded the definition of a public charge to include any noncitizen who receives one or more public benefits for more than twelve months in a thirty-six-month period It also instructed immigration officers to weigh medical conditions that “interfere” with the noncitizen’s ability to care for themselves in favor of finding the noncitizen to be a public charge. The rule prompted several legal challenges, including under section 504 of the Rehabilitation Act, the predecessor to the Americans with Disabilities Act. While these claims address the core legal arguments of disability discrimination, the scope of violations should be viewed more broadly. This Comment assesses the public charge rule from a disability rights perspective, exploring the intersection between disability and immigration law, and concludes that immigrants with disabilities no longer had access to federal programs to which they were entitled, and consequently, access to the United States itself.
New Article: Joseph Daval, The Problem with Public Charge, 130 Yale L.J. 778 (2021). Abstract below:
The United States has long excluded immigrants who are likely to become a “public charge.” But while the exclusion has remained unchanged, the nation has changed around it, further blurring its unclear meaning. As public benefits replaced poorhouses, Congress and the courts left the administrative state to reconcile public charge with evolving commitments to public welfare.
This Note seeks to identify the causes of public charge confusion by mapping the exclusion’s administrative history. A field-guidance document from 1999 marks the only comprehensive effort to reconcile public charge with contemporary grants of benefits. Archived emails, memos, and drafts reveal the causes, scope, and character of the preceding interagency negotiations, as well as a yet-unidentified interagency relationship I term “zero-sum asymmetry,” whereby one agency completes its statutory mission at the expense of another’s. The guidance’s core compromise—a distinction between cash and supplemental benefits—mitigated but could not eliminate this dynamic. Reading the archived negotiations in light of public charge’s history, I offer a more compelling account of what public charge requires.
Emily Profile, Legal Landscapes, Migrant Labor, and Rural Social Safety Nets in Michigan, L. and Soc. Inquiry (forthcoming 2021). Abstract below:
In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. This article uses Michigan as a case study to examine the informal safety net those rural women created and how it ultimately strengthened the very economic and legal structures that left agricultural workers vulnerable. From the 1940s through the 1960s, federal, state, and local law left large gaps in labor protections and government services for migrant agricultural laborers in Michigan. In response, church women created rural safety nets that mobilized local generosity and provided aid. These informal safety nets also policed migrant morality, maintained rural segregation, and performed surveillance of community outsiders, thereby serving the farmers’ goals of having a reliable and cheap labor force.
Jennifer Gordon, UBI & Immigrants: Lessons From the Pandemic, L. & Pol. Econ. (Feb. 9, 2021). Introduction below:
Does universal basic income have a role to play in a more just political economy? It is by now fairly well appreciated that, on the level of individual countries, much depends on the framing and design of the program: a UBI that replaces social insurance is not the same as one that supplements it.
But comparatively little thought has gone into the global perspective. Even the most progressive nation-based approach to basic income faces a fundamental justice challenge in the reality of human mobility. Almost all basic income proposals focus on the country as a unit. (Exceptions include Philippe Van Parijs and Juliana Bidadanure.) Responding to the assertion that nations with UBI programs open to all would be overrun by outsiders seeking to access the benefit, most make citizenship a prerequisite for a grant. A number also call for increased restrictions on immigration (other than of temporary laborers) in order to make such programs politically feasible.