The Immigration Court: Zigzagging on the Road to Judicial Independence

Introduction The U.S. Immigration Court system is no stranger to criticism, and the past five years have been blistering. Concerns about hearing delays,[1] judicial professionalism,[2] case management failures,[3] pandemic health and safety procedures,[4] and politically motivated judicial hiring[5] have raised serious questions about whether the Immigration Courts can deliver access to justice and whether Immigration Judges (IJs) are judicially independent.[6] A major source of the criticisms stems from the basic structure of the court system itself.[7] The Immigration Courts are housed within the U.S. Department Continue reading →

Decitizenizing Asian Pacific American Women

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Continue reading →

The Failures of Good Moral Character Determinations for Naturalization

This Article examines the effects of the good-moral-character requirement in naturalization proceedings. Specifically, it looks to such character requirements as a method by which a citizen polity screens out undesirable noncitizens from those who are deserving of inclusion in the “in” group of citizenship. The Article discusses historical methods of good-moral-character adjudication, and especially how such methods carried an undercurrent of forgiveness and redemption—an undercurrent lacking in the current method of statutory bars to showings of good moral character. By looking at specific examples of Continue reading →

Entrance Fees: Self-Funded Agencies and the Economization of Immigration

Introduction The practice of charging user fees to fund executive administrative agencies has burgeoned in the past forty years. User fees have been a feature of government administration for as long as there has been a government—postal stamps being a classic example. However, it was the Reagan Administration’s fixation with small government that spurred their efflorescence, using them as a means of raising revenue without resorting to general taxation.[1] Legal and economic theories were readily available to rationalize the implementation of fees, marshalling concepts of Continue reading →

Essential, Not Expendable: Protecting the Economic Citizenship of Agricultural Workers

Introduction When the COVID-19 pandemic reached the United States in early 2020, the importance of agricultural workers became undeniable. Fear of food shortages seized the nation, and many people saw the shelves of grocery stores empty for the first time. On March 19, 2020, the Cybersecurity and Infrastructure Security Agency identified workers in the food and agriculture sectors as “essential critical infrastructure workers.”[1] This designation allowed agricultural workers to continue earning desperately needed wages, but these workers did so without adequate protection from COVID-19. Also Continue reading →

Pursuing Citizenship During COVID-19

Introduction Citizenship is a subject of growing interest in scholarly and policy discussions that aim to go beyond repairing the exclusionary immigration laws of the last several years to building a more inclusionary society. The essays in this symposium issue represent some of the best and brightest voices on citizenship. Their voices hail from law, sociology, political science, and history. They include university scholars, immigration practitioners, and immigrants living their lives in American society. As I shared in the keynote address, it was a pleasure—indeed, Continue reading →

Text Is Not Enough

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects gay and lesbian individuals from employment discrimination. The three opinions in the case also provided a feast for Court watchers who study statutory interpretation. Commentators across the ideological spectrum have described the opinions as dueling examples of textualism. The conventional wisdom is thus that Bostock shows the triumph of textualism. The conventional wisdom is wrong. Instead, Bostock shows what those who have studied statutory interpretation Continue reading →

Robophobia

Robots—machines, algorithms, artificial intelligence—play an increasingly important role in society, often supplementing or even replacing human judgment. Scholars have rightly become concerned with the fairness, accuracy, and humanity of these systems. Indeed, anxiety about machine bias is at a fever pitch. While these concerns are important, they nearly all run in one direction: we worry about robot bias against humans; we rarely worry about human bias against robots. This is a mistake. Not because robots deserve, in some deontological sense, to be treated fairly—although that Continue reading →

Leveling Up to a Reasonable Woman’s Expectation of Privacy

Various privacy law doctrines involve a reasonable expectation of privacy or similar analyses that take into account social privacy norms. For the most part, however, neither courts nor scholars have explicitly grappled with whether courts descriptively do or normatively should consider gender in deciding what constitutes a reasonable expectation of privacy. This is despite the fact that, in various scenarios, a reasonable woman’s expectation of privacy might vary from a man’s in light of different lived experiences, biological differences, and existing societal gendered privacy norms. Continue reading →

One Step Forward, Two Steps Back: How Attorney General Review Undermines Our Immigration Adjudication System

Introduction On June 1, 2011, Mr. E.F.H.L., a native and citizen of Honduras, entered the United States without inspection and subsequently applied for asylum and withholding of removal based on his fear of persecution.[1] After considering only the written application and brief, the immigration judge (IJ) determined that Mr. E.F.H.L. did not demonstrate his prima facie eligibility for relief and thus refused to hold an evidentiary hearing, which would have enabled Mr. E.F.H.L. to present oral testimony and other evidence.[2] On appeal, the Board of Continue reading →