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Liminal immigration rules operate powerfully beyond the edge of traditional law to govern the movement of people across borders and their interactions with the immigration system within the United States. This Article illuminates this body of “liminal law,” revealing how agencies and advocates have innovated to create widely followed rules that operate like traditional legal rules but are not. These rules are law-like, or liminal, in that they stand apart from “hard” law like statutes, regulations, or judicial opinions, but exert a similar authority. Because of their liminal nature, these rules lead a precarious existence and are often in transition, tending either toward codification or toward extinction. They are nonetheless sticky, resisting their own demise. The Article employs case studies of three liminal rules—the Deferred Action for Childhood Arrivals program, the mandatory immigration detainer, and administrative closure—to illustrate the characteristics and the potency of liminal immigration law [ABSTRACT FROM AUTHOR]

American immigration detention law is suffering from an existential crisis. The foundation for its 'civil' classification was its original use as a non-punitive adjunct to the civil deportation process. In [...]

ABSTRACT: Current approaches to addressing the negative impacts of climate change rely on collective capabilities. Welfare economics and contractualism, the two conventional perspectives that dominate the debate, support the pursuit [...]

The marriage of discourse and law can reframe whole areas of law into or out of public view, centering some, like crimmigration, and rendering others, like asylum, wholly invisible. This Article analyzes the intercourse between public discourse and law that undergirded the 2018 family separation policy. This intercourse enabled the criminalization of noncitizen parents, paving the way for the notion that the state could step in to displace the "criminal alien" as a more competent parent--as parens patriae. These two developments frame family separation not as an unavoidable collateral consequence of border enforcement, but rather as traditional state functions: punishing offenders and caring for the vulnerable. This dual framework constructed of discourse and law--crimmigration and parens patriae--pushed formerly robust legal frameworks--asylum or discretionary forbearance from exclusion--out of sight and out of reach. By the same means, this discursive framework erased family relationships in racialized and gendered ways. This Article's analysis holds promise, beyond family separation, for greater understanding of how targeted discourse contributes to the impotence of inclusive areas of humanitarian law like asylum. [ABSTRACT FROM AUTHOR]

The forays of the Trump administration into uncharted waters of immigration restriction have highlighted a trend that pre-dates the 2016 election: the unchecked growth of immigration governance strategies that rely on large-scale restrictions of liberty in the form of mass detention and deportation. These mushrooming immigration policing strategies, however, are encountering a new conceptualization of immigrant advocacy we have dubbed "big immigration law." The big immigration law model delivers representation on a large scale through massive collaborative representation. Like other mass advocacy models that aggregate clients and lawyers such as large law firms and class actions, this advocacy model appears to change the balance of power between individuals and private or governmental entities, improve unhealthy adjudication ecosystems that undermine access to justice, and clear blocked procedural or practical pathways to substantive claims such as asylum. This Article locates the origins of the big immigration law model in the national collaborative representation project that arose in response to the mass detention of female-headed families fleeing from Central America. Big immigration law is now being applied to dysfunctional immigration adjudication sites and detention facilities proliferating under the current administration. This Article identifies the main attributes of the model: collectivization, scalability, and the selection of a focal geographic point for advocacy. We conclude with an agenda for further research into this conceptual innovation in access to justice. [ABSTRACT FROM AUTHOR]

This contribution to the symposium on crimmigration law identifies Padilla v. Kentucky as the center of gravity of contemporary crimmigration law. This essay describes Padilla v. Kentucky as modeling a counter-intuitive approach to recognition of rights. Rather than seeking to sow a right to counsel in the contested field of immigration law, Padilla recognized a right to deportation counsel in the criminal justice system where appointed counsel was already well-rooted, and where tendrils of that right reach into the neighboring field of deportation law. This essay examines examples of this model of relocating rights claims to more fertile fields, outside of immigration law, in ways that resonate within immigration law. This essay recounts Justice Stevens ' story of the life and death of the Judicial Recommendation Against Removal (JRAD) and explains that the story of the JRAD is also a history of how the penalizing power of deportation eclipsed the criminal sentencing apparatus. The holding of Padilla is the resolution of this tale. It is a story of rejuvenation, in which a well-placed constitutional right?like the proverbial nail that saves the kingdom?puts the intersecting systems of criminal and immigration law back in balance, resurrecting the role of criminal sentencing. [ABSTRACT FROM AUTHOR]

The devolution of immigration authority to line officers, touted as a strength of the Secure Communities program, planted the seeds of the program's downfall. Rising from the ashes of Secure Communities, the Priority Enforcement Program (PEP) set priorities for removal and also unveiled a potential antidote to the devolution of agency discretion. This Article details the rise of Secure Communities and describes the devolution of discretion that ultimately undermined the program. It then spotlights a little-noticed attribute of the PEP--one that addresses head-on Secure Communities' devolution of enforcement discretion to the lowest level. PEP attempts to recapture federal discretion to make macro-level policy decisions about immigration enforcement by siphoning discretion up the chain to higher-level federal officials. This hydraulic experiment in recapturing agency discretion will ultimately determine whether immigration enforcement priorities are doomed to devolution or poised to find a perch on higher ground. [ABSTRACT FROM AUTHOR]

Crimmigration law wastes one of the law's most valuable tools: time. It eschews the temporal gauges that criminal law and immigration law rely on to evaluate who should be included or expelled from society. Instead, crimmigration law narrows the decision whether to exclude or expel the noncitizen from the nation to a single moment in time: the moment of the crime that makes the noncitizen eligible for deportation or incarceration for an immigration-related offense. This extraordinary focus on the moment of the crime conflicts with the fundamental notion of the individual as a collection of many moments composing our experiences, relationships, and circumstances. It frames out circumstances, conduct, experiences, or relationships that tell a different story about the individual, closing off the potential for redemption and disregarding the collateral effects on the people and communities with ties to the noncitizen. This Article critiques crimmigration law's uniquely cabined approach to the temporal aspects of decisions about membership. It explores how crimmigration law wastes the potential for time to usefully evaluate a noncitizen's connection to the community, the advisability of expulsion, and the potential for inclusion. By establishing permanent expulsion as the default consequence, crimmigration law ignores the potential for reintroduction into the community that criminal sentencing and relief from deportation contemplate. Instead, it combines and heightens the exclusionary power of criminal and immigration law. Focus on that moment has the effect of flattening the hierarchy of immigration status--from permanent resident to unauthorized migrant--that has traditionally informed the level of constitutional and statutory rights granted to individual noncitizens. The Article explores solutions to this temporal stasis, examining the benefits and costs of resurrecting a statute of limitations for crimmigration law. [ABSTRACT FROM AUTHOR]

This Article addresses the subterranean impact of immigration law on the outcome of Ashcroft v. Iqbal, a watershed case for civil pleading standards. In a new generation of cases seeking remedies for alleged mistreatment by high-level government officials, immigration law is exercising a quiet but powerful influence. Due to Iqbal, that influence will have a tremendous impact on the survival of civil complaints generally. The Supreme Court's adoption of a heightened civil pleading standard results from the limits that the immigration context placed on the scope of Iqbal's claims. This Article unearths the relevance of Iqbal's immigration status through comparison with two cases that apply Iqbal's holding to U.S. citizens in circumstances strikingly similar to Iqbal's, yet rule in favor of the plaintiffs. In each case, the courts seized upon U.S. citizenship as the distinction that made the difference. The Article concludes that Iqbal relies on a questionable subtextual link between immigration law, national security, and ethnicity and religion. [ABSTRACT FROM AUTHOR]

Immigration policy under the Trump Administration has relied on local officials and local information to fulfill federal policy goals of high-volume deportation. It has embroiled states and localities and inspired impassioned objection from many impacted localities. This intensification of federal deportation has compelled states, towns, and cities to define their relationships with their immigrant communities of color, federal deportation policy, and immigration law. This is nowhere more true than in Oregon. Oregon's response has been to unravel the strands of federal deportation policy that had over time become enmeshed in state, local, and private institutions. This Article, drafted in the crucible of an intensive upper-level immigration course, takes a deep dive into Oregon's efforts to shake off the tendrils of federal deportation policy. Why might it be worthwhile to follow the trail of immigrant inclusion in Oregon? Understanding the genesis of inclusive immigrant policies in this jurisdiction reveals that inclusionary policies have a deep-rooted history that long precedes the current administration's pronouncements. As a case study, Oregon's decades-long effort to disentangle itself from the divisiveness of federal immigration policy sheds valuable light on the process by which local jurisdictions build local policies to foster the kind of inclusion of immigrant communities of color seen as critical to local prosperity. [ABSTRACT FROM AUTHOR]

In the wake of President Trump's election, a growing number of local jurisdictions around the country have sought to disentangle their criminal justice apparatus from federal immigration enforcement efforts. These localities have embraced a series of reforms that attempt to ensure immigrants are not deported when they come into contact with the criminal justice system. The Trump administration has labeled these jurisdictions "sanctuary cities" and vowed to "end" them by, among other things, attempting to cut off their federal funding. This Article is a collaborative project authored by law professors specializing in the intersection between immigration and criminal law. In it, we set forth the central features of the Trump administration's mass deportation plans and its campaign to "crack down" on sanctuary cities. We then outline the diverse ways in which localities have sought to protect their residents by refusing to participate in the Trump immigration agenda. Such initiatives include declining to honor immigration detainers, precluding participation in joint operations with the federal government, and preventing immigration agents from accessing local jails. Finally, we analyze the legal and policy justifications that local jurisdictions have advanced. Our examination reveals important insights for how sanctuary cities are understood and preserved in the age of Trump. [ABSTRACT FROM AUTHOR]