Georgetown Immigration Law Journal

Publisher:: Georgetown University Law Center
Publication date:: 2022-07-01

ISBN:: 0891-4370

Issue Number

No. 37-3, April 2023

Latest documents

Insurgent citizenship: how consumer complaints on immigration scams inform justice and prevention efforts
Immigration scams in the United States target noncitizens. Noncitizens who have limited or no access to a clear path to adjust their legal status, coupled with a shortage of affordable legal services and an access to justice crisis1 have created the perfect terrain for profit-oriented fraudsters who thrive in moments of uncertainty. In those instances when vulnerable and marginalized noncitizens are taken advantage of and report consumer crimes, they attempt to turn rights in law into rights in practice. In this paper, we examine noncitizens' descriptions of particular scams and suggest ways to apply this analysis of victims' claims to a framework for social change. We rely on qualitative evidence from coding a sample of 1,040 consumer complaints submitted to the Federal Trade Commission (FTC) between 2011 and 2015. The narrative evidence includes both first-person accounts and descriptions of a scam from organizational intermediaries and witnesses. We examine efforts by noncitizens and their allies to seek access to justice, which allows us to answer the following questions: what do individuals choose to emphasize when reporting scams to consumer protection authorities? Relatedly, what can we learn about immigrant rights-claiming by focusing on the types of narratives people choose to relay as a means of seeking access to justice? We argue that scam reports offer important insights into possible solutions to enact social change and to ensure these preventable scams are addressed. Consumer protections for noncitizens targeted by immigration scams can function as a rallying point for immigrants' rights more broadly. Addressing obstacles to accessing justice for noncitizens targeted by immigration scams requires us to acknowledge the unique risk immigrants face in exposing their legal status and the lack of guaranteed representation in immigration proceedings. We also discuss tangible solutions that echo immigrants' own demands for consumer and civil rights, including examples from past cases and efforts to stop scams. The current study has broader implications given that reporting consumer fraud can be a flashpoint for noncitizens' civic engagement and an insurgent citizenship (i.e., actions by immigrants and advocates that expand our notions of who participates in civic engagement) with the potential to reconceptualize rights traditionally associated with citizenship
Community sponsorships for refugees and other forced migrants: learning from outside and inside the United States
The number of refugees and other forcibly displaced persons is at a historic high, but countries have failed to address this global resettlement need. Traditionally, the United States counts among the top resettlement contributors, followed by Canada. But after U.S. refugee admissions reached an all-time low under former President Trump, the system has not returned to its prior pace. In fact, over 100,000 open slots remained unused of the 125,000 target for refugee admissions in fiscal year 2022. There is a need to look at options to fill the gap. Unlike Canada and many other refugee resettlement countries, the United States is only in the early stages of formally introducing a private sponsorship system to increase its capacity and receive more refugees. Under private sponsorships, individuals collaborate to provide financial, emotional, and practical support for refugees. Some countries also empower sponsors to nominate specific refugees to enter and stay in their country. The Biden administration recognizes that private sponsorships can help to rebuild the U.S. refugee system and launched a private sponsorship pilot program. Against this backdrop, this Article argues that community-based sponsorships are historically rooted in U.S. migration law and policy, and discusses what future U.S. private refugee sponsorships on a permanent basis should look like. The Article looks at Canada and six other countries with community- based refugee sponsorship programs: Australia, Argentina, Germany, Ireland, New Zealand, and the United Kingdom. It complements this comparative analysis of programs outside the United States by comparing recent community sponsorship models within the United States. A case study conducted for the purposes of this Article reveals the experiences of volunteer groups in Seattle who sponsored Afghan and Ukrainian families under the Sponsor Circles initiative – an initiative that has supported Americans in sponsoring Afghans, Ukrainians, and others, such as with application support, various resources, and expert guidance. Eventually, putting together lessons from outside and within the United States, the Article proposes policies that are based on experience, practicability, and the specific needs of the actors likely to be involved in future U.S. private refugee sponsorships
A Hungry child should know no politics: how the U.S. material support statute has excessively criminalized humanitarian relief and has unintentionally barred innocent asylum-seekers from the United States
The material support statute, aimed at prosecuting those who provide various forms of support to terrorism, has been essential in the United States' ability to combat terrorism. However, the inflexible application of the statute in immigration law as well as in an international aid context has, at times, come with dire consequences without benefiting U.S. national security. Additionally, in an immigration context, there is an inconsistency in the types of exemptions available for a non-citizen who gives material support depending on whether the non-citizen is in removal proceedings. The Department of Homeland Security's June 2022 authorization of a statutory exemption to the material support statute for Afghans who assisted U.S. troops provides a template for potential future reforms to the material support statute. These potential future reforms would mitigate some of the drawbacks of the statute
Humanitarian parole: a tale of two crises
In 2021 and 2022, massive conflicts erupted in Afghanistan and Ukraine, prompting two wildly different responses by the United States to the resulting refugee flows. The United States turned to a temporary immigration status, humanitarian parole, to welcome both Afghan and Ukrainian refugees. Through a brand-new government program, Uniting for Ukraine, Americans everywhere rallied to host Ukrainian refugees who were swiftly granted parole at no cost. Meanwhile, the U.S. government ignored tens of thousands of Afghan applications for humanitarian parole and collected millions of dollars in fees from them. This Note explores the reasoning behind such troubling disparities. Some can be blamed on the logistical challenges to hosting an extensive parole program that are present in Afghanistan but not Ukraine. Two other justifications for Afghans' dismal access to humanitarian parole are contemplated: 1) a greater sense of U.S. responsibility for the Russo- Ukrainian War than the Taliban takeover in Afghanistan, and 2) national security concerns that Afghans, but not Ukrainians, present for the United States. However, this Note finds that neither of these justifications fully accounts for the United States' deliberate failure to protect Afghans while simultaneously opening its arms to Ukrainians. Instead, this Note argues that this failure by the United States is fueled by the government's resistance to multiculturalism and specifically, nonwhite Muslim immigrants. Ignoring Afghans' applications for parole while championing Ukrainians' reflects the U.S. government's fear of Afghanistan's non-Western culture and desire to exclude it from the country
An intersectional argument for the abolition of the 'protected ground' framework
Speculative immigration policy
This Article considers how speculative fiction was wielded by the Trump administration to implement destructive U.S. immigration policy. It analyzes the thematic elements from a particular apocalyptic novel, traces those themes through actual policy implemented by the president, and considers the harm effected by such policies. This Article proposes that the harmful outcomes are not due to the use of speculative fiction, but rather the failure to consider the speculative voices of those who have been historically marginalized within the United States. This Article argues that alternative speculative visions could serve as a platform for radical imagination about future U.S. immigration policies. In doing so, it offers a safe space for policymakers and others to consider ideas that might be far outside their normal political or social circles. For instance, speculative fiction creates an opportunity to engage with ideas that might otherwise be "third rails" such as the abolition of various policing forces, critiques of sovereignty, and open borders. Speculative fiction can, therefore, provide a secure realm within which one can be free to explore ideas that they might otherwise feel prohibited from considering. Here, this Article proposes that engaging with speculative fiction written by authors from marginalized backgrounds can help to shift both individual and institutional perceptions about what bold reconstructive policy changes might be possible. First, this Article analyzes the use of Jean Raspail's The Camp of the Saints by the Trump administration as an ideological foundation for its harmful immigration policies. This xenophobic, speculative fiction novel envisions the demise of Western civilization at the hands of mass migration. Second, this Article promotes the idea that speculative fiction can be useful and generative for imagining new immigration policies in the United States. Specifically, this Article claims that the experience of the COVID-19 pandemic created a nationwide (if not worldwide) sense of apocalypse. Such a collective experience provides an opportunity for universal reconsideration of historical policy norms, particularly those involving immigration. Finally, this Article notes that it is essential that these alternative visions be sourced from "oppositional storytellers," to use Richard Delgado's phrase. Examples abound: W.E.B. DuBois' The Comet and legal scholar Derrick Bell's The Space Traders. This Article offers additional visions: Waubgeshig Rice's Moon of the Crusted Snow, Omar El Akkad's American War, and Octavia Butler's Parable of the Sower as examples for reframing conceptions of 'apocalypse'from the viewpoint of the marginalized in Western culture. This Article concludes that, while notions of abolition and other taboo progressive policy proposals may seem apocalyptic to some, this apprehension is based in fear of the unknown. By crafting specific speculative visions, these authors, as well as others, can make clear that such radical imagination in crafting humane policies can produce a knowable future that is both manifest and necessary
Alienating criminal procedure
The paradigmatic federal criminal case is not the prosecution of Elizabeth Holmes or John Gotti, but rather that of a poor immigrant of color for a lowlevel border offense. There persists a perception that federal criminal court is reserved for complex crimes that require robust resources to prosecute and defend. These resources are said to fund procedural rigor and afford a dignity to the proceedings that state courts cannot match. If this mythologized federal criminal court ever existed, it no longer does. Immigration cases overwhelm the federal criminal docket, making up more than half of all filed cases. The majority of those recently prosecuted in federal court are noncitizens, most of whom are Latinx. The changed composition of the docket has a profound impact on the operation of the federal criminal courts. Those charged with federal immigration crimes are canaries in the proverbial coal mine, and federal immigration prosecutions are an underexamined driver of the racialized phenomenon of mass incarceration. This Article argues that immigration cases have remade federal criminal procedure to the detriment of citizen and noncitizen defendants alike. "Operation Streamline" prosecutions, where dozens charged with misdemeanor immigration crimes are counseled, plead guilty, and sentenced in mass proceedings, are now a frequent feature of federal criminal practice. The expedited procedures refined in Streamline migrated from the low-level immigration cases for which they were designed and now feature in gang and drug trafficking cases far from the Southern border. A right that is diminished due to the executive's plenary power over immigration and the border is a right that remains diminished for us all. For example, Fourth Amendment jurisprudence developed in the realm of immigration cases offers us little protection near the border, regardless of citizenship status. This Article documents these trends and argues that, collectively, they debase the federal criminal courts and erode constitutional and procedural norms in a way that harms us all. Finally, it advocates for substantive changes to immigration law and policy to begin to reverse these troubling trends
The state of disability-based asylum claims under current (and reinterpreted) law: assessing viability through disability studies frameworks
Throughout history, societies all over the world—including the United States—have viewed persons with disabilities a group, and often, subjected that group to discrimination, marginalization, and outright violence. Disabled individuals may find protection from these injustices in the United States, and in some cases, existing U.S. asylum law can offer that protection. At the same time, though, fitting a disability-based claim into the strict requirements of U.S. asylum law risks further perpetuating harmful ideas about disability and may fail to fully capture disabled individuals' lived experiences and protection needs. The emerging field of disability studies disrupts the conceptions of disability that often inform the mistreatment of disabled persons. In analyzing asylum law through disability studies frameworks, this Note both demonstrates the viability of disability-based claims and suggests modest expansions and reinterpretations of existing law that can more effectively offer needed protection without further marginalizing or stereotyping persons with disabilities
Remittances and global development
High transmission fees for remittances sent through traditional channels sap a large portion of potential development impact from what is one of the largest sources of development capital in the Global South. Such fees deprive developing economies and families from millions, if not billions, of development dollars. This Note will consider whether cryptocurrencies can be part of the solution to this problem. Cryptocurrencies are unlikely to provide a comprehensive solution to the high cost of remittances, mainly due to crypto's high financial and knowledge-based barriers to entry for both senders and recipients, as well as its general price instability. Governments of remittance- dependent countries should instead focus on facilitating the inflow of remittances by reducing transmission costs and by promoting their citizens' access to banks and credit
They are here because we were there: cofa migrants in the United States
In the late 20th century, the United States entered into agreements each known as the Compact of Free Association (COFA) with the newly independent states of the Marshall Islands, the Federated States of Micronesia, and Palau, collectively the Freely Associated States (FAS). These nations, formerly part of the United States-administered Trust Territory of the Pacific Islands, are part of the Micronesian geocultural area which has been under the dominion of colonial powers for over 500 years. Under the COFAs, citizens of the FAS are allowed to permanently live and work in the United States and its territories as habitual residents. Known as COFA migrants, these individuals face a distinct slate of challenges due to the precarious statutorily- defined legal status they maintain in the United States. This Note examines this status and argues that COFA migrants are most accurately characterized as imperial denizens by demonstrating the unique hardships COFA migrants face. With the COFAs expected to be renewed by the end of 2024, this Note offers considerations to be taken into account in the renewal process which would improve the lives of COFA migrants