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Beside the Golden Door: Changing Perspectives on Migration and Law in the United States

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Law and Migration in a Changing World

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 31))

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Abstract

The trends and developments in revision and reform of US immigration law will be discussed first in relation to the US political situation and its history and subsequently in relation to the practice of criminalising migrants and the increasingly harsh deportation of immigrants in recent decades. Such criminalisation, as this report concludes, could already be noted in the immediate aftermath of the attacks on the World Trade Center in 2001. An analysis of the US versions of jus soli and jus sanguinis, reunion of families, including recognition of same-sex marriages, and the recent appalling treatment of children and their parents will be followed by a consideration of the inadequate progress of immigration policy based on business needs and economics. The lack of protection of refugees and related categories will be discussed alongside prosecutorial discretion and some aspects of changes under President Donald Trump. We conclude with a practising lawyer’s perspective on the changing practice of immigration law in the United States of America.

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Notes

  1. 1.

    See https://www.aila.org/infonet/white-house-releases-executive-order-on-affording.

  2. 2.

    See https://www.aila.org/infonet/attorney-general-issues-zero-tolerance-policy.

  3. 3.

    See https://www.aila.org/infonet/eo-buy-american-and-hire-american.

  4. 4.

    See https://www.aila.org/infonet/wh-enhancing-vetting-capabilities.

  5. 5.

    See https://www.aila.org/infonet/presidential-proclamation-removes-travel-ban.

  6. 6.

    See https://www.aila.org/infonet/presidential-proclamation-improving-vetting.

  7. 7.

    See https://www.federalregister.gov/documents/2019/02/20/2019-03011/declaring-a-national-emergency-concerning-the-southern-border-of-the-united-states.

  8. 8.

    See https://www.aila.org/infonet/uscis-notice-proposed-rulemaking-affidavit-support.

  9. 9.

    As to the history of the concept of ‘illegal aliens’, see generally Sklansky (2012); Johnson and Trujillo (2012); Eagly (2010); Chacón (2009); Miller (2008); Legomsky (2007); Stumpf (2006); Neuman (2005); De Genova (2004); Kanstroom (2004). As to the history, recent situation, and viewpoints of US-Mexican migrants, see Minian (2018). Her view of the motivations and effects typical of Mexican migrants to the US differs sharply from that of most US citizens and politicians. For example, Professor Minian has found, on one hand, that most Mexican migrants intend to go home when they have raised enough money to provide for their families and that they have little interest in creating ‘anchor babies’; and, on the other, that their presence benefits many American workers. See further below, Sect. 6.2.

  10. 10.

    This is an updated, and occasionally corrected version of the US report on migration and law prepared for the 2014 International Congress of Comparative Law, published at (2014) 62 American Journal of Comparative Law (supp.) 136.

  11. 11.

    Omnibus Anti-Drug Abuse Act of 1988, P.L. 100-690, 102 Stat. 4181. Like the Holy Roman Empire, which Voltaire said was not holy, not Roman, and not an empire, many ‘aggravated felonies’ are neither aggravated nor felonies. See Lowry and Schroth (2003); Foley (2014); Zong and Batalova (2014).

  12. 12.

    Anti-Terrorism and Effective Death Penalty Act of 1996, P.L. 104-132, 110 Stat. 1214; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208, 110 Stat. 309. See Johnson (2001); Kurzban Jr (2018).

  13. 13.

    USA PATRIOT Act, P.L. 107-156, 115 Stat. 272; Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458, 118 Stat. 3638.

  14. 14.

    According to various ICE documents, there were 409,849 removals in FY (Fiscal Year) 2012; 368,644 in FY2013; 414,481 in FY2014; 235,413 in FY 2015; 240,255 in FY 2016; and 226,119 in FY2017, and 256,085 in FY2018.

  15. 15.

    Good introductory sources for what is listed as omitted may begin with Okeke and Nafziger (2006), prepared for the 2006 International Congress of Comparative Law. Other excellent, relatively brief summaries are Kurzban Jr (2018), pp. 1–33; Meyers (2004); Aleinikoff et al. (2012).

  16. 16.

    And, for the most part, with domestic US law, rather than international law, in part because, as in various other areas of the law, the US legal system does not emphasise international law. Indeed, the US law on the relevance of international law in US courts is almost the opposite of article 25 of the German Grundgesetz: “Die allgemeinen Regeln des Völkerrechtes sind Bestandteil des Bundesrechtes. Sie gehen den Gesetzen vor und erzeugen Rechte und Pflichten unmittelbar für die Bewohner des Bundesgebietes.” We know of US cases in which the attorneys for both sides and the judge were all unaware that the US was a party to international treaties relating to the human-rights issues present in the case. Those interested in this subject should pay particular attention to Medellín v. Texas, 552 U.S. 491 (2008), in which the Supreme Court held that decisions of the International Court of Justice are not binding in US domestic courts.

    Ideally, we would have discussed the InterAmerican Commission and Court of Human Rights, including at least: Smith v U.S., IACHR Case 12,562 (2010), ˂www.cidh.org/annualrep/2010eng/USPU12562EN.DOC˃; Advisory Opinion OC18/03, Legal Status and Rights of Undocumented Migrants, Inter Am. Ct. H.R. (17 Sept 2003), ˂www.cortei dh.or.cr/docs/opiniones/seriea_18_ing.pdf˃. See Lyon (2004); Russo (2011).

  17. 17.

    This part of Emma Lazarus’s poem, The New Colossus, is posted on a wall at the Statue of Liberty.

  18. 18.

    The cartoon can be seen at <https://americanhistory.si.edu/collections/search/object/nmah_509530>.

  19. 19.

    Haas (2013). The figures in the text are from pages 74–76.

  20. 20.

    It is not surprising that the totals for 2012 are much higher than those for 2014, because 2012 was a presidential election year. In addition, however, the voter turnout in 2014 was exceptionally low, the lowest since 1942, and those who vote despite generally low turnouts tend to be older and conservative or far right. Further, we find persuasive Mayer (2018), p. 18.

  21. 21.

    This is too complex a topic for in-depth discussion here, but the phenomenon is very widespread and, although at present it strongly favours Republicans, in a few states Democrats have benefitted. See generally Brennan Center for Justice; Levitt’s All about Redistricting, ˂http://redistricting.lls.edu/˃; DOJ’s Redistricting Information, ˂www.justice.gov/crt/about/vot/redistricting.php˃.

  22. 22.

    Other comprehensive bills on immigration have been introduced, such as H.R. 6136, the Border Security and Immigration Reform Act of 2018, but none have been approved though either house of Congress, unlike the 2013 reform act, which was approved in the Senate. H.R. 6136 offered additional money for border security—the wall, as well as biometric passport screening, electronic biometric data matching systems, and a “Tunnel Task Force.” In addition, the diversity lottery program and certain family-based visa categories were to be eliminated. The sweetener in the pot, designed to attract Democratic congressional votes, was the extension of the DACA program and eligibility for permanent residence for some DACA recipients based on a points system. The bill failed in the House eight days after introduction. https://www.congress.gov/bill/115th-congress/housebill/6136?q=%7B%22search%22%3A%5B%22Border+Security+and+Immigration+Reform+Act%2C%22%5D%7D&r=1.

  23. 23.

    The final vote was 68–32, with all 52 Democrats, 14 Republicans and 2 independents in favour.

  24. 24.

    In an interview with CNN on 25 June 2013, the late Senator John McCain said, regarding the ‘border surge’ amendment that secured passage in the Senate of S. 744:

    I think that first of all the legislation concerning beefed up border security removes any validity to the argument that border security is not sufficient. I mean, this is not only sufficient, it is well over sufficient. We’ll be the most militarized border since the fall of the Berlin wall, so that’s why I think this amendment was very important.

    ˂http://edition.cnn.com/TRANSCRIPTS/1306/25/nday.03.html˃. Contrast President Ronald Reagan, also a Republican:

    General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate! Mr. Gorbachev, open this gate! Mr. Gorbachev, tear down this wall!

    Remarks on East West Relations at the Brandenburg Gate in West Berlin, 12 June 1987, ˂www.reagan.utexas.edu/archives/speeches/1987/061287d.htm˃.

  25. 25.

    Linda: ‘What, no alligators’? Peter: ‘Military contractors don’t make alligators.’ Obviously, we hope most readers will realize that in 2014 we meant this as a joke aimed at the Border Security, Economic Opportunity, and Immigration Modernization Act. However, on 1 October 2019, the New York Times reported:

    Privately, the president had often talked about fortifying a border wall with a water-filled trench, stocked with snakes or alligators, prompting aides to seek a cost estimate. He wanted the wall electrified, with spikes on top that could pierce human flesh. After publicly suggesting that soldiers shoot migrants if they threw rocks, the president backed off when his staff told him that was illegal. But later in a meeting, aides recalled, he suggested that they shoot migrants in the legs to slow them down. That’s not allowed either, they told him. <https://www.nytimes.com/2019/10/01/us/politics/trump-border-wars.html>.

  26. 26.

    Abbreviations: CBP = Customs and Border Protection; DHS = Department of Homeland Security; DOJ = Department of Justice; ICE = Immigration and Customs Enforcement; USCIS = U.S. Citizenship and Immigration Services.

  27. 27.

    For scale: the FY2013 budget of CBP was about $12 billion; ICE $6 billion; and USCIS $3 billion.

  28. 28.

    See Lipton and Sengupta (2013), describing efforts by military contractors Raytheon, Lockheed Martin, General Dynamics, Northrup Grumman, General Atomics and others to obtain border security business, such as radar, long range camera systems, reconnaissance drones and automated tracking systems. Similarly, Pringle (2013). ˂www.theatlantic.com/national/archive/2013/08/thewinnersinimmigrationcontrolprivateprisons/279128/˃ Further to this belief, not only had the battle against ISIS expanded, but the new Secretary of Defence, Ashton Carter, had also indicated that the date for the withdrawal of US troops, previously extended from Dec 2014 to 2016 and 2017, might be further extended. See Hanna and Ellis (2015).

  29. 29.

    See, for example, this statement by the Chairman of the House Judiciary Committee: Goodlatte (2013).

  30. 30.

    Five bills on immigration (of over 90 filed) were reported out of committee I n the House while the 113th Congress was in office. See https://www.govtrack.us/congress/bills/subjects/immigration/6206, which describes 396 bills in the 116th Congress alone.

  31. 31.

    See Parker (2015).

    For more recent developments see: https://www.ncsl.org/research/immigration/state-laws-related-to-immigration-and-immigrants.aspx.

  32. 32.

    Fragomen Jr et al. (2013) (now semi-annual) includes a state-by-state analysis of the laws of 30 states.

  33. 33.

    ˂www.ncsl.org/issuesresearch/immig/statelawsrelatedtoimmigrationandimmigrants.aspx˃. Since 2014, the number enacted as state registration has varied from 98 laws in 2016 to a high of 216 laws in 2015; with an emphasis on sanctuary polices, in-state university tuition, occupational licensing, and refugees. <https://www.ncsl.org/research/immigration/state-laws-related-to-immigration-and-immigrants.aspx>.

  34. 34.

    Arizona v U.S. 667 U.S. 387 (2012).

  35. 35.

    Chamber of Commerce v Whiting 563 U.S. 582 (2011).

  36. 36.

    Assembly Bill No. 1024.

  37. 37.

    See Foley (2011) and (2012).

  38. 38.

    Connecticut Public Act No. 13155. As of 16 April 2019, the movement has spread to several other states, now including California, Colorado, New Jersey, New Mexico, Oregon, and Vermont. Numerous counties and cities within the following states are also participants in the movement: Connecticut, Florida, Georgia, Iowa, Kansas, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, North Carolina, Ohio, Pennsylvania, Rhode Island, and Virginia. <https://cis.org/Map-Sanctuary-Cities-Counties-and-States> and <https://www.nbcnews.com/politics/immigration/crackdown-sanctuary-cities-gives-birth-freedom-cities-n909606>.

  39. 39.

    State of the Union address as reported by The New York Times, 12 Feb. 2013.

  40. 40.

    See notes 46–47 below and the accompanying text.

  41. 41.

    Chinese Exclusion Act of 1882, 22 Stat. 58, repealed by Act of 17 Dec 1943, 57 Stat. 600. Chinese had already been denied naturalization, beginning in 1870.

  42. 42.

    Immigration Act of 1917, 39 Stat. 874, adopted over President Wilson’s veto.

  43. 43.

    Quota Act of 1921, 42 Stat. 5; Immigration Act of 1924, 43 Stat. 153. This system remained in effect until 1952.

  44. 44.

    P.L. 82-414, 66 Stat. 163.

  45. 45.

    P.L. 89-236, 79 Stat. 91.

  46. 46.

    There was an additional limit of 20,000 for each Eastern Hemisphere country, but no country limits for the Western Hemisphere.

  47. 47.

    The former Immigration and Naturalization Service, whose functions were divided among USCIS, ICE and CBP in 2003.

  48. 48.

    Reimers (1992), pp. 207 and 208.

  49. 49.

    P.L. 94-571, 90 Stat. 2703.

  50. 50.

    P.L. 96-212, 94 Stat. 102.

  51. 51.

    ‘By 1979, an estimated 1.7 million unauthorized aliens resided in the United States, including 1.4 million from Mexico’. Rosenblum et al. (2012) (citing an earlier study).

  52. 52.

    See https://data.census.gov/cedsci/table?q=Mexican%202018&hidePreview=false&tid=ACSST1Y2018.S0506&y=2018&vintage=2018.

  53. 53.

    See Zong and Batalova (2014), p. 12 and sources cited therein.

  54. 54.

    Knoema Corp., ‘Mexico -Net Migration Rate -0.49’ (based on data for 1950-2017) <https://knoema.com/atlas/Mexico/topics/Demographics/Population/Net-migration-rate>; Pew Research Center (2015).

  55. 55.

    ‘Ley de Migración’ (2011) ˂http://dof.gob.mx/nota_detalle.php?codigo=5190774&fecha=25/05/2011˃.

  56. 56.

    On the question of rebalancing, see: https://www.migrationpolicy.org/article/protection-and-reintegration-mexico-reforms-migration-agenda, and on the challenges to it: https://www.migrationpolicy.org/article/protection-and-reintegration-mexico-reforms-migration-agenda.

  57. 57.

    The federal fiscal year begins 1 Oct of the preceding calendar year.

  58. 58.

    I.e., eligible relatives other than US citizens’ spouses, unmarried children (under 21), and parents.

  59. 59.

    Department of State, Visa Bulletin for Oct 2018, ˂https://travel.state.gov/content/visas/english/lawandpolicy/bulletin/2015/visabulletinformarch2015.html˃.

  60. 60.

    But under the Child Citizenship Act of 2000, P.L. 106-395, 114 Stat. 1631, a child under the age of eighteen automatically, without a separate application, may become a citizen upon his admission to the US as an LPR [legal permanent resident] if that child has at least one parent who is a citizen and has legal custody of that child. Also, a natural or adopted child residing in the US as an LPR automatically becomes a citizen if under eighteen and in the custody of a parent when the latter is naturalized. 8 U.S.C. section 320.

  61. 61.

    Based on comparison to Department of State, Visa Bulletin for Sept 2018, ˂http://travel.state.gov/content/visas/english/lawandpolicy/bulletin.html˃.

  62. 62.

    Based on comparison to Department of State, Visa Bulletin for February 2015, ˂http://travel.state.gov/content/visas/english/lawandpolicy/bulletin.html˃.

  63. 63.

    See generally Bergeron (2013).

  64. 64.

    A key exception is asylum, for which, until very recently, by far the greatest number has been from China. See n 172 below and the accompanying text.

  65. 65.

    All figures for FY2012 in this and the two following sentences are based on U.S. Census Bureau, The Foreign-Born Population in the United States: 2010, at 2 (May 2012) ˂www.census.gov/prod/2012pubs/acs19.pdf˃. For data on the foreign born by state of residence, see Migration Policy Institute, 2011 American Community Survey and Census Data on the Foreign Born by State ˂www.migrationinformation.org/datahub/acscensus.cfm˃, which also uses U.S. Census Bureau data. It should come as no surprise that by far the largest number was in California, with 10,195,057. The next five were New York, 4,317,715; Texas, 4,201,675; Florida, 3,702,627; New Jersey, 1,893,186; and Illinois, 1,798,815. No other state reached one million.

  66. 66.

    General report from Census Bureau on foreign born from all countries: Grieco et al. (2012).

  67. 67.

    See Hoefer et al. (2012).

  68. 68.

    <www.nytimes.com/interact/2017/03/06/us/politics/undocumented-illegal-immigrants.html>.

  69. 69.

    On recent developments at ICE, see Foer (2018).

  70. 70.

    Sources: ˂www.cbp.gov/linkhandler/cgov/border_security/border_patrol/usbp_statistics/usbp_fy12_stats/appr_from_mexico.ctt/appr_from_mexico.pdf˃; ˂www.cbp.gov/linkhandler/cgov/border_security/border_patrol/usbp_statistics/usbp_fy12_stats/appr_otm.ctt/appr_otm.pdf˃.

    For 2017 figures, see <www.ice.gov/statistics>.

  71. 71.

    See, more recently, https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2013-tables, which repeats the 74% figure, but adds:

    They declined 36 per cent in the District of Arizona, 13 per cent in the Western District of Texas, and 11 per cent in the Southern District of California. Immigration filings grew 25 per cent in the District of New Mexico and 10 per cent in the Southern District of Texas.

  72. 72.

    Although there were no Mexicans among the 9/11 terrorists, none of the perpetrators entered from Mexico, and all of them had entered the US lawfully.

  73. 73.

    <www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2018>.

  74. 74.

    But excesses both by prosecutors and by some of the lower federal courts have been distressingly frequent. See Brink (2012); National Immigration Forum (2010). On the other hand, H.R. 2278, the ‘SAFE Act’, would have made it a crime for an alien to be unlawfully present and would have permitted states to arrest and detain people on a suspicion that they were deportable.

  75. 75.

    Padilla v Kentucky 559 U.S. 356 (2010) (citations omitted). This appears to be the most recent Supreme Court case that specifically addresses the criminalization of the undocumented alien. Other cases have recently been decided by the Supreme Court, though they deal with specific issues of custody for an alien already found guilty of criminal laws and for those aliens requesting cancellation of removal.

  76. 76.

    But some appellate courts routinely affirm convictions despite the judge’s failure to warn. People v Peque 22 N.Y.3d 168 (2013), changed that for New York.

  77. 77.

    ‘[A]n agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.’ Heckler v Chaney 470 U.S. 821, 831 (1985).

  78. 78.

    Civil No. B14254 (S.D. Tex. 16 Feb. 2015). See fns 193–200 below and accompanying text.

  79. 79.

    USCIS, ICE, and CBP, as well as DHS, the executive branch charged with enforcing the Immigration and Nationality Act.

  80. 80.

    For example, DACA program, discussed below, Sect. 8.1.

  81. 81.

    See generally Kurzban Jr (2018), fn 3, at 256.

  82. 82.

    See Morton (2011). The previous standard was whether or not a substantial federal interest was involved. Meissner (2000).

  83. 83.

    See https://www.ice.gov/doclib/foia/prosecutorial-discretion/service-exercise-pd.pdf.

  84. 84.

    See fn 18, above.

  85. 85.

    ‘Next Steps in the Implementation of the Prosecutorial Discretion Memorandum and the August 18th Announcement on Immigration Enforcement Priorities’ ˂www.ice.gov/doclib/about/offices/ero/pdf/prosdiscretionnextsteps.pdf˃.

  86. 86.

    See Camayd-Freixas (2013); Lee (2013).

  87. 87.

    Businesses are fined $1000 per worker and the employee must be fired.

  88. 88.

    See Secret and Rashbaum (2013).

  89. 89.

    <https://www.bloomberg.com/news/features/2018-11-09/7-eleven-is-at-war-with-its-own-franchisees-over-ice-raids>, and <https://www.eater.com/2018/11/9/18078868/7-eleven-trump-immigration-raids-franchise-owners-retaliation>.

  90. 90.

    See Sabaté (2013). ˂http://abcnews.go.com/ABC_Univision/News/icehomeraid/story?id=18896252&singlePage=true˃.

  91. 91.

    Pursuant to ‘Operation Return to Sender’. See Bernstein (2007).

  92. 92.

    Aguilar v. Immigration & Customs Enforcement Division of Department of Homeland Security, No. 07 Civ. 8224 (KBF), S.D.N.Y.

  93. 93.

    See ˂www.courthousenews.com/2013/04/05/icesett.pdf˃ (Stipulation and Order of Dismissal and Settlement).

  94. 94.

    See Semple (2013).

  95. 95.

    Foucault’s term (contreconduite); for an English version, see Foucault (2007), p. 201. See Inda (2011). The details are not the same, but large-scale counter-conduct against anti-migration laws has occurred also in, for example, Belgium, France, Netherlands, Spain, U.K.

  96. 96.

    18 U.S.C. section 1028A. In Flores Figueroa, the prosecutor sought to satisfy the requirement of a relationship to an enumerated felony violation by charging the defendant also with entering the US without inspection, 8 U.S.C. section 1325(a) (not a felony), and misusing immigration documents, 18 U.S.C. Section 1546(a) (a felony). Flores Figueroa v United States 556 U.S. 646 (2009).

  97. 97.

    For a persuasive argument that the Supreme Court’s approach in Flores Figueroa, which the author describes as applying the mens rea term in a statute to every subsequent element of the offense, should be applied more broadly, see Traps (2012). For example, at 652–655, Mr. Traps urges that the decision of the Court of Appeals in United States v Flores Garcia, 198 F.3d 1119 (9th Cir. 2000), is inconsistent with Flores Figueroa and therefore a doubtful authority. In Flores Garcia, the court considered 8 U.S.C. section 1327:

    Any person who knowingly aids or assists any alien inadmissible under section 1182(a)(2) (insofar as an alien inadmissible under such section has been convicted of an aggravated felony) . . . to enter the United States, or who connives or conspires with any person or persons to allow, procure, or permit any such alien to enter the United States, shall be fined . . . , or imprisoned not more than 10 years, or both.

    The court found that the defendant had ‘a complete lack of knowledge concerning the alien’s felony record’, but affirmed his conviction, finding that ‘the defendant’s knowledge of an alien’s prior felony conviction is not an element of section 132’. Flores Garcia at 1121.

  98. 98.

    Protests have continued since. In June 2018 protests were organized in many cities across the U.S., protesting the Trump administration’s policies of family separation, family detention, and the zero-tolerance policy. https://www.cnn.com/2018/06/30/us/june-30-immigration-protests/index.html; https://www.npr.org/2018/06/30/624950726/protesters-across-the-country-rally-against-trumps-immigration-policies.

    Smaller protests have erupted against the planned closing of temporary protected status for aliens of certain countries. <https://www.washingtonpost.com/local/hundreds-protest-at-white-house-to-support-immigrants-with-temporary-protected-status/2019/02/12/7a4757f8-2e34-11e9-813a-0ab2f17e305b_story.html?utm_term=.659ba089bb33>.

  99. 99.

    Bernstein (2006), noting the key role of ‘the Roman Catholic Church, lending organizational muscle to a spreading network of grassroots coalitions.’

  100. 100.

    Swarns (2006).

  101. 101.

    Archibold (2006).

  102. 102.

    See Feere (2010). Ireland recently debated a variation of birthright citizenship. <https://www.nytimes.com/2018/11/24/world/europe/ireland-birthright-citizenship.html>.

  103. 103.

    Although it does not approach the absolute character of its jus soli, the US also has a strong version of jus sanguinis for acquisition of citizenship by birth outside the US if at least one parent is a citizen. Caution: this is not a constitutional rule and Congress has amended it frequently; in general, the governing statute is that in force at the time of the would-be citizen’s birth. See 8 U.S.C. sections 1401(c), (d), (e), (g), (h) and 1409; 8 U.S.C. section 1431 (Child Citizenship Act of 2000); see also 8 U.S.C. section 1408. Note also the very generous special rules for certification of citizenship for many children under eighteen who do not satisfy the general rules. 8 U.S.C. 1433; 8 C.F.R. 322. See generally Kurzban Jr (2018), p. 2149.

  104. 104.

    8 C.F.R. section 215.1(e). For the history of this provision, see Kurzban Jr (2018), p. 1621.

  105. 105.

    In the last two Presidential elections, ‘birthers’ asserted that Barack Obama could not be a ‘natural-born citizen’, U.S. Const. Article II Section 1. See ˂http://topics.nytimes.com/top/reference/timestopics/subjects/b/birther_movement/index.html˃. One result is bills introduced in Congress to limit citizenship by birth to children with at least one parent who is a citizen, LPR, or active member of the armed forces. In late October 2018 President Trump threatened to issue an Executive Order in an attempt to end birthright citizenship in the United States, a move clearly in violation of the 14th Amendment. <https://www.nytimes.com/2018/10/30/us/politics/trump-birthright-citizenship.html>.

  106. 106.

    The requirement ‘and subject to the jurisdiction thereof’ excludes the US-born children of foreign diplomats. United States v Wong Kim Ark 169 U.S. 649, 682 (1898).

  107. 107.

    Contrast, for example, the German rule, even as liberalised in 2000, requiring that at least one parent have been living in Germany for eight years and be a lawful permanent resident (ein unbefristetes Aufenthaltsrecht . . . besitzt). Staatsangehörigkeitsgesetz 4(3).

  108. 108.

    Contrast, for example, African Commission on Human and Peoples’ Rights, Res. 234 on the Right to Nationality (2013), which calls upon African States to recognise ‘that all children have the right to the nationality of the State where they were born if they would otherwise be stateless . . . ’. ˂www.achpr.org/sessions/53rd/resolutions/234/˃. The recent ruling of the Dominican Republic’s Tribunal Constitucional, Sentencia TC016813, 27 Sept 2013, that the appellant ‘si bien nació en el territorio nacional, es hija de ciudadanos extranjeros en tránsito, lo cual la priva del derecho al otorgamiento de la nacionalidad dominicana’ (at 98), has been reported to render the DR-born children of illegal Haïtian agricultural workers stateless, but the TC found that they are citizens of Haïti under Article 11.2 of the latter’s 1983 constitution (at 77).

  109. 109.

    8 U.S.C. 1401(f). This is somewhat more favourable to the child than the German rule, which does not require that non-citizenship be proved before age twenty-one. Staatsangehörigkeitsgesetz 4(2).

  110. 110.

    Chang (2013).

  111. 111.

    Other small categories totalled 42,971 or 3.8% in FY2017. Sources: ˂www.dhs.gov/yearbookimmigrationstatistics2012legalpermanentresidents˃; ˂www.migrationinformation.org/Feature/display.cfm?ID=973˃.

  112. 112.

    All statistics on LPR are from <www.dha.gov/immigration-statiscs/yearbook/2013>.

  113. 113.

    OECD, International Migration Outlook 2012 (OECD 2012) at 33; the US details are 73.1% for 2009, 74.1% for 2010 (at 283), ˂https://doi.org/10.1787/migr_outlook2012en˃, which also reports Australia 54.1%, 58.0% (at 211); Canada 61.3%, 60.8% (at 219); New Zealand 60.8%, 60.0% (at 257); Russian Federation 64.4%, 52.3% (at 266). Compare France 42.8%, 42.9% (at 231); Germany 23.9%, 24.7% (at 232); U.K. 28.6%, 26.4% (at 281).

    Current numbers are not yet available from the OECD, but here is a more recent summary:

    The United States accounted for close to half of all family migrants (46%) moving to the OECD area in 2015. However, family migration flows to the United States declined in recent years, driving the overall decline in these flows to the OECD area. Settlement countries (United States, Canada, Australia and New Zealand) account for about two-thirds of the family migration inflows to the OECD.

    OECD (2017), p. 108.

  114. 114.

    See generally Kurzban Jr (2018), pp. 1283–1422.

  115. 115.

    <https://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet>.

  116. 116.

    1 U.S.C. Section 7. Section 2, 28 U.S.C. Section 1738C, provides that no state, territory or Indian tribe need recognise any other’s law recognizing same-sex marriage.

  117. 117.

    However, USCIS has recognised postoperative transgender marriages. See Matter of LovoLara, I&N Dec 746 (BIA 2005); Kurzban Jr (2018), p. 1324. See also Schroth et al. (2018), which includes a section on immigration law.

  118. 118.

    See, for example, Adams v Howerton 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982).

  119. 119.

    570 U.S. 744 (2013). See Levy (2013) (30 Sept), p. 54.

  120. 120.

    This suggests that the numerous ‘mini-DOMAs’ under state law are also unconstitutional, but the majority’s emphasis on federalism leaves some doubt that it would so hold.

  121. 121.

    ‘Treasury and IRS Announce that all Legal Same-sex Marriages will be Recognized for Federal Tax Purposes; Ruling Provides Certainty, Benefits and Protections under Federal Tax Law for Same-sex Married Couples’ (IR201372, 29 Aug. 2013); ˂www.irs.gov/uac/Newsroom/TreasuryandIRSAnnounceThatAllLegalSameSexMarriagesWillBeRecognizedForFederalTaxPurposes;RulingProvidesCertainty,BenefitsandProtectionsUnderFederalTaxLawforSameSexMarriedCoupl˃.

  122. 122.

    576 U.S. 644 (2015). Windsor and Obergefell are discussed more generally in Schroth et al. (2018).

  123. 123.

    USCIS had already issued at least one green card to the same sex spouse of a US citizen by the end of June. See Preston (2013).

  124. 124.

    A large majority of the states now recognises same-sex marriage. A useful summary, regularly updated, is National Conference of State Legislatures, ‘Same-sex Marriage Laws’ ˂www.ncsl.org/research/humanservices/samesexmarriagelaws.aspx˃.

    Until a statute of the Netherlands, adopted in 2001, no country expressly allowed same-sex marriage. Some of the other countries that began allowing same-sex marriage several years ago are Argentina, Australia, Belgium, part or all of Brazil (part, going by state statutes; all, going by the notice of the ruling of the Plenário do Conselho Nacional de Justiça), 14 May 2013; Canada, Colombia, Denmark, Finland, France, Germany, Greenland, Iceland, Ireland, Luxembourg, Malta, part of Mexico, Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, United Kingdom, the United States, Uruguay.

    Some sources say there are now (2019) twenty-nine countries recognising same-sex marriage, most recently Costa Rica. See https://www.businessinsider.com/where-is-same-sex-marriage-legal-world-2017-11. Also, some other countries provide some sort of protection to same-sex couples but do not recognise marriage.

  125. 125.

    Nevertheless, some Immigration Judges in New York, whose state law recognises marriages performed by religious officials despite the parties’ failure to obtain a marriage license, have refused to recognise such religious marriages and insisted that a civil ceremony be performed before the marriage would be recognised for purposes of immigration law.

  126. 126.

    USCIS, ‘Same Sex Marriages: Frequently Asked Questions’ (2 Aug. 2013) ˂www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=2543215c310af310VgnVCM100000082ca60aRCRD&vgnextchannel=2543215c310af310VgnVCM100000082ca60aRCRD˃.

  127. 127.

    Department of State, ‘U.S. Visas for Same-Sex Spouses’ (7 Aug, 2013), ˂http://travel.state.gov/visa/frvi/frvi_6036.html˃. Similarly, ICE issued a guidance memo authorizing designated school officials to issue Form I20, ‘Certificate of Eligibility for Nonimmigrant Status’, to the same sex spouse of a non-immigrant student (F1 or M1) seeking admission as the student’s dependent (F2 or M2), ‘Guidance on Form I20 Issuance Subsequent to the June 26, 2013, Supreme Court Ruling on the Defense of Marriage Act’, No. 130801, 5 August 2013. See https://www.uscis.gov/archive/archive-laws/implementation-supreme-court-ruling-defense-marriage-act-0. Generally, visas for the unmarried same sex partners of diplomats or international-organization employees have not required the existence of a legal marriage, because the marriage may not permissible in their home country. However, on 2 Oct 2018 the Trump Administration announced that foreign diplomats and United Nations workers had until the end of the month to get married or leave the country. <www.usatoday.com/story/news/world/2018/10/02/trump-...visas-same-sex-partners-diplomats-un-employees/1495218002/>.

  128. 128.

    https://travel.state.gov/content/travel/en/international-travel/while-abroad/marriage-abroad.html.

  129. 129.

    See Lipton and Sengupta (2013).

  130. 130.

    8 U.S.C. section 1101(a)(15)(H).

  131. 131.

    On the H1B FY2021 cap season, see <https://www.uscis.gov/news/news-releases/uscis-reaches-fy-2018-h-1b-cap> and <www.uscis.gov/news/news-releases/fy-2021-h-1b-cap-petitians-may-be-filed-april-1>.

  132. 132.

    <https://www.uscis.gov/news/alerts/USCIS-annoiunces-h-1b-registration-account-creation>.

  133. 133.

    8 U.S.C. Section 1101(a)(15)(E).

  134. 134.

    While many countries have treaties based on both the trader and the investor provisions of the law, there are exceptions. For example, Israel had signed a treaty of commerce and trade for E1 purposes for many years, but passed legislation necessary for the E2 treaty investor visa only in 2019.

  135. 135.

    8 U.S.C. Section 1101(a)(15)(L).

  136. 136.

    For general information and applications, see ˂www.globalentry.gov˃.

  137. 137.

    See 78 Fed. Reg. 48706 (9 Aug. 2013).

  138. 138.

    Science Technology Engineering Mathematics.

  139. 139.

    See Lipton and Sengupta (2013); but see Salzman et al. (2013), which concludes, at 26–27:

    Workers from countries with low wages and limited career opportunities will find the U.S. IT labor market attractive even when wages are too low and career opportunities too limited to increase the IT supply from domestic students and workers. In other words, the data suggest that current U.S. immigration policies that facilitate large flows of guestworkers appear to provide firms with access to labor that will be in plentiful supply at wages that are too low to induce a significantly increased supply from the domestic workforce.

  140. 140.

    See ˂www.foreignlaborcert.doleta.gov/h2b.cfm˃; ˂www.foreignlaborcert.doleta.gov/pdf/h_2b_temp_non_agricultural_visa.pdf˃.

  141. 141.

    See ˂www.foreignlaborcert.doleta.gov/pdf/h_2b_temp_non_agricultural_visa.pdf˃. See also Comité de Apoyo a las Trabajadores Agrícolas v Solis, 2:09cv00240LDD (E.D.Pa. 21 March 2013) (permanent injunction against continued use by Labor Department of 2008 rules for certain prevailing wage determinations).

  142. 142.

    See Parker and Greenhouse (2013).

  143. 143.

    Supplying Knowledge based Immigrants and Lifting Levels of STEM Visas Act.

  144. 144.

    This visa would require a $500,000 investment and the creation of five fulltime jobs for US workers. The current investment-based immigrant visa requires the investment of the applicant’s own funds, which must be ‘at risk’. 8 U.S.C. 1153(b)(5).

  145. 145.

    This would permit E2 non-immigrant treaty investors who have maintained their status for 10 years and created jobs for five US workers to apply for permanent residence for the first time based on their investment.

  146. 146.

    55,000 visas. See ˂http://fpc.state.gov/198409.htm˃. The diversity lottery is for natives of countries with low rates of immigration to the US. For FY2015, for the first time, Nigeria has a sufficient immigration rate to be excluded from the list of eligible countries.

  147. 147.

    65,000 visas. See ˂http://travel.state.gov/visa/bulletin˃.

  148. 148.

    Verification of an employee’s right to work in the United States.

  149. 149.

    ‘E-Verify’, 8 U.S.C. section 1324(a).

  150. 150.

    www.fragomen.com/insights/alerts/new-executive-order-calls-h-1b-reforms-and-increased-enforcement.

  151. 151.

    <www.fragomen.com/insights/alerts/report-confirms-significant-incease-h-1b-and-l-1-rfe-and-denial-rates>. Petitions for H-1B visas are filed during the first five business days in April for a visa start date of 1 October—the start of the next fiscal year.

  152. 152.

    <https://www.forbes.com/sites/stuartanderson/2019/08/08/latest-uscis-data-show-increase-in-denials-for-new-h-1b-visas/#3a5faec97cc4>.

  153. 153.

    Climate Change Report (2014).

  154. 154.

    A strong example is Cafaro (2015).

  155. 155.

    Ibid at 194–195 (italics in original).

  156. 156.

    We think it likely that the points made in this section would continue to be accurate, at least in large part, if the US economy were to weaken.

  157. 157.

    For example, Collins et al. (1997).

  158. 158.

    Ottaviano et al. (2013). See also Cowan (2010); Ferreira (2013).

  159. 159.

    Ottaviano (2013), p. 1955.

  160. 160.

    Congressional Budget Office (2013) ‘Cost Estimate: S. 744: Border Security, Economic Opportunity, and Immigration Modernization Act’ (18 June).

    ˂www.cbo.gov/sites/default/files/cbofiles/attachments/s744.pdf˃. See also Congressional Budget Office (2013 ‘The Economic Impact of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act’ (June) ˂www.cbo.gov/sites/default/files/cbofiles/attachments/44346Immigration.pdf˃; Montgomery (2013) (18 June).

  161. 161.

    Letter from Stephen C. Goss, Chief Actuary, Social Security Administration, to Senator Marco Rubio (8 May 2013) ˂www.washingtonpost.com/r/20102019/WashingtonPost/2013/05/08/EditorialOpinion/Graphics/Rubio_S744%20ImmigrationBill_Letter%20PrelimEsts%202013_0508.pdf˃.

  162. 162.

    American Enterprise Institute for Public Policy Research (2011). Recent figures continue to support this assertion. Immigrants in the U.S. during 2014 paid more than $328 billion in state, local, and federal taxes, with immigrants in California and New York paying almost 25% of the tax revenue. Legalization of undocumented aliens is estimated to increase tax revenue by $2.1 billion. <https://immigrationforum.org/article/immigrants-as-economic-contributors-immigrant-tax-contributions-and-spending-power/>, and <https://www.americanimmigrationcouncil.org/research/adding-billions-tax-dollars-paid-undocumented-immigrants>.

  163. 163.

    The AAN report and Widget is based on Regional Economic Models, Inc. (2013) ‘Key Components of Immigration Reform: an Analysis of the Economic Effects of Creating a Pathway to Legal Status, Expanding High Skilled Visas, & Reforming Lesser Skilled Visas’ (17 July). ˂www.remi.com/download/Key%20Components%20of%20Immigration%20Reform.pdf˃.

  164. 164.

    In a press statement the same day, Mr. Kerry said,

    This year, the crisis in Syria has led to more than 4.25 million Syrians being displaced internally, more than 1.5 million becoming refugees, and millions more caught up in the unspeakable violence.

    ˂www.state.gov/secretary/remarks/2013/06/210929.htm˃.

  165. 165.

    On 3 Sept 2013, the UNHCR announced its estimate that ‘the number of Syrians registered as refugees or awaiting registration as refugees had passed the 2 million mark, or about 10 per cent of the population’. Press release, ‘UNHCR and host countries to push for greater international help on Syrian refugees’ (2012) 4 Sept ˂www.unhcr.org/522756779.html˃. As of May 2019, the number of Syrian refuges exceeds 5.6 million. <https://data2.unhcr.org/en/situations/syria#_ga=2.2921652.503959921.1559514456-1404936761.1559514456>. See more recent numbers: <https://data2.unhcr.org/en/situations/syria> and

    <https://www.unhcr.org/syria-emergency.html>.

  166. 166.

    See fn 156.

    The United States is the single largest donor to refugee relief efforts around the world, working to care for refugees displaced by other conflicts, including in the Central African Republic, the Democratic Republic of the Congo, Mali, and Sudan, and we have helped address protracted refugee situations around the world, including those affecting Afghans, Burmese, Columbians, and Somalis.

  167. 167.

    Remarks at the World Refugee Day Event, <www.state.gov/secretary/remarks/2013/06/210935.htm˃.

  168. 168.

    In response to the U. S. Department of State’s 17 Sept 2018 reduction of the refugee cap to 30,000, the lowest since the Refugee Act of 1980. <www.usatoday.com/story/news/world/2018/09/17/state-aps-refugee-admisions-lowest-point-ever-30-000/1339114002>.

  169. 169.

    John Kerry, press statement, see ˂www.state.gov/secretary/remarks/2013/06/210929.htm˃, above n 156:

    The United States has a proud tradition of welcoming those fleeing violence and persecution, including more than 58,000 refugees from 66 countries who were resettled to the United States in fiscal year 2012 and the nearly 70,000 refugees who are expected to arrive in the United States in the coming fiscal year to rebuild their lives. Their presence makes our country more diverse, our culture richer, and our national character stronger.

  170. 170.

    There are also large numbers of Syrian refugees in Iraq and there have been large numbers of Iraqi refugees in Syria, but those situations appear to be changing rapidly. Sudan has only recently overtaken Afghanistan as the world’s second largest source of refugees. <www.data.worldbank.org/indicator/sm.pop.refg.or>.

  171. 171.

    This is largely a matter of proximity: Pakistan hosts the third largest number of refugees in the world, after Jordan and Turkey. As of 2016, developing countries hosted on average 56% of the world’s refugees. <www.aljazeera.com/news/2016/ten-countries-host-world-refugees-report-161004042014076.html>.

  172. 172.

    See generally Bruno (2013). See also <www.dhs.gov/immigration-statistics/yearbook/2016>.

  173. 173.

    See https://eu.usatoday.com/story/news/world/2018/09/17/state-d…aps-refugee-admisions-lowest-point-ever-30-000/1339114002.

  174. 174.

    <https://www.npr.org/2020/03/11/814582798/U-S-supreme-court-allows-remain-in-mexico-program-to-continue>.

  175. 175.

    <https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols>.

  176. 176.

    Trump v. Hawaii, 585 U.S. ___ (No. 17-965) (2018).

  177. 177.

    These and related topics are covered in detail in Kurzban Jr (2018), pp. 715–992.

  178. 178.

    As in Europe, migrant interdiction by border protection agencies is a serious and increasing barrier to people who might otherwise be successful applicants for asylum and related protections. See Kerwin (2011).

  179. 179.

    Under the Canada–U.S. Safe Third Country Agreement (29 December 2004), most aliens who enter Canada to seek asylum must make their petitions in Canada instead of continuing to the US and requesting relief there (and vice versa). There are exceptions for minors; aliens with US-citizen, LPR or asylee relatives in the US; and those who have family with pending asylum cases in the US, 8 C.F.R. 208.4(a)(6). See https://www.cbsa-asfc.gc.ca/agency-agence/stca-etps-eng.html. Cf. E.U. Dublin Convention of 1990 and ‘Dublin II’ Regulation 2003/343/CE; ECJ, Joined Cases C411/10 and C493/10, N. S. v Secretary of State for the Home & M.E. v Refugee Applications Commissioner (21 Dec 2011), ILIB 6 Jan 2012.

    In November 2018, President Trump demanded that asylum seekers seeking to enter the United States from Mexico remain in Mexico pending the adjudication of their asylum requests. <https://www.reuters.com/article/us-usa-immigration-asylum-analysis-idUSKCN1NZ18E>. Formidable difficulties would present themselves to these asylum seekers, including the time it takes for adjudication (an asylum hearing may take up to 5 years in the US), the difficulty in obtaining US-admitted attorneys in Mexico, the acquisition of evidence, and the availability of witnesses. Mexico has yet to consent to applicants remaining in Mexico for such an extended period of time and questions arise concerning Mexico’s ability or willingness to provide for these applicants. Additionally, President Trump has threatened to deny asylum to those who entered the US outside a designated port of entry or without a visa, using INA Section 212(f) as a cudgel to override clear statutory directives which permit asylum seekers to apply for protection despite illegal entry. <http://blog.cyrusmehta.com/2018/11/trump-is-not-king-he-cannot-change-the-us-asylum-system-through-executive-orders.html>.

  180. 180.

    In 1996, the Illegal Immigration Reform & Immigrant Responsibility Act, P.L. 104-208, 601, established a cap of 1000 on asylee adjustments to LPR status of those cases based on family planning policies (typically China). In 2005, the cap was removed.

  181. 181.

    <www.justice.gov/eoir/file/asylum-statistics/download>.

  182. 182.

    Approval for LPR status is mandatory for refugees, but discretionary for asylees. 8 U.S.C. 209.

  183. 183.

    8 U.S.C. section 240A(a).

  184. 184.

    Zhang v Gonzales 426 F.3d 540, 54448 (2nd Cir. 2005).

  185. 185.

    See General Accountability Office, ‘U.S. Asylum System: Significant Variation Existed in Asylum Outcomes across Immigration Courts and Judges’ (Sept 2008) ˂www.gao.gov/new.items/d08940.pdf˃; Preston (2007). There are 54 Immigration Courts and slightly over 200 Immigration Judges.

  186. 186.

    Greater than 85% approval of asylum cases.

  187. 187.

    For a judge by judge listing of each Immigration Judge’s rate see http://trac.syr.edu/immigration/reports/judgereports.

  188. 188.

    Matter of R-A- et al., Int. Dec. 3403 (BIA 1999), Matter of R- A-, 24 I&N Dec 629 (AG 2008).

  189. 189.

    <www.buzzfeednews.com/article/hamedaleaziz/sessions-new-immigration-judges-sympathy>.

  190. 190.

    <www.theguardian.com/us-news/2018/aug/09/sylum-seekers-deported-court-trump-administration-judge>.

  191. 191.

    See 8 C.F.R. 208.16, 1208.16.

  192. 192.

    P.L. 106-386, P.L. 108-193, P.L. 109-162, P.L. 110-457.

  193. 193.

    Diplomacy, targeted financial assistance, and partnership with foreign governments to develop countertrafficking strategies. Recent recipients include Ecuador, India, South Africa, Indonesia, Mexico, Dominican Republic, Philippines, Nigeria, and Eastern Europe. <https://www.state.gov/wp-content/uploads/2020/01/JTIP-Freedom-First-Report-Web-508.pdf>.

  194. 194.

    Executive Order—Strengthening Protections Against Trafficking In Persons In Federal Contracts (25 Sept 2012). See <https://www.energy.gov/management/downloads/executive-order-strengthening-protections-against-trafficking-persons-fe>.

  195. 195.

    <https://www.state.gov/bureaus-offices/under-secretary-for-civilian-security-democracy-and-human-rights/office-to-monitor-and-combat-trafficking-in-persons/>.

  196. 196.

    The ‘T’ visa. 8 U.S.C. section 1101(a)(15)(T). See Kurzban Jr (2018), pp. 1259–1268.

  197. 197.

    The ‘U’ visa. 8 U.S.C. section 1101(a)(15)(U). See Kurzban Jr (2018), pp. 1268–1278.

  198. 198.

    In what is becoming a disturbing pattern, in 2018, the Trump Administration chose to end such protections for approximately 300,000 immigrants from Sudan, Nicaragua, Haiti, and El Salvador. A lawsuit was brought to the U.S. District Court, Northern California, where District Court Judge Edward Chen issued a preliminary injunction against the implementation of this decision. See Ramos v. Nielsen et al 18-cv-10554-EMC (N. Cal. 2018).

  199. 199.

    A related problem is the diaspora of people raised in the US who left, or were deported because they lacked legal status, and now live as foreigners in their ‘native’ countries. See Kanstroom (2012). See also Sherman (2013).

  200. 200.

    Nicholls (2013).

  201. 201.

    Press release, ˂www.dhs.gov/news/2012/06/15/secretary-napolitano-announces-deferred-action-process-young-people-who-are-low˃.

  202. 202.

    Potentially almost as important, but with a different legal basis for the discretion exercised (8 U.S.C. sections 1182(a)(6)(A)(i), 1182(d)(5)(A), 1225(a), and 1255(a), (c)), is the announcement by USCIS that close relatives of military personnel serving on active duty or in reserves and veterans will no longer be required to leave the US to wait for visas, but instead will be ‘paroled in place’. PM6020091 (15 Nov 2013) ˂www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/20131115_Parole_in_Place_Memo_.pdf˃. This has been fully superseded by the USCIS Policy Manual, available at <https://www.uscis.gov/policy-manual>.

  203. 203.

    See ˂www.dhs.gov/blog/2012/08/15/deferredactionchildhoodarrivalswhocanbeconsidered˃.

  204. 204.

    All data in this sentence and the next are from https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/DACA_FY19_Q1_Data.pdf.

  205. 205.

    Batalova et al. (2013).

  206. 206.

    See: https://www.voanews.com/usa/us-politics/75-percent-eligible-daca-recipients-beat-renewal-deadline.

  207. 207.

    See: https://www.americanimmigrationcouncil.org/research/guide-immigration-accountability-executive-action.

  208. 208.

    Ibid.

  209. 209.

    The statute is P.L. 99-603, 100 Stat. 3359. The deferral order for family members is A C Nelson ‘Legalization and Family Fairness’ (21 Oct 1987) available at ˂www.prwatch.org/files/ins_family_fairness_memo_oct_21_1987.pdf˃. Mr. Nelson was Commissioner of the U.S. Immigration & Naturalization Service.

  210. 210.

    See generally Lexington (2015), p. 33.

  211. 211.

    Texas v United States, n 71 above and accompanying text.

  212. 212.

    The original DACA programme was not affected.

  213. 213.

    As well as the cities of New York and Los Angeles.

  214. 214.

    President Obama abdicated his responsibility to uphold the United States Constitution when he attempted to circumvent the laws passed by Congress via executive fiat, and Judge Hanen’s decision rightly stops the President’s overreach in its tracks.

    ˂www.gregabbott.com/govenorabbottstatementexecutiveamnestyruling/˃.

    Ted Cruz, the junior senator from Texas, said, ‘The Texas court decision . . . is a major turning point in the fight to stop Obama’s lawless amnesty.’ ˂www.cruz.senate.gov/?p=press_release&id=2191˃.

  215. 215.

    Justice Scalia passed away in 2016 and his replacement, Neil Gorsuch, was confirmed in 2017.

  216. 216.

    The irony is that DHS is a Republican signature creation. The first Director of Homeland Security, Tom Ridge, was appointed by President Bush on 22 Sept 2001. President Bush proposed the creation of a cabinet agency, the Department of Homeland Security, in June 2002. The House passed the Homeland Security Act, with 207 House Republicans voting ‘yes’ and only ten voting ‘no’; House Democrats voted against the Bill 120 to 88. In the Senate, 90 Senators voted for the bill, while nine Democratic and Independent Senators opposed it. The Homeland Security Act was signed into law by President Bush in November 2002.

  217. 217.

    In this threat to shut down the entire Department of Homeland Security, one is reminded of the situation facing Abraham Lincoln in 1860, when he was running to be the Republican Party’s candidate in the upcoming presidential election. Speaking to a crowd of 1500 curious New Yorkers at Cooper Union on 27 Feb 1860, Lincoln addressed the issue of radical Southerners who threatened to secede if a Republican was elected as President:

    Your purpose, then, plainly stated, is that you will destroy the Government, unless you be allowed to construe and enforce the Constitution as you please, on all points in dispute between you and us. You will rule or ruin in all events. This, plainly stated, is your language . . ..

    In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be thrust upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, ‘Stand and deliver, or I shall kill you, and then you will be a murderer!

    To be sure, what the robber demanded of me – my money – was my own; and I had a clear right to keep it; but it was no more my own than my vote is my own; and the threat of death to me, to extort my money, and the threat of destruction to the Union, to extort my vote, can scarcely be distinguished in principle . . ..’

    Available at ˂www.abrahamlincolnonline.org/lincoln/speeches/cooper.htm˃.

  218. 218.

    All Democrats and 75 Republicans voted to fund the DHS in a clean bill without restrictions on the use of funds for the DACA expansion and DAPA.

  219. 219.

    Far-right efforts to defund government programmes are not limited to immigration programmes. For example, on 4 March 2015, 101 House Republicans voted against continued funding for Amtrak, The National Railroad Passenger Corporation. The Passenger Rail Reform and Investment Act passed nevertheless, with yes votes from 132 Republicans and 184 Democrats.

  220. 220.

    <www.nilc.org/issues/daca/status-current-daca-litigation>.

  221. 221.

    <www.cnn.com/2018/08/31/texas-daca-continues/index.html>.

  222. 222.

    <https://dhs.gov/deferred-action-childhood-arrivals-daca>.

  223. 223.

    Department of Homeland Security v. Regents of University of California, 591 U.S. (2020).

  224. 224.

    Government Accountability Office, ‘Report to Congressional Requesters: Central America: Information on Migration of Unaccompanied Children from El Salvador, Guatemala, and Honduras’ (GAO Report, February 2015) available at ˂www.gao.gov/assets/670/668749.pdf˃. See also <www.cbp.gov/newsroom/stats/sw-border-migration>.

  225. 225.

    Ibid. The GAO describes itself as ‘an independent, nonpartisan agency that works for Congress’. The report was requested by two Republican and three Democratic members of the House of Representatives.

  226. 226.

    On 28 Jan 1997, the Flores Settlement Agreement (available at <https://www.aila.org/infonet/flores-v-reno-settlement-agreement>) was approved by the Ninth Circuit Court of Appeals. This was a class-wide settlement arising from the Supreme Court’s decision in Reno v Flores, 507 U.S. 292 (1993), in which national standards were set regarding the detention, release, treatment and housing of children suspected of illegally entering the United States. See López (2012).

    In October 2014, claims were made against the government that it was violating the terms of the Flores Settlement Agreement with regard to the recent influx of unaccompanied minors from Central America. Flores v Holder, No. CV 854544 (N.D. Cal.).

  227. 227.

    For a description of the difficulties faced by volunteer, unpaid lawyers trying to help these women and children, see Hilton (2015) (8 Feb), p. 25. The opening line, in large type, is ‘The Obama administration’s draconian policy toward female refugees and their children has sown misery on the border – and pushed volunteer lawyers to the breaking point.’ There is no state-sponsored legal aid for asylum applicants or other individuals facing the federal immigration agencies or Immigration Courts.

  228. 228.

    <https://www.justice.gov/eoir/page/file/1083086/download>. More than 80,000 cases remain pending.

  229. 229.

    See generally, ‘Stop the Horrific Practice of Separating Children from Parents’, <blog.cyrusmehta.com/2018/06/stop-the-horrific-practice-of-separating-children-from-parents.html>.

  230. 230.

    ‘How the Trump Administration Got Comfortable Separating Immigrant Kids from Their Parents’, <www.newyorker.com/news/news-desk/how-the-trump-adminiustration-got-comfortable-separating>.

  231. 231.

    While most were describing the children’s facilities as ‘kids in cages’, a conservative news outlet turned the definition of ‘wall’ on its head and described the contractors as having ‘built walls out of chain-link fences’. <www.theatlantic.com/politics/archive/2018/06/ceci-nest-pas-une-cage/563072>.

  232. 232.

    There are also allegations that parents are being forced to waive their right to apply for asylum in order to be reunited with their children. <www.npr.org/2018/08/23/641315568/parents-were-coerced-to-waive-reunification-rights-with-children-compaint-says>.

    A bill introduced in Congress in June 2018 illustrates common political behaviour of politicians in Washington. The bill is entitled ‘Keep Families Together Act’, but President Trump said about it,

    Today’s Democrats have embraced radical socialism and open borders. If you don’t have borders, you don’t have a country, folks, you don’t have a country. Every single Democrat in the US Senate has signed up for the Open Borders — and it’s a bill! It’s called the Open Borders Bill! What’s going on? And it’s written by — guess who — Dianne Feinstein.

    This is simply untrue, but calculated to upset potential voters, many of whom will believe the President’s statement and correctly consider open borders to be a poor choice for the US or any other country. On the other hand, although all of the Democrats in the Senate supported it, apparently without actually reading it, the bill was poorly drafted: for example, it would prevent the separation of parents from their children even when the parents are arrested for crimes having nothing to do with borders or immigration.

    <https://www.nytimes.com/2018/06/27/us/politics/fast-check-donald-trump-democrats-open-borders.html>

  233. 233.

    On 15 June 2018, the Trump Administration finally acknowledged the practice, which it had previously denied, and issued an FAQ on the Attorney General’s directive to prosecute illegal entrants with ‘Zero Tolerance’ for illegal entry. Frequently Asked Questions: Zero Tolerance Immigration Prosecutions, issued 15 June 2018 by the U.S. Department of Homeland Security.

  234. 234.

    ‘Stop the Horrific Practice of Separating Children from Parents’, <blog.cyrusmehta.com/2018/06/stop-the-horrific-practice-of-separating-children-from-parents.html>.

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  1. Western New England University, Springfield, MA, USA

    Peter W. Schroth

  2. Fragomen, Del Rey, Bernsen & Loewy LLP, New York, NY, USA

    Linda L. Foster

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  1. Law and Anthropology, Max Planck Institute for Social Anthropology, Halle (Saale), Germany

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  2. Université catholique de Louvain, Louvain-La-Neuve, Belgium

    Jean-Yves Carlier

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Schroth, P.W., Foster, L.L. (2022). Beside the Golden Door: Changing Perspectives on Migration and Law in the United States. In: Foblets, MC., Carlier, JY. (eds) Law and Migration in a Changing World. Ius Comparatum - Global Studies in Comparative Law, vol 31. Springer, Cham. https://doi.org/10.1007/978-3-319-99508-3_18

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