Presidential candidate, Julian Castro, just released a comprehensive immigration reform plan which would repeal the provision of US law that makes “illegal entry” into the US a federal crime. Under Castro’s plan, an immigrant who crossed the border would be detained briefly by Border Patrol and, if no red flags are raised, released pending an immigration hearing. Instead of a crime, being in the US without legal status would be considered a civil offense for which the penalty is deportation. Thus, if an immigrant does not qualify for asylum or another form of legal status, they would still be deported. See Dara Lind, Julián Castro wants to radically restrict immigration enforcement, Vox (Apr 2, 2019) https://www.vox.com/2019/4/2/18291584/2020-immigration-democrats-policy-castro-abolish-ice

“Illegal entry” into the US has been a crime since 1929 under Chapter 8, Section 1325 of the US Code, but only in the last 20 or so years has this provision been routinely enforced.   To learn more about US law and policy regarding immigration and border control, take a look at these resources:

U.S. Immigration and Naturalization Laws and Issues: A Documentary History (Michael C LeMay & Elliott Robert Barkan, eds., 1999)

This book compiles 100s of primary documents including court cases and opinion pieces that illuminate the controversies surrounding immigration and nationalization policies throughout US history. The book includes explanatory introductions to assist the reader in understanding the significance of each document.

Margaret S. Orchowski, The Law that Changed the Face of America : the Immigration and Nationality Act of 1965 (2015)

Margaret Orchowski, a journalist and immigration expert, examines how immigration laws have changed over the course of US history into the 21st century in light of globalization, changes in technology, terrorism, the recession and changing attitudes and expectations among younger generations. She also explores the roles that different branches of government and competing interests play in influencing immigration policy.

Ira J. Kurzban et al., Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (16th ed. 2018)

Kurzban’s Immigration Law Sourcebook is intended to be a quick reference tool for practitioners and students that includes federal and administrative cases, regulations, statutes, and agency rulings.

Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (1995)

This book examines the debates surrounding judicial enforcement of the Chinese exclusion laws as well as administrative power and reform of the Bureau of Immigration during a period of heightened nativism in the early 20th century.

Kevin R Johnson & Bernard Trujillo, Immigration Law and the US-Mexico Border: Sí Se Puede (2011)

Johnson and Trujillo review the history of Mexico – US migration patterns, the discrimination against US citizens of Mexican ancestry and policy debates over “illegal” aliens. Their discussion encompasses US immigration law and policy, the migration of labor, state and local regulation, and the contributions of Mexican immigrants to the US economy.

David Brotherton & Philip Kretsedemas, Immigration Policy in the Age of Punishment: Detention, Deportation, and Border Control (2017)

Immigration Policy in the Age of Punishment is an interdisciplinary exploration of immigration policies in America, Canada, and Europe during the Obama and Trump eras, within the context of what the authors refer to as a decades-long “age of punishment.” This book looks at deportations and border enforcement, national policy and jurisprudence, and the prison-to-deportation pipeline in its discussions of immigration laws and their enforcement.

Constructing Immigrant “Illegality”: Critiques, Experiences, and Responses (Cecilia Menjívar & Daniel Kanstroom, eds. 2014)

Constructing Immigrant “Illegality” is a collection of essays from the fields of anthropology, law, political science, religious studies, and sociology that explore the concept of immigrant “illegality,” how immigration law shapes immigrant illegality and how “illegality” takes effect in the lives of immigrants. The essays also examine power structures associated with the concept of illegality.

Immigration Stories (David A. Martin & Peter H. Schuck, eds. 2005)

This book tells the stories of 13 canonical immigration cases to illustrate how immigration law is made.

Brooklyn Law School Professor Stacy Caplow has written a new article, Governors! Seize the Law: A Call to Expand the Use of Pardons to Provide Relief from Deportation. It is posted on SSRN and the abstract reads:

An obscure provision of the Immigration and Nationality Act allows an immigrant convicted of a wide range of crimes that are grounds for deportation to avoid this fate if pardoned by a chief executive. In the current era of expansion of the categories of crimes that constitute grounds for deportation and the shrinkage of equitable forms of relief, a pardon presents a vehicle for ameliorating these harsh effects. But few presidents or governors take advantage of this opportunity, even when the individual facing deportation is a long-term lawful resident whose transgression occurred long ago. During a few months in 2010, New York Governor David A. Patterson broke this trend to establish a pardon panel specifically to consider applications from immigrants. This article argues that Governor Patterson’s resolute and courageous, but ephemeral example presents a model for governors in all states to exercise discretion on behalf of individuals who deserve the exercise of mercy and justice that a full and unconditional pardon confers, particularly when the permanent exile they face far exceeds their wronging and is disproportionate to their well-established character.

US District Court Judge Shira A. Scheindlin of the Southern District of New York ruled that federal government agencies, when responding to Freedom of Information Act requests, must release documents in a searchable format and provide the document’s metadata when making releases in electronic format. The ruling in National Day Laborer Organizing Network et al v. United States Immigration and Customs Enforcement Agency et al. is a groundbreaking case going beyond FOIA and e-discovery issues which she addressed Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (click on the case name to view it in LexisNexis).

The Center for Constitutional Rights and the Immigration Justice Clinic of the Cardozo School of Law filed the complaint in February 2010 demanding records related to the Immigration and Customs Enforcement Agency (ICE) “Secure Communities” program that involves local and state police in federal immigration enforcement. The program requires local and state police to run individuals’ fingerprints through multiple databases upon arrest even if no charges are brought and regardless of how minor the charges are. Besides the potential of erroneous information in those databases, critics of the program charge that it uses racial profiling to funnel people into the ICE detention and removal system. The FOIA action by the National Day Laborer Organizing Network (NLDON) sought materials necessary to provide comprehensive information on the program, including policies, procedures and objectives; fiscal impact; statistical information; individual records; communications; and assessment records.

In response to the FOIA requests, the government delivered documents grouped together in large files that were not searchable and in which individual documents could not be identified without reading through the entire file and e-mails were separated from their attachments. In the conclusion of her 27 page opinion in NLDON v. ICE, Judge Scheindlin remarked:

Once again, this Court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to “meet and confer,” “cooperate” and generally make every effort to “communicate” as to the form in which ESI would be produced. The quoted words are found in opinion after opinion and yet lawyers fail to take the necessary steps to fulfill their obligations to each other and to the court. While certainly not rising to the level of a breach of an ethical obligation, such conduct certainly shows that all lawyers -even highly respected private lawyers, Government lawyers, and professors of law -need to make greater efforts to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production. Lawyers are all too ready to point the finger at the courts and the Rules for increasing the expense of litigation, but that expense could be greatly diminished if lawyers met their own obligations to ensure that document production is handled as expeditiously and inexpensively as possible. This can only be achieved through cooperation and communication.

The Brooklyn Law School Library has in its collection The Federal Information Manual: How the Government Collects, Manages, and Discloses Information under FOIA and Other Statutes by P. Stephen Gidiere (Call # KF5753 .G53 2006) with these chapters: An overview of federal information disputes — Agency collection of information — Management of agency records — Classified information — Access to federal records — Electronic records and federal public websites — Elements of a successful FOIA request — Reasons for the withholding of agency records — Litigation involving federal records — Homeland security information.

This semester, two of the faculty in my liaison group, Professors Stacy Caplow and Maryellen Fullerton, offered me the opportunity to co-teach Directed Study in International Refugee Law.  Under supervision, the upper-level students in this seminar research and draft legal documents to support the Hong Kong Refugee Advice Centre.  HKRAC describes itself as “the only dedicated provider of pro bono legal aid to refugees seeking protection at the United Nations High Commissioner for Refugees in Hong Kong.”  BLS alumnus Brian Barbour is the Executive Director of HKRAC.

Below is a link to a web guide that I created to assist these students.  I think that sections of this guide, such as the tab “COI” (country of origin data), will also aid participants in the BLS Safe Harbor Clinic.

Sources To Support Directed Study in International Refugee Law