Immigration Law Roundtable

UCI Law are hosting a roundtable that will highlight projects by immigration law scholars. Supported by the Center for Liberation, Anti-Racism and Belonging (C-LAB), the roundtable will focus on how the American legal system fosters and rationalizes a range of harms within migrant communities. Roundtable projects will focus on various criminal and administrative policies that punish migrants and exacerbate racial inequalities and harms. The roundtable will feature works-in-progress by Professors Ahilan Arulanantham (UCLA), Jennifer Chacón (Stanford), Stephen Lee (UCI), and Carrie Rosenbaum (Chapman), with commentators including Sameer Ashar (UCI Law), Mario Barnes (UCI Law), Courtney Cahill (UCI Law), Susan Coutin (UCI Social Ecology). Kaaryn Gustafson (UCI Law), Jennifer Koh (Pepperdine Law), and Irene Vega (UCI Sociology).

Roundtable Schedule (to be updated as details are confirmed):

12:00 pm | Welcome

12:15 pm | Paper #1

1:15 pm | Break

1:30 pm | Paper #2

2:30 pm | Break

2:45 pm | Paper #3

3:45 pm | Break

4:00 pm | Paper #4

5:00 pm | Closing

Abstracts:

Ahilan Arulanantham: Rethinking Preventive Detention

When can the state imprison people without trial? That question lurks beneath many important civil rights issues of our time—from the overcrowded jails of places like Ferguson, Missouri, to the confinement of unhoused people in Los Angeles, New York, and other major cities, the sprawling Immigration Customs and Enforcement “detention” system against which civil rights lawyers have litigated for decades, and, lest we forget, the “forever” prison at Guantanamo Bay.

Modern due process doctrine provides one answer to this crucial question: so long as the state does not intend to punish, it can preventively detain where the confinement is appropriately tailored to serve the state’s interest in protecting public safety. But that answer is fatally incomplete. While it describes one requirement for preventive detention, a proper understanding of the underlying legal principles requires the imposition of another. Careful analysis of the key precedents and the history of preventive detention practices reveals a startling additional requirement that the modern doctrine fails to capture: the state cannot preventively detain to prevent conduct that could be punished under criminal law. Where the criminal law could punish the conduct giving rise to the purported need for preventive detention, the state cannot displace the protections afforded by the criminal process through the use of preventive detention.

Adopting this additional requirement has profound doctrinal and practical implications. At a doctrinal level, it would bring greater coherence to the otherwise-confused constitutional law that presently regulates preventive detention, while also suggesting directions for reforming that law in several respects. Most important, it suggests that the state cannot preventively detain to prevent the recurrence of conduct it has already punished under criminal law. Clarifying the doctrine in this way would allow courts and policymakers to create clearer rules in contemporary preventive detention practice governing the detention of sex offenders, immigrants, and people detained as national security threats.

The practical implications of imposing this additional requirement warrant equally sustained attention. While de-carceral movements focused specifically on jails and immigration prisons have drawn great strength from the broader movement to abolish all forms of imprisonment, there are risks as well as rewards associated with tying all de-carceral movements closely together. Not only are their histories in this country very different, but the present-day rationales for incarceration, and therefore for abolition, also differ greatly as between prisons on one hand and jails, immigration detention centers, and enemy combatant detention sites on the other. Particularly during periods of intense backlash and retrenchment such as the present, advocates should bear in mind the differences between abolitionist projects, so they can make tactical decisions about when and how to organize across coalitions with their eyes wide open.

Jennifer Chacón: The Law of the Workplace Raid

On October 12, 2021, Department of Homeland Secretary Alejandro Mayorkas issued a memorandum directing the heads of the Department’s immigration agencies—ICE, CBP, and USCIS—to “cease mass worksite operations,” thereby putting an end (at least for now) to a long-standing immigration enforcement technique that relied on mass arrests of workers at job sites. The Mayorkas memo declared such enforcement operations to be insufficiently focused on “exploitative employers,” and inconsistent with the Department’s recently articulated requirement of individualized assessments in enforcement actions. The underlying legal rules that have long facilitated such workplace raids remain in place, however. In a series of cases decided in the 1970s and 1980s, the Supreme Court authorized reliance on race as a factor in the enforcement of immigration laws, authorized workplace interrogations without requiring the articulation of individualized suspicion of the targets of such interrogations, and, in immigration proceedings, allowed for the introduction of evidence seized in workplace raids in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. These rulings remain good law. This paper will explore the origins and consequences of these cases.

Stephen Lee: Administrative Violence in Immigration Law

This is an article about violence in the administration of our nation’s immigration laws.  In this context, agency violence is commonly defined in terms of the use or threat of force against immigrants and immigrant communities—i.e., through apprehension, detention, and removal. This article develops and defends a related theory of violence, what I call administrative violence, which focuses on benefits programs that offer relief from removal. These programs foist the burden of seeking relief on migrants, obfuscating the realities that relief is temporary, limited, and hard to get, and draws attention away from the ways that relief programs are intertwined—politically, legally, and administratively—with the enforcement programs most responsible for egregious harms stemming from direct violence. The theory of administrative violence makes two contributions. First, it provides descriptive clarity on the range of illegitimate harms experienced by migrants at the hands of both field agents wielding quasi-police power as well as bureaucrats processing papers in anonymous office buildings. Second, it provides a basic vocabulary for pushing forward current conversations about violence in the administrative state, a dynamic that is attracting increasing scholarly attention but which remains overly narrow and unwieldly.

Carrie Rosenbaum: Administrative Anti-Discrimination

The Supreme Court can act as a check on the president by invalidating executive decisions as arbitrary and capricious when they are discriminatory. Anti-discrimination law generally resides within the Fifth Amendment to the United States Constitution. However, the Fifth Amendment is not the only source of authority available to curtail discriminatory state action. A provision of the Administrative Procedure Act holds underutilized anti-discrimination potential – arbitrary and capricious review.

Discrimination is both arbitrary and capricious. “Discrimination” is unjust or prejudicial treatment of categories of people. An act or decision that is “arbitrary” is: 1. not grounded in reason but instead based on chance, 2. unfair, 3. an unreasonable act of will, 4. based on individual preference or convenience, 5. an unlimited or unrestrained exercise of power by a government, or 6. rule by absolute authority, indicative of tyranny. “Capricious” is a synonym for arbitrary, but also denotes action that is mercurial, fickle, and unpredictable.

In any democracy founded on the rule of law, state action that is discriminatory is arbitrary and capricious. Discrimination is arbitrary because it is unfair, an unreasonable act of will, an unrestrained act of state power, or indicative of tyranny. In a less culpable form but equally problematic, discrimination may be arbitrary and/or capricious based on individual preference or convenience, and fickle and unpredictable. The Supreme Court held the Trump administration’s attempted rescission of the Deferred Action for Childhood Arrivals arbitrary and capricious, but not a violation of Equal Protection, and not because it was discriminatory.

Arbitrary and capricious invalidation of state discrimination is important because Equal Protection claims often fail because they require a showing of discriminatory impact, and discriminatory intent. In immigration law where the executive’s authority is at its peak the bar is even higher. However, the Court can invalidate discriminatory state action as arbitrary and capricious even absent discriminatory intent. Therefore, even where equal protection elides immigrants and rule of law principles of equality, discrimination can be invalidated as arbitrary and capricious. This article will be the first to map the anti-discrimination potential of arbitrary and capricious review in immigration law and frame the issue within the Court’s current skepticism of the administrative state.

Link to full draft papers will be provided in registration confirmation. Lunch will be provided. For more details, please email Professor Stephen Lee. To request reasonable accommodations for a disability, please email centers@law.uci.edu.