New York University School of Law Fall Adam B. Cox Vanderbilt Hall 509

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1 IMMIGRATION LAW AND THE RIGHTS OF NONCITIZENS New York University School of Law Fall 2016 Adam B. Cox Vanderbilt Hall 509 This course examines the law, theory, and practice of the U.S. immigration system. We will focus on two core questions. First, how does law regulate who is permitted to enter the United States, and who is forced to leave? Second, how does law regulate the treatment of noncitizens in the United States or, put differently, what rights do migrants have? To answer these questions, we will explore the history of immigration to the United States, the structure of the immigrant screening system, the constitutional status and conditions of undocumented immigrants, the administrative structures used to enforce immigration law, the growing connection between the immigration and criminal systems in the United States, and state and local efforts to regulate immigrants. Class Meetings. We will usually meet on Mondays from 2:10 to 4:00 p.m., and on Thursdays from 11:00 a.m. to 12:50 p.m., in Furman Hall 212. Please do not use any electronic device to record our class meetings. Class Participation. Our class will be discussion-oriented. To make the most of this approach, every class meeting needs to be a cooperative conversation. Please be prepared to be called on, and please offer your ideas during class. I know that everyone has, from time to time, conflicts that make it hard to be fully prepared. If you will be absent or unprepared to discuss the assigned reading during any particular class, please me at least one hour before the start of that class to let me know. No explanation is necessary. Getting Help. There are several ways to get help during the semester. I ll hold open office hours each week on Thursday afternoons, from 4:00 p.m. to 5:30 p.m., in Vanderbilt Hall Room 509. (If you have any trouble accessing the fifth floor in Vanderbilt, which lacks elevator service, please let me know.) You should also feel free to me to make an appointment outside of my office hours. In addition, you can ask questions in writing by posting them to our forum on Classes. Everyone should feel free to reply to questions posted to the forum law school classes are a collaboration and I will also monitor the forum and respond to questions. Last, but not least, you shouldn t hesitate to raise your hand in class if you have a question or are confused. Prerequisites. None. While we can t grapple with immigration law and the rights of noncitizens without delving into constitutional law, administrative law, and a complex statutory scheme, there is no need to have taken constitutional law or an upper-level administrative law course. Readings. Attached is a schedule of readings for the course. Many of the readings are from the casebook we will use, T. Alexander Aleinikoff et al., Immigration And Citizenship: Process And Policy (8th ed. 2016). Any additional readings will be posted to Classes. I may adjust our reading assignments as the semester progresses. I ll alert you to any changes, and the up-to-date syllabus will always be posted to Classes. Updated August 18,

2 While statutory problems appear frequently in the casebook, you may safely skip any problem that I do not specifically assign. In addition to reading the material indicated on the assignments, please read all of the statutory provisions that are relevant to the assignment. The easiest way to have the statute at hand is to get the 2016 statutory supplement: T. Alexander Aleinikoff et al., Immigration and Nationality Laws of the United States: Selected Statutes, Regulations and Forms (2016). Alternatively, you can download sections from any online database. Cornell s Legal Information Institute is a nice free source. If you use an online source, just beware obsolete material and be aware that the title and section numbers in the Immigration and Nationality Act do not correspond to the chapter and section numbers in the codification that appears in the United State Code. Exam and Grading. Your final grade will be based primarily on an three-hour, in-class, open-book exam. I reserve the authority to reduce your grade if I call on you to participate and you are either unprepared or not present unless, of course, you have ed me beforehand to let me know. I also reserve the authority to raise your grade to account for high-quality (not quantity) participation. Mostly, I want to emphasize that it is perfectly ok not to know the answer to a question posed in class. Our goal is to find good answers together. Recommended Readings. For students interested in additional reading on the theoretical, historical, ethical, and policy debates surrounding immigration, here are a few suggestions. Feel free to consult me if you d like guidance about what to read. Mae Ngai, Impossisble Subjects: Illegal Aliens and the Making of Modern America (2004) Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States (2007) Gerald Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996) Lucy Salyer, Laws Harsh As Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (1995) Joseph Carens, The Ethics of Immigration (2013) Paul Collier, Exodus: How Migration is Changing Our World (2013) Daniel J. Tichenor, Dividing Lines: The Politics of Immigration Control in America (2002) For authoritative and comprehensive treatises on immigration law, see the 20-volume Gordon, Mailman, & Yale-Loehr, Immigration Law And Procedures (available on Lexis); and Ira J. Kurzban, Immigration Law Sourcebook (American Immigration Law Foundation, 14th ed.) (2014). Updated August 18,

3 I. CONSTITUTIONAL FOUNDATIONS Class 1 Thurs, Sept 1 Class 2 Wed, Sept 7 Class 3 Thurs, Sept 8 Class 4 Mon, Sept 12 Class 5 Thurs, Sept 15 Class 6 Mon, Sept 19 Class 7 Thurs, Sept 22 Citizenship and Immigration A brief history of immigration law (1-23) United States v. Wong Kim Ark (49-51, 66-79) Federal Power to Exclude and Deport Chinese immigration (151-56) Chae Chan Ping v. United States Fong Yue Ting v. United States (159-74) Constitutional text and the immigration power (178-82) Due Process and the Plenary Power Yamataya v. Fisher Classical due process Knauff, Kwong Hai Chew, Mezei (523-35) Territory, Ties, and Modern Due Process Modern due process Landon v. Plasencia (535-45) Kerry v. Din (545-53) Liberty and Equality in Deportation and Exclusion Harisiades v. Shaugnessy (634-46) Kleindienst v. Mandel (589-97) Fiallo v. Bell ( & n.1) Morales-Santana v. Lynch (61-66) Chin, Is there a Plenary Power Doctrine? Beyond Deportation and Exclusion: A Territorial Constitution? Yick Wo v. Hopkins (191-93) Wong Wing v. United States (174-76) Reid v. Covert Boumediene v. Bush Discrimination on the Basis of (Non)Citizenship Status The special public interest doctrine ( ) Graham v. Richardson ( ) Matthews v. Diaz ( ) Plyler v. Doe ( ) Updated August 18,

4 II. STATUTORY FRAMEWORK OF EXCLUSION AND DEPORTATION A. Admissions Categories Class 8 Mon, Sept 26 Class 9 Thurs, Sept 29 Family Migration Rules The immigration bureaucracy (skim ) Quotas: from national origins to families and workers (269-91) Sham marriages (322-33; problem 3(a) on page 329) Labor Migration Rules Permanent visas and employer screening (349-56, ) Temporary visas and nonimmigrants (380-87) H-1B and H-2 visas (393-95, , , ) B. Inadmissibility and Deportability Class 10 Mon, Oct 3 Class 11 Thurs, Oct 6 Class 12 Mon, Oct 10 Class 13 Thurs, Oct 13 Immigration Control and Ex Post Screening The Rise of Ex Post Screening (Cox & Rodriguez excerpt) INA 101(a)(13) Inadmissibility (555-58, and problem) Deportability ( and problem 1) Bars for past violations (568-72) Judulang v. Holder National Security Subversives and terrorism (581-89, ) Singh-Kaur v. Ashcroft 18 U.S.C. 2339A, 2339B(a) Exceptions or constitutional limits? (615-25) Criminal Convictions Overview (679-87) The categorical approach ( ) Immigration Law, Criminal Law, and Federalism Lopez & Carachuri-Rosendo (717-23) Padilla v. Kentucky (668-79) Ingrid Eagly, Criminal Justice for Noncitizens Updated August 18,

5 C. Relief from Removal Class 14 Mon, Oct 17 Forms of Relief Overview (723-26) Voluntary departure (749-51) Adjustment of status (492-98) Cancellation of removal (726-37, problem on 731) Victim visas and SIJS (762-69) III. IMMIGRATION PROCEDURE Class 15 Thurs, Oct 20 Class 16 Mon, Oct 24 Class 17 Thurs, Oct 27 Class 18 Mon, Oct 31 Class 19 Thurs, Nov 3 Admissions and Removal Procedures Admissions procedure (485-90) Removal proceedings (895-98, 905 n.3) Immigration judges and the BIA (251-57) Right to counsel: Franco-Gonzales v. Holder (909-23) Summary Removal Procedures Expedited removal (502-11) Castro v. DHS Reinstatement of removal (950-54) Detention I Background (968-79) Zadvydas v. Davis ( & n.5) Demore v. Kim ( ) Detention II Rodriguez v. Robbins ( ) Judicial Review A brief history ( ) INS v. St Cyr and other limits on judicial review ( ) Impact litigation ( , JEFM excerpt) Updated August 18,

6 IV. ENFORCEMENT Class 20 Mon, Nov 7 Class 21 Thurs, Nov 10 Class 22 Mon, Nov 14 Class 23 Thurs, Nov 17 Class 24 Mon, Nov 21 Enforcement: Where, How, and Against Whom? Overview ( , ) Criminalizing immigration violations ( ) Employer sanctions ( , ) Integrating Criminal and Immigration Enforcement Secure Communities, PEP, and detainers ( ) Miranda-Olivares v. Clackamas County NY Times, Fearing Lawsuits, Sheriffs Balk Fourth Amendment issues ( ) State Enforcement United States v. Arizona ( ) Arizona Dream Act Coalition v. Brewer Presidential Power and Enforcement Discretion Parole (490-92, CIS memo on parole in place) Prosecutorial discretion (769-86) Texas v. United States (5 th Circuit) Beyond DACA and DAPA: Comprehensive Reform Overview ( ) Families, workers, skills, and integration ( ) Markets for visas Legalization ( ) Updated August 18,

7 V. ASYLUM AND MIGRATION CRISES Class 25 Mon, Nov 28 Class 26 Thurs, Dec 1 Class 27 Mon, Dec 5 A Well Founded Fear Background ( ) Mirasawo v. Holder (809-22) INS v. Cardozo-Fonseca (825-31) Protected Grounds INS v. Elias Zacharias (832-41) Particular social group (841-59) Law During Migration Crises : Children at the Southern Border Background (859-61) Orantes-Hernandez v. Gonzales In re D-J- The evolving executive response to migration crises * * * Class 28 Thurs, Dec 8 Review Session No reading Updated August 18,