2018 Fordham Urban Law Journal's Cooper Walsh Colloquium Remodeling Sanctuary Urban Immigration in a New Era

NOVEMBER 9, 2018 CLE COURSE MATERIALS Table of Contents

1. Speaker Biographies (view in document)

2. CLE Materials

Panel 1: Blocks to Status: Stumbling Blocks & Panel 4: Urban Rebellion: Immigration & City Building Blocks to Urban Immigration Organizing

Kang, Alex. Loosening the Federal Grip on Gjecovi, Sibora; James, Esther; Chenoweth, Jeff. Immigration Policy. (View in document) Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions. Johnson, Kit. Opportunities & Anxieties: A study of (View in document) International Students in the Trump Era. (View in document)

Panel 2: Cities as Havens: The Evolution of Sanctuary Policies

Kwon, Christine; Roy, Marissa. Sanctuary Cities: Distinguishing Rhetoric From Reality. (View in document)

Kwon, Christine; Roy, Marissa. Local Action, National Impact: Standing Up For Sanctuary Cities (View in document)

Pham, Huyen. State-Created Immigration Climates and Domestic Migration. (View in document)

Panel 3: The Balancing Act: Immigration & Due Process

Peleg, Talia. Detaining Immigrants Indefinitely is Un- American . Shame on the Supreme Court. (View in document)

Benner, Katie; Savage, Charlie. Due Process for Undocumented Immigrants, Explained. (View in document)

Heinz, Joanna. Pardoning Immigrants. (View in document) Zachary Ahmad Director at the University of Georgia, School of Zachary Ahmad is a policy counsel at the New Law. Before coming to UGA, he served as an York Civil Liberties Union (NYCLU), the New acting assistant professor at the New York York affiliate of the ACLU. He works largely on University School of Law, where he taught in legislative and policy issues related to the Lawyering Program from 2010 to 2013 and immigration, with a focus on efforts to assisted in the Immigrant Rights Clinic. disentangle local law enforcement from the Cade’s scholarship explores the role of enforcement of federal immigration law. nonfederal actors and institutions in the modern immigration system, judicial review of Prior to joining the NYCLU, Ahmad worked as deportation procedures and intersections a staff attorney with the Juvenile Rights Practice between immigration enforcement and criminal at the Legal Aid Society of New York, law. His most recent work is forthcoming in representing children and young adults in the Northwestern University Law Family Court proceedings in Brooklyn, and Review, the Washington & Lee Law assisting clients with a range of matters outside Review and Northwestern University Law of court. Ahmad graduated cum laude from Review Online. Cade's prior scholarship has George Washington University with a B.A. in been published in the Fordham Law Review, journalism in 2006, and received his law degree the Columbia Law Review Sidebar, the NYU from CUNY School of Law in 2013. Law Review Online, the UC Davis Law Review (twice) and many other journals. Professor Jennifer Stepp Breen Jennifer Breen joins the College of Law as a Prior to entering academia, Cade represented Syracuse University College of Law Faculty noncitizens in a wide range of immigration Fellow in Fall 2018. Prior to joining Syracuse proceedings and family court matters while University, Breen worked as a judicial law clerk working in both small firm and nonprofit to the Honorable Rosemary S. Pooler on the settings. Cade played a central role in the United States Court of Appeals for the Second expansion of New York family court Circuit. Prior to her clerkship, Breen practiced guardianship jurisdiction and was lead counsel immigration law. Prior to law school, she was a or amicus on several state court appeals Lecturer in the Department of Politics at Ithaca concerning immigrant juveniles. Following law College. school, he clerked for U.S. District Court Magistrate Judge Steven M. Gold in the Eastern Breen’s research explores democratic politics in District of New York and was a Skadden Public practice, from the evolving politics of work in Interest Fellow at The Door. the twentieth-century United States to more Cade earned his undergraduate degree from the recent developments in immigration law. Her University of North Carolina at Chapel Hill and writing has appeared in scholarly journals his law degree magna cum laude from Brooklyn including the Journal of Policy History and the Law School, where he was executive articles American Criminal Law Review. editor of the Brooklyn Law Review, a Jerome Prince Scholar and an Edward V. Sparer Public Breen earned her J.D. (summa cum laude) from Interest Fellow. Cornell Law School in 2015, her Ph.D. and M.A. in Political Science from the University of Professor Ming Hsu Chen Pennsylvania in 2011 and 2007, respectively, Ming Hsu Chen is an Associate Professor at the and her B.A. in Political Science from the University of Colorado in Boulder, where she is University of North Carolina at Chapel Hill a faculty member of the law school. She directs (with highest honors and highest distinction). the Immigration Law and Policy Program and holds faculty affiliations in Political Science and Professor Jason A. Cade Ethnic Studies. Professor Chen brings an Jason A. Cade is an Associate Professor of Law interdisciplinary perspective to the study of & Community Health Law Partnership Clinic immigration, civil rights, and the administrative state. In the law school, she teaches a variety of provides support to MRNY's TGNCIQ justice law and social science courses including project. Yasmine is a lifelong New Yorker and a Immigration Law, Citizenship Law, graduate of CUNY School of Law, the only Administrative Law, Legislation & Regulation, publicly-supported public interest law school in Law & Politics: Race in America, and Law & New York City. Social Change. Her research examines the integration of immigrants and racial minorities Professor Kit Johnson into U.S. society. She also writes about the Professor Kit Johnson is an Associate Professor legitimacy of executive action in immigration at the University of Oklahoma where she teaches law, immigration federalism, and the sanctuary Immigration, Crimmigration, Civil Procedure, movement in the U.S. and Trial Techniques. As an adjunct professor for Hofstra Law, she teaches a one-week three- Professor Allan Colbern credit course on Immigration Law and Border Allan Colbern is an Assistant Professor of Enforcement. Her scholarship focuses on Political Science at Arizona State University, immigration law. with expertise in American institutions, race and immigration. His first book, Prior to teaching, Johnson was an attorney with Co-authored with Karthick Ramakrishnan, is the Los Angeles law firm of Munger, Tolles & forthcoming in 2019 with Cambridge University Olson LLP, where she practiced general Press and is tentatively called Progressive State commercial litigation. Her clients included Citizenship. Colbern and Ramakrishnan Berkshire Hathaway, Rambus, and Brighton examine how federalism shapes citizenship in Collectibles. Johnson also provided pro bono the United States by exploring what it means for representation in several adoption and states to expand or contract the rights of guardianship proceedings before the Los immigrants, Blacks, LGBTQ communities, and Angeles county courts. In addition, she served people with disabilities. Colbern was recently on the Board of Directors of Inner Circle Foster awarded the Russell Sage Foundation’s Care and Adoption Services, a non-profit agency Presidential Award to support his second book, in California's San Fernando Valley. Today’s Runaway Slaves: Unauthorized Immigrants in a Federalist Framework, which Before entering private practice, Johnson served examines the development of sanctuary policies a law clerk to the Honorable Pamela A. Rymer throughout American history, from protections of the United States Court of Appeals for the given to runaway slaves (1780-1860), to those Ninth Circuit and the Honorable Robert C. given to Jewish asylum seekers (1921-1965), Broomfield of the United States District Court Central American asylum seekers (1980-1997), for the District of Arizona. and contemporary undocumented immigrants (2001-2018). Colbern is also currently Professor Christopher Lasch partnering with the Center for American Professor Christopher Lasch is co-director of the Progress on examining the negative effects of Immigration Law and Policy Clinic and the anti-sanctuary policies on local trust of police Criminal Defense Clinic at Denver Law. He has through examining city level 911 emergency call focused his legal scholarship on the entangling data. and disentangling of criminal and immigration enforcement systems, and particularly on legal Yasmine Chahkar Farhang issues pertaining to so-called “sanctuary” Yasmine Chahkar Farhang is lead immigration policies, such as those which attempt to limit the attorney at Make the Road NY, a membership- complicity of local criminal processes in led community organization that builds power immigration enforcement. His recent work through community organizing, policy addressed the legality of ICE arrests in innovation, education and survival services. She courthouses, and he has written extensively and represents immigrants in removal proceedings submitted numerous amicus briefs concerning and in affirmative applications for relief, and the practice of local jails prolonging the custody of inmates who would be otherwise released Talia Peleg is a Visiting Clinical Law Professor through the use of immigration “detainers.” in the Immigrant and Non-Citizen Rights Clinic at CUNY School of Law. Prior to teaching at After graduating from Yale Law School in 1996, CUNY, she was a Supervising Attorney in the Lasch worked as a public defender in Louisville, Immigration Practice at Brooklyn Defender Kentucky, and then partnered with another Services (BDS). former defender to form a small private law firm dedicated to criminal defense and civil Talia began her work at BDS as a staff attorney rights litigation. In 2006, Lasch became a Robert in 2011. In 2013 she was one of four attorneys in M. Cover Clinical Teaching Fellow at the Yale New York City to help implement and shape the Law School, where he taught in numerous New York Immigrant Family Unity Project clinics, including five semesters in the Worker (NYIFUP) – a groundbreaking, first-in-the- and Immigrant Rights Advocacy Clinic, nation universal representation program for defending immigrants in removal proceedings detained immigrants – funded by the New York and litigating immigration-related civil rights City Council. NYIFUP is now a fully funded cases. program representing detained clients at the Varick Street Immigration Court in New York Professor Lindsay Nash City in bond hearings, merits hearings on their Lindsay Nash is a Clinical Assistant Professor of defenses to removal and appeals to the Board of Law. She teaches in the Immigration Justice Immigration Appeals. The program is being Clinic. Previously, she was a Skadden Fellow at replicated in various localities throughout the the ACLU Immigrants' Rights Project, where country. At BDS, she represented hundreds of she focused on impact litigation related to non-citizens, most of whom had prior or current immigration detention and border enforcement, interaction with the criminal legal system. and an Arthur Liman Public Interest Fellow at Through her practice, she developed substantial the Cardozo Immigration Justice Clinic, where knowledge of criminal-immigration law, she worked on issues at the intersection of humanitarian defenses to removal and criminal and immigration law and helped challenges to removability. She has represented establish the nation’s first system of non-citizens in federal court litigation institutionally-provided counsel for detained challenging the legality of their detention. She noncitizens facing deportation. While at the has also represented clients before the United ACLU, Lindsay taught an immigration law field States Citizenship and Immigration Services clinic as an adjunct professor at Cardozo. (USCIS) in adjustment of status, citizenship, U- Visa and other affirmative applications. Lindsay graduated from Yale Law School, where she was a member of the Yale Law Professor Huyen Pham Journal and received awards for her work in her Huyen Pham is a professor of law at Texas law school clinic and in academic A&M School of Law. Professor Pham’s scholarship. Following graduation, she clerked scholarship focuses on immigration law, asking for the Honorable Robert A. Katzmann, Chief important questions about what the substance of Judge of the U.S. Court of Appeals for the those laws should be and whom should be Second Circuit, and the Honorable Ellen Segal enforcing the laws. As one of the first legal Huvelle, District Judge of the U.S. District Court scholars to recognize the significance of the for the District of Columbia. Lindsay is a subfederal immigration regulation (immigration member of the Study Group on Immigrant regulation by states, cities, and counties) that Representation. Lindsay's scholarship explores grew after the 9/11 attacks, Professor Pham has access to justice issues, particularly those written extensively about the doctrinal and affecting immigrant communities. policy implications of this regulation. Her research has been published in the NYU Law Professor Talia Peleg Review, the Washington & Lee Law Review, the Georgetown Law Journal, and the Florida State University Law Review, among other Harvard Law School and magna cum laude from publications. In 2018, she received Texas A&M Harvard College. University’s Eminent Scholar Award, in recognition of her outstanding research and Dorothy Tegeler mentoring. Professor Pham and her colleagues Dorothy Tegeler is a Skadden Fellow. Prior to have received a TAMU Global Engagement joining the Asylum Seeker Advocacy Project Grant to work with Mexican deportees. In 2010- (ASAP), Dorothy worked for five years as 2011, she received a Fulbright Fellowship to Editor and Assistant Director of the health teach at the University of Economics and Law, education nonprofit Hesperian Health Guides, Vietnam National University, best known for its practical books such as Where in Ho Chi Minh City. She also served as the There Is No Doctor. She also has a background associate dean for faculty research and in organizing for domestic worker rights and development at the Law School for four years. disability justice with the group Hand in Hand. Dorothy has a BA in International Relations Professor Pham previously was an associate from Brown University, a JD from Yale Law professor at the University of Missouri- School, and has received numerous awards for Columbia School of Law. Before teaching, she her commitment to public interest work. As a practiced law in both the private and public student at Yale Law School, she sectors, with the Boston law firm of Hill & represented clients in immigration, employment, Barlow and at the Missouri Attorney General’s housing, child custody, and post-conviction Office. Professor Pham clerked for the Hon. criminal cases through the New Haven Legal George A. O’Toole, U.S. District Court in Assistance Association, Criminal Justice Clinic, Boston and received an Echoing Green and Worker and Immigrant Rights Advocacy Fellowship to work with Vietnamese refugees in Clinic. From 2016-17, she was a law clerk to the Philippines. She graduated cum laude from Judge Michael P. Shea in the District Court of Connecticut.

10/30/2018 Loosening the Federal Grip on Immigration Policy | The Regulatory Review

A Publication of the Penn Program on Regulation

Analysis | Rights | Jun 27, 2018 Loosening the Federal Grip on Immigration Policy Alex Kang

Scholar contends that the emergence of “integrative enforcement” shows a shifting locus of immigration policy.

Since even before the showdown over President Donald Trump’s policy of separating undocumented migrant parents and children at the border, immigration has served as a political fault line between Democrats and Republicans. And President Trump https://www.theregreview.org/2018/06/27/kang-loosening-federal-grip-immigration-policy/ 1/4 10/30/2018 Loosening the Federal Grip on Immigration Policy | The Regulatory Review cemented his divisive position within the immigration debate with one of his first actions in office: his issuance of an executive order targeting so-called sanctuary cities —local jurisdictions that limit their cooperation with federal immigration enforcement officials.

Some commentators have argued that President Trump’s executive order is representative of a broader shift in national immigration policy towards the principles of exclusion and isolation. But according to a recent paper, the order may also signal a change in the way that immigration policy is formed and the level of government where it is made.

The paper’s author, Ming Hsu Chen of the University of Colorado Law School, argues that the executive order and the reaction to it reveal how the federal government is no longer the sole arbiter of immigration enforcement. Chen contends that, by pushing back against the exclusionary requirements of the executive order, institutions like school campuses and churches have introduced a new inclusive dynamic into immigration policy. Despite having no true legal authority over immigration enforcement, these groups have shown that they can still influence its direction.

President Trump intended that his executive order would increase enforcement against immigrants residing in the United States who either lack lawful immigration status or have engaged in some form of criminal activity. Among other things, the order directs U.S. Immigration and Customs Enforcement (ICE) to hire 10,000 additional immigration officers, creates a publicly available list of crimes committed by undocumented immigrants, and expands the ability of local law enforcement to assist in carrying out immigration laws. But the centerpiece of the order calls for the federal government to withhold funding for cities that fail to cooperate with federal immigration authorities.

Chen notes that the order has generated feelings of anxiety among immigrant populations throughout the United States. She observes that, in seeking to fulfill the aims of the order, ICE officials have raided neighborhoods across the country during check-ins of undocumented immigrants with stays of removal, “leaving noncitizens constantly worrying and wondering if they could be next.”

But Chen argues that, in direct response to the order, nonlegal bodies outside of the government’s traditional enforcement arms have shunned the administration’s https://www.theregreview.org/2018/06/27/kang-loosening-federal-grip-immigration-policy/ 2/4 10/30/2018 Loosening the Federal Grip on Immigration Policy | The Regulatory Review exclusionary focus. They have in turn expressed a broader norm of community membership and institutional protection as an alternative to the federal government’s stance on immigration.

As an example of this behavior, Chen points to colleges’ opposition to the trend of increased immigration enforcement and the rescission of the Deferred Action for Childhood Arrivals (DACA) policy. She notes that campuses have generally tried to provide safe spaces for undocumented students by being uncooperative with law enforcement, and generating monetary, academic, psychological, and legal support for these students. Chen notes that, in response to the DACA rescission specifically, campuses have rallied around DACA recipients who face possible deportation by raising funds for pro bono legal assistance, creating DACA renewal clinics, and making urgent public appeals to Congress for judicial and legislative remedies.

Chen states that churches have similarly expressed opposition to expanding enforcement by providing “literal safe havens” for undocumented immigrants who are often members of mixed-status families that would be divided by deportation. Noting that churches have traditionally fallen into the category of sensitive areas that are less frequently subject to targeted enforcement, Chen describes a specific instance of a mother and her four children residing in a church for 86 days before receiving a stay of deportation in Colorado. She also observes that bolder churches are declaring their pro-sanctuary stance in defiance of the anti-harboring provisions in the Immigration and Nationality Act, while churches in less sympathetic jurisdictions are engaging in less direct civic disobedience, such as insisting on search warrants before letting ICE enter their premises.

Referring to these emerging sites of enforcement resistance as “sanctuary networks,” Chen argues that they often rely upon extralegal measures to exert their resistance, such as through the soft power of media, customer pressure, and political influence on legal decisionmakers. As a result, each instance of resistance is fairly limited in scope when viewed in isolation, she states. Examined together, however, “these public and private groups are forming a system that collaborates, formally in some contexts and informally in others, to collectively challenge the federal government’s claimed monopoly on setting immigration policy,” she writes.

Chen argues that, beyond the collective challenge to federal authority these sanctuary networks can bring, they embody a national norm of enforcement that focuses on the https://www.theregreview.org/2018/06/27/kang-loosening-federal-grip-immigration-policy/ 3/4 10/30/2018 Loosening the Federal Grip on Immigration Policy | The Regulatory Review integration of immigrants as opposed to exclusion. When schools, churches, and other public and private groups resist the Trump Administration’s immigration policy, they are also advancing a new vision of community regulation that recognizes the contributions of immigrants—social, economic, and political—rather than fixating on their temporary or unlawful legal status.

Chen presented this paper at the 2018 Lara D. Gass Annual Symposium, titled President Trump’s Executive Orders and Emergent Issues in Immigration Enforcement, hosted by the Washington and Lee Law Review.

Tagged: Department of Homeland Security, Donald Trump, Immigration Policy, Immigration Regulation

https://www.theregreview.org/2018/06/27/kang-loosening-federal-grip-immigration-policy/ 4/4 Tracy, Maura 10/23/2018 For Educational Use Only

OPPORTUNITIES & ANXIETIES: A STUDY OF..., 22 Lewis & Clark L....

22 Lewis & Clark L. Rev. 413

Lewis & Clark Law Review 2018

2018 Symposium The Immigration Nexus: Law, Politics and Constitutional Identity Kit Johnson a1

OPPORTUNITIES & ANXIETIES: A STUDY OF INTERNATIONAL STUDENTS IN THE TRUMP ERA

Over one million international students are currently pursuing their education in the United States. But the number of newly enrolled international students is dropping. Some research suggests that President Donald Trump's anti-immigrant policies, particularly his Muslim ban that has received international attention, may be to blame for this decline.

This Article presents the results of qualitative empirical research I conducted to investigate the link between President Trump and declining international student enrollment. I interviewed more than 40 undergraduate and graduate students from abroad studying in the United States. I learned that there are unique opportunities that draw and will likely continue to draw international students to the United States to pursue their education, even in the face of changing U.S. immigration policies. Yet international students do have substantial anxieties about studying in the United States, some of which are traceable to President Trump's words and actions.

INTRODUCTION 414 I. BACKGROUND 417 A. International Students in the United States 417 B. The Trump Effect on International Students in the United States 419 II. THE STUDY 424 A. The University of North Dakota 424 B. Research Methodology 426 C. Findings 427 1. Opportunities 427 a. Opportunities in the United States 427 b. Opportunities at UND 430 i. Law Students 430 ii. Aviation Students 432 2. Anxieties 433 CONCLUSION 439

OPPORTUNITIES & ANXIETIES: A STUDY OF..., 22 Lewis & Clark L....

*414 INTRODUCTION

Two days after the election of President Trump in November 2016, an international student came to my office desperate to understand what the consequences of the election might be for her. She was anxious and scared. She and I had never met before. She just knew that I taught immigration law, and she needed someone to talk to.

Following that conversation, I tried to reach out to international students to discuss their anxieties, and, as much as possible, to alleviate them. A colleague 1 and I held a forum at our law school for international law students. While we did not advertise it as a campus-wide event, students from a variety of departments showed up with questions. The university soon arranged for a second event at a more central location. 2

What became immediately clear was that many international students were worried. They knew that, as a candidate, Donald Trump rode a wave of anti-immigrant sentiment. 3 What would that mean for them when he became president?

In January 2017, President Trump assumed office. Five days into his presidency, Trump issued an executive order regarding border security. 4 Two days later, Trump signed an executive order purporting to ban the entry of citizens of Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen as well as suspending the U.S. refugee program worldwide. 5 These actions prompted a wave of litigation and protests 6 that continues today. 7

*415 Universities around the country responded quickly to the orders, issuing statements to faculty and students. 8 Many schools, like Haverford College, advised those affected by the ban not to travel outside the United States. 9 Others, like the University of California, Berkeley, identified in-house resources for students and faculty affected by the ban, including help from the International Studies Office as well as mental health services. 10 University of Oklahoma President David L. Boren took the moment to emphasize that international students “are valued members of our university family:”

Bringing international students to study in our country helps build lasting friendships with people all around the world. Those who study in our country become persuasive and articulate friends of the United States when they return to their home countries. When we reduce the opportunities for young people to come to America to take advantage of the educational opportunities here, we not only harm them, but we also damage the image and inspiration of America around the world. 11

*416 In addition to issuing statements to their own university communities, 48 college and university presidents wrote a letter to President Trump, exhorting him to reconsider his executive action. 12 They wrote: “American higher education has benefited tremendously from this country's long history of embracing immigrants from around the world. Their innovations and scholarship have enhanced American learning, added to our prosperity, and enriched our culture.” 13

Another 171 organizations “representing a broad spectrum of professional scientific, engineering and education societies, national associations, and universities” also wrote to President Trump asking him to reconsider his ban, which they opined would compromise the nation's ability to “attract international scientific talent and maintain scientific and economic leadership.” 14 The American Council on Education wrote to then-Secretary of Homeland Security John F.

OPPORTUNITIES & ANXIETIES: A STUDY OF..., 22 Lewis & Clark L....

Kelly about the travel ban as well, noting that “International exchange is a core value and strength of American higher education.” 15

The University of North Dakota (UND), where I work, similarly issued a campus-wide response to the travel ban. International students were cautioned about travel outside the United States. 16 A campus vigil was held in support of UND's international community and those affected by the travel ban. 17 University President Mark Kennedy affirmed *417 UND's commitment to diversity and inclusivity. 18 At the same time, the university reaffirmed its commitment to being a “conduit through which global interrelationships are enhanced by a learning and teaching environment that is aware of and sensitive to the diversity of its constituents.” 19

In the context of this movement, I set out to conduct empirical qualitative research regarding international students' feelings concerning study in the United States at this point in time. Between March and October 2017, I met with 42 international students at the University of North Dakota. My interviewees hailed from every continent except Antarctica. They included undergraduate and graduate students studying a wide spectrum of fields. I asked these students what prompted them to study in the United States and whether they would do it all again, given the chance. In the context of our discussions, I learned about the opportunities they saw in studying in the United States and the anxieties that studying here engendered, especially in recent months.

This Article comes out of those interviews. Part I of this Article provides background regarding the importance of international students to the United States, and it identifies concerns that universities have had about how the election of President Trump might affect the enrollment of international students at U.S. institutions of higher learning. Part II discusses international students at the University of North Dakota and the findings from my empirical study.

I. BACKGROUND

In this section, I provide data regarding international students, including their impact on the United States economy. I also provide background to explain why U.S. universities and colleges have been worried that Trump's election may negatively affect the enrollment of international students.

A. International Students in the United States

Over the past 70 years, 20 the number of international students hosted by the United States has grown steadily, increasing every year for the past *418 11 years. 21 The only true dip in international students over the decades can be traced directly to the terrorist attacks of September 11, 2001. 22

Readers may be surprised by the sheer number of international students who choose to pursue their education at institutions of higher learning in the United States. In 2015-2016, the United States achieved a new record by welcoming over one million international students. 23 That record was broken again in 2016-2017 with a 3.4% increase. 24 International students represent a little over 5% of all enrolled students in the country. 25

But in 2016, for the first time in more than a decade, the number of new international student enrollments declined by 10,000--about a 3% drop. 26 Despite this decline in new students, the total number of international students in the United States increased because more international students took advantage of Optional Practical Training (OPT), a

OPPORTUNITIES & ANXIETIES: A STUDY OF..., 22 Lewis & Clark L.... program administered by the United States Citizenship and Immigration Services (USCIS), that allows graduates to work temporarily 27 in areas related to their academic studies and thus remain longer in the United States while still being classified as students. 28

By studying in the United States, international students contribute substantially to our economy. The U.S. Department of Commerce's *419 Bureau of Economic Analysis tracks the education of international students as an exported service. 29 In 2015, international students contributed more than $35 billion to the U.S. economy. 30 In 2016, that figure climbed above $39 billion. 31 International students contribute to the U.S. economy not only with tuition dollars but also with spending--buying food and books, paying rent, and spending on travel and entertainment. 32

The United States has been privileged to host so many international students in large part because its universities are regularly ranked among the best in the world. 33 Having international students present in the United States both enhances the worldwide reputation of U.S. institutions and improves the educational experience for all students by bringing diverse perspectives into the classroom. 34

B. The Trump Effect on International Students in the United States

Even before his election, there were concerns that a Trump presidency might affect international student enrollment. Only a few of Trump's tweets during his presidential campaign addressed international students, and those were positive. “When foreigners attend our great colleges and want to stay in the U.S., they should not be thrown out of our country,” Trump wrote. 35 He also said: “I want talented people to come into this country--to work hard and to become citizens. Silicon Valley needs engineers, etc.” 36

But the white paper that defined Trump's campaign positions on immigration raised some alarms for international students. Trump stated that “we need to stop giving legal immigrant visas to people bent on *420 causing us harm ... our immigration system is being used to attack us.” 37 Did this mean that the president hoped to restrict legal immigration? Would he limit visas for international students and graduates?

The white paper identified concerns about particular U.S. visa programs. 38 Trump singled out the H-1B visa, which allows individuals in specialty occupations to work temporarily in the United States, 39 arguing that the prevailing wages paid to H-1B workers are too low and that American workers ought to be hired first. 40 This was a concerning position for international students, many of whom hope to obtain an H-1B in order to work lawfully in the United States after graduation. Indeed, the system is set up to help international students obtain an H-1B visa. While there are a limited number of H-1B visas available each year, 41 and it's a highly competitive process to receive one, 42 there are 20,000 H-1B visas set aside for those receiving master's degrees or higher degrees from U.S. educational institutions. 43

In addition to challenging the H-1B visa, Trump's white paper attacked the J-1 visa, 44 a visa geared towards temporary visitors on educational or cultural exchanges. 45 Specifically, the white paper endorsed ending the “J-1 visa jobs program for foreign youth.” 46 That statement might have referenced a narrow band of J-1 exchanges called Summer Work Travel, 47 which allow international post-secondary students to work and travel in the United States for a single, nonextendable, four-month visit coinciding with their summer vacations. 48 But, as commentators noted, “[i]t was

OPPORTUNITIES & ANXIETIES: A STUDY OF..., 22 Lewis & Clark L.... unclear if the proposal referred to the J-1 program as a whole--parts of which colleges use to bring in *421 visiting foreign scholars.” 49 If a broader critique was meant, that would be highly concerning for institutions of higher education. 50 More than 380,000 individuals came to the United States on a J visa last year. 51 Those included more than 46,000 students at U.S. universities and colleges, 52 along with more than 37,000 professors and research scholars. 53

Beyond his white paper, Trump's campaign rhetoric towards immigrants generally was divisive. In December 2015, Trump first proposed a “total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on.” 54 During his campaign, Trump also expressed deep concerns about U.S. workers losing their jobs to foreigners, as had happened to certain information technology workers at Disney. 55

Throughout campaign season, international students were apparently listening. A March 2016 survey of 40,000 prospective international students in 118 countries revealed that 60% said they would be less likely to study in the United States if Trump were elected. 56

After Trump's election, concerns about his effect on international student enrollment grew. 57 Prospective international students and their *422 parents indicated “second thoughts” about pursuing education stateside. 58 To at least some, the United States was suddenly “risky” with “too many uncertainties.” 59 One survey of international students found about a third had a decreased interest in studying in the United States “due to the current political climate.” 60 Interestingly, a February 2017 survey of overseas “education agents,” individuals who advise international students about where to apply, indicated that the travel ban “permanently damaged” how 11% of recruiters saw the United States, and that it had “temporarily dampened” the opinion of another 44% of recruiters. 61 That survey is particularly significant because recruiters have “a lot of sway .... They can convince people to go to a country or not.” 62 *423 More than half of the recruiters reported that students had concerns about the travel ban. 63

Meanwhile, international students already present in the United States expressed fear and uncertainty about continuing their education here. 64 They raised concerns about being “locked in” the United States without the ability to travel to visit family or attend academic conferences. 65 That is, while these scholars knew that they could leave the United States, they harbored worries about whether they would be readmitted upon their return. 66 They worried they might be turned away due to the Muslim ban or that they might be excluded based on some other new immigration policy. 67

Nearly half of U.S. institutions saw drops in applications received from international students in 2017. 68 Those reduced applications then turned into reduced admissions, with 46% of graduate deans reporting “substantial downward changes in admission yields for international *424 students,” which is to say a reduction in the number of admitted students who choose to enroll. 69 Some of the declines were “modest to moderate” while others were “more substantial.” 70 In Fall 2017, U.S. universities and colleges experienced a “flattening” in the overall number of enrolled international students as well as an average decrease of 7% in the number of newly enrolled international students. 71

II. THE STUDY

This section focuses on my study of international students at the University of North Dakota (UND). I begin with information about UND and my research methodology. I then discuss the findings from my study--looking first at the

OPPORTUNITIES & ANXIETIES: A STUDY OF..., 22 Lewis & Clark L.... opportunities international students identified regarding study in the United States and then at the anxieties they shared about pursuing their education stateside.

A. The University of North Dakota

The University of North Dakota is the flagship university for the state of North Dakota. 72 It is a public institution with both undergraduate and *425 graduate programs. The university offers more than 200 fields of study, including medicine, law, and aviation. 73

UND hosts 15,000 students, hailing from all 50 states and some 80 countries. 74 As of 2017-2018, more than 1,000 international students study at UND. 75 They make up a little more than 7% of the student body. 76

UND is located in the city of Grand Forks, which is on the very eastern edge of the state. The city is bordered on the east by the Red River, on the other side of which is East Grand Forks, Minnesota. Grand Forks is about 80 miles south of the U.S.-Canada border.

Grand Forks is one of the coldest cities in the United States, 77 with a 30-year average low of just above six degrees Fahrenheit. 78 With those temps, it may be no surprise that UND is hockey country. In 2016, the UND men's hockey team won its eighth NCAA championship. 79 And the Lamoureux twins, who helped the U.S. women's hockey team secure gold at the 2018 Olympics in PyeongChang, both hail from Grand Forks and are UND grads. 80

A particular strength of UND is its globally renowned John D. Odegard School of Aerospace Sciences, one of the world's leading centers for aviation training. 81 The school's aerobatic team won the International Aerobatic Club Collegiate National Championship Team Award an impressive nine years in a row, beating out teams from the U.S. *426 Air Force Academy and Embry Riddle Aeronautical University. 82 Indeed, UND-related small-plane and helicopter activity helps to make Grand Forks International one of the country's busiest airports as judged by the number of take-offs and landings. 83

B. Research Methodology

Between March and October 2017, I interviewed 42 of UND's international students. I spoke with 20 undergraduates and 22 graduate students; of the total, 25 were men and 17 were women. The interviewees hailed from six different continents with the largest number from Canada (14), followed by Saudi Arabia (8), and South Korea (6). They studied a range of subjects, with the highest number pursuing law (15), aviation (14), and engineering (4). Two of the students were exchange students, present in the United States on J visas 84 to study but not to seek a degree. 85 The rest were full- time international students here on F visas, 86 which are available to degree-seeking full-time students. 87

I spoke with most subjects (26) in a one-on-one setting. Two subjects opted to be interviewed together, and I also conducted interviews in two different small-group classroom settings of five and nine students each.

The interviewees learned about my study in different ways. Some responded to posters that I hung at various spots around campus. Others responded to e-mails that were distributed on my behalf by student organizations with an

OPPORTUNITIES & ANXIETIES: A STUDY OF..., 22 Lewis & Clark L.... international membership. The two in-class interviews were arranged by instructors. All subjects were volunteers who were not compensated for their time.

*427 Each interviewee was provided with an Informed Consent Statement approved by UND's Institutional Review Board. 88 As outlined in that statement, I described for interviewees that the purpose of my study was “to explore the experience of international students in the United States, if and how that experience has changed with the election of President Trump, and what perceptions there are about the future of international students in the United States.” 89 With that as my stated goal, I allowed interviews to develop organically to take various directions. I found students responded most openly to questions about why they chose to study in the United States, whether anything about their study here had been different from what they anticipated, and if they would do it all again, given the chance.

C. Findings

Recurring themes in the interviews were the opportunities that draw international students to study in the United States and the anxieties that students harbor about studying here. Thus, I will divide my discussion correspondingly.

1. Opportunities

When I asked interviewees about why they chose to study in the United States, nearly every student responded by discussing the “opportunities” that studying in the United States opened up for them. 90 “Opportunity” was not a word that I used or a prompt that I gave, but it was a word that interviewees chose, over and over again.

Some spoke about opportunity in vague, almost philosophical terms. Others saw pursuing their education at the University of North Dakota, specifically, as a unique opportunity. a. Opportunities in the United States

The United States, many students noted, is unique. It is not only a “land of opportunity,” 91 “it's like the first country,” 92 “the top world superpower,” 93 “one of the greatest countries in the world.” 94

America is a place where people can “Dream. Work hard. See results.” 95 In this country, there are “a lot of options.” 96 That means it is possible to “achieve something.” 97

*428 For some students, education in the United States itself was the opportunity they were excited to achieve. Students mentioned the “very good universities” 98 in this country, the opportunity to pursue majors not available elsewhere 99 and to “switch from one field to another,” 100 the chance to learn, 101 and the opportunity to meet the top people in their field of study. 102 Studying in the United States, one said, is a way to “maximize my education ... my knowledge and experience.” 103 It offered “another chance,” 104 the start of “something new,” 105 a means to get away from the old life that I had,” 106 a path towards “a job that ha[s] some challenge,” 107 “my dream.” 108

Many talked about the value that would be placed on their American education back in their home countries. 109 Part of that value derived from the opportunity to improve their English skills. 110 Students also saw value in the other skills 111

OPPORTUNITIES & ANXIETIES: A STUDY OF..., 22 Lewis & Clark L.... learned during their course of study, including, for example, seeing “other research environments,” learning from those, and taking those skills back home. 112 Some reported that their American education would open doors to professional jobs in their home country that would otherwise not be available. 113

Beyond any particular course of study, students saw value in learning about the United States and interacting with Americans first hand. 114 They talked about the benefits of gaining a “different[] perspective” 115 on “the culture, the people” 116 and “American society” 117 --“to see what it is *429 really like.” 118 That included the chance to “enjoy the country” 119 which is so “large and diverse.” 120 As one student said, “I'm seeing what I haven't seen. I'm experiencing what I haven't done before. Here is [an] environment I haven't been [in] before. And that makes me think more about myself. And that begs me [to] widen my sight[,] my mindset.” 121 Others echoed this sentiment, saying that studying in the United States provided the chance to “experience something new,” 122 “to improve myself.” 123

Beyond the classroom and experiencing the United States generally, many students were interested in the opportunity to gain experience in their fields outside the classroom--whether through Optional Practical Training 124 or full-time jobs after graduation. 125 Some saw this as valuable experience to gain “before going back to share.” 126 Others had the “hope of getting a permanent status” 127 in the United States, to work in this country 128 where it's the “major league” 129 meaning not just high pay 130 but also the opportunity to “work with the best.” 131

Some saw working in the United States as opening doors that were closed in their home countries 132 where the fields they were studying were less developed, 133 less varied, 134 or less in demand. 135 There are, as one said, “More things going on. More people. More jobs.” 136

*430 In sum, studying in the United States presented the interviewees with numerous opportunities, whether in the United States or back home. Emblematically, one student said: “Everyone must come here and see the United States. I believe in that.” 137 After all, “it's where the cool stuff happens.” 138 b. Opportunities at UND

Beyond the general benefits of studying in the United States, two groups emerged who identified specific opportunities associated with studying at the University of North Dakota: law students and aviation students. 139 i. Law Students

In 2016, nearly 15% of students at UND's School of Law were international students. 140 In 2017, that figure dropped to just over 11%. Most, though not all, of these international students are Canadian citizens.

During my interviews of Canadian law students, I heard a common story as to how they ended up at this institution for their degree: Canada does not have many law schools--just 16 to be exact. 141 Student seats in Canadian law schools are extremely limited. 142

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The United States, in contrast to Canada, has more than 200 ABA accredited law schools. 143 Admissions are competitive, but not nearly as *431 constrained as in Canada. 144 Students who cannot gain entrance to a Canadian law school may still do incredibly well at a U.S. institution, pass the bar, and go on to successful legal careers whether in the United States or in Canada.

Those circumstances indicate that many qualified Canadian students might be interested in studying in the United States. But it does not explain why such students would be drawn to the University of North Dakota. Geography plays an important role. Most, though not all, of UND's Canadian law students hail from Manitoba, a Canadian province that borders North Dakota. For them, UND is “close to home.” 145 Many are from the province's largest city, Winnipeg, which is roughly a two-and-a-half-hour drive from Grand Forks. This makes the University of North Dakota School of Law an effective commuting school for many: A substantial number of Canadian students attend classes during the week and spend their weekends back home in Manitoba. 146 Some have spouses and children in Manitoba.

In addition to geographical proximity, UND is able to draw Canadian students because it offers tuition to Manitoban students at a discounted rate. While such students do not pay in-state tuition, they do pay a specialized rate applicable to “contiguous” states and provinces, a category that includes Montana, South Dakota, and Saskatchewan. 147 It is a lesser rate than non-residents from other states or nations pay. 148 Thus, study at UND is a more affordable option than study at another U.S. law school. 149

Finally, some Canadian students choose to study at UND because they perceive the school as having many desirable qualities. 150 Students cited UND's emphasis on experiential education (while bemoaning the recent suspension of the school's clinic), 151 writing courses, 152 and *432 “community.” 153 Students liked how “professors know your name,” 154 the vibrancy of student organizations, 155 and experiences like moot court. 156

This combination of supply and demand, geography, and cost allows UND School of Law to claim a unique niche for Canadian law students. 157 ii. Aviation Students

Studying aviation is another unique category of opportunity for international students at UND. The prestige and recognized excellence of UND's Department of Aviation at the John D. Odegard School of Aerospace Sciences 158 is a distinct draw for students. 159

For some aviation students, UND is chosen for them. That was true for the aviation students with whom I spoke from Saudi Arabia. 160 These students are employees of Saudia, 161 also known as Saudi Arabian Airlines. 162 The company has sent them to UND on a five-year program to study aviation--the path to a career as a pilot for Saudia. 163

Saudia is not the only company that sends its employees to UND's aviation department. Air China has sent students to study aviation at UND as well. 164 Additionally, since the late 1980s, Saudi Aramco, a Saudi Arabian oil company, has sent two to three students a year to UND for helicopter training. 165

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The tremendous reputation of UND's aviation department, coupled with the relationships that the school has built with international companies, ensures the program always has a substantial cadre of international students. 166

*433 2. Anxieties

The international students with whom I spoke discussed not only the opportunities that drew them to this country, but the anxieties they had about pursuing their education stateside. I did not specifically ask interviewees about their anxieties. Rather, I asked whether and how studying in the United States was different from what they expected, whether the election of President Trump changed their feelings about studying in the United States, whether they would do it again, and whether they believed other prospective international students would continue to choose to study in this country.

In response, over and over again, students talked about being anxious, 167 apprehensive, 168 and scared. 169 They reported a “sense of fear” 170 and “uneasiness” 171 about studying in the United States as a noncitizen.

Travel was one thing that interviewees identified as a source of anxiety.

For some, particularly non-minority Canadian students, the concern for travel was short-lived and related to UND's advice, in the wake of President Trump's first travel ban, not to travel out of the country. 172 For example, Canadian students who were already in Canada when UND issued its travel advisory worried about getting back into the United States. 173 Others had more generalized worries about crossing the U.S.- *434 Canadian border, 174 including the student who told their spouse to “try not to look suspicious” 175 during a crossing.

For non-Canadian international students, concerns about international travel meant that they skipped opportunities to travel into Canada. 176

Saudi students, in particular, identified a fear of the immigration process itself. 177 They talked about choosing to fly through particular airports in an effort to avoid potential problems 178 and choosing not to return home during breaks. 179 “All of us are afraid to go back to Saudi Arabia to visit, because we might not enter the U.S. [again].” 180

That fear was not limited to students from the Middle East. One African student missed walking his sister down the aisle at her wedding because he was afraid that he would not be able to get back into United States. 181 His mother encouraged him not to participate in the wedding, telling him: “don't risk it.” 182

Beyond travel anxieties, interviewees reported increased worries over how they were perceived by Americans. “I'm always worried about what my classmates think,” 183 one student said. “I feel like people ... now. People think that I'm taking up a spot that an American law school applicant could have taken.” 184 “I feel not welcome.” 185

Some experienced anxieties directly tied to their education. That is, some reported being “very uneasy, uncertain” about their future: “Theoretically I couldn't finish my education.” 186 Not knowing how *435 President Trump might change the rules was “scary.” 187 “You can't really tell your fate. If you actually get all you're expecting to get from America.” 188 Some educational anxieties were not about the ability to continue studies, but about the ability to have research funded in the wake of cuts by President Trump to science funding. 189

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Social media was another source of anxiety. As one student said:

[Would publicly disagreeing with Trump] threaten my status here? ... Do I need to worry about my social media? ... Having a voice might actually concern a president. And that's really strange .... I don't want to threaten what I'm doing here and my potential for what I'm doing in the future ... I don't want to affect my visa. 190

Another commented: “I don't feel comfortable voicing my ideas anymore. Leave that to Americans who are allowed to be in the country to do that for me.” 191 Beyond voicing ideas, one student talked about curating social media before attempting to enter the United States because of worries that their phone would be searched and how U.S. authorities might react to anything they would find: “Actually, before I c[a]me, I look[ed at] my pictures. Photo by photo. On my phone. Do I have any [photos of] killing, guns, wars? [I] deleted everything. All the apps. I looked [at] all the apps and signed out.” 192

International students were “very aware” of their international status. 193 With that awareness came a “hyper realization” of the limitations of that status and a need to protect it by not engaging in social activism, such as protesting the Dakota Access Pipeline, 194 which might lead to an arrest or otherwise threaten that status. 195 More than limiting activism, *436 the awareness that any interaction with law enforcement might threaten their immigration status led international students to be “super super super conscious ... more, more careful” to not put themselves “in any vulnerable position.” 196

Work experience was another source of anxiety. Students expressed concerns about a range of issues that might affect their ability to gain work experience in the United States, including rumored cuts to Optional Practical Training, 197 restrictions on H-1B visas, 198 and the renegotiation of the North American Free Trade Agreement (NAFTA). 199 NAFTA is important to UND's Canadian law students who hope to work in the United States: NAFTA's TN visa 200 offers a fast-track process for skilled professionals to work in the United States. 201 Changes to the free trade agreement between the United States, Canada, and Mexico could eliminate this visa option. 202

*437 Students recognized that it would be difficult to get a job in the United States after graduation. 203 At the same time, as one noted: “It would really suck to go through this whole degree and ‘sorry, you can't get a job here.”’ 204 In particular, students worried about whether employers would “give preference to Americans .... Maybe ... it's going to be mandated that they give preference to Americans now.” 205 As another commented: “What if I cannot get a job here, what's the next step?” 206 “I feel more like my future isn't secure.” 207

Students expressed concern not just about employment discrimination, but discrimination within their communities. 208 Some worried about discrimination before even coming to the United States: 209 “I thought if I go there I can be discriminated [against]. I had this first impression like prejudice.” 210 Some students had experienced specific instances of anti-immigrant harassment during the course of their study. 211 Some tied these incidents directly to Trump: “After

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Donald Trump got elected, people start[ed] to think [they] can say some[] *438 discriminating thing in public. That's a big change.” 212 For instance, people “tell me to get out of this country.” 213

Guns were another frequent concern. Students expressed fear over the accessibility of guns, the prevalence of gun violence, and reports of campus shootings. 214 Multiple students said that they worried about people who could “shoot you because they don't like what you're doing or saying.” 215 It is clear that news reports of shootings particularly affected international students. For example, one noted that “After [the] Las Vegas thing, 216 I just think ... [in] Grand Forks, also people have guns.” 217 Another spoke about how reports of police violence stoked fears of U.S. police: “you don't really know what they're going to do ... people are unpredictable when they're under pressure. That is a little bit scary.” 218 Guns, it seems, are a source of constant stress to some when in public spaces. As one student said: “I think about the gun thing quite often .... Sometimes when I've been [at] Walmart. Where would I hide here?” 219

*439 War was yet another concern. Students expressed fear over President Trump's interactions with North Korea. 220 One student, who had escaped ISIS attacks back home, stated: “I don't want to die here because of nuclear war.” 221

The international students I spoke with had various concerns, but it was clear overall that they were anxious and felt uncertain about their future as students and, potentially, as workers in the United States. One student perhaps spoke to the root of these anxieties, when he or she said that for international students “it's out of control for you.” 222

CONCLUSIONS

Perhaps the most salient takeaway from my interviews is the level of optimism international students have about studying in the United States. The overwhelming majority said they would do it all over again; if given the chance, they would return to the United States to study. 223 At the same time, the anxieties identified by international students were noteworthy. As one might have expected, some concerns were directly attributable to President Trump and his immigration politics. But the concerns raised about gun violence in the United States were unexpected.

It should be emphasized that each student I spoke with was already pursuing education in this country. Each had already applied to UND, been accepted, enrolled, and had gone through a process to obtain a visa to come to the United States. In short, they had already made a commitment to this country. This begs the question of whether prospective students around the globe will be willing to make the same commitment in the same or greater numbers as in past years. Will they see the opportunities available in the United States as outweighing the anxieties studying here may engender?

One interviewee said it best when he noted an Arabic expression: “The eye eats.” 224 The expression helps pinpoint questions about the future of international students: Are international students abroad *440 “already tasting how bad it will be” based on what they see in the media? 225 Will fears of discrimination, violence, travel restrictions, and limited job opportunities convince students to study elsewhere? 226 Matriculation numbers in the future will answer these questions. In the meantime, it seems clear that the anxieties that international students carry weigh more heavily than one might think, but they are buoyed by the hopes they hold about the immense possibilities they associate with the United States.

Footnotes

OPPORTUNITIES & ANXIETIES: A STUDY OF..., 22 Lewis & Clark L.... a1 Associate Professor at the University of North Dakota School of Law. I am thankful for the thoughtful feedback and insights of Eric E. Johnson and Julia Ernst as well as the research assistance of Anne Mostad-Jensen. I am also grateful to the Lewis & Clark Law Review for inviting me to participate in their 2018 symposium, The Immigration Nexus: Law, Politics, and Constitutional Identity. © 2017-2018 Kit Johnson. Konomark--Most rights sharable. See konomark.org.

1 The wonderful Sabrina Balgamwalla, who is now teaching at Wayne State University Law School.

2 Liz Kacher, Immigration Discussion: Post-election Q&A Session on Immigration Held at the Loading Dock, DAKOTA STUDENT (Dec. 2, 2016), https://dakotastudent.com/9535/news/immigration-discussion/.

3 See, e.g., Michael Tesler, How Anti-Immigrant Attitudes Are Fueling Support for Donald Trump, WASH. POST (Nov. 24, 2015), https://www.washingtonpost.com/news/monkey-cage/wp/2015/11/24/how-anti-immigrant-attitudes-are- fueling-support-for-donald-trump/?utm_term=.ec06c8d0aa14.

4 Exec. Order No. 13,767 of Jan. 25, 2017, Border Security and Immigration Enforcement Improvements, 82 Fed. Reg. 8793 (Jan. 30, 2017) (to be codified in 3 C.F.R. (2018)).

5 Exec. Order 13,769 of Jan. 27, 2017, Protecting the Nation from Foreign Terrorist Entry into the United States, 82 Fed. Reg. 8977 (Jan. 27, 2017) (to be codified in 3 C.F.R. (2018)).

6 See, e.g., Earl M. Maltz, The Constitution and the Trump Travel Ban, 22 LEWIS & CLARK L. REV. 391 (2018); Howard M. Wasserman, “Nationwide” Injunctions are Really “Universal” Injunctions and They Are Never Appropriate, 22 LEWIS & CLARK L. REV. 335 (2018); Steve Almasy & Darran Simon, A Timeline of President Trump's Travel Bans, CNN (Mar. 30, 2017), http://www.cnn.com/2017/02/10/us/trump-travel-ban-timeline/index.html.

7 Adam Liptak, Supreme Court Allows Trump Travel Ban to Take Effect, N.Y. TIMES (Dec. 4, 2017), https:// www.nytimes.com/2017/12/04/us/politics/trump-travel-ban-supreme-court.html?_r=0.

8 David Comp, Running List of University/College and Higher Education Organization/Association Responses to President Trump's Executive Order Entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals”, INT'L HIGHER EDUC. CONSULTING BLOG, (Jan. 29, 2017), http://ihec-djc.blogspot.com/2017/01/running-list-of- universitycollege-and.html.

9 Message from Kimberly Benson, President of Haverford College, to Haverford Students, Faculty, and Staff (Jan. 31, 2017), https://www.haverford.edu/college-communications-president/news/regarding-executive-order-immigration. At the University of North Dakota School of Law, Professor Julia Ernst made her regularly-scheduled field trip to the Canadian Museum for Human Rights, normally a required component of her International Human Rights course, optional in response to the travel ban.

10 Message from Nicholas Dirks, UC Berkeley Chancellor, to Members of the Berkeley Community (Jan. 29, 2017), http://news.berkeley.edu/2017/01/29/trump-travel-ban/? utm_content=buffer422d1&utm_medium=social&utm_source=twitter.com&utm_ca-mpaign=buffer.

11 Boren Statement Regarding Executive Order, U. OKLA., http://www.ou.edu/web/news_events/articles/news_2017/statement- from-ou-president-david-l--boren-regarding-president-t.html. The interim president of Lewis and Clark offered similar words. See David Ellis, A Message of Support For Our International Community, THE SOURCE (Jan. 30, 2017), https:// www.lclark.edu/live/news/35273-a-message-of-support-for-our-international (“[The ban] will have no impact, however, on the love, respect, and support we have for each and every member of this community. You are welcome here. We pledge our support and we do not want you to leave. You enrich our lives and we humbly hope to enrich yours in return.”).

12 Letter from Univ. Presidents to President Trump (Feb. 2, 2017), http://www.princeton.edu/president/eisgruber/docs/ Presidents-Letter-Immigration.pdf.

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13 Id. In November 2017, several university and college presidents joined together to form The Presidents' Alliance on Higher Education and Immigration, an organization dedicated to increasing “public understanding of how immigration policies and practices impact our students, campuses and communities.” Founding Statement, PRESIDENTS' IMMIGRATION ALL., https://www.presidentsimmigrationalliance.org/founding-statement/. The group's founding statement includes an emphasis on international students, who enrich our campuses as educational and research environments. Our colleges and universities are magnets for the world's talent, from those ready to contribute to our nation's prosperity to those who dream of making their home countries more just, inclusive and equitable societies. The presence and contributions of international students and scholars are key to achieving our educational and service missions to create and disseminate knowledge for the betterment of the individual, society and the world. This enhances the education and understanding of all students, their preparation to live and work in an increasingly connected world, and their readiness to tackle global challenges. Id.

14 Letter from the Am. Physical Soc'y to President Trump (Jan. 31, 2017), https://www.aps.org/about/governance/letters/upload/ multisociety-imm.pdf.

15 Letter from Colleges and Universities to Sec'y Kelly (Feb. 3, 2017), http://www.acenet.edu/news-room/Documents/Letter- From-Institutions-to-DHS-on-Immigration-Executive-Order.pdf.

16 E-mail from Katie Davidson, Dir. of Int'l Ctr. (Jan. 28, 2017) (on file with author).

17 David Dodds, Beyond ‘Politeness and Niceness', UNIV. N.D. TODAY (Jan. 31, 2017), http://blogs.und.edu/und- today/2017/01/beyond-politeness-and-niceness/.

18 Id.

19 E-mail from Sandra Mitchell, Assoc. Vice President for Diversity and Inclusion (Jan. 31, 2017) (on file with author) (citing Definition of Diversity, UNIV. N.D. (Nov. 2, 2016), https://und.edu/provost/diversity/_files/docs/dac-best-practices- group-11-2-2016.pdf.

20 Enrollment Trends: Previous Years,INST. OF INT'L EDUC. (2016).

21 Open Doors 2017 Executive Summary, INST. OF INT'L EDUC. (2017), https://www.iie.org/Why-IIE/ Announcements/2017-11-13-Open-Doors-2017-Executive-Summary.

22 Kit Johnson, International Student Enrollment: Is it Time to Panic Now?, IMMIGRATION PROF BLOG (Feb. 24, 2017), http://lawprofessors.typepad.com/immigration/2017/02/international-student-enrollment-is-it-time-to-panic- now-.html; Jason Lane, Ignoring the Power of International Exchange: Will Trump's Immigration Ban Undercut American Soft Power?, THE CONVERSATION (Jan. 30, 2017), https://theconversation.com/trumps-immigration-ban-will-it-undercut- american-soft-power-72156.

23 Open Doors 2016 Executive Summary, INST. OF INT'L EDUC. (2016), https://www.iie.org/Why-IIE/ Announcements/2016-11-14-Open-Doors-Executive-Summary.

24 Open Doors 2017 Executive Summary, supra note 21.

25 Id.

26 2017 Open Doors Press Briefing, YOUTUBE (Nov. 13, 2017), https://www.youtube.com/watch? v=2YXo5OEjIVE&feature=youtu.be.

27 The length of time that a student can work on OPT varies by their field of study. Graduates of STEM (science, technology, engineering, mathematics) can participate in OPT for 36 months. Neil G. Ruiz, More Foreign Grads of U.S. Colleges are Staying in the Country to Work, PEW RES. CTR. (May 18, 2017), http://www.pewresearch.org/fact-tank/2017/05/18/more-

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foreign-grads-of-u-s-colleges-are-staying-in-the-country-to-work/. Other graduates can work on OPT for 12 months. See, e.g., Stuart Anderson, Are International Students Next on the Menu, FORBES (Oct. 15, 2017), https://www.forbes.com/sites/ stuartanderson/2017/10/15/are-international-students-next-on-the-menu/#5521162b5e9f.

28 Ruiz, supra note 27 (discussing the fivefold increase in students taking advantage of OPT).

29 See U.S. International Transactions Tables, BUREAU OF ECON. ANALYSIS 132 tbl. 3.1 l. 18 (May 18, 2017), https:// www.bea.gov/scb/pdf/2017/10-October/1017-international-transactions-tables.pdf.

30 Id.

31 Id.

32 C.f. The Economic Costs and Benefits of International Students (Jan. 2013), https://www.sheffield.ac.uk/ polopoly_fs/1.259052!/file/sheffield-intaernational-students-report.pdf (evaluating the impact of international students at Sheffield-based universities).

33 See, e.g., World University Rankings 2018, TIMES HIGHER EDUC., https://www.timeshighereducation.com/ world-university-rankings/2018/world-ranking#!/page/0/length/25/sort_by/rank/sort_order/asc/cols/stats. (U.S. institutions claiming 15 of the top 20 spots worldwide).

34 See, e.g., Corrected Amicus Curiae in Support of the Appellees International Refugee Assistance Project et al. at 4-6; Int'l Refugee Assistance Project v. Trump, 857 F.3d 558 (4th Cir. 2017) (No. 17-1351).

35 Donald J. Trump (@realDonaldTrump), TWITTER (Aug. 18, 2015), https://twitter.com/realdonaldtrump/ status/633695559900073984?lang=en.

36 Donald J. Trump (@realDonaldTrump), TWITTER (Aug. 18, 2015), https://twitter.com/realdonaldtrump/ status/633695409408491520?lang=en.

37 Immigration Reform that will Make America Great Again!, TRUMP CAMPAIGN, at 5 (Aug. 16, 2015), https:// assets.donaldjtrump.com/Immigration-Reform-Trump.pdf.

38 Id.

39 Immigration and Nationality Act § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b) (2012).

40 Immigration Reform that Will Make America Great Again!, supra note 37, at 5.

41 There is a Congressionally set cap of 65,000. See Kit Johnson, Importing the Flawless Girl, 12 NEV. L.J. 831, 848-49 & n.158 (2012). Certain jobs, however, including positions at institutions of higher education, are exempt from this cap. Immigration and Nationality Act § 214(g)(5)(A), 8 U.S.C. § 1184(g)(5)(A).

42 Johnson, supra note 41, at 849 (noting how long it took to reach the cap in different fiscal years).

43 Immigration and Nationality Act § 214(g)(5)(C).

44 Immigration Reform that Will Make America Great Again!, supra note 37, at 5.

45 Immigration and Nationality Act § 101(a)(15)(J); see also Kit Johnson, The Wonderful World of Disney Visas, 63 FLA. L. REV. 915, 937-41(2011) (outlining the history of the J visa program).

46 Immigration Reform that Will Make America Great Again!, supra note 37, at 5.

47 Johnson, supra note 45, at 950-54 (outlining the criteria for Summer Work Travel).

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48 Id. at 950.

49 Elizabeth Redden, Implications of Trump's Presidential Victory for International Students, INSIDE HIGHER EDUC. (Nov. 10, 2016), https://www.insidehighered.com/news/2016/11/10/implications-trumps-presidential-victory-international- and-undocumented-students?width=775&height=500&iframe=true; see also Lane, supra note 22.

50 A change to Summer Work Travel would, naturally, concern those employers who rely on the short-term work of that category of J visa recipients. See Johnson, supra note 45, at 950-54 (discussing such workers at Walt Disney World). But eliminating the SWT program would not affect U.S. institutions of higher education.

51 U.S. DEP'T OF STATE, BUREAU OF CONSULAR AFFAIRS, TABLE XVI(A) CLASSES OF NONIMMIGRANTS ISSUED VISAS (INCLUDING BORDER CROSSING CARDS) FISCAL YEARS 2012-2016, https://travel.state.gov/ content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReport-TableXVIA.pdf.

52 U.S. DEP'T OF STATE, BUREAU OF EDUC. AND CULTURAL AFFAIRS, PARTICIPANT AND SPONSOR TOTALS: COLLEGE AND UNIVERSITY STUDENT, https://j1visa.state.gov/basics/facts-and-figures/participant-and- sponsor-totals/?program=College+and+University+Student&state=&x=5&y=13.

53 U.S. DEP'T OF STATE, BUREAU OF EDUC. AND CULTURAL AFFAIRS, PARTICIPANT AND SPONSOR TOTALS: PROFESSOR AND RESEARCH SCHOLAR, https://j1visa.state.gov/basics/facts-and-figures/participant-and- sponsor-totals/?program=Professor+and+Research+Scholar&state=&x=14&y=15.

54 Trump-O-Meter, Establish a Ban on Muslims Entering the U.S., POLITIFACT (Jan. 16, 2017), http://www.politifact.com/ truth-o-meter/promises/trumpometer/promise/1401/establish-ban-muslims-entering-us/.

55 Ted Johnson, Donald Trump Zeroes in on Disney Layoffs in Bashing Guest Worker Visas, VARIETY (Mar. 4, 2016), http:// variety.com/2016/biz/news/donald-trump-disney-h-1b-1201723103/.

56 Karin Fischer, A Trump Presidency Could Keep Some International Students Away, CHRON. HIGHER EDUC. (June 1, 2016), https://www.chronicle.com/article/A-Trump-Presidency-Could-Keep/236662.

57 See, e.g., Danielle Douglas-Gabriel, Moody's Warns Trump Presidency Could Hurt Colleges Counting on International Students, WASH. POST (Nov. 18, 2016), https://www.washingtonpost.com/news/grade-point/wp/2016/11/18/moodys-warns-trump- presidency-could-hurt-colleges-counting-on-international-students/?utm_term=.b51689d7a145 (“the flow of international students into the United States will wane if Trump upholds a campaign promise to limit or end the H-1B visa program for high- skilled foreign workers.”); Kit Johnson, The Trump Effect on Enrollment of International Students in the US, IMMIGRATION PROF BLOG (Nov. 17, 2016), http://lawprofessors.typepad.com/immigration/2016/11/the-trump-effect-on-enrollment-of- international-students-in-the-us.html (“the mere possibility of restrictive immigration policies will undoubtedly affect international student enrollment”).

58 Safia Samee Ali, International College Students Leery of Trump Could Cost U.S. Billions, NBC NEWS (Dec. 10, 2016), https://www.nbcnews.com/news/us-news/international-college-students-leery-trump-could-cost-u-s-billions-n691871; see also Mizuho Aoiki, Trump Factor has Japanese Students Rethinking Study in U.S., JAPAN TIMES (Feb. 24, 2017), https://www.japantimes.co.jp/news/2017/02/24/national/trump-factor-japanese-students-rethinking-study-u- s/#.WnYxZ6inFPY (“seeing Trump made me a bit scared to live there”); Aditya Bhardwaj, International Students Fear for Future Under Trump, CORNELL DAILY SUN (Nov. 20, 2016), http://cornellsun.com/2016/11/20/international-students- fear-trump-presidency/ (“[my parents] are seriously re-considering whether they should send my sister to the United States for her undergraduate degree next year”); Nida Najar & Stephanie Saul, ‘Is It Safe?’ Foreign Students Consider College in Donald Trump's U.S., N.Y. TIMES (Nov. 16, 2016), https://www.nytimes.com/2016/11/17/us/is-it-safe-foreign-students- consider-college-in-donald-trumps-us.html (“if it's Trump in the White House, we're not sure we want to send you to the U.S.”); Emily Tate, ‘Should I Still Move There?’: An International Student's Dilemma About America in the Age of Trump, HUFFINGTON POST (Dec. 16, 2016), https://www.huffingtonpost.com/entry/international-students-reconsider-moving- to-america-under-trump-presidency_us_58530cf5e4b08debb78830ea.

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59 Hameed Aleaziz & Nanette Asimov, UC Sees 1st Drop in International Applicants in More than Decade, S.F. CHRON. (Apr. 1, 2017), http://www.sfchronicle.com/bayarea/article/UC-sees-1st-drop-in-international-applicants-in-11043891.php.

60 PAMELA KIECKER ROYALL & ANNE DODSON, EAB & ROYALL & CO., EFFECT OF THE CURRENT POLITICAL ENVIRONMENT ON INTERNATIONAL STUDENT ENROLLMENT 4 (2017), http://ns.eab.com/ International-Student-Survey.

61 ANTON CRACE, PROFESSIONAL INTERNATIONAL EDUCATION RESOURCES, US & THEM: EDUCATION AGENT EXECUTIVE WHITE PAPER 1 (2017).

62 Interview with UND student, in Grand Forks, N.D. (May 2017).

63 CRACE, supra note 61, at 11.

64 Mariama Diallo, Will Trump's Anti-Immigrant Rhetoric Discourage Foreign Students?, VOICE OF AM. (Dec. 30, 2016), https://www.voanews.com/a/donald-trump-anti-immigrant-rhetoric-foreign-students/3657270.html; Steve Esack, Pennsylvania Colleges Could Lose Lots of Money in Trump Travel Ban, MORNING CALL (Feb. 27, 2017), http:// www.mcall.com/news/nationworld/pennsylvania/mc-pa-trump-higher-education-immigration-fears-20170225-story.html (“I felt like I wasn't welcomed here anymore”); Max Filby, International Students' Impact in Ohio: $1.1 Billion, J. NEWS (Nov. 27, 2016), http://www.journal-news.com/news/international-students-impact-ohio-billion/WzP4Q5csIiYYX6040wOxDO/ (“The election results have actually given me a little bit of fear.”); Dawn Rhodes, With Trump as President, International Students Ponder Future in U.S., CHI. TRIB. (Jan. 19. 2017), http://www.chicagotribune.com/news/ct-international-students-post- trump-met-20170112-story.html.

65 Caroline Kitchner, Trump is Driving Some of the World's Brightest Foreign Students out of America, VOX (Jan. 31, 2017), https://www.vox.com/world/2017/1/31/14453566/trump-muslim-immigration-ban-foreign-university-students.

66 See, e.g., Filby, supra note 64 (“Wright State student Nathan Balasubramanian is flying home to India for winter break, but his family is worried he won't be allowed back into the United States when classes resume in January.”).

67 See id.

68 Jeffrey Mervis, Drop in Foreign Applicants Worries U.S. Engineering Schools, SCIENCE (Feb. 14, 2017), http://www.sciencemag.org/news/2017/02/drop-foreign-applicants-worries-us-engineering-schools; Hironao Okahana, Data Sources: Highlights from the 2017 CGS Pressing Issues Survey, COUNCIL OF GRADUATE SCHS. (2017), http://cgsnet.org/ data-sources-highlights-2017-cgs-pressing-issues-survey-0; (“Nearly one half of graduate deans at U.S. doctoral universities (48%) indicated they are seeing downward changes in international graduate applications this year, compared to the last application cycle .... Many wrote in concerns related to the current political climate and immigration policies.”); AACRAO, TRENDING TOPICS SURVEY: INTERNATIONAL APPLICANTS FOR FALL 2017 - INSTITUTIONAL & APPLICANT PERCEPTIONS at 2 (Apr. 4, 2017), http://www.aacrao.org/docs/default-source/TrendTopic/Immigration/ final-report.pdf (“38% of responding institutions report a decline in international applications ....”).

69 Okahana, supra note 68; CHRISTINE FARRUGIA & NATALYA ANDREJKO, IIE CTR FOR ACAD. MOBILITY RESEARCH AND IMPACT, SHIFTING TIDES? UNDERSTANDING INTERNATIONAL STUDENT YIELD FOR FALL 2017 at 2 (July 2017), http://www.aacrao.org/docs/default-source/TrendTopic/Immigration/new-study.pdf?sfvrsn=0.

70 Elizabeth Redden, International Enrollments: From Flat to Way Down, INSIDE HIGHER ED (Sept. 5, 2017), https://www.insidehighered.com/news/2017/09/05/some-universities-are-reporting-declines-international-enrollments- ranging-modest; see also Karin Fischer, Many Colleges See a Drop in International Students, Chronicle Survey Finds, CHRON. HIGHER EDUC. (Sept. 6, 2017), https://www.chronicle.com/article/Many-Colleges-See- a-Drop-in/241109; Elizabeth Redden, Boom in Indian Enrollments, Followed by Bust, INSIDE HIGHER ED (Oct. 30, 2017), https://www.insidehighered.com/admissions/article/2017/10/30/after-huge-surge-enrollment-india-central- missouri-sees-substantial (discussing how enrollment of Indian students at the University of Central Missouri dropped with

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“precipitousness”). Interestingly, while the United States is experiencing a decline in international enrollment, Canadian schools are increasing their international student enrollments. Laura Krantz, Increasingly, Foreign Students are Choosing Canada over U.S., BOS. GLOBE (Sept. 16, 2017), https://www.bostonglobe.com/metro/2017/09/16/increasingly-foreign- students-choose-canada-over/khkot6AYt9lakpIFLTNGvM/story.html (“The increase is not all because of Trump. Canada has made international student recruitment a national goal to spur economic growth. It now has 353,000 international students and wants 450,000 by 2022. But the political uncertainty in the United States--as well as in the United Kingdom--has given Canada's effort an unexpected boost.”).

71 2017 Open Doors Press Briefing, supra note 26.

72 Forbes America's Top Colleges: University of North Dakota, FORBES, https://www.forbes.com/colleges/university-of-north- dakota/.

73 Fields of Study, UNIV. N.D., http://und.edu/academics/registrar/fields-of-study.cfm.

74 About UND, UNIV. N.D., http://und.edu/discover/about-und.cfm.

75 UND Student Profile 2017-2018, UNIV. N.D., https://und.edu/discover/student-profile.

76 Id.

77 Alexander Kent, Brrrr: America's 50 Coldest Cities, USA TODAY (Feb. 28, 2015), https://www.usatoday.com/story/money/ business/2015/02/28/247-wall-st-coldest-cities/24107481/ (ranking Grand Forks 2, after Fairbanks, Alaska); Top 50 Coldest Cities in America, NICHE (Apr. 12, 2017), https://articles.niche.com/top-50-coldest-cities-in-america/ (ranking Grand Forks the coldest city in the United States).

78 Id. (6.3 degrees to be exact). 79 Raise It! North Dakota Brings Home 8 th NCAA Title, UND ATHLETIC MEDIA RELATIONS (Apr. 9, 2016), http:// www.undsports.com/ViewArticle.dbml?ATCLID=210877997.

80 April Baumgarten, Grand Forks, UND consider ways to honor Lamoureux twins, WEST FARGO PIONEER (Feb. 23, 2018), https://www.westfargopioneer.com/sports/hockey/4408458-grand-forks-und-consider-ways-honor-lamoureux-twins.

81 See, e.g., The Top 10 Aviation Colleges for 2018, BEST CS. http://www.thebestcolleges.org/rankings/the-top-10- colleges-for-aviation-degrees/; Sarina Houston, The Best U.S. Aviation Colleges, BALANCE , (Oct. 15, 2017), https:// www.thebalance.com/top-u-s-aviation-universities-282905; Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (“UND has one of the best aviation program[s]”).

82 Kaylee Cusack, Flipping for Competition, UND TODAY (Nov. 28, 2017), http://blogs.und.edu/und-today/2017/11/flipping- for-competition/.

83 See, e.g., GFK Ranked 17th Busiest Airport in U.S., GRAND FORKS HERALD (Nov. 6, 2012), http:// www.grandforksherald.com/news/2183531-gfk-ranked-17th-busiest-airport-us.

84 That is, they received visas pursuant to Immigration and Nationality Act § 101(a)(15)(J).

85 See notes 44-53 and accompanying text (discussing the purpose of the J visa, which is the promote international exchange). Interview with UND student, in Grand Forks, N.D. (Mar. 2017); Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

86 That is, they received visas pursuant to Immigration and Nationality Act § 101(a)(15)(F).

87 See Student and Employment: F-1 Student Visa, U.S., CITIZENSHIP AND IMMIGRATION SERVS. (Mar. 11, 2016), https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment; see alsoU.S.

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IMMIGRATION AND CUSTOMS ENFORCEMENT, SEVIS BY THE NUMBERS: BIANNUAL REPORT ON INTERNATIONAL STUDENT TRENDS (June 2017), https://www.ice.gov/doclib/sevis/pdf/byTheNumbersJun2017.pdf (describing F visa holders are “Nonimmigrants whose primary purpose is to complete an academic course of study at an SEVP-certified school or program.”).

88 On file with author.

89 Id.

90 See, e.g., Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

91 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

92 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

93 Interview with UND student, in Grand Forks, N.D. (Oct. 2017)

94 Interview with UND student, in Grand Forks, N.D. (May 2017).

95 Interview with UND student, in Grand Forks, N.D. (May 2017).

96 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

97 Interview with UND student, in Grand Forks, N.D. (May 2017).

98 Interview with UND student, in Grand Forks, N.D. (May 2017); see also Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (estimating 70% of top universities worldwide are in the United States).

99 Interviews with UND students, in Grand Forks, N.D. (Apr. 2017).

100 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

101 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

102 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

103 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

104 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

105 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

106 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

107 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

108 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

109 Interview with UND student, in Grand Forks, N.D. (May 2017) (“valued so highly”).

110 Interviews with UND students, in Grand Forks, N.D. (Oct. 2017).

111 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

112 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

113 Interviews with UND students, in Grand Forks, N.D. (Oct. 2017).

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114 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

115 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

116 Interview with UND student, in Grand Forks, N.D. (Oct. 2017); Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (“the culture” “the lifestyle”).

117 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

118 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

119 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

120 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

121 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

122 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

123 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

124 See note 27 and accompanying text.

125 Interview with UND student, in Grand Forks, N.D. (May 2017); Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

126 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

127 Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (even though s/he doesn't think s/he will ever get that).

128 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

129 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

130 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

131 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

132 Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (asserting that big corporations quash innovators in home country whereas the United States fosters entrepreneurs).

133 Interview with UND student, in Grand Forks, N.D. (Mar. 2017) (discussing rocket propulsion aerospace, not seen as a viable career back home).

134 Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (discussing opportunities in the United States to practice in certain fields of law); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (discussing the draw of practicing law under the U.S. Constitution with the opportunity to speak directly to a jury); Interview with UND student, in Grand Forks, N.D. (Aug. 2017); Interview with UND student, in Grand Forks, N.D. (Oct. 2017); Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

135 Interview with UND student, in Grand Forks, N.D. (Aug. 2017) (law); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (aviation).

136 Interview with UND student, in Grand Forks, N.D. (Apr. 2017); see also Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“a lot more jobs”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“Job prospects [are] so

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much higher here.”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“A lot of great work opportunities here in the U.S., especially in North Dakota.”).

137 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

138 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

139 This is not to say that other students did not identify UND-specific opportunities. To be sure, other students chose UND because of the opportunity to study with specific individuals (e.g., Interview with UND student, in Grand Forks, N.D. (Oct. 2017)) or because of other opportunities unique to themselves and their circumstances (Interview with UND student, in Grand Forks, N.D. (May 2017)).

140 2016 Standard Information 509 Information Report, UNIV. N.D., https://law.und.edu/_files/docs/future-students/pdf/2016- aba-509-report.pdf.

141 Canadian Law School Profiles, OXFORD SEMINARS, http://www.oxfordseminars.ca/LSAT/lsat_profiles.php; Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

142 Interviews with UND students, in Grand Forks, N.D. (Apr. 2017).

143 ABA-Approved Law Schools, AM. BAR ASS'N, https://www.americanbar.org/groups/legal_education/resources/ aba_approved_law_schools.html.

144 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

145 Interviews with UND students, in Grand Forks, N.D. (Apr. 2017) (noting “location” and proximity to Winnipeg as key reasons for choosing to study at UND).

146 Interviews with UND students, in Grand Forks, N.D. (Apr. 2017).

147 Residency Information,UNIV. N.D., http://und.edu/admissions/student-account-services/residency.cfm. Interestingly, Minnesota students fall under a third tuition category altogether, but for the law school, the rates for Minnesota and contiguous states is the same. Id.

148 Id.; see also Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

149 Interviews with UND students, in Grand Forks, N.D. (Apr. 2017); Interview with UND student, in Grand Forks, N.D. (Oct. 2017). Notably, UND offers an affordable legal education as a general matter; it is one of the least expensive law schools in the United States. Top 10 Affordable Recognized Law Schools in U.S., BEST SCHS., https://thebestschools.org/features/top- affordable-recognized-law-schools.

150 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

151 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

152 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

153 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

154 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

155 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

156 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

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157 While the UND School of Law presents a unique opportunity for Canadian law students, clearly Canadian students make their mark on the UND School of Law community. See, e.g., Canadian Law Student Society, https://law.und.edu/students/ organizations/clss/index.cfm.

158 See The Top 10 Aviation Colleges for 2018, supra note 78.

159 See, e.g., Interviews with UND students, in Grand Forks, N.D. (Apr. 2017).

160 See, e.g., Interviews with UND students, in Grand Forks, N.D. (Apr. 2017).

161 SAUDIA AIRLINES, http://www.saudia.com.

162 Interview with UND student, in Grand Forks, N.D. (Apr. 2017)

163 Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“There are 17 of us on this program.” “Saudi Airlines has been sending people here to the U.S. for 40 years or something like that.”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“We sign a contract. There [are] no other choices.”).

164 Air China Send 57 Additional Students to UND Aerospace, UND AEROSPACE (Nov. 26, 2007), http://atmos.und.edu/news/ news-article.aspx?NewsId=261.

165 Jen Boyer, UND Aviation - Helicopter Program in Vertical Daily News, UND AEROSPACE (May 16, 2017), http:// aero.und.edu/news/news-article.aspx?newsid=2419.

166 Around 1% of all international students in North Dakota are enrolled in “flight school,” which means study at UND's Department of Aviation. SeeDEP'T OF HOMELAND SEC., STUDY IN THE STATES, https://studyinthestates.dhs.gov/ sevis-by-the-numbers (mapping “trends and information on international students studying in the United States using data from the Student and Exchange Visitor Information System”).

167 Interview with UND student, in Grand Forks, N.D. (Mar. 2017); see also Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“apprehension, anxiety”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“sense of anxiety”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“anxiety, anxious feelings”).

168 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

169 Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“I was scared.”); Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (“I'm still scared though.”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“Everyone is afraid.”).

170 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

171 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

172 See, e.g., Interview with UND student, in Grand Forks, N.D. (Apr. 2017). (“I didn't go home for that first month.”). I also had a student approach me after class to ask about their ability to return to Canada after the advisory against travel came out.

173 Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“Some of us were home .... Someone else sent an email saying you should be fine. Should and will be [are] two different things. All my stuff is there. I'm a student [t]here. [It was r]eally nerve wracking.”).

174 Interview with UND student, in Grand Forks, N.D. (Apr. 2017). (“When I cross the border now I'm scared .... Crossing the border this past weekend ... [I was] more nervous than I would be regularly .... This time he might not let me through.”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (sharing “anxiety” about crossing the border with spouse for the first time, noting: “What if they asked ... what [s/he] thought about the election ...?”).

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175 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

176 Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (skipped a class field trip); Interview with UND student, in Grand Forks, N.D. (May 2017) (“[I] don't dare go there.”).

177 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

178 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

179 Interviews with UND students, in Grand Forks, N.D. (Apr. 2017).

180 Interviews with UND students, in Grand Forks, N.D. (Apr. 2017).

181 Interview with UND student, in Grand Forks, N.D. (May 2017).

182 Interview with UND student, in Grand Forks, N.D. (May 2017).

183 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

184 Interview with UND student, in Grand Forks, N.D. (Apr. 2017); see also Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“If there's this whole American First concept, [what] if people I go to school with think that [I] took a spot in the law school that should've gone to an American.”).

185 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

186 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

187 Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“he could do whatever he wanted”); see also Interview with UND student, in Grand Forks, N.D. (May 2017) (“[My mother] was worried about me and my visa. Are they going to kick you out of America?”).

188 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

189 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

190 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

191 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

192 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

193 Interview with UND student, in Grand Forks, N.D. (Apr. 2017); see also Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (“I was already feeling myself a foreigner in this community.”).

194 The Dakota Access Pipeline funnels oil from North Dakota to Illinois. Those opposed to the pipeline's development engaged in protests in North Dakota from August 2016 through February 2017. See Rebecca Hersher, Key Moments in the Dakota Access Pipeline Fight, NPR (Feb. 22, 2017), https://www.npr.org/sections/thetwo-way/2017/02/22/514988040/key-moments- in-the-dakota-access-pipeline-fight.

195 Interview with UND student, in Grand Forks, N.D. (Apr. 2017) see also Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“People were saying you can't go to demonstrations or rallies or stuff because I do that sort of stuff at home. [I n]ever thought I can't go. In case I were to get arrested.”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (expressing concern that if they were to participate in protests, “I could be considered a non-national against the government.”).

196 Interview with UND student, in Grand Forks, N.D. (May 2017).

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197 Interview with UND student, in Grand Forks, N.D. (Oct. 2017); see also supra note 27 and accompanying text for discussion of OPT; Stuart Anderson, Are International Students Next on the Menu?, FORBES (Oct. 15, 2017), https://www.forbes.com/sites/ stuartanderson/2017/10/15/are-international-students-next-on-the-menu/#5521162b5e9f (discussing rumored cuts to OPT).

198 Interview with UND student, in Grand Forks, N.D. (Oct. 2017); see also supra notes 39-43 and accompanying text for discussion of the H-1B visa; Jethro Mullen, Trump to Propose Ending Rule Allowing Spouses of H-1B Holders to Work in U.S., CNN (Dec. 15, 2017), http://money.cnn.com/2017/12/15/technology/h1b-visa-spouses-h4-trump/index.html (discussing the possibility of eliminating work authorization for spouses of H-1B holders); Sara Ashley O'Brien, Trump Administration Toughens H-1B Visa Renewal Process, CNN (Oct. 25, 2017), http://money.cnn.com/2017/10/25/technology/business/h1b-visa- renewal-uscis/index.html (discussing tougher hurdles to renewing an H-1B visa); Frida Yu, Is Anyone Good Enough for an H-1B Visa?, N.Y. TIMES (Nov. 23, 2017), https://www.nytimes.com/2017/11/23/opinion/immigration-visa-h1b-trump-.html (discussing increased scrutiny of H-1B petitions).

199 Interview with UND student, in Grand Forks, N.D. (Aug. 2017); Interview with UND student, in Grand Forks, N.D. (Apr. 2017); see also E-mail from Interviewee to author (Apr. 2017) (on file with author) (If NAFTA were to go by the wayside, “I don't have any hope here.”).

200 The TN visa is unusual in being treaty-based. The other visas mentioned in this Article, including the H-1B, J, and F visas, are all statute-based.

201 Maya Kroth, How a NAFTA Repeal Would Affect Mexican Business Depends on Who You Ask, PRI (Nov. 27, 2017), https://www.pri.org/stories/2017-11-27/how-nafta-repeal-would-affect-mexican-business-depends-who-you-ask; U.S. DEP'T OF CITIZENSHIP & IMMIGR. SERV., TN NAFTA PROFESSIONALS, https://www.uscis.gov/working-united-states/ temporary-workers/tn-nafta-professionals.

202 Andy Semotiuk, Professional Careers Teeter on The Tight Rope While NAFTA Negotiations Resume, FORBES (Nov. 16, 2017), https://www.forbes.com/sites/andyjsemotiuk/2017/11/16/professional-careers-teeter-on-the-tight-rope-while-nafta- negotiations-stall/#55e7327615d7.

203 See, e.g., Interview with UND student, in Grand Forks, N.D. (Mar. 2017); Interview with UND student, in Grand Forks, N.D. (May 2017); Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

204 Interview with UND student, in Grand Forks, N.D. (Apr. 2017); see also Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“To go through three years of law school [and] I can't even work in the states? So what am I'm supposed to do now?”).

205 Interview with UND student, in Grand Forks, N.D. (Apr. 2017); see also Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (expressing worries about “[w]hether employers will invest and keep me”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“Still a little worried that he would want to create jobs just for Americans.”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“I may be from Canada but ... I'm still taking American jobs.”).

206 Interview with UND student, in Grand Forks, N.D. (Oct. 2017); see also Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (listing “opportunities for when done with study” as a concern).

207 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

208 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

209 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

210 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

211 Interviews with UND students, in Grand Forks, N.D. (Apr. 2017) (discussing incident where they were yelled at on the street in Minneapolis); Interview with UND student, in Grand Forks, N.D. (May 2017) (being stared at in the mall); Interview with

OPPORTUNITIES & ANXIETIES: A STUDY OF..., 22 Lewis & Clark L....

UND student, in Grand Forks, N.D. (Aug. 2017) (being told “You seem like an immigrant.”); Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (recounting “day-to-day interaction[s] with strangers” replete with anti-immigrant sentiment).

212 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

213 Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (discussing reactions to the student's accent in on-line video games).

214 Interview with UND student, in Grand Forks, N.D. (Apr. 2017); see also Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (“[B]efore coming, I was worried about [the] constant violent shooting of people.”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“I think this state in particular, just the presence of guns, was very shocking to me.”); Interview with UND student, in Grand Forks, N.D. (Aug. 2017) (“Everyone in America has guns.”).

215 Interview with UND student, in Grand Forks, N.D. (Apr. 2017); see also Interview with UND student, in Grand Forks, N.D. (Aug. 2017) (“I don't honk my horn at anyone who cuts me off. Guy's got a shotgun in the back.”); Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (contrasting Hong Kong with US “where [people] can kill without reasons”).

216 On October 1, 2017, a gunman opened fire on a country music festival in Las Vegas, Nevada; 58 people died, and more than 500 individuals were injured in the deadliest mass shooting committed by an individual in U.S. history. See, e.g., Ken Belson, Jennifer Medina & Richard Pérez-Peña, A Burst of Gunfire, a Pause, Then Carnage in Las Vegas That Would Not Stop, N.Y. TIMES (Oct. 2, 2017), https://www.nytimes.com/2017/10/02/us/las-vegas-shooting-live-updates.html.

217 Interview with UND student, in Grand Forks, N.D. (Oct. 2017); Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (worried post Las Vegas). Notably, Las Vegas isn't the only shooting to affect international students. In February 2017, two citizens of India were shot in a Kansas bar; relatives of the victims urged fellow citizens not to send their children to study in the United States. More International Students Uneasy About Studying in the U.S., WBUR (Feb. 28, 2017), http://www.wbur.org/hereandnow/2017/02/28/international-students-uneasy-us. Indian students expressed concerns about studying in the US after that event. Annie Gowan, ‘Everyone's Nervous': Some Students in India Rethink US Study Plans After Kansas Shooting, CHI. TRIB. (Feb. 25, 2017), http://www.chicagotribune.com/news/nationworld/ct-india-kansas-bar- shooting-20170225-story.html.

218 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

219 Interview with UND student, in Grand Forks, N.D. (Oct. 2017) (The same interviewee reported “My mother was a little worried” about the prevalence of guns and gun violence in the United States.). Notably, a local Walmart employee died in a 2015 shooting incident. See Ed Payne, Shooter kills employee, wounds another at North Dakota Walmart, CNN, (May 27, 2015), https://www.cnn.com/2015/05/26/us/north-dakota-walmart-shooting/index.html.

220 Interviews with UND students, in Grand Forks, N.D. (Oct. 2017).

221 Interview with UND student, in Grand Forks, N.D. (Oct. 2017).

222 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

223 But see Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“[I w]ouldn't do it again.”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“I think I wish I would've stayed home.”).

224 Interview with UND student, in Grand Forks, N.D. (Apr. 2017).

225 Interview with UND student, in Grand Forks, N.D. (Apr. 2017); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“in the media we're bombarded .... It would dissuade people from going to school in the states.”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“I'd put money on the fact that there's people who'd be less inclined to come to the states just because of the message it is setting”).

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226 See, e.g., Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“Prospective students will think that ... what's the point the point of an American law degree if won't be able to stay?”); Interview with UND student, in Grand Forks, N.D. (Apr. 2017) (“I think the future of Canadian students coming into the U.S. is BLEAK, I really do.”).

22 LCLR 413

SANCTUARY CITIES: DISTINGUISHING RHETORIC FROM REALITY, 61-SUM B. B.J. 8

61-SUM B. B.J. 8

Boston Bar Journal Summer, 2017

Legal Analysis Inez Friedman-Boyce, Jennifer Luz, Sarah J. Fischer, Alexandra Lu, Louis L. Lobel a1

SANCTUARY CITIES: DISTINGUISHING RHETORIC FROM REALITY

Less than a week after his inauguration, President Trump signed Executive Order No. 13,768 (“Order”), threatening to “crackdown on sanctuary cities that refuse to comply with federal law and that harbor criminal aliens” by cutting off federal grant money. 1 This article examines the current political and legal landscape affecting sanctuary cities and the policies that define the “sanctuary city” designation. 2

What Is A “Sanctuary City”?

There is no single, legal definition of a “sanctuary city”; rather, the designation refers generally to cities and counties that have policies--whether formally or informally adopted--that are intended to further public safety by mitigating against any deterrent effects that immigration status might have on residents' cooperation with local law enforcement officials and by distinguishing between local police and federal immigration officials. Studies that inform sanctuary policies indicate that victims of and witnesses to crimes are less likely to come forward to report and assist with the investigation and prosecution of crimes if they fear deportation as a possible result. 3 Despite some variation, sanctuary cities share the common policy objective: to build community trust in order to “promote public safety and confidence in local law enforcement.”

What Are Sanctuary Policies?

Sanctuary policies differ across jurisdictions to accommodate local needs and priorities. Some have written policies that expressly prohibit police from inquiring about immigration status or direct local law enforcement not to comply with civil detainer requests by the U.S. Immigration and Customs Enforcement (“ICE”) to hold noncitizens for up to 48 hours to provide ICE agents extra time to take them into federal custody for deportation purposes. Others identify as sanctuary cities but have no written policies. Florida's Miami-Dade County's policy, until recently, was to refuse detainer requests except where the suspect had been charged with a non-bondable offense or had previously been convicted of a violent felony. Meanwhile, California's Santa Clara County refuses to honor all detainer requests.

Several Massachusetts communities have sanctuary policies that limit local police cooperation with ICE, including Arlington, Boston, Cambridge, Chelsea, Holyoke, Lawrence, Newton, Northampton, and Somerville. Chelsea declared itself a sanctuary city in June 2007, adopting a policy that “immigration status (or lack thereof) ... is not and shall not be a matter of local police concern or subsequent enforcement action by the [Chelsea Police Department] unless

SANCTUARY CITIES: DISTINGUISHING RHETORIC FROM REALITY, 61-SUM B. B.J. 8 there exists through reliable and credible information a potential threat to public safety and/or national security.” 4 The policy only governs civil immigration matters and does not prohibit Chelsea Police from assisting with criminal matters. Lawrence adopted its Trust Ordinance in August 2015 “to increase public confidence in Lawrence Law Enforcement by providing guidelines associated with federal immigration enforcement, arrests, and detentions.” 5 Pursuant to the Ordinance, Lawrence police will not detain an individual based solely on an immigration hold or *9 administrative warrant--or absent a warrant signed by a judge and based on probable cause--but will allow ICE officers with criminal warrants to use their facilities.

Since Trump's election, more Massachusetts communities have galvanized to consider “sanctuary city” status. The Massachusetts Legislature also is considering a state-wide sanctuary policy, the Safe Communities Act, which would prohibit, inter alia, the use of state and local law enforcement resources or the Massachusetts Registry of Motor Vehicles record-keeping system for immigration enforcement purposes, and the arrest or detention of individuals solely on the basis of civil detainer requests or administrative warrants. 6 Police would not be prevented from pursuing immigrants who commit crimes subject to applicable federal laws and constitutional standards. Because sanctuary policies have broad support across the Commonwealth, two exceptions have attracted disproportionate press attention: in January 2017, the Republican sheriffs of Bristol and Plymouth County each signed agreements with ICE to deputize their correctional officers to detain individuals for immigration violations under Section 287(g) of the Immigration and Nationality Act.

The Order

On January 25, 2017, President Trump signed the Order entitled “Enhancing Public Safety in the Interior of the United States.” By its plain language, the Order threatens “all Federal grant money” received by “sanctuary jurisdictions.” The Order includes several internally inconsistent and ambiguous definitions of sanctuary jurisdictions. Section 1 defines “sanctuary jurisdictions” as those that “willfully violate Federal law in an attempt to shield aliens from removal.” Section 9(a) defines the term more broadly as jurisdictions that “willfully refuse to comply with 8 U.S.C. § 1373” (“§ 1373”), which states that “a Federal, State, or local government entity or official may not prohibit or in any way restrict, any government entity or official from sending to, or receiving from, the [INS] information regarding the citizenships or immigration status, lawful or unlawful, of any individual,” “or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” Section 9(b) orders a retroactive identification of sanctuary jurisdictions based on a list to be publicized weekly including “any jurisdiction that ignored or otherwise failed to honor any detainers.” The Order also gives the Secretary of the Department of Homeland Security (“DHS”) unfettered “authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.”

The impact of the Order was felt immediately nationwide, with reports of decreased utilization of police, health, and social services by immigrant communities. And cities that had enacted sanctuary policies in effort to address the very fear and community distrust the Order has revived are now faced with deciding between prioritizing community safety or abandoning their sanctuary policies to avoid potentially losing critical federal funding. In letters dated April 21, 2017 sent to nine jurisdictions, the Department of Justice (“DOJ”) demanded proof of compliance with § 1373, coupled with the threat of terminating certain grants. Confronted with the Order, some jurisdictions, including Miami-Dade County, Florida and Dayton, Ohio rescinded their sanctuary policies, 7 and other cities like Quincy, Massachusetts, have declined to adopt a proposed policy. Yet other communities chose to fight back, declaring that challenging the Order is “just as much about protecting residents as it is about protecting federal resources.”

SANCTUARY CITIES: DISTINGUISHING RHETORIC FROM REALITY, 61-SUM B. B.J. 8

*10 Legal Challenges to the Order

On January 31, 2017, San Francisco filed the first lawsuit challenging the constitutionality of Section 9(a) of the Order, which states: “jurisdictions that willfully refuse to comply with 8 U.S.C. § 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary [of Homeland Security].” Other suits quickly followed by Santa Clara County and Richmond in California; Chelsea and Lawrence, Massachusetts; and Seattle, Washington. 8 Santa Clara, consistent with its long-standing position that it does not comply with § 1373, asserted only constitutional arguments, but the remaining jurisdictions sought declarations they complied with § 1373 and therefore were not “sanctuary jurisdictions” subject to the Section 9(a) sanctions. These cases assert the following constitutional challenges to the Order:

• violation of the separation of powers doctrine (legislates a penalty and imposes new conditions on federal grants that only Congress can authorize and impermissibly refuses to spend funds already appropriated by Congress);

• void for vagueness under the Fifth Amendment (fails to specify the prohibited conduct that would subject the local jurisdiction to defunding, includes no guidance on what constitutes a “sanctuary jurisdiction” subject to penalties, and has “expansive standardless language” open to arbitrary and discriminatory enforcement);

• violation of procedural due process under the Fifth Amendment (jeopardizes local jurisdictions' entitlement to money appropriated by Congress without administrative or judicial procedure);

• violation of the spending clause of the Tenth Amendment (imposes, without notice, vague conditions after funds have already been accepted, with no nexus between the federal funds threatened and the Order's purpose, and uses coercive financial inducements); and

• violation of the principles of federalism and state sovereignty under the Tenth Amendment (compels local jurisdictions to administer or enforce federal immigration policies and programs through coercion, and may subject cities to Fourth Amendment liability; imposes a blanket restriction on local policymaking discretion regarding how to treat immigration status of residents and a specific restriction on the regulation of law enforcement priorities and policies to address the best interest of residents). 9

On April 25, 2017, Judge William H. Orrick III of the Northern District of California ordered a nationwide preliminary injunction against enforcement of the Order's defunding provision in the Santa Clara and San Francisco cases. Judge Orrick rejected the DOJ's arguments that: (1) the claims were not “prudentially ripe” because the harms are too contingent, and the DOJ and DHS have not determined the terms of the Order, (2) there was no loss of funds or cognizable harm because neither Santa Clara nor San Francisco had been named “sanctuary jurisdictions” pursuant to the Order, (3) the Order did not change existing law, as it would be enforced only “to the extent consistent with the law,” (4) it was restricted to three DOJ and DHS “grants that are already conditioned on compliance with § 1373,” and (5) it was therefore “merely an exercise of the President's ‘bully pulpit”’ that “highlight[ed] a changed approach to immigration *11 enforcement.” Judge Orrick wrote: (1) “[t]here is no doubt that Section 9(a), as written, changes the law” and “purport[s] to give the Secretary or Attorney General the unilateral authority to alter [§ 1373],” a power reserved to Congress, and (2) standing is established “by demonstrating a well-founded fear of enforcement and a threatened injury that is ‘sufficiently real and imminent,”’ and Santa Clara and San Francisco, are likely to be designated “sanctuary jurisdictions” under the Order given their policies, and withdrawing review would result in hardship that is more than financial loss. Further, Judge Orrick found a high likelihood of success on the merits of the constitutional claims, that there was impending irreparable harm based on budgetary uncertainty and constitutional injury, and that the balance of

SANCTUARY CITIES: DISTINGUISHING RHETORIC FROM REALITY, 61-SUM B. B.J. 8 equities and public interest squarely tips in favor of the injunction. Finally, Judge Orrick found “a nationwide injunction is appropriate” because the constitutional violations had nationwide consequences.

The Chelsea and Lawrence Lawsuits

On February 8, 2017, Chelsea and Lawrence filed their complaint, challenging the Order on the previously discussed constitutional and declaratory relief grounds. Their motivation in filing suit underscores what is at stake for many sanctuary cities nationwide. 10 Simply put: “[i]t is impossible [for a sanctuary city] to create a budget when it is unclear what effect the Executive Order will have on its funding.” The crippling consequence is especially stark in communities like Chelsea and Lawrence. Chelsea is a working-class city where over 60% of its residents identify as Hispanic or Latino, over 40% are foreign-born, and over 20% live below the poverty level with a per capita income of $21,722.00. Chelsea counts on the federal government for about 10%, or $14 million, of its $170 million annual budget. Similarly, Lawrence is a working class city where over 70% of its residents identify as Hispanic or Latino, over 35% are foreign-born, and over 25% live below the poverty level with a per capita income of $17,167.00. Lawrence counts on the federal government for over 15%, or $38 million, of its $245 million annual budget. The Order threatened large portions of these impoverished cities' budgets because of policies they deemed necessary for their communities' public safety. In early May, while the DOJ's motion to dismiss was pending, Judge Orrick's national injunction issued; the DOJ and Chelsea and Lawrence subsequently agreed to a stay, pending resolution of the injunction.

Where We Are Now

On May 22, 2017, Attorney General Sessions issued a “Memorandum on the Implementation of the Executive Order” (“Memo”), codifying arguments advanced by the DOJ at the preliminary injunction hearing. Relying on the Memo, in late May, the DOJ moved for reconsideration of the nationwide injunction in the San Francisco and Santa Clara cases. The DOJ then filed motions to dismiss on procedural and substantive grounds in the San Francisco, Santa Clara, Richmond, and Seattle cases. On July 20, 2017, Judge Orrick issued an order denying the motions for reconsideration and motions to dismiss in the Santa Clara and San Francisco cases, finding that the Memo did not impact his prior conclusion regarding standing, ripeness, and likelihood of success on the merits. Additionally, he concluded that San Francisco had stated a claim for declaratory relief.

*12 Conclusion

While a nationwide preliminary injunction has been entered, many questions remain. The interplay between federal and state law regarding ICE detainers remains unclear; the constitutionality of § 1373 is still undecided; and future federal actions against sanctuary cities remain real possibilities. The Memo, purporting to narrow the definition of “sanctuary jurisdictions” and limit the sources of federal funding that are threatened by the Order, is arguably inconsistent with the terms of the Order itself, does not have the force of law, and is subject to change. It remains to be seen to what extent local policy makers are able to prioritize public safety over federal immigration enforcement without jeopardizing critical federal funding.

Footnotes a1 Inez Friedman-Boyce is a partner, Jennifer Luz is counsel, and Sarah Fischer, Alexandra Lu, and Louis Lobel are associates at Goodwin Procter LLP. Ms. Friedman-Boyce is a past co-chair of the BBA Class Actions Committee and the current co-chair of the Lawyers' Committee for Civil Rights and Economic Justice. Along with the Lawyers' Committee, they are all counsel for

SANCTUARY CITIES: DISTINGUISHING RHETORIC FROM REALITY, 61-SUM B. B.J. 8

the Cities of Chelsea and Lawrence in litigation pending in the U.S. District Court for the District of Massachusetts challenging President Trump's sanctuary city executive order.

1 Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017). Joseph Spector Cities Back Lawsuit to Block Immigration Order, USA Today, Feb. 17, 2017.

2 See Benjamin Gonzalez, Loren Collingwood, Stephen Omar El-Khatib, The Politics of Refuge: Sanctuary Cities, Crime, and Undocumented Immigration, Urban Affairs Review, May 7, 2017.

3 For example, one study found that 70% of undocumented immigrants and 44% of Latinos are less likely to contact law enforcement if they are victims of a crime for fear that the police will ask about immigration status, and 67% of undocumented immigrants and 45% of Latinos are less likely to report crimes because of the same fear. See Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (Dep't of Urban Planning and Policy, Uni. of Ill. at Chicago, Chicago, IL), May 201, at 5-6.

4 Chelsea, MA, Resolution of the City of Chelsea, Massachusetts (Jun. 4, 2007).

5 Lawrence, MA, Lawrence Trust Ordinance, Chapter 9.20 (June 8, 2015).

6 S.1305 and H.3269, 190th Gen. Court of the Commonwealth of Mass. (Mass. 2017).

7 As Mayor Carlos Giménez of Miami-Dade explained, “It's really not worth the risk of losing millions of dollars ... in discretionary money from the feds.” Ray Sanchez, Florida's Largest County to Comply with Trump's Sanctuary Crackdown, CNNpolitics, Updated Jan. 27, 2017.

8 City and County of San Francisco v. Trump et al., 4:17-cv-00485-DMR (N.D. Cal. Jan.31, 2017), County of Santa Clara v. Trump et al., 5:17-cv-00574-LHK (N.D. Cal. Feb. 3, 2017); City of Chelsea, et al. v. Trump, et al., 1:17-cv-10214-GAO (D. Mass. Feb. 8, 2017); City of Richmond v. Trump et al., 3:17-cv-01535-SK (N.D.Cal. Mar. 21, 2017); City of Seattle v Trump et al., 2:17-cv-00497-BAT (W.D. Wash. Mar. 29, 2017), The San Francisco, Santa Clara and Richmond, California cases have been related before Judge William H. Orrick, III.

9 See, e.g., Creedle v. Gimenez, et al., 1:17-cv-22477 (S.D. Fl. filed on Jul. 5, 2017); Commonwealth v. Lunn, SJC-12276 (decided July 24, 2017) (holding federal civil detainers unconstitutional under Massachusetts Constitution).

10 Elizabeth Ross, How Can “Sanctuary Cities” Resist Trump? This Lawsuit Could Provide a Blueprint, Public Radio International, Updated Apr. 12, 2017.

61-SUM BBJ 8

LOCAL ACTION, NATIONAL IMPACT: STANDING UP..., 127 Yale L.J. Forum 715

127 Yale L.J. Forum 715

Yale Law Journal Forum January 20, 2018 Christine Kwon, Marissa Roy a1

LOCAL ACTION, NATIONAL IMPACT: STANDING UP FOR SANCTUARY CITIES

ABSTRACT. During his campaign, Donald Trump vowed that he would end sanctuary cities if elected President. Yet, because of dedicated local resistance, he has not been able to keep this promise. Cities have emerged as crucial members of the resistance and sites of dissent to President Trump's policies--protecting their unique community ideals against federal intrusion. While the Tenth Amendment does not explicitly recognize cities, it safeguards their rights, just as it protects states and the “People.” Because of cities' unique position between states and the People, cities can and should take advantage of the Constitution's federalism protections. The city of San Francisco, and the sanctuary city litigation more broadly, has provided the template for successfully resisting federal intrusion onto local autonomy. From this example, we can learn why local dissent is particularly potent and how cities can best resist on behalf of their residents.

INTRODUCTION

“We will end the sanctuary cities that have resulted in so many needless deaths,” then-candidate Donald Trump proclaimed to an Arizona audience. 1 Just five days after his inauguration, President Trump followed through on his *716 promise and issued Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States.” 2 The Order sought to withhold all federal funding from “sanctuary jurisdictions” that did not affirmatively help enforce federal immigration law. 3

On January 31, 2017, San Francisco filed suit challenging the constitutionality of the Executive Order. 4 Other localities quickly followed. 5 The city and county of San Francisco argued that the federal decree constituted a gross abuse of federal power and sought declaratory and injunctive relief. 6 Less than three months later, siding with San Francisco on nearly every point, the district court issued a sweeping nationwide preliminary injunction made permanent this fall. 7

Cities have led the charge against the federal government to stand up for sanctuary jurisdictions--successfully leveraging the constitutional protections of federalism to dissent against national policy. Though the Constitution does not contemplate cities within the scheme of federalism, the norms that justify states' rights apply just as well--if not better-- to cities. Especially as the Trump Administration seeks to compel their obedience to national norms, cities can act in concert with and independent of their home states to check federal overreach. Local victories on the sanctuary cities issue show that cities, just like *717 states, can stop the federal government from exceeding its constitutional authority. 8

Part I of this Essay discusses cities' potential for dissent, comparing it with the power traditionally wielded by states. Part II illustrates how cities can dissent against federal policies by focusing on San Francisco's role in curtailing overreach by

LOCAL ACTION, NATIONAL IMPACT: STANDING UP..., 127 Yale L.J. Forum 715 the Trump Administration. Finally, Part III recommends how local actors, guided by their fundamental responsibility to local community needs, can exercise their power as dissenters. Cities are the closest proxies for the voice of the People, and by asserting the interests of their local populations, cities can avail the People of the Tenth Amendment's protection.

I. CITIES AS DISSENTERS

Technically speaking, cities are “constitutional nonentities.” 9 Cities receive no mention in any part of the Constitution. The Tenth Amendment--the basis of American federalism doctrine--reserves broad police powers (the states' power to protect public health, safety, and welfare) only for the “States” and “the People,” leaving the status of localities ambiguous. 10 Cities' authority has waxed and waned throughout American history. In the late nineteenth-century, cities were thought of as “political subdivisions of the state,” with no inherent powers but those that states explicitly granted them. 11 Increasingly, however, states added home-rule provisions 12 to their constitutions, protecting cities' absolute right to govern municipal affairs. 13 Yet today, despite the fact that over eighty percent of Americans live in urban areas, 14 the Supreme Court has not explicitly recognized that cities are entitled to the same Tenth Amendment protections *718 as states. Instead, the Court has recognized that cities can only derive their power from the states.

In light of this history and precedent, it might be tempting to understand cities as simply subordinates of the state--as weak or as powerful as the state decides to make them. But since states can decide to vest broad police powers in cities, cities can also assert Tenth Amendment rights by virtue of being creatures of the state. 15 In this way, cities can claim the protections of federalism. Further, while states do have great power to define cities' authority, the Supreme Court has recognized that municipal entities also possess sovereign qualities in spite of states--for example, cities can assert injury and standing against a state in a court. 16 This is because cities can have separate--even opposing--interests to states. And these interests, imbued with sovereignty, merit protection because they are aligned with the other group protected by the Tenth Amendment: the People.

The normative theories underlying the Tenth Amendment apply just as well to cities as to states because cities are manifestations both of state authority and the People's will. 17 Traditionally, federalism has valued decentralization. State sovereignty has been viewed as important because states are closer to their citizens than the federal government and can enact policies that more adequately realize their citizens' needs. 18 Additionally, decentralization breeds experimentation: sovereign states can act as “laboratories of democracy” and “try novel social and economic experiments without risk to the rest of the country.” 19

Like states, cities are also close to their citizenry. Local governments make the decisions that directly affect their citizens' day-to-day lives: where they send their children to school, where they can park, whether a particular store will be built down the street. Citizens interact with arms of the local government--schools, police forces, utilities--much more frequently than they interact with state entities.

Furthermore, cities, especially home-rule cities, have great leeway to experiment with policy, especially regarding “municipal issues.” For example, in 2009, San Francisco began issuing city ID cards to undocumented immigrants, *719 though these were not available at the state level. 20 These municipal ID cards allow holders to satisfy proof-of- identification requirements to open bank accounts, pick their children up at school, and interact with law enforcement. 21 San Francisco's program was so successful that it spread to other major cities like Los Angeles and New York City. 22 Though Congress has absolute power to decide who is admitted or expelled from the United States, 23 cities still can

LOCAL ACTION, NATIONAL IMPACT: STANDING UP..., 127 Yale L.J. Forum 715 administer their local programs, decide how to run their police forces, and provide education for all residents. That these local programs and initiatives affect the lives of immigrants does not transform them into statements on immigration, as cities must account for all their residents when making local decisions.

In some respects, the norms that justify federalism may apply with even greater strength to cities than to states. Cities are even closer to the “People,” so they can adopt policy approaches that more accurately reflect their microcosms' interests. 24 Furthermore, since there are many cities within states, just as there are many states within the nation, cities add another level of policy experimentation and diversification within states. If the ideals of decentralization, proximity, and experimentation inform federalism, then cities are just as vital (if not more) to federalism as states are.

Cities' central importance to America's system of federalism gives them a platform to resist states and the federal government alike, and justifies their arguments for sovereign authority. Cities can draw on their residents' unique identities and idiosyncratic needs to assert their rights against the federal government. In 2004, when Mayor Gavin Newsom began marrying gay couples for the first time in American history, San Francisco reflected the will of a thriving LGBTQ community, fueling a statewide and nationwide dialogue on marriage equality. 25 Today, in litigation defending its status as a sanctuary city, San Francisco again reflects the will of its residents. As examined in the next Part, this time, the city seeks to treat all of its residents fairly, regardless of their federal *720 immigration status. Through its home- rule powers, San Francisco has availed itself of the Tenth Amendment's legal protection of the state and the people.

II. A CITY IN DISSENT: SAN FRANCISCO V. TRUMP

San Francisco proudly calls itself a sanctuary city. 26 It strives to

respect[], uphold[], and value[] equal protection and equal treatment for all of [its] residents, regardless of immigration status. Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City's core mission of ensuring public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. 27

To this end, unless specifically required by state or federal law, San Francisco law prevents city representatives from assisting with the enforcement of federal immigration law and from gathering or disseminating the release of individuals' status and other confidential information. 28 The law also forbids local law enforcement, in most instances, from honoring civil immigration detainer requests once an individual is eligible for release from detention. 29

This policy not only underscores the city's commitments to its stated ideals but also highlights the means by which it seeks to meet key municipal responsibilities. “To solve crimes and protect the public,” San Francisco's laws aim to build trust and cooperation between community residents and local law enforcement. 30 Moreover, San Francisco's laws restricting dissemination of residents' confidential information further public health aims. “To carry out public health programs, the City must be able to reliably collect confidential information from all residents .... Information gathering and cooperation may be jeopardized if release of personal information results in a person being taken into immigration custody.” 31

President Trump's Executive Order roundly condemned the policies of sanctuary cities such as San Francisco: “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from *721 removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very

LOCAL ACTION, NATIONAL IMPACT: STANDING UP..., 127 Yale L.J. Forum 715 fabric of our republic.” 32 The Order threatened to strip federal funding from such jurisdictions if they do not share “citizenship or immigration status” information with the federal government. The Order directs the Attorney General to take appropriate enforcement action against violators, which could permit punishment of all jurisdictions that do not actively cooperate with federal government. 33 Under the terms of the Order, however, even a jurisdiction in compliance with the federal statute 8 U.S.C. § 1373 could be targeted if the Attorney General exercised his jurisdiction to decide that the jurisdiction's policies hinder the enforcement of federal law.

In short, the Order presented cities with an impossible choice: either compromise municipal ideals and risk residents' safety, or lose a significant portion of municipal funds and face further retribution from the federal government. It struck at the heart of San Francisco's interests and its mission to serve the public health, safety, and welfare of its residents. By undermining San Francisco's fundamental responsibilities as a city, the Order sowed the seeds for municipal dissent against federal action.

Some localities, like Miami-Dade County, capitulated immediately to President Trump's demands. 34 But San Francisco resisted. Reflecting its particular position and interests as a city, San Francisco filed suit: “This lawsuit is about ... a local government's autonomy to devote resources to local priorities and to control the exercise of its own police powers, rather than being forced to carry out the agenda of the Federal government.” 35 The Trump Administration's Order, the city asserted, endangered the ability of local law enforcement from carrying out duties mandated by state law. 36 The city alleged that the Executive Order caused significant constitutional, budgetary, and community harms. 37 The city additionally argued the Order violated the separation of *722 powers by threatening to assert legislative power that the Constitution vests exclusively in Congress. 38 Moreover, the Order exercised the spending power in ways that even Congress may not. 39

As the putative targets of Executive Order 13,768, cities such as San Francisco have the legal right to challenge this federal action in court. Indeed, as described in Part I, cities are instrumentalities of states and representations of “the People;” as such, they merit Tenth Amendment protection. 40 Thus, San Francisco argued that the Executive Order's funding restriction violated the Tenth Amendment by requiring San Francisco to share municipal data with the federal government. 41

Crucially, as a plaintiff city, San Francisco could go beyond just enforcing the constitutional principles of federalism as between states and the federal government. Sanctuary city ordinances across jurisdictions reflect the idea that “[l]ocalities, not Washington bureaucrats, are best suited to determine local law enforcement ....” 42 In enacting San Francisco's sanctuary city ordinances, the Board of Supervisors, the city's legislative body, found that public safety is “founded on trust and cooperation of community residents and local law enforcement,” and that local law enforcement's cooperation with federal civil immigration enforcement “undermines community policing strategies.” 43 Quantitative data analysis in a recent study demonstrates that crime is significantly *723 lower in counties with sanctuary policies compared to nonsanctuary counties. 44 Moreover, sanctuary policies yield both social and economic gains. They safeguard family unity, and with more family stability, help ensure individual family members can contribute to their local economies. 45

San Francisco's sanctuary city ordinance limits the use of finite local resources to execute and enforce federal immigration laws, leaving more resources for the city to secure the public safety and welfare of its residents. 46 The ordinance ensures San Francisco can meet “essential municipal function[s]” to protect the health, safety, and welfare of those who live and work within its boundaries. 47 Against this backdrop, the city argued that the Executive Order struck at San Francisco's

LOCAL ACTION, NATIONAL IMPACT: STANDING UP..., 127 Yale L.J. Forum 715 core commitments to protect family well-being, community engagement, and public health and safety. The Order's threats generated a chaotic atmosphere of fear and distrust not only within San Francisco, but also across jurisdictions in the United States. 48 San Francisco also argued that by heightening fears of immigration enforcement, the Order would make undocumented individuals less likely to report crimes, seek health services, and participate in other city programs and services. This would in turn undermine the health and well-being of all residents, and paradoxically “cause[] the very harms San Francisco's Sanctuary City laws were designed to prevent.” 49

San Francisco further alleged that even had the Executive Order been promulgated properly, it would still violate the Tenth Amendment. 50 The city argued that the Order imposed a new condition on federal appropriations-- compliance with § 1373--not germane to the purpose of those funds, thus violating constitutional requirements. 51 The new funding condition would additionally require the city to act unconstitutionally to the extent it requires cities to comply with immigration detainers, which can violate the Fourth Amendment. *724 52 And the Order's threat to cut all funding to cities was highly coercive, threatening critical funding streams in San Francisco's annual operating budget. 53 San Francisco called the Order's threat a “gun to the head,” citing Justice Roberts's analysis in National Federation of Independent Business v. Sebelius. 54

San Francisco bolstered its constitutional arguments by appealing to the discrete budgetary harms that the Executive Order would cause. The city uses almost all of the $1.2 billion in federal funds San Francisco receives for its annual operating budget to deliver substantial public services: approximately eighty percent goes to entitlement programs such as Medicare, Medicaid, Temporary Assistance for Needy Families, and the Supplemental Nutrition Assistance Program. 55 It receives an additional $800 million in multiyear grants, the vast majority of which fund capital projects. 56 Because losing these federal funds would be so catastrophic for the city, the Executive Order presented the mayor with a Hobson's choice of either budgeting for the continued receipt of funds, with the knowledge that sudden cuts would be disastrous, or placing the funds into a reserve. The latter option would deprive residents of the use of these resources for critical services. 57

The specific responsibilities of cities--serving local needs--magnify the federal constitutional protections of the Tenth Amendment. Cities face unique community harms if federal action frustrates their core purpose to provide services and safeguards to advance local interests. The city's allegations of budgetary harm, in particular, spoke to fundamental municipal responsibilities.

In response to San Francisco's request for injunctive and declaratory relief, the federal government declined to rebut the city's allegations of substantial constitutional, budgetary, and community harm in both its complaint and subsequent motion for preliminary injunction. 58 Conflicting sharply with public statements made by President Trump and Attorney General Sessions, the federal government argued for a narrow construction of the Order, asserting that *725 the Order did not change existing law, such that the city could not show even the threat of irreparable harm. 59

The district court soundly rejected this defense. Construing the Order as written, the district court found not only that San Francisco's claims were ripe for adjudication, but also that the city faced risk of irreparable harm from devastating budgetary cuts and to its constitutional rights. 60 Ultimately, the district court granted a nationwide injunction permanently blocking the Order's threats. 61

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III. WAYS FORWARD FOR LOCAL LEADERS

While the San Francisco v. Trump injunction was a notable victory for cities, the fight to protect residents from intrusions of local autonomy will not end. Not only has the federal government continued to oppose sanctuary cities 62 --though in muted terms--but states have also sought to use their power over cities as leverage. 63 In May 2017, the Texas state legislature passed Senate Bill 4, mandating that local law enforcement agencies honor detainer requests by federal immigration enforcement. 64 The Supreme Court must ultimately address cities' place under the Constitution, and when it does, cities will have strong arguments for their authority and their role in American federalism.

San Francisco v. Trump powerfully demonstrates how localities can stand on equal footing with the federal government to challenge federal action. It represents dissent grounded in protecting San Francisco's local community. And finally, it shows that even local dissent can generate national impact, with other cities following suit. 65 From San Francisco's example, cities can take important *726 lessons going forward to protect their community as well as their own autonomy.

First, cities should take advantage of the federalism arguments currently available to states, in recognition that federalism is about autonomy, not partisanship. We should be skeptical of federal encroachment that removes a city's ability to create the community that is best for its residents. Cities, no matter the national political climate, should aim to protect their right to govern on behalf of their residents. Especially when residents are in the political minority, cities should guard their residents' interests and magnify their voices. No government entity is closer to their residents and can better understand the needs of the community.

Second, when cities do resist the national government, they should lean on their connections to residents to demonstrate standing. In San Francisco v. Trump, the court found that San Francisco and the County of Santa Clara demonstrated Article III standing to challenge President Trump's Executive Order in part because “enforcement under the Order would deprive them of federal grants that they use to provide critical services to their residents.” 66 Although San Francisco and Santa Clara had yet to lose funds or suffer other enforcement action, these local jurisdictions successfully articulated how the Order sought to “undermine” “their local judgment of what policies and practices are most effective for maintaining public safety and community health.” 67 Cities can show how national policy will contradict their residents' ideals, as localities are small enough to have unifying values. Given the close proximity to their residents, cities can more concretely illustrate the harm caused by national policy to meet standing requirements.

Overall, the guiding principle for local resistance is this: let the residents' ideals and best interests ground local dissent and resistance. While the federal government and states retain great potential to pressure or constrain cities, localities can best avail themselves of the Tenth Amendment by appealing to their unique proximity to their residents, the People. San Francisco was able to successfully pursue its litigation against the Trump Administration because sanctuary city status was in the best interests of the city's residents. 68 Even when a city is in the national political minority, if it represents the perspective of its residents, it can vindicate federalism and make national impact.

Footnotes a1 Christine Kwon is the San Francisco Affirmative Litigation Project (SFALP) Fellow and Lecturer in Law at Yale Law School. Marissa Roy is a Catalyst Fellow at the Los Angeles City Attorney's Office. The authors contributed to San Francisco's litigation of San Francisco v. Trump while students in SFALP, a clinical partnership between Yale Law School and the San Francisco City

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Attorney's Office. The authors express deepest thanks to Thomas Maxwell Nardini, Emma Sokoloff-Rubin, and San Francisco Deputy City Attorneys Sara Eisenberg, Mollie Lee, and Aileen McGrath. Thanks also to Lauren Hobby, Meenakshi Krishnan, and the editors of the Yale Law Journal for perceptive and painstaking editing.

1 Philip Bump, Here's What Donald Trump Said in His Big Immigration Speech, Annotated, WASH. POST (Aug. 31, 2016), http://www.washingtonpost.com/news/the-fix/wp/2016/08/31/heres-what-donald-trump-said-in-his-big-immigration- speech-annotated [http://perma.cc/L79E-S63P]; see also Office of the Press Sec'y, President Donald J. Trump Taking Action Against Illegal Immigration, WHITE HOUSE (June 28, 2017), http://www.whitehouse.gov/the-press-office/2017/06/28/ president-donald-j-trump-taking-action-against-illegal-immigration [http://perma.cc/YXB9-4VTS] (quoting the President's August 31, 2016, remarks).

2 82 Fed. Reg. 8799 (Jan. 25, 2017).

3 “Sanctuary jurisdictions” are those cities, counties, and states whose police forces maintain separation from federal immigration enforcement. It is important to note that sanctuary jurisdictions do not thwart or interfere with federal immigration enforcement; these jurisdictions exercise their discretion and do not opt to aid federal immigration enforcement. For more background on sanctuary cities, see Tal Kopan, What Are Sanctuary Cities, and How Can They Be Defunded?, CNN (Jan. 25, 2017, 5:09 PM), http://www.cnn.com/2017/01/25/politics/sanctuary-cities-explained/index.html [http://perma.cc/3MP5-R3HL] and infra notes 26-28 and accompanying text.

4 Complaint for Declaratory and Injunctive Relief, City & Cty. of San Francisco v. Trump, No. 3:17-cv-00485-WHO (N.D. Cal. Jan. 31, 2017).

5 Other localities that filed after San Francisco and Santa Clara include Seattle, Richmond, California, and two cities in Massachusetts. See Vivian Yee, Judge Blocks Trump Effort To Withhold Money from Sanctuary Cities, N.Y. TIMES (Apr. 25, 2017), http://www.nytimes.com/2017/04/25/us/judge-blocks-trump-sanctuary-cities.html [http://perma.cc/6BQE-NWUR].

6 On February 27, 2017, San Francisco filed an amended complaint. First Amended Complaint for Declaratory and Injunctive Relief, City & Cty. of San Francisco v. Trump, No. 3:17-cv-00485-WHO (N.D. Cal. Feb. 27, 2017) [hereinafter FAC]. Unless otherwise noted, references to San Francisco's complaint refer to the amended complaint.

7 City & Cty. of San Francisco v. Trump, No. 17-cv-00485-WHO, 2017 WL 5569835 (N.D. Cal. Nov. 20, 2017) [hereinafter Permanent Injunction Order]; City & Cty. of San Francisco v. Trump, No. 17-cv-00485-WHO, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) [hereinafter PI Order].

8 Camila Domonoske, Judge Blocks Trump Administration from Punishing ‘Sanctuary Cities,’ NPR (Nov. 21, 2017), http:// www.npr.org/sections/thetwo-way/2017/11/21/565678707/enter-title [http://perma.cc/LH3V-37BZ].

9 Daniel Weinstock, Cities and Federalism, in FEDERALISM AND SUBSIDIARITY 259, 259 (James E. Fleming & Jacob T. Levy eds., 2014).

10 U.S. CONST. amend. X; see also Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 (1905) (upholding states' authority to enforce compulsory vaccination laws).

11 Hunter v. Pittsburgh, 207 U.S. 161, 178-79 (1907).

12 Under traditional home rule, local ordinances governing municipal affairs supersede conflicting state laws. See, e.g., CAL. CONST. art. XI § 5. Thus, the city will have the final authority on matters within the locality.

13 See, e.g., id.

14 Lisa Lambert, More Americans Move to Cities in Past Decade-Census, REUTERS (Mar. 26, 2012), http://www.reuters.com/article/usa-cities-population/more-americans-move-to-cities-in-past-decade-census- idUSL2E8EQ5AJ20120326 [http://perma.cc/K57L-6Q4C].

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15 Jacobson, 197 U.S. at 25 (“[T]he state may invest local bodies called into existence for the purposes of local administration with the authority in some appropriate way to safeguard the public health and the public safety.”).

16 See, e.g., Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982).

17 See infra note 24 & accompanying text.

18 David L. Shapiro, FEDERALISM: A DIALOGUE 107-40 (1995); Steven G. Calabresi, “A Government of Limited and Enumerated Power”: In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 774-84 (1995).

19 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932).

20 Wyatt Buchanan, S.F. Supervisors Approve ID Cards for Residents, SFGATE (Nov. 14, 2007, 4:00 AM), http://www.sfgate.com/bayarea/article/S-F-supervisors-approve-ID-cards-for-residents-3236637.php [http://perma.cc/ E46C-3LQM].

21 Id.

22 Municipal ID Cards Help Undocumented Residents, Boost Local Economies, POLICYLINK (July 14, 2014), http:// www.policylink.org/blog/municipal-id-cards [http://perma.cc/K6KX-6UAC].

23 See Fiallo v. Bell, 430 U.S. 787, 792 (1977).

24 See Richard Briffault, ‘‘What about the ‘Ism’?” Normative and Formal Concerns in Contemporary Federalism, 47 VAND. L. REV. 1303, 1305 (1994).

25 See Heather K. Gerken, A New Progressive Federalism, DEMOCRACY J., Spring 2012, at 27, http://democracyjournal.org/ magazine/24/a-new-progressive-federalism [http://perma.cc/U5WD-EERS].

26 FAC, supra note 6, ¶ 2.

27 S.F. ADMIN. CODE §12I.1 (2017).

28 Id. §12H.

29 Id. §12I.3.

30 Id. § 12I.1.

31 Id.

32 82 Fed. Reg. 8799, 8799 (Jan. 25, 2017).

33 See, e.g., id. § 9(a), at 8801.

34 See, e.g., Alex Gomez, Miami-Dade Commission Votes To End County's ‘Sanctuary’ Status, USA TODAY (Feb. 17, 2017), http://www.usatoday.com/story/news/nation/2017/02/17/Miami-dade-county-grapples-sanctuary-city-president- trump-threat/98050976 [http://perma.cc/ND5V-9LM6].

35 Id. ¶ 9.

36 See S.F. ADMIN. CODE § 12I.1 (“Local law enforcement agencies' responsibilities, duties, and powers are regulated by state law.”); cf. Reno v. Condon, 528 U.S. 141, 151 (2000).

37 FAC, supra note 6, ¶¶ 76-83, 97-101, 173. The Order, the city alleged, amounted to fiscal coercion that violates the Tenth Amendment, separation of powers, and the Spending Clause: it impermissibly commandeered local jurisdictions, violating

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the Tenth Amendment by requiring San Francisco to share municipal data with the federal government and threatening legal action if jurisdictions fail to help enforce federal law.

38 Id. ¶¶ 84-89.

39 Id. ¶¶ 90-96.

40 U.S. CONST. amend. X; Letter from Annie Lai, Assistant Clinical Professor of Law, UC Irvine School of Law, et al., to Donald J. Trump, President of the United States, Re: Proposed Termination of Funding “Sanctuary” Jurisdictions Under EO 13768 Is Unconstitutional 1 (Mar. 13, 2017), http://www.ilrc.org/sites/default/files/ resources/2017-03-13_law_professor_letter_re_eo_13768_sanctuary_jurisdictions_finalv2.pdf [http://perma.cc/V675-WWG2] (citing Sligh v. Kirkwood, 237 U.S. 52 (1915); Kelley v. Johnson, 425 U.S. 238, 247 (1976)).

41 FAC, supra note 6, ¶¶ 76-83.

42 Cesar Vargas, Sanctuary Cities Have a Legal Right To Defy the Federal Government, N.Y. TIMES (Dec. 1, 2016), http://www.nytimes.com/roomfordebate/2016/12/01/do-sanctuary-cities-have-a-right-to-defy-trump/sanctuary-cities- have-a-legal-right-to-defy-the-federal-government [http://perma.cc/AG7Z-BZ4S] (citing Heckler v. Chaney, 470 U.S. 821, 831 (1985)).

43 S.F., ADMIN. CODE §12I.1 (2017) (citing Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, UNIVERSITY OF ILLINOIS AT CHICAGO 8 (2013) (finding that at least 40% of Latinos surveyed were less likely to give information to police for fear of exposing themselves, their families, or their friends to risk of deportation)).

44 See Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, CTR. FOR AM. PROGRESS (Jan. 26, 2017), http://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-of-sanctuary-policies- on-crime-and-the-economy [http://perma.cc/8AML-UYW6].

45 Id.

46 FAC, supra note 6, ¶ 33.

47 PI Order, supra note 7, at *24-*25.

48 FAC, supra note 6, ¶ 102.

49 Id. ¶ 108.

50 Id. ¶ 81.

51 Id. ¶¶ 91-92 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)); see also South Dakota v. Dole, 483 U.S. 203, 208-10 (1987) (ruling that the Constitution requires that federal conditions on spending grants be: (1) promulgated to further the general welfare, (2) disclosed unambiguously before a state accepts federal funds, (3) germane to the federal interest behind the grant, (4) constitutional in itself, and (5) not coercive).

52 FAC, supra note 6, ¶ 94.

53 Id. ¶ 93.

54 Id. (citing Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2604 (Roberts, C.J.)).

55 Id. ¶ 134.

56 Id. ¶ 115.

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57 Id. ¶¶ 152-54; see also PI Order, supra note 7, at 21-22.

58 Instead, the federal government rested its case on justiciability, arguing that the City lacked ripeness and standing. Defendants' Opposition to Plaintiff's Motion for Preliminary Injunction at 12-13, 17, City & Cty. of San Francisco, v. Trump, No. 17- cv-00485-WHO (N.D. Cal. Mar. 22, 2017).

59 Id. at 11.

60 Permanent Injunction Order, supra note 7, at *7-*14.

61 Id. at *17.

62 Press Release, U.S. Dep't Just., Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Program (July 25, 2017), http://www.justice.gov/opa/pr/attorney-general-sessions- announces-immigration-compliance-requirements-edward-byrne-memorial [http://perma.cc/7MD2-MDUU].

63 Julian Aguilar, Appeals Court Allows More of Texas “Sanctuary Cities” Law To Go into Effect, TEX. TRIB. (Sept. 25, 2017, 6:00 PM), http://www.texastribune.org/2017/09/25/appeals-court-allows-more-texas-sanctuary-cities-law-go-effect [http://perma.cc/ZZ6B-Z4U6].

64 City of El Cenizo v. Texas, No. SA-17-CV-404-OLG, 2017 WL 3763098, at *28 (W.D. Tex. Aug. 30, 2017).

65 See Heather Gerken, Federalism All the Way Down, 124 HARV. L. REV. 4, 10 (2009) (“While resistance surely has its costs, minority rule at the local level generates a dynamic form of contestation, the democratic churn necessary for an ossified national system to move forward.”).

66 PI Order, supra note 7, at *19.

67 Id. at *28.

68 John Harkinson, Actually Sanctuary Cities Are Safer, MOTHER JONES (July 10, 2015), http://www.motherjones.com/ politics/2015/07/sanctuary-cities-public-safety-kate-steinle-san-francisco [http://perma.cc/65W5-F445].

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Faculty Scholarship

2016 State-Created Immigration Climates and Domestic Migration Huyen Pham Texas A&M University School of Law, [email protected]

Pham Hoang Van

Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Immigration Law Commons, and the Law and Politics Commons

Recommended Citation Immigration, Law Enforcement, Empirical, Local Immigration Regulation, Local Immigration, Illegal Immigration, Public Policy, Immigration Policy, Immigration Federalism, Domestic Migration, Immigration Climate

This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. State-Created Immigration Climates and Domestic Migration

Huyen Pham* Pham Hoang Van**

ABSTRACT

With comprehensive immigration reform dead for the foreseeable future, immigration laws enacted at the subfederal level -- cities, counties, and states -- have become even more important. Arizona has dominated media coverage and become the popular representation of the states' response to immigration by enacting SB 1070 and other notoriously anti-immigrant laws. Illinois, by contrast, has received relatively little media coverage for enacting laws that benefit the immigrants within its jurisdiction. The reality on the ground is that subfederal jurisdictions in the United States have taken very divergent paths on the issue of immigration regulation. Compiling city, county, and state immigration laws from 2005-2011, we created a unique database that enables us to build the Immigrant Climate Index ("ICI"): a measure of the divergent immigration climates created by individual jurisdictions. The reasons for this divergence have received surprisingly little analysis; existing analysis has focused on the presence and effect of immigrants and the political ideology of the subfederal jurisdictions.

Professor of Law, Texas A&M University School of Law; A.B., Harvard College; J.D., Harvard Law School. ** Professor, Department of Economics, Baylor University; S.B. and S.M., M.I.T.; Ph.D. Economics, Cornell University. We have had the opportunity to present this paper at the Canadian Law and Economics Association's Annual Meeting (University of Toronto Faculty of Law); the Indiana University Center for Law, Society, and Culture; the American Association of Law Schools Workshop on Poverty, Immigration, and Property; St. John's University School of Law; the University of Newcastle Law School (Newcastle, Australia); Iwate University (Iwate, Japan); and the Vietnamese Economist Annual Meeting (Ho Chi Minh City, Vietnam), and we would like to acknowledge the helpful comments we received. Specifically, we thank Jack Chin, Marc Helbling and the other editors of the Migration and Citizenship Newsletter of the American Political Science Association, Carissa Hessick, Margaret Hu, and Jayanth Krishnan for their thoughtful feedback. The data collection was a labor of love, and so we are indebted to our capable and hard-working team of research assistants: Michael Doyle, Paul Elkins, Diyi Li, Carol McCord, Michael Schneider, Joakim Soederbaum, and Jessica Theriot. University ofHawai 'i Law Review / Vol. 38:181

Our study demonstrates that there is another important factor to consider. Instead of looking outward to the foreign immigrants moving into a jurisdiction, we look inward and study the impact of domestic migrants (those who moved into a state from another state within the past year). Using panel regressions incorporating our ICI scores and census data, we observe that domestic migrants are affecting the immigration climate of their new home states. Domestic migrants are more likely to be educated and to be politically active, and thus to carry their immigration preferences to their new states. Specifically, domestic migrants coming from states with negative ICI scores have a negative effect on their new states' ICI scores. Moreover, the influence of domestic migrants is magnified, and more negative, when they move from states that are predominantly white, to states with large immigrant populations. Our results support a story of intergroup conflict, in which domestic migrants react negatively to the racial, ethnic, and cultural dislocation they experience in their new home states.

I. INTRODUCTION

Immigration laws enacted at the subfederal level - by cities, counties, and states -- have become an enduring part of the United States ("U.S.") legal landscape. Though subfederal immigration laws are still occasionally the subject of legal challenges, the focus of the national conversation in the U.S. has largely shifted from whether to have subfederal immigration regulation, to whatform that regulation should take. The significance of this shift is best appreciated through a historical lens. Though state and local governments have always been involved in the integration of immigrants within their jurisdiction, the phenomenon of direct immigration regulation at the subfederal level can be traced to the 9/11 attacks. In June 2002, Attorney General John Ashcroft invited states to enforce civil immigration laws as part of "our narrow anti-terrorism mission."' This invitation created considerable controversy because it reversed the longstanding federal position that state enforcement of immigration laws was limited to criminal laws (e.g., human trafficking laws).2 Using their "inherent authority" as sovereigns, Ashcroft maintained

Attorney General John Ashcroft, Prepared Remarks on the National Security Entry- Exit Registration System (Jun. 6, 2002), http://www.justice.gov/archive/ag/ speeches/2002/060502agpreparedremarks.htm (last visited March 4, 2015)[hereinafter "Ashcroft"]. 2 See Memorandum Opinion on Assistance by State and Loc. Police in Apprehending Illegal Aliens, 20 Op. O.L.C. 26, (1996), http://www.justice.gov/sites/default/ files/olc/opinions/1996/02/31/op-olc-v020-p0026.pdf (opining that local police may enforce 2016 / STATE-CREATED IMMIGRATION CLIMATES that states could also enforce civil immigration laws (e.g., laws prohibiting visa overstays).3 Civil rights and immigrant groups harshly criticized this invitation, arguing that immigration law enforcement by state and local police would have dire policy results, including increased criminal activity as immigrants would be reluctant to report crimes or to cooperate with criminal investigations and increased civil rights violations as police without immigration law training tried to make determinations about who has legal immigration status.4 These arguments, as well as legal arguments about the federal government's authority to preempt subfederal immigration regulation, have been made in many different federal lawsuits, challenging the legality of both positive and negative immigration laws. The legal results have been mixed. The local ordinances requiring that landlords check the immigration status of potential tenants have been mostly struck down.5 Similarly, state laws that offer in-state tuition to 6 college students regardless of immigration status have been largely upheld. In 2011, the U.S. Supreme Court upheld employer sanction provisions in the Legal Arizona Workers Act, ruling that state suspension of business licenses for employers who hire unauthorized workers were not preempted by federal law. A year later, the Court struck down most provisions of Arizona's SB 1070 but permitted the state to enforce its "show me your papers" law, which requires state police to check the immigration status of those they suspect are in the U.S. illegally.8 The differences among these cases should be emphasized; they involved different laws, different enacting jurisdictions, and different legal arguments. Yet, the overall message from the federal courts is similar: some forms of subfederal immigration regulation are legally permissible, and states, cities, and counties have to choose carefully from among those forms.

civil but not criminal provisions of the Immigration & Nationality Act). 3 Ashcroft, supra note 1. 4 See Press Release, American Civil Liberties Union, ACLU Seeks Disclosure of "Secret Law" on Local Police Enforcement of Federal Immigration Laws (Apr. 14, 2003), https://www.aclu.org/news/aclu-seeks-disclosure-secret-law-local-police-enforcement- federal-immigration-laws. 5 See, e.g., Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 535-36 (5th Cir. 2013) (holding that the city ordinance requiring tenants to show proof of legal status was preempted by federal law) cert. denied, 134 S. Ct. 1491 (2014). 6 See, e.g., Martinez v. Regents of the Univ. of California, 241 P.3d 855, 870 (2010) (holding that California colleges may give in-state tuition rates to students regardless of immigration status). 7 Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968, 1987 (2011). 8 Arizona v. United States, 132 S. Ct. 2492, 2510 (2012). University ofHawai 'i Law Review / Vol. 38:181

Against this backdrop, states, cities, and counties have taken divergent paths. Some subfederal jurisdictions have been very active in enacting immigration regulations, while other jurisdictions have largely remained silent. Initially, cities and counties led the charge with law enforcement regulations (either requiring or prohibiting their law officers from enforcing immigration laws). States moved into the regulation picture later; with authority to regulate in more areas, states have surpassed city and county activity, enacting immigration laws related to education, public services, and employment, as well as law enforcement.9 The combined activity of states, cities, and counties has resulted in an explosion of subfederal immigration laws. The jurisdictions that have enacted restrictive laws have received the lion's share of media attention. For example, Arizona, when it enacted SB 1070, received widespread attention and a reputation as "the state most aggressively using its own laws to fight illegal immigration."'0 Thus, Arizona with its highly restrictive laws has become the popular representation of how subfederal jurisdictions regulate immigrants within their jurisdictions. In contrast, other subfederal governments have, more quietly, enacted laws that benefit immigrants within their jurisdictions. For example, the state of Illinois in 2005 enacted a law allowing unexpired matricula consular cards (issued by the Mexican government) to be used for state identification purposes." Additionally, at the local level, cities and counties have also enacted laws beneficial for immigrants. For example, in 2007 Middlebury, Vermont enacted a law prohibiting its police from asking about immigration status, seeking out unauthorized workers, or engaging in racial profiling.12 Because of these divergent paths in immigration regulation, an immigrant living in one state may have a very different experience than an immigrant living in a different state. It is this different regulatory experience that we refer to as "climate." Thus, in order to understand the immigrant experience in the United States, it is crucial to understand the divergence in subfederal immigration regulation. To that end, we created the Immigrant

9 This decreased local activity can be explained, in part, by state laws that preempt local activity in a particular regulatory area. For example, in 2007, California enacted AB 976 that prohibits laws requiring landlords to check the immigration status of potential tenants. CAL. Cw. CODE § 1940.3 (West 2010). 10 Seattle Times News Service, Ariz. Immigration Law Would Be Among Strictest, SEATTLE TIMES, (last updated Apr. 15, 2010, 9:29 AM), http://www.seattletimes.com/nationworld/ariz-immigration-law-would-be-among- strictest/. 11 5 ILL. COMP. STAT. 230/10 (West 2014). 12 MIDDLEBURY POLICE DEPT., UNDOCUMENTED FOREIGN NATIONALS GENERAL ORDER 2.48 (2007), http://vtmfsp.org/sites/default/files/Middlebury.pdf. 2016 / STA TE-CREA TED IMMIGRATION CLIMATES

Climate Index ("ICI"), a unique measure of state-created immigration climate based on hundreds of state, city, and county laws collected from multiple sources over a seven-year period (2005-2011), the most active years of subfederal regulation). 3 By assigning a number, either positive or negative, to each immigration regulation enacted within a state, the purpose of the ICI is to express, in quantitative terms, the regulatory climate that immigrants face, allowing comparisons among states and over multiple years. 14 The ICI scores confirm and quantify the divergent paths that subfederal governments have taken in immigration regulation. For example, the difference in ICI score between the most positive state (Illinois) and the most negative state (Arizona) is an astonishing 519 points. To give context within the ICI's scale, the 519-point difference is equivalent to Arizona having almost 130 more of the most restrictive immigration laws than Illinois has. The other states' scores fall in a continuum between the scores of Arizona and Illinois. What accounts for the different paths that cities, counties, and states have taken on immigration issues? Given that immigration is one of the most pressing issues that the U.S. faces, this question has received surprisingly little attention. Media attention has focused on incoming immigrants as the explanation, suggesting that large flows of unauthorized immigrants cause states to enact restrictive laws.15 Academic studies, using more limited data than our study, point to political ideology as the determining factor, concluding that more politically conservative jurisdictions tend to enact 16 more restrictive immigration laws.

13 In previous work, we introduced the ICI and reported some initial ICI scores based on data from 2005-2009. Huyen Pham & Pham Hoang Van, Measuring the Climate for Immigrants: A State-by-State Analysis, in STRANGE NEIGHBORS: THE ROLE OF STATES IN IMMIGRATION POLICY 21-39 (Carissa Byrne Hessick & Gabriel J. Chin eds., 2014). 14 States' ICI scores over time can also be viewed in an interactive format at http://business.baylor.edu/vanpham/ICI/. 15 See Trip Gabriel, New Attitude on Immigration Skips an Old Coal Town, N.Y. TIMES, (MAR. 31, 2013), http://www.nytimes.com/2013/04/01/us/politics/lessons-for-republicans-in- hazleton-pa.html (suggesting that restrictive laws enacted by Hazleton, Pennsylvania are a reaction to the rapidly growing Hispanic population). 16 Jorge M. Chavez & Doris Marie Provine, Race and the Response of State Legislatures to UnauthorizedImmigrants, 623 ANNALS Am. ACAD. POL. & Soc. SC. 78, 90 (2009); see S. Karthick Ramakrishnan & Pratheepan Gulasekaram, The Importance of the Political in Immigration Federalism, 44 ARiz. ST. L. J. 1431, 1484 (2013) (concluding that local political contexts are better predictors of law-based restrictive actions); S. Karthick Ramakrishnan & Tom Wong, Partisanship,Not Spanish: Explaining Municipal Ordinances Affecting Undocumented Immigrants, in TAKING LOCAL CONTROL: IMMIGRATION POLICY ACTIVISM IN U.S. CITIES AND STATES 73, 89 (Monica W. Varsanyi ed., 2010) (arguing that political factors are more important than demographic pressures in explaining restrictionist University ofHawai 'i Law Review / Vol. 38:181

While these explanations provide some insight, our analysis points to a third factor that provides a more complete explanation. Our results suggest that domestic migrants (those moving into a state from another state) also influence the ICI of their new state. Using domestic migration variables, which we created from the American Community Surveys of the U.S. Census Bureau, we observe correlations between the climate scores of a domestic migrant's home state and the state she moves to. By employing panel regressions, we were able to isolate the effect that domestic migrants have on their new home states' ICI scores.17 Specifically, we observed that domestic migrants moving from more restrictive states tend to have a negative influence on their new home states' climates. The political influence of domestic migrants makes sense in light of separate studies, which conclude that people with higher levels of education are both more geographically mobile and more likely to vote.' 8 Furthermore, the negative effect of domestic migrants is magnified when domestic migrants move from predominantly white states to states with large immigrant populations.' 9 Our results support a story of intergroup conflict, in which domestic migrants move from racially homogenous states to racially diverse states and react negatively to the dislocation they experience. This negative reaction, we suggest, manifests itself in support for restrictive immigration laws and politicians who advocate for those laws. Our results are significant for several reasons. As an initial matter, the results present a more dynamic and thus more accurate explanation for state-created immigration climates. Media attention has focused on looking outward, to the international migrants who are moving into different states, suggesting that a state's reaction to international migration depends solely on the numbers of immigrants moving to its jurisdiction. 20 News articles suggesting that international immigrants "cause" a reaction in the receiving states present a static and inaccurate explanation of immigration climates. Instead, our analysis highlights the importance of looking inward, to the interaction between a state's international migrants and those already living there. Our results demonstrate that the nature of this interaction can change, depending on the composition of the international migrants and the domestic migrants. If, in studying state-created immigration climates, we focus exclusively on international migration, we would need to assume that the domestic population is static. But that assumption is false, as data responses of local government). 17 See Figure 2 infra at 33. 18 See Section II infra at 30. 19 Id. 20 See, e.g., Gabriel supra note 15. 2016 / STA TE-CREA TED IMMIGRATION CLIMATES shows that large numbers of people migrate within the United States every 21 year. We account for the presence of this third group, domestic migrants, and demonstrate how they affect a state's immigration climate, thus presenting a more accurate explanation. Finally, the support in the data for the intergroup conflict explanation raises important questions for future subfederal immigration regulation. If domestic migrants affect a state's immigration climate and domestic migrants are themselves affected by their previous interactions with international immigrants (or lack thereof), then the future implications for ICI scores are intriguing. What happens if international immigrants continue their current pattern of settling in areas beyond the traditional gateway cities? 22 In the short term, there is likely to be more negative ICI scores as increased diversification leads to increased intergroup conflict. In the long term, this migration pattern would expose a broader range of domestic residents, living in different states and cities, to immigrant communities. If these domestic migrants have interpersonal interactions with immigrants in their communities, the contact theory of intergroup dynamics suggests that their attitudes about immigrants and immigration will become more positive. 3 When these domestic residents, in turn, migrate to different states, our findings suggest that they may have a positive influence on their new home state's immigration climate. Part I of our article explains how the ICI was constructed, including our data collection methods and our weighting system for different types of laws. Part II describes our statistical methods and results, including the correlations we found between states' ICI scores and the domestic migration variables we created from Census Bureau data. Part II also explores the implications of our findings, drawing upon the political science literature.

2 1 David Ihrke, Reasons for Moving: 2012 to 2014, U.S. CENSUS BUREAU (Jun. 2014), https://www.census.gov/prod/2014pubs/p20-574.pdf ("Between 2012 and 2013, 35.9 million people 1 year and over living in the United States moved to a different residence. The mover rate for this period was 11.7 percent."). 22 Jill H. Wilson & Nicole Prchal Svajlenka, Immigrants Continue to Disperse, with Fastest Growth in the Suburbs, Brookings Institution Immigration Facts Series 18 (Oct. 29, 2014) http://www.brookings.edu/research/papers/2014/ 10/29-immigrants-disperse-suburbs- wilson-svajlenka. 23 See Hood, infra notes 68-69. Briefly stated, this theory states that an increase in intergroup contact tends to reduce conflict among different groups. University ofHawai 'i Law Review / Vol. 38:181

II. THE IMMIGRANT CLIMATE INDEX

A. Defining Climate and its Inputs

In conventional usage, the climate of a jurisdiction can be referenced in different contexts: a politician trying to attract industry may pitch her home state as having a business-friendly climate,24 or tourist websites may describe certain cities as having climates that are hospitable to gays and lesbians, or families with children.25 "Climate" then can refer to concepts as diverse as laws, public opinion, or structural conditions.26 Here, we use "climate" to refer specifically to the regulatory environment created by enacted immigration laws. We choose laws to measure climate for two reasons. First, we are interested in measuring the day-to-day experience of immigrants living in different states, and enacted laws are a critical part of that experience. Through legal regulation, immigrants experience prohibitions, requirements, and benefits that affect their daily lives. And because the laws in our analysis have a special link to immigrants, we can differentiate the climate experienced by immigrants from that experienced by other groups in the jurisdiction. Second, our definition has the benefit of clarity. Though a law's enactment does not always guarantee its enforcement, our definition provides a bright line rule for analysis. Tracking enforcement of these laws is not workable as different political subdivisions have different ways of allocating resources and recording government activity. Even if it is not rigorously enforced, the enactment of a law presents a significant possibility that it will be enforced at some later point in time; an immigrant who knows that a law may be enforced would rationally account for the law's requirements in planning her actions. In that regard, the act of passing a law affects a jurisdiction's climate for immigrants. For similar

24 See, e.g., Jason Whitely, Texans try to lure Sriracha hot sauce maker from California, WFAA (May 13, 2014), http://www.wfaa.com/story/news/politics/2014/08/21/14210996/. 25 See, e.g., 12 Best Kid-Friendly Destinations, BUDGET TRAVEL (Jan. 25, 2013, 1:22 PM), http://www.budgettravel.com/feature/family-travel-vacation-ideas- 12-kid-friendly- destinations, 12765/. 26 Climate, DICTIONARY.COM, http://dictionary.reference.com/browse/climate?s t (last visited Mar. 1, 2015) (stating that climate is "the prevailing attitudes, standards, or environmental conditions of a group, period, or place: a climate of political unrest"); Climate, MERRIAM-WEBSTER DICTIONARY, http://www.merriam-webster.com/dictionary/ climate (last visited Mar. 1, 2015) (defining climate as "the prevailing influence or environmental conditions characterizing a group or period."). 2016 / STA TE-CREA TED IMMIGRATION CLIMATES reasons, we removed laws that were repealed, either by the legislature or by courts after litigation.2 What qualifies as an immigration law for our purposes? As noted earlier, the law must have a special link to immigrants. The link to immigration can be explicit, such as when a law authorizes housing for migrant farm workers. 8 Sometimes, however, the link is implicit: when the law, without mentioning immigration in its text, has a special impact on immigrants. For example, the typical English-only law does not reference immigrants, but its impact will be felt most strongly among immigrants, who are less likely than the native-born to be fluent in English. 9 Our data set is broader and narrower than those used by other studies. Our dataset is broader than other studies because our database includes laws enacted at all relevant subfederal levels: city, county, and state. Our data also includes positive laws, as well as restrictive laws, over a longer time period, which further distinguishes our study from previous studies and provides a more complete measure of immigration climate. By contrast, the Chavez and Provine study only analyzed restrictive state-level legislation enacted during 2005-2006.3o Ramakrishnan and Wong reviewed restrictive laws enacted at the municipal level. Ramakrishnan and Gulasekaram analyzed restrictive and beneficial laws from 2005-2007, at both the state and local levels.3' Our data is also narrower than some collections of these laws. 32 Because we are interested in measuring climate, we excluded laws that mention immigrants or immigration but have little or no concrete effect. Examples include resolutions calling for comprehensive immigration reform or administrative bills that renamed immigration-related agencies.33 Finally, we excluded some laws because their net effect would likely be neutral.

27 If the law was stayed during litigation but ultimately upheld, we used date restrictions to account for any time period during which the law could not be enforced. 4 28 See FLA. STAT. ANN. § 20.9075(1)(a) (West 2015). 29 See, e.g., Gadsden, Ala., Res. R-336-06 (Aug. 8, 2006) (declaring English to be the official language of the city of Gadsden). 30 See Ramakrishnan & Gulasekaram, supra note 16. 31 id. 32 For example, the National Conference of State Legislatures includes in its database of immigration laws all state bills that mention immigration or immigrants, including resolutions and budgetary allocations. For the reasons stated above, we do not include resolutions or budget bills in our ICI calculations. See Immigration Enactments Database, NATIONAL CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/research/immigration/ immigration-laws-database.aspx (last visited Oct. 30, 2015). 33 See, e.g., S.R. 5081, 2009 Leg. Reg. Sess. (N.Y. 2010); see also Arizona's Immigration Enforcement Laws, Resolutions, NCSL, http://www.ncsl.org/research/ immigration/analysis-of-arizonas-immigration-law.aspx (last visited Sept. 9, 2015). University ofHawai'i Law Review / Vol. 38:181

For example, anti-human trafficking laws would, upon initial analysis, seem to deserve positive scores because they protect immigrants from the abuses of trafficking. But for some immigrants, restrictions on trafficking limit an important channel for them to reach the United States. One study of subfederal immigration regulation concluded that trafficking laws help 3 4 immigrants, while another study concluded that they hurt immigrants; these opposite conclusions reinforce our decision to exclude trafficking laws from our analysis. For similar reasons, we exclude laws that provide funding for immigration-related functions. Budget bills, which are often omnibus in nature, are very difficult to disentangle; it is often challenging to know when a particular amount has been allocated for an immigration-related purpose. Even when that identification is possible, it is difficult to know whether to classify a budget law as a positive or restrictive law, without knowing whether the allocated budget is an increase or decrease from the previous year's allocation. For example, a law that allocates funding for subfederal immigration enforcement looks like a restrictive law, but if the allocated amount is actually a substantial decrease from the previous year's budget, then the law might actually be a beneficial law for immigrants. Finally, we want to avoid the problem of double counting: if a law is enacted in one bill and funded in another, we risk double counting if we count the funding bill as a separate law.

B. Collecting Data

The laws used to build the ICI come from many sources, collected through a multiple-year process. The state laws were extracted from the National Conference of State Legislatures, a clearinghouse for state laws.35 The NCSL collects all state laws related to immigration, including resolutions and administrative laws only tangentially related to

34 See The Anti-Immigrant Movement that Failed: Positive Integration Policies by State Governments Still Far Outweigh Punitive Policies Aimed at New Immigrants, PROGRESSIVE STATES NETWORK, (2008), http://www.progressivestates.org/files/reports/ immigrationSept08.pdf [https://web.archive.org/web/20091029042941 /http://www.progressivestates.org/files/report s/immigrationSept08.pdf] (concluding that human trafficking laws benefit immigrants and thus were evidence of a state's integrative policies toward immigrants); Jorge M. Chavez & Doris Marie Provine, Race and the Response of State Legislatures to Unauthorized Immigrants, 623 ANNALS AM. ACAD. POL. & Soc. Sci. 78, 84 (2009) (characterizing human trafficking laws as restrictionist legislation because they increase penalties for those who assist unauthorized immigrants). 35 NATIONAL CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org (last visited Oct. 30, 2015). 2016 / STA TE-CREA TED IMMIGRATION CLIMATES immigration. As noted previously, we are interested in a law's practical effect on the state's climate; thus, our ICI uses a smaller subset of state laws than is reflected in the NCSL's reports. Collecting city and county laws was more complicated because there is no central clearinghouse for this type of local legislation. We started with lists of local laws compiled by advocacy organizations like the American Civil Liberties Union and the Federation for American Immigration Reform.36 We combined these lists with information from federal government websites naming local jurisdictions that have agreed to enforce federal immigration laws (through 287(g) agreements). We also did our own searches of electronic news databases to find local immigration laws. For each law that we found through these methods, we contacted the local governmental entity to confirm that the law had been enacted, the date of enactment, and the substance of the laws. Wherever possible, we obtained a copy of the enacted laws. If our research indicated that the law was rescinded (because of litigation or other reasons), we noted the year of rescission in our database and adjusted our ICI calculations accordingly. The ICI contains laws that were enacted from 2005-2011. We chose 2005 as the start date for our data collection because that is when subfederal immigration regulation started in earnest. The NCSL only started compiling reports on immigration-related laws in 2005; before that year, state laws related to immigration were few in number and largely limited to the state distribution of social service benefits.3 Our own tracking of city and county level laws confirms a similar timeline for the growth of local immigration laws.

C. Constructingthe ICI

Because laws will vary in their effect on immigrants, it is not an accurate reflection of climate to simply count the laws enacted in states. Rather, our ICI considers both a law's type and its geographic reach when calculating a

36 We also used lists from these advocacy organizations: the Mexican American Legal Defense and Education Fund, Latino Justice PRLDEF, the National Day Laborer Organizing Network, and the Ohio Jobs and Justice PAC. MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, http://www.maldef.org (last visited Oct. 30, 2015); LATINO JUSTICE PRLDEF, http://latinojustice.org (last visited Oct. 30, 2015); NATIONAL DAY LABORER ORGANIZING NETWORK, http://www.ndlon.org/en/ (Oct. 30, 2015); OHIO JOBS AND JUSTICE PAC, http://www.ojjpac.org (last visited Oct. 30, 2015). 37 Most of these pre-2005 state laws were reacting to federal welfare reform, the Illegal Immigration Reform and Immigrant Responsibility Act, which prohibited the distribution of welfare benefits to most immigrants. E-mail from Ann Morse, Program Dir., Immigrant Policy Project, Nat'l Conference of State Legislature, to Huyen Pham, Professor of Law, Texas A&M Univ. Sch. of Law (Aug. 12, 2009, 11:47 EST) (on file with author). University ofHawai 'i Law Review / Vol. 38:181 jurisdiction's climate score. Regarding type, which laws have more impact? Abraham Maslow's influential hierarchy of needs model posits that humans are motivated to fulfill basic needs first (physiological needs like food and shelter, and safety needs like security, and freedom from fear) before being capable of fulfilling growth needs (like relationships, esteem, and self-actualization).38 Research applying Maslow's influential hierarchy to immigrants concludes that immigrants are pushed by the disruption in their life patterns to focus on their basic needs, regardless of the personality development level they reached before immigrating.3 9 Incorporating that research, we considered which types of subfederal laws would have the most impact on immigrants' basic needs. Though there are no laws guaranteeing or prohibiting immigrant access to physiological needs like food or shelter, there are a multitude of laws that expand or restrict subfederal enforcement of immigration laws. Subfederal laws can address direct subfederal enforcement (e.g., 287(g) agreements where local and state police are trained by federal authorities to carry out certain immigration law enforcement tasks) or indirect enforcement (e.g., laws prohibiting participation in the federal Secure Communities program, where local police officers share information about arrestees with federal immigration officials and hold those arrestees for federal pickup and deportation). These laws can have a dramatic effect on immigrants' lives. Subfederal participation in the Secure Communities program alone accounts for a majority of the deportations under the Obama administration. 40 Through these subfederal efforts, an ordinary encounter with local law enforcement, say for a traffic violation, could lead to detention and removal from the United States. Immigrants come to the United States for various reasons -- economic opportunity, family reunification, and political freedom -- but none of that is possible if they are detained or deported. Because deportation (or the fear of deportation) is at the core of an immigrant's safety concerns, we assigned the highest points (either four positive or negative points) to these types of laws.4'

38 Seymore Adler, Maslow's Need Hierarchy and the Adjustment of Immigrants, 11

INT'L MIGRATION REV. 444 (1977). 39 Id. 40 Julia Preston, Republicans Resist Obama's Move to Dismantle Apparatus of

Deportation, THE NEW YORK TIMES (Jan. 15, 2015), http://www.nytimes.com/ 2015/01/16/us/secure-communities-immigration-program-battle.html?hp&action click&pgtype Homepage&module-photo-spot-region®ion top-news&WT.nav top- news ("Secure Communities, which connected local and state police departments across the country with federal immigration enforcement.., generate the majority of the 2.3 million deportations under the Obama administration."). 41 We also include in Tier 4 laws that change a person's treatment within the law enforcement system based on immigration status (e.g., H.B. 2787, 4 8 th Leg. (Ariz. 2007) 2016 / STA TE-CREA TED IMMIGRATION CLIMATES

After laws affecting physical security, our next tier includes laws that also affect a basic need in immigrants' lives, a need that is very difficult to replace or avoid. For example, laws that impose local or state penalties on employers who hire these workers make it more difficult for immigrants to find any job of work. Immigrants without work authorization may still be able to find work (by using false identification papers or by working off the books), but these alternatives come with their own problems and high costs. For similar reasons, we include in Tier 3 laws restricting or enhancing access to government identification cards (like driver's licenses) and private housing.4 2 In our ICI calculations, these laws are assigned three points (either positive or negative). Tier 2 laws affect an important but not crucial aspect of immigrants' lives; in many instances, immigrants whose access is restricted under these laws can find alternatives with fewer problems or cost than with Tier 3 restrictions. This tier includes laws that affect an immigrant's access to a specific type of job (like working as an insurance agent or in other jobs requiring licenses); an immigrant who wants to work in one of these licensed jobs clearly faces obstacles, but because there are alternative jobs not affected by these laws, the law's impact is more limited. Similarly, laws that expand or limit immigrant access to government-funded benefits like healthcare or college tuition are obviously important to immigrants, but because there are alternatives, these laws belong in Tier 2 and are assigned two positive or negative points. Tier 1 laws, worth one point each, are included in our ICI calculations because they affect immigrants' lives but in a less important or less significant way. For example, laws requiring that all government transactions be conducted only in English have a negative impact on immigrants, but because linguistic concerns aren't as important as jobs, housing, and other matters regulated by laws in Tiers 2, 3, and 4, these English-only laws are assigned one negative point. For similar reasons, laws making it easier or harder for immigrants to vote and laws restricting or expanding access to legal services are also categorized as Tier 1 laws.

(denying bail to those without lawful immigration status)).

42 A handful of jurisdictions have enacted laws that require tenants to prove legal immigration status before they are allowed to rent housing. Most of these laws have been successfully challenged in litigation and thus are not included in our ICI calculations. See Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 535-36 (5th Cir. 2013). The few housing laws that are in effect are categorized as Tier 3 laws; though they would appear to deny access to a basic need (shelter). Immigrants affected by these laws can still find alternatives (by living with friends or relatives with legal immigration status or by living in a neighboring jurisdiction). Law enforcement, by contrast, is pervasive and unavoidable, such that subfederal laws relating to immigration law enforcement have more impact on immigrants' daily lives. University ofHawai 'i Law Review / Vol. 38:181

We also weighted laws differently, depending on their geographic reach. State laws were assigned whole points (from 1-4 points depending on their tier). City and county laws were weighted to represent their more limited jurisdiction, as compared with state laws. A city or county law may be in the same tier as a statewide law (e.g., Tier 2), but its impact on the state's climate will be limited to immigrants who live in that particular city or county. Accordingly, its score is adjusted to reflect that more limited impact. For example, Las Vegas, Nevada has signed a 287(g) with the Department of Justice, authorizing its police officers to perform specified immigration enforcement functions.43 The negative four points that the 287(g) agreement would usually receive under the tier system is weighted to reflect the city's smaller population, as compared with the larger population of Nevada. The calculation is as follows:

1,951,269 (population of Las Vegas metropolitan area) 2,700,551 (population of Nevada) x -4 tier points - -2.89 points

When calculating Nevada's ICI, this 287(g) agreement will contribute a negative 2.89 points to the state's score. Under this system, the laws of larger local governments (e.g., the city of Las Vegas) will have a more significant effect on their states' ICI scores than will the laws of smaller subfederal governments (e.g., Reno, Nevada).

D. ICI Results and Patterns

Adding up the positive and negative points of individual laws enacted at the city, county, and state levels, we calculated ICI scores for individual states. Figure 1 shows the geographical distribution of scores; Table A lists ICI scores by state.44

43 Memorandum of Agreement, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Sept. 8, 2008), http://www.ice.gov/doclib/foia/memorandumsofAgreementUnderstanding/ 287goldlasvegasmpd.pdf. 44 Our results in this article reflect cumulative scores for the period 2005-2011; state scores for individual years within this time period can be found on an interactive map available at http://business.baylor.edu/vanpham/ICFI. 2016 / STA TE-CREA TED IMMIGRATION CLIMATES

Figure 1. Cumulative Immigrant Climate Index. University ofHawai 'i Law Review / Vol. 38:181

Table I Immigrant Climate Inde (ICI) Scores Based on State and Local Legislation Enated 2005-2011 State ICI Score State ICI Score Arizolna New York South Carolina -212 Vermont Oklahoma -196 Wisconsin Georgia -i95 Pennsylvania Virginia * 192 Alaska Missouri Iowa Utah 476 61 Massaehusetts Colorado -151 New Mexico Tennessee 123 Minnesota Arkansas 410 Maryland Alabama -109 Washington Texas -94 Conncticut Florida -84 California Nebraska -83 llinois Mississippi -77 Idaho -74 Montana Hlawaii -66 Louisiana -65 Kansas -63 Michigan Maine .42 Indiana -41 Oregon 35 Kentucky -34 North Carolina Nevada -22 Wyoming -2i West Vcginia -15 Delaware South Dakota -13 New Jersy -12 Rhodle Islanid -10 Ohio New Hampshire -:9 North Taktai NoTth Dakota Table 1. Immigrant Climate Index Scores Based On State and Local Legislation 2005-2011. 2016 / STA TE-CREA TED IMMIGRATION CLIMATES

There are some broad trends about the scores that are worth noting. First, a clear majority of states (36) have negative scores. That Arizona tops the list of negative states is unsurprising, given the slew of highly restrictive laws it has enacted. What may be surprising is that there is a 143-point difference between Arizona and the next most negative state, South Carolina (-212). So not only does Arizona have the most negative immigration climate in the United States, but its climate is substantially more negative than the climate in other negative states. South Carolina, Oklahoma, Georgia, and Virginia cluster as the most negative states, after Arizona. Second, a sizeable minority (14) states have neutral (net zero) or positive climate scores. The scores of Illinois and California are vastly more positive than other states, the result of proactively enacting laws benefiting immigrants within their jurisdictions. Examples of positive laws include laws granting immigrants access to benefits (like in-state college tuition rates), laws granting driver's licenses or state ID cards without regard to immigration status, and laws restricting local police enforcement of immigration laws. After Illinois and California, there is over a 100-point drop to the scores of Connecticut, Washington, and Maryland. The most striking trend, however, is the broad divergence among state scores. For example, there is a 519-point difference between the most negative ICI score (Arizona -355) and the most positive score (Illinois 164) -- the equivalent of about 130 law enforcement actions over this seven year period. Other states have ICI scores at all points along the spectrum between Arizona and Illinois. Given the opportunity, states have chosen to take very different paths on the issue of immigration regulation. What accounts for this divergence?

III. EXPLAINING THE DIVERGENCE

In media reports about subfederal immigration regulation, the press has focused on the inflow of immigrants, suggesting that current residents of jurisdictions enact restrictive laws as a reaction to that inflow.45 Academic analyses have also linked the rise of restrictive laws to growing immigrant populations.46 Empirical studies of this issue, working with smaller data sets than our study, focus on political ideology. Specifically, these studies

45 See, e.g., Gabriel, supranote 15. 46 Cristina Rodriguez, The Significance of the Local in Immigration Regulation, 106

MICH. L. REv. 567, 594 ("Communities are also jumping on the enforcement bandwagon because they seek control over their rapidly changing environments."). University ofHawai 'i Law Review / Vol. 38:181 found that Democratic areas were more likely to enact pro-immigrant laws while Republican areas were more likely to enact restrictive laws.4 While immigrant inflow and political ideology are important to understanding the divergence in immigration climate, our ICI scores raise questions about the completeness of their explanatory power. The states with the highest shares of immigrants during this time period have ICI scores across the spectrum.48 Similarly, states with the largest populations 49 of unauthorized immigrants have ICI scores that defy easy categorization. Regarding political ideology, it is possible to discern some pattern in ICI scores along red-blue political lines. However, ICI scores in Figure 1 suggest examples of diverging scores that aren't easily explained by political ideology alone. For example, Arizona and Texas are both reliably conservative states; yet their scores are over 260 points apart (the equivalent of about 65 Tier 4 laws). Similarly, the ICI scores of Oregon and Washington differ by 80 points, though both states generally share liberal politics. Our analysis points to another significant determinant in understanding the divergence: the flow of domestic migrants among different states. Interstate migration is an important phenomenon in the U.S. but has largely been overlooked by researchers, as well as by policy makers, in analyzing subfederal immigration laws. Informed by the data, our thesis is that domestic migrants carry their immigration preferences across states and influence the climate in destination states. The first empirical evidence we consider is a scatter plot of the cumulative ICI score of a state from 2005-2011 and the average ICI scores of states that sent domestic migrants to the state (Figure 3 below). The simple correlation between these two variables is positive as represented by the slope of the line fitted to the data points. This pattern is consistent with our thesis: domestic migrants coming from positive ICI states have a positive effect on their new home state's ICI while domestic migrants coming from negative ICI states have a negative effect. As explained

47 Chavez & Provine, supra note 16, at 83-89; Ramakrishnan & Gulasekaram, supra note 16; Ramakrishnan & Wong, supra note 16, at 88-89. 48 Those states are California (151 ICI score), New York (0), New Jersey (-12), Hawai'i (-66), and Florida (-84). Jens Manuel Krogstad & Michael Keegan, 15 States with the Highest Share of Immigrants in Their Population, PEW RESEARCH CENTER (May 14, 2014), http://www.pewresearch.org/fact-tank/20 14/05/ 4/ 15-states-with-the-highest-share-of- immigrants -in-their-population/. 49 Those states are California (151 ICI score), Texas (-94), Florida (-84), New York (0), New Jersey (-12), and Illinois (164). Jens Manuel Krogstad & Jeffrey S. Passel, 5 Facts About Illegal Immigration in the U.S., PEw RESEARCH CENTER (Nov. 18, 2014) http://www.pewresearch.org/fact-tank/2 15 /7 /24/ 5-facts-about-illegal-immigration-in-the- u-s/. 2016 / STATE-CREATED IMMIGRATION CLIMATES below, the influence of domestic migrants is amplified when domestic migrants move from predominantly white states, to states with large Hispanic or Mexican-born populations.

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Average ICI scor of states sending domest migran (a

Figure 2. Domestic Migrants Carry Preferences Across Borders

A. Methodology and StatisticalResults

The correlation revealed in Figure 2 is consistent with our thesis: domestic migrants carry their immigration preferences across borders to influence the immigration climates in their new home states. As we explain further in Section II.B, domestic migrants are more likely to have higher levels of education, which also makes them more politically active. The correlation, however, may not necessarily be all due to the relationship proposed in this study. Confounding factors could contribute to this correlation.50 That is, there may be unrelated factors that simultaneously affect both domestic migration patterns and ICI scores. For example, a state's geographical location may affect both its domestic

50 ROBERT M. LAWLESS ET AL., EMPIRICAL METHODS IN LAW 406 (2010) (A confounding variable is "a variable omitted from a study but that does affect the phenomenon under investigation thereby potentially leading to a false positive result."). University ofHawai 'i Law Review / Vol. 38:181 migration and its ICI score. Southern states have had the highest rates of in-migration for the time period in our analysis; their proximity to Mexico could also affect their residents' views about immigration and immigration enforcement. Similarly, a state's liberal or conservative political orientation may affect its domestic migration patterns (people are either attracted or repelled by the state's political climate); political orientation may also influence views about immigration laws. If either case is true, then the correlation we see between domestic migration patterns and ICI scores would not be due to the direct relationship between the two variables, but rather is explained by the effect of unrelated third variables like a state's geographical location or political orientation. We are able to address this possible endogeneity problem with our panel data set -- we have ICI and migration scores by state over a number of years. In our regressions, we can include state dummy variables (also known as state fixed effects) that can account for differences in ICI scores due to inherent differences across states that do not change with time. These state fixed effects catch the effects of confounding factors such as geographical location or political ideology mentioned above."' After controlling for these state fixed effects, we are effectively looking at the correlation of migration and ICI scores for the same state from one year to the next. As such, we can be more confident that this correlation is coming from the relationship between migration and ICI. After using state fixed effects to control for possible confounding factors, we must also consider an additional source of endogeneity. It is possible that domestic migrants chose their state of residence because of the immigrant climate. For example, a person who holds restrictive views is attracted to the negative climate in Arizona. In that case, we have a reverse causal relationship -- the ICI scores of states are what is causing the flow of migrants. However, there is evidence that many domestic migrants choose

51 We estimate the following fixed-effects regressions:

ICIst = a + b * Migrationst + StateFixedEffectss + est.

The left hand side ICIst represents the ICI score of a state (s) in any particular year (t), and the right hand side represents all the variables that could affect a state's ICI score. We are interested in the effect of domestic migration on climate scores (represented as b in the equation above). We include state dummy variables to account for possible confounding factors that do not change with time over our study period (e.g., a state's proximity to Mexico or its political orientation). Migrationst are several different migration measures, StateFixedEffectss are a set of state dummy variables (one for each state to account for the confounding problem), and est is an error term assumed to be independently, identically distributed normal. 2016 / STA TE- CREA TED IMMIGRATION CLIMATES

to move for economic reasons unrelated to preferences over immigration.5 2 Rodgers and Rodgers find that the wages of domestic migrants increase after the move by as much as twenty percent.53 Though not conclusive, this result suggests that where domestic migrants choose to move is determined 54 by job prospects, not by preference for immigration climate. We also test our intergroup conflict thesis: that ICI scores are partly an outcome of domestic migrants encountering inhabitants in their new states who look very different from those in their origin states. As an initial matter, our results show that domestic migrants moving from states with large populations of whites have a negative influence on the ICI scores of their new home states.55 Using variables that measure foreign and

perceived foreign populations in receiving states, we also found that an5 6 increase in these populations also has a negative effect on ICI scores. When domestic migrants move from states with large white populations to states with large immigrant populations (or populations that are perceived to be immigrants), the negative effect of domestic migrants on ICI scores is amplified. Those results are also included in Table 3. Our statistical results and more detailed explanations of our methodology are in Appendix A.

B. Influence of Domestic Migrants

Beyond the statistical results, what is the mechanism by which domestic migrants affect immigration climates? Because our ICI measures climate through enacted laws, we are interested in how domestic migrants affect the political process of their new home states. Though domestic migrants are a small group (less than 0.1% of a state's population), we hypothesize that they have a political influence beyond their numbers for several reasons. First, we define a domestic migrant as a person who lived in another state one year ago, but obviously domestic migrants can continue to affect the political process beyond that initial first year.57 Second, we hypothesize that there is a large overlap between the people most likely to move within the U.S. and those most likely to vote. Specifically, individuals with higher

52 Joan Rodgers & John Rodgers, The Effect of Geographic Mobility on Male Labor-

Force Participants in the United States, 21 J. LABOR RESEARCH 117, 121-26 (Jan. 2000). 53 Id. at 124-126. 54 Id. at 126. 55 See Table 2 infra at 50. 56 Specifically, for each receiving state, we measured the fraction of foreign residents, residents of Asian or Hispanic origin, residents who recently immigrated from Mexico, and the growth in Mexican immigration. Those results are included in Table 3. 57 We use the one-year definition because the American Community Survey data for the years of our study provides information in that format (i.e., the Survey asks respondents where they lived one year ago). University ofHawai'i Law Review / Vol. 38:181 levels of education are most likely to move within the United States, and also most likely to vote. Our hypothesis is supported by separate studies of domestic migrants and voting behavior. Studies using census data have concluded that individuals with higher levels of education are more likely to migrate within the United States.58 Malamud and Wozniak in their 2010 study observe that another year of higher education is closely associated with a large increase in the probability of moving away from one's birth state. Based on this causal link between education and mobility, they conclude that geographic mobility is one of the benefits of higher education. Using Current Population Survey data from 1980 to 2000, Emek Basker also found that education increases geographic mobility, controlling for age, state of origin, and year fixed effects.5 9 Just as education substantially increases mobility, it also increases the likelihood of voting. Why people vote is a question that has long intrigued social scientists. Studies have focused on different determinants of voting, but one empirical regularity in many studies is the connection between education and voter turnout. Numerous studies have concluded that individuals with higher levels of education are more likely to turn out to vote. Studying the effect of social-economic status on voting behavior, Wolfinger and Rosenstone conclude that education has a stronger influence on voter turnout than income. 60 They find that individuals with higher levels of education are more likely to vote than individuals with higher incomes. 61 Using American National Election Studies ("ANES") 62 and CPS data, Milligan, Moretti, and Oreopoulos found that more highly educated individuals in the United States have higher rates of voting and higher rates of participation in other political activity, such as: following election campaigns, joining a political group, and working on community issues. 63 This finding of increased political activity is particularly

58 Ofer Malamud & Abigail Wozniak, The Impact of College Education on Geographic Mobility: Evidence from the Vietnam Generation, 47 J. HUMAN RESOURCES, No. 4, 915-50 (2007). 59 Emek Basker, Education, Job Search, and Migration, (Univ. of Missouri-Columbia, Working Paper No. 02-16, 2003), http://papers.ssm.com/sol3/papers.cfm?abstract id 371120. 60 RAYMOND E. WOLFINGER & STEVEN J. ROSENSTONE, WHO VOTES? 23-26 (1980). 61 Id. 62 A collaboration between Stanford University and the University of Michigan, ANES conducts its own voter surveys and makes the data available to social scientists, teachers, students, journalists, and policy makers. AMERICAN NATIONAL ELECTION STUDIES, http://www.electionstudies.org/ (last visited Mar. 1, 2015). 63 Kevin Milligan, Enrico Moretti, and Philip Oreopoulos, Does Education Improve Citizenship? Evidence from the United States and the United Kingdom. 88 J. PUB. ECON. 2016 / STATE-CREATED IMMIGRATION CLIMATES significant because it shows that domestic migrants can have political effects beyond just their individual votes. Because they tend to be more politically active generally, domestic migrants can influence the political attitudes of their new neighbors.64 As noted above, our results also show that the influence of domestic migrants on ICI scores is magnified and more negative when domestic migrants move from a state with a large white population to a state with a large minority or Hispanic population. Our thesis is that natives' views about immigration are shaped, in part, by exposure to immigrants and immigrant communities. Those who live in communities with large numbers of immigrants (or descendants of immigrants) will have more positive views about immigration. Conversely, those with limited or no exposure to immigrants will have negative views, which translates into political support for restrictive immigration laws. Our results are consistent with what social scientists have described as the contact theory of intergroup dynamics. 65 According to this theory, an 66 increase in intergroup contact tends to reduce conflict among the groups. Applied to the immigration context, the contact theory suggests that racial and social context do affect immigration attitudes.6 Using ordered logit and ordered probit methodologies and data from the 1992 American National Election Study and the 1990 Census, Hood and Morris found that Anglos living in heavily Hispanic or Asian areas had more positive views 68 about the potential contributions that these two groups make to society. In a later study, Hood and Morris suggest that the quality of the interaction that Anglos have with immigrants is important in affecting their attitudes toward immigration.69 Their study finds that Anglos living in areas with large numbers of authorized immigrants generally have positive attitudes, while Anglos living in areas with large unauthorized populations 7 tend to have more negative attitudes. 0 Because unauthorized immigrants do not have driver's licenses, work permits, social security numbers, and other documents to make them "official" members of the public

1667 (2004). 64 Id. 65 See id. 66 Id. 67 Id. 68 M.V. Hood & Irwin L. Morris, Amigo o Enemigo? Context, Attitudes, and Anglo Public Opinion Toward Immigration, 78 Soc. Sci. Q. 309 (1997). 69 M.V. Hood & Irwin L. Morris, Give Us Your Tired, Your Poor... But Make Sure They Have a Green Card The Effects of Documented and Undocumented Migrant Context on Anglo Opinion Toward Immigration,20 POL. BEHAV. 1 (1998). 70 Id. at 7-9. University ofHawai 'i Law Review / Vol. 38:181 community, their interaction with outsiders will necessarily be limited. 7 1 The absence of that interpersonal interaction makes it difficult for unauthorized immigrants to develop the intergroup relations that are the foundation of the contact hypothesis. 2 Intergroup interaction and the contact hypothesis provide a useful lens for analyzing our results. In our analysis, ICI scores may be viewed as a rough proxy for integration because the subfederal laws regulate access to many benefits necessary for outside interaction: driver's licenses, employment, and even physical freedom (through the policing laws). States with positive ICI scores provide more opportunities for immigrants to develop the kind of intergroup relations that are crucial to improving immigration attitudes among Anglos. On the other hand, states with negative ICI scores limit immigrants' opportunities and interaction by limiting access to benefits. In doing so, the states arguably make all immigrants, even those with authorized status, 3 the "other." Without the opportunity to interact, immigrants in this state cannot develop the intergroup relations that the contact hypothesis suggests is crucial to improving Anglo attitudes about immigrants and immigration.

C. Implications

As we consider the impact that domestic migrants have on ICI scores, we see several new twists to a familiar story. Intergroup conflict that results when different cultures, races, and ethnicities meet is a phenomenon long studied by social scientists. With our focus on domestic migrants, we raise questions about where the relevant borders are and the composition of the insider/outsider groups. As previously explained, subfederal governments can create radically different climates for immigrants within their jurisdiction's borders, so an immigrant's decision to cross one state's border into another state has significant consequences. In the immigration context, those who immigrate to the United States from another country are natural candidates to be considered outsiders, but what about those who "migrate" from another state? Domestic migrants often have to adjust to different social norms, different racial and ethnic

71 Id. at 11. 72 Id. 73 Though many of the restrictive laws appear to apply only to unauthorized immigrants, Hispanics and Asians with authorized status are also often affected. See Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 IowA L. REV. 1449, 1486-87 (2006) (arguing that the complexity of immigration law leads untrained police officers who are required to enforce immigration laws to rely on race and ethnicity as proxies for immigration status). 2016 / STATE-CREATED IMMIGRATION CLIMATES makeups, and different legal regimes. Our data suggests that they may be outsiders in significant ways, carrying their immigration preferences across state borders and affecting climate scores in their new home states. That their influence is amplified and more negative when they move from whiter states to more racially and ethnically diverse states underscores their status as outsiders. Thus as we consider the determinants of climate scores, we should recognize the importance of looking inward, toward the populations already present in the United States, as well as looking outward to incoming immigrant groups. Instead of a linear "more immigrants leads to a negative immigrant climate" story, our analysis suggests a more dynamic interaction among three groups: international immigrants, long-term state residents, and domestic migrants. Adding complexity to this dynamic is the probable influence of racial and ethnic context, as supported by our data above. Looking forward, what are the implications for future climate scores? With the caveat that the influence of domestic migrants is only one small piece of the ICI puzzle, we see some possible paths emerging from our analysis. In the short run, as some states grow economically and thus attract migrants (both domestically and internationally), we can expect to see continued active, and likely negative, subfederal immigration regulation. The effect of domestic migrants on the direction of ICI scores (positive or negative) will depend, of course, on specifics: which states are "exporting" their residents, which are "importing," and the nature of the interaction among domestic migrants, international immigrants, and long- term state residents. But in the short run, increased levels of diversification are likely to lead to negative regulation resulting from intergroup conflict. Over the long run, however, we may see domestic migrants having a net positive effect on subfederal regulation. Domestic migrants who may initially react negatively when they move to a more diverse state may, over time, have more interaction with immigrant communities (both recent immigrants and long-term). The contact hypothesis suggests that this interpersonal interaction is the foundation for the intergroup relations that lead to more positive views about immigrants and immigration, which in turn may translate to more positive ICI scores. The wildcard in this story, both in the short run and the long run, is the federal government. Subfederal immigration regulation is often justified as a necessary state response in the face of federal inaction. If the federal stalemate on immigration continues, we should expect that states, cities, and counties will continue to be active in subfederal regulation. If the subfederal activity reaches a tipping point in the long run (as we suggest above), the federal government may find enough consensus at the University ofHawai 'i Law Review / Vol. 38:181 subfederal level to move forward with immigration reform at the national level.

IV. CONCLUSION

Subfederal immigration regulation -- where cities, counties, and states enact immigration laws affecting immigrants within their jurisdictions -- has become an enduring part of the legal landscape. For immigrants, subfederal laws are centrally important because subfederal governments regulate important aspects of their lives: access to driver's licenses, employment, physical security (through policing laws), and other benefits. Given a limited green light by the courts, subfederal governments have embraced immigration regulation, taking very divergent paths. What explains this divergence? Using our own database of subfederal laws, we are able to measure the different climates that subfederal governments have created through immigration regulation (Immigrant Climate Index scores). Using panel data techniques, our analysis indicates that domestic migrants (those who move to a state from another state) carry their immigration preferences across state lines to affect their new home state's ICI score. Briefly stated, domestic migrants coming from restrictive states tend to have a negative effect on their new home states' ICI scores; similarly, domestic migrants coming from positive states tend to have a positive effect on their new home states' scores. The effect of domestic migrants is amplified when they move from predominantly white states to states with large immigrant populations. These results provide support for a story of intergroup conflict, between domestic migrants and the diverse immigrant groups they encounter in their new home states. As we try to understand immigration climates and their determinants, the influence of domestic migrants on ICI scores underscores the importance of looking inward to domestic migration, in addition to looking outward to international migration. This perspective gives us a more accurate understanding of the complex dynamics involved in creating immigration climates. 2016 / STATE-CREATED IMMIGRATION CLIMATES

APPENDIX A

We created these domestic migration variables from the American Community Surveys of the U.S. Census Bureau:

" migplacl: the U.S. state or the foreign country where the respondent lived one year ago " dommigl: fraction of a state's population that lived in another state one year ago " scoremigl: for states receiving domestic migrants, the weighted average of sending states' ICI scores " whitemiglfrac: for states receiving domestic migrants, the weighted average of the white fraction (state's white population compared with total population) in sending states, using the same weights as in scoremigI

Table 2 shows results from these regressions.

The positive and statistically significant coefficient on scoremigl suggests that domestic migrants are importing preferences from their states of origin. A drop of five points in scoremigl leads to negative contribution of 4.3 points to the ICI, equivalent to one negative statewide Tier 4 law.

Represented mathematically: scoremiglst = !i)--fICItwhere rst is the number of migrants from state i to state S in year t, Mt is the total number of migrants in state s in year t and ICIt is the ICI score in state i in year t. University ofHawai 'i Law Review / Vol. 38:181

VARIABLES StateFE StateFE

scoremigl 0.875*** [0.1391 whitemigi frac -1 974*** [0.5961 Constant -1-604" 143.239"** [0).829] [45.007]

Observations 306 306 R-squared 0.656 0.618 Dependent variable is ICI for a state in a year. Standard errors in brackets. Regressions include state dummies. ***p < 0.01, **p < 0115, , p <--0.1

Table 2. Immigrant Climate and Domestic Migration 2005-2011.

We also ran regressions to test our intergroup conflict thesis: that ICI scores are partly an outcome of domestic migrants encountering inhabitants in their new states who look very different from those in their origin states. To test this thesis, we created these other variables:

" foreignfrac: the fraction of the state population that lived in another country one year ago " asianhispanicfrac: the fraction of the state population with Asian or Hispanic origin " mexfrac: the fraction of the state population living in Mexico one year ago " mexfracgrowth: the year to year growth rate of mexfrac.

As an initial matter, we note from Table 2 above that domestic migrants coming from sending states with large populations of whites decrease the ICI scores of their new home states. Specifically, a two percent increase in the whitemiglfrac (average share of whites in population of migrants' sending states) leads to a statistically significant -- 4-point contribution to the ICI score -- one negative state-wide Tier 4 law. The coefficient on the dommig1frac variable is positive and statistically significant. 2016 / STATE-CREATED IMMIGRATION CLIMATES

To test our thesis, we ran this regression:

ICIst = a + b * Migrationt + c * Foreignt + d * Migrationt

* Foreigust + StateFixedEffectss + est

Foreignst is some measure of the foreign born or Mexican population in state s in year t. We are interested in measuring d, the effect of domestic migration on ICI scores, across states with different foreign population sizes. Our analysis demonstrates that an increase in perceived foreign populations in a state similarly decreases a state's ICI score.

VARIABLES StateFE StateFE StateFE whitemiglfrac 1.165 2.317*** .439" [0,739] [0.610] [0.8250 mexfrac 1.275 [7464] mexw-hite 0,03 [0091] mexfracgrowth 8.549 [365471 mexgrowthwhite -0.113 [o.481] foreignfrac -2.223 [3.674] foreignwhite -0,016 [0.047] Constant 102.770* j67960** 148,675** [56.714 [46,0141 [62 .681

Observations 306 255 306 R-squared 0 64 0.744 0.652 Dependent variable is ICI for a state in a year. Regressions for years 2005-2011. Standard errors in brackets • ** < 0.01, ** p <0.05, * p <0.1 Table 3. Immigrant Climate as Outcome of Intergroup Conflict

Table 3 shows results from three regressions with the ICI as the left hand side variable and the right hand side variable being asianhispanicfrac (the fraction of the state population of Asian and Hispanic origin), mexfrac (the fraction of the state population of Mexican origin), and mexfracgrowth (the University ofHawai 'i Law Review / Vol. 38:181 annual growth rate of mexfrac). The regressions include state fixed effects that control for time-invariant state differences that could be correlated with both ICI scores and state demographics. The estimates of the coefficients for asianhispanicfrac and mexfrac are both negative and statistically significant. Controlling for state fixed effects, a two percent increase in the fraction of Asians and Hispanics in the population makes ICI more negative by 7 points -- the equivalent of enacting one negative statewide tier 3 law and one negative statewide tier 4 law. The presence of Mexican descendants in the population has a bigger effect on the ICI scores. A two percent increase in mexfrac makes the ICI more negative by 8.6 points, the equivalent of more than two negative statewide laws. Faster growth in mexfrac from year to year does not have a statistically significant effect on ICI. What happens when domestic migrants move from states with large white populations to states with large immigrant populations (or populations that are perceived to be immigrants?) Under those circumstances, we find that the effect of domestic migrants on ICI in these situations is amplified and more negative. Those results are also included in Table 3. In the first specification, we include as regressors whitemiglfrac, mexfrac, and the interaction of the two; in the second, whitemiglfrac, asianhispanicfrac, and their interaction; and in the third specification, whitemiglfrac, mexfracgrowth, and their interaction. The results are similar across the three specifications: point estimates for the coefficients on whitemigl frac, mexfrac and whitemigl frac, asianhispanicfrac remain negative as in the previous regressions when the variables were considered separately. The estimate for the coefficient on mexfracgrowth remains insignificant. Though not statistically significant, estimates for the interaction terms are all negative, lending some support for the culture shock hypothesis for the determination of ICI. 10/30/2018 Detaining Immigrants Indeﬁnitely Is Un-American. Shame On The Supreme Court. – The Forward

Jewish. Fearless. Since 1897.

Opinion » Detaining Immigrants Indefinitely Is Un-American. Shame On The Supreme Court.

By Talia Peleg March 13, 2018

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I first met Alexander Lora on a chilly day in December of 2013. A 31-year-old permanent resident born in the Dominican Republic and a New York resident since age seven, he was wearing a bright orange jumpsuit and seated uncomfortably on a hard plastic chair with his hands shackled to a heavy metal chain around his waist. I was a public defender with the Brooklyn Defender Services assigned to his case.

He stared at me blankly. “I can’t take it anymore; I’m signing out,” he finally said.

What he meant was that he wanted to “voluntarily” agree to his own deportation from the country he had called home for 24 years, despite his family residing in New York. His despondency was a direct reflection of his arrest and imprisonment by Immigration and Customs Enforcement.

For the previous month, he had been caged in a large cold room full of bunkbeds with 63 other men in a local jail that had rented space to ICE. He described late nights where he couldn’t sleep, surrounded by strangers, men often sobbing or screaming loudly, fearing separation from their families or concerned about returning to nations they had fled after enduring horrific violence.

This was the first time he had ever been confined in his life and he was breaking down.

https://forward.com/opinion/396444/detaining-immigrants-indeﬁnitely-is-un-american-shame-on-the-supreme-court/ 1/5 10/30/2018 Detaining Immigrants Indeﬁnitely Is Un-American. Shame On The Supreme Court. – The Forward

Despite being a lawful permanent resident, Mr. Lora had been detained without the possibility of release due to a prior non-violent drug offense for which he had served probation. Overbroad laws essentially allowed for months or years of detention by prohibiting immigration judges from granting release for certain groups of immigrants, including some asylum seekers and some green card holders like Mr. Lora.

His detention was absolutely devastating for his family; a few weeks after I began representing him we received the news that his one-and-a-half-year-old U.S. citizen son was placed into foster care. The health of Mr. Lora’s elderly mother, also a U.S. citizen, was deteriorating as she faced complications related to the stress of his detention.

It was all this that led to his hopelessness. But then he changed his mind, and decided to fight his immigration case rather than accept deportation, largely driven by his desire to remain with his family. In 2014, we challenged Mr. Lora’s mandatory imprisonment before a federal judge.

And we won that case. Mr. Lora was given the opportunity to present his application for release to an immigration judge, and was subsequently released on bond.

Crucially, as a result of his bond hearing, Mr. Lora was permitted to remain free while he fought his case. With his liberty, Mr. Lora regained sole legal and physical custody of his son, found a great job, has married, and is now expecting another child with his wife. Ultimately, my students in the CUNY Law School’s Immigrant and Non-Citizens’ Rights Clinic and I persuaded a judge to grant Mr. Lora the right to keep his green card and remain in the United States.

But after we initially won his freedom in 2014, the government appealed the federal judge’s finding that his detention was unlawful. We at Brooklyn Defender Services, together with the NYU Law School’s Immigrant Rights Clinic, argued the appeal, which ultimately led to the landmark decision Lora v. Shanahan.

That case resulted in the successful release of hundreds of immigrants in New York and Connecticut who had been detained without bond. Thanks to this ruling, beginning in October 2015, immigrants detained under the same immigration law as Mr. Lora automatically received bond hearings once their detention had neared six months.

But the Supreme Court has just reversed this landmark victory for immigrants. Two weeks ago, the Supreme Court in Jennings v. Rodriguez dealt a devastating blow to thousands of detained immigrants who, as Mr. Lora did, seek their liberty while fighting their deportation cases. The Court reversed a lower court decision that had previously led to the release of thousands of immigrants held under these draconian laws. The Supreme Court decided that immigration law permits the detention of immigrants for months or even years without bond or even the right to ask for a bond hearing.

https://forward.com/opinion/396444/detaining-immigrants-indeﬁnitely-is-un-american-shame-on-the-supreme-court/ 2/5 10/30/2018 Detaining Immigrants Indeﬁnitely Is Un-American. Shame On The Supreme Court. – The Forward

The decision clearly disregards the personal liberty of immigrants fighting deportation. Worse, it flies in the face of foundational aspects of our democracy by permitting arbitrary and prolonged pre-trial detention.

Last week, the Supreme Court vacated the Lora decision in light of Jennings, reversing the gains achieved in Lora v. Shanahan. Overnight, immigrants who were eligible for bond hearings no longer have the right to be granted this chance at freedom.

As an immediate result of this decision, we will likely see a vast increase of immigrants languishing in jails throughout the country, especially given the Trump Administration’s commitment to arresting and detaining immigrants. Thousands of people like Alexander Lora will spend months or years locked up as they wait for the backlogged immigration court to decide their claims.

The likelihood of winning a case while detained is drastically lower than if someone is not detained. The ability to collect evidence, gather witnesses, and present meaningful arguments is greatly reduced by the practical and psychological impacts of confinement, often far from home and with limited access to loved ones. Over the years, many of my detained clients have decided to accept deportation rather than remain incarcerated.

Just like Mr. Lora had when I first met him.

I often think of that gray December day over four years ago where he nearly lost the will to fight for his life here.

Thankfully, his nightmare is over. But, under the Supreme Court’s latest ruling, Mr. Lora’s life and the life of his family would have been starkly different and I wonder how many future Alexander Loras will be deported as a result? How many families will be torn apart?

Mr. Lora’s victory was possible for several reasons. First, he was able to mount a successful challenge to his deportation because he received free counsel through NYIFUP, which grew out of a study that found that legal representation was the single most important factor driving outcomes for immigrants facing deportation.

Before the creation of NYIFUP only 3% of detained immigrants in New York won their cases. It is now estimated that 48% of cases will end successfully. Recognizing the significance of representation, the New York City Council has since funded the project and detained indigent New Yorkers receive an attorney. If we want fair proceedings consistent with due process, we must convince all local municipalities and states to fund and continue funding programs that defend immigrants facing deportation.

https://forward.com/opinion/396444/detaining-immigrants-indeﬁnitely-is-un-american-shame-on-the-supreme-court/ 3/5 10/30/2018 Detaining Immigrants Indeﬁnitely Is Un-American. Shame On The Supreme Court. – The Forward

Second, Mr. Lora was released while fighting his deportation case. Indefinite detention without due process must never become the rule of law in the United States. We must call upon Congress to change these laws that have been interpreted to permit detention of immigrants for years on end. Many people, like Mr. Lora, won their claims after they were released. Why are we as tax payers spending resources to detain people in jails without limit and without the right to seek release who ultimately end up winning the right to stay here?

Lastly, indefinitely detaining immigrants is not only a legal or economic concern; it is also an ethical one that requires all of us to act to protect immigrants in an increasingly hostile executive rhetoric.

Whether you are a first, second or seventh generation immigrant or do not descend from immigrants, it is time to build a movement to protect the rights of all immigrants, drawing from Supreme Court Justice Breyer’s impassioned Jennings dissent, read aloud from the bench: “No one can claim, nor since the time of slavery, has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”

We should work together so that Mr. Lora’s outcome is not the exception, but the rule.

Talia Peleg is a Visiting Clinical Law Professor in the City University School of Law’s Immigrant and Non-Citizen Rights Clinic; she formerly represented immigrants in deportation proceedings and other immigration matters as a Supervising Attorney at Brooklyn Defender Services.

The views and opinions expressed in this article are the author’s own and do not necessarily reflect those of the Forward.

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Tagged as: immigration

Author Talia Peleg

https://forward.com/opinion/396444/detaining-immigrants-indeﬁnitely-is-un-american-shame-on-the-supreme-court/ 4/5 10/25/2018 Due Process for Undocumented Immigrants, Explained - The New York Times

Due Process for Undocumented Immigrants, Explained

By Katie Benner and Charlie Savage

June 25, 2018

WASHINGTON — President Trump said on Twitter this weekend that undocumented immigrants were invaders who “must immediately, with no Judges or Court Cases,” be sent home. Mr. Trump’s comments prompted criticism that he wanted the United States to strip immigrants and asylum seekers of due‑process rights. He also appeared to ignore the fact that some people who enter the country illegally are already removed from the United States without court hearings.

Here is what you need to know about how due process is applied in cases of illegal immigration:

What is due process? Generally speaking, the Supreme Court says that due process allows people to exercise the legal rights and court processes afforded to them by American law, and it allows them to contest an action proposed by the government in front of a neutral decision maker, like a judge.

Do undocumented immigrants have a right to due process? Yes. Courts have consistently held that anyone on United States soil is protected by the Constitution’s right to due process, even if they illegally entered the country, though people generally have greater legal protections inside the country than at the border.

How much process is deemed to be “due” depends on the situation. Courts have upheld that people who entered the United States illegally and were ordered deported have a right to appeal those decisions. But the courts have also essentially said that Congress can decide that more limited procedures are sufﬁcient for noncitizens detained at the border. What kind of due process do undocumented immigrants get? Immigrants ordered to leave the country can ﬁght deportation through civil proceedings involving immigration courts and judges overseen by the Justice Department. They can present testimony and evidence before an immigration judge, akin to a trial. They can be represented by a lawyer and can appeal unfavorable decisions to the Board of Immigration Appeals, an arm of the Justice Department.

https://www.nytimes.com/2018/06/25/us/politics/due-process-undocumented-immigrants.html 1/3 10/25/2018 Due Process for Undocumented Immigrants, Explained - The New York Times Even if immigrants are ordered deported by the immigration appeals board, they can challenge those rulings again in front of a federal court. The process can take months or even years, especially because there is a signiﬁcant backlog of such cases.

Can the government bypass that process? Yes. A 1996 statute permits immigration authorities to deport people without a hearing, a lawyer or a right of appeal under certain conditions, a process known as expedited removal. Under current policy, the Department of Homeland Security criteria for expedited removals apply to undocumented migrants found within 100 miles of the border and within 14 days of entering the country. The statute imposes no geographic limit and allows for expedited removals up to two years after a migrant has entered the country, raising the possibility that the Trump administration may use this power more aggressively.

Can a new immigrant avoid expedited removal? Yes, by seeking asylum. When that happens, officers at the United States Citizenship and Immigration Services — not a judge — will review cases to decide whether applicants have a credible fear of persecution back home. If so, they are placed in the immigration court system for a fuller consideration of their request. If officers decided that asylum seekers have no credible fear and should be deported, they still have a right to appeal that denial to an immigration judge, who has seven days to decide. What about “zero tolerance” and criminal prosecution? Further complicating matters, while asylum and deportation proceedings are a civil process, the government can also separately pursue criminal prosecution in regular federal court. Illegally entering the United States is a misdemeanor on the first offense and a felony for repeat offenders. In April, Attorney General Jeff Sessions announced a “zero tolerance” policy for such crimes.

How does this relate to family separation? The systematic practice of handing adults to the custody of United States marshals for criminal prosecution separated families because their children cannot be held in custody and thus were considered unaccompanied. Immigration authorities then send the children to the Health and Human Services Department.

After Mr. Trump signed an executive order last week aimed at ending the separation of families by detaining parents and children together indeﬁnitely, the Homeland Security Department stopped transferring adults with children to the marshals, creating a temporary reprieve.

https://www.nytimes.com/2018/06/25/us/politics/due-process-undocumented-immigrants.html 2/3 10/25/2018 Due Process for Undocumented Immigrants, Explained - The New York Times What about “catch and release”? Separate from its zero‑tolerance policy of prosecuting all adults who enter the country illegally, the Trump administration has also sought to end so‑called catch and release. Under that practice, adult migrants are paroled into the country while their lengthy asylum and deportation proceedings play out.

Ending catch and release is more complicated for families who are caught trying to illegally enter the United States together. Under a 2015 court ruling, the Department of Homeland Security may hold children for only 20 days before it must turn them over to the Department of Health and Human Services for temporary placement with a foster family or in a licensed child‑care facility.

The Trump administration has asked a judge to rescind that ruling so that it can hold children in indeﬁnite immigration detention, permitting immigration authorities to both keep adults detained and keep families together.

It is not clear whether the judge will grant the administration’s request, raising the possibility that family separations may resume in mid‑July.

Adding to the confusion, it is not clear that the government has sufﬁcient space to keep detaining all of the undocumented migrants apprehended near the border for now, although Mr. Trump has directed other agencies, including the Pentagon, to make space in their facilities.

Follow Katie Benner and Charlie Savage on Twitter: @ktbenner and @charlie_savage.

Get politics and Washington news updates via Facebook, Twitter and the Morning Brieﬁng newsletter.

A version of this article appears in print on June 26, 2018, on Page A16 of the New York edition with the headline: Migrants to the U.S. Are Entitled to Due Process, With Some Exceptions

READ 142 COMMENTS

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Document (1)

1. ARTICLE: PARDONING IMMIGRANTS, 93 N.Y.U.L. Rev. 58 Client/Matter: -None- Search Terms: Pardoning Immigrants, 93 N.Y.U.L. Rev. 58 (2018) Search Type: dynand Narrowed by: Content Type Narrowed by Secondary Materials -None-

April, 2018

Reporter 93 N.Y.U.L. Rev. 58 *

Length: 20423 words

Author: Peter L. Markowitz* & Lindsay Nash**

* Professor of Law, Benjamin N. Cardozo School of Law.

* Visiting Assistant Professor of Law, Benjamin N. Cardozo School of Law.

++ We are grateful to Farrin Anello, Rose Cuison-Villazor, Natasha Fernandez-Silber, Mark Fleming, David Hausman, Nicolas Keller, Dan Kesselbrenner, David C. Lachman, Jessica A. Martinez, and Mark Ross for their contributions to the research and thought underlying this Article: . We also thank the Center for Popular Democracy, Make the Road New York, and the National Day Laborer Organizing Network, as well as the many other individuals and groups that spearheaded the effort to persuade President Obama to issue an immigration pardon and helped shape our thinking. We are indebted to Stephanie Alvarez-Jones, Michael Bernstein, Rehana Jamal, and Eric Pilch for their superb research assistance. Copyright © 2018 by Peter L. Markowitz & Lindsay Nash.

Highlight

In the waning days of the Obama Administration, with Trump's promised immigration crackdown looming, over one hundred advocacy organizations joined forces to urge President Obama to permanently protect hundreds of thousands of immigrants from deportation by pardoning their breaches of civil immigration law. That pardon never materialized and, as expected, the Trump enforcement regime is sowing terror and devastation in immigrant communities nationwide. While it seems unfathomable that the current President would use his pardon power to mitigate even the most extreme applications of our nation's immigration laws, there is unfortunately no indication that the harshest aspects of the immigration laws are likely to be revised by the current political branches. Accordingly, future Presidents will likely once again face the questions of how they may use prosecutorial discretion generally, and the pardon power specifically, to address the human toll of such laws. Since the Founding, the pardon power has been used primarily to forgive individual criminal convictions. Thus the broad civil immigration pardon, which Obama declined to issue, would have raised novel questions regarding the appropriate boundaries of the presidential pardon power. Resolution of those previously unexplored questions is necessary to help future Presidents determine whether their pardon power can serve as a safety valve to alleviate the disproportionate penalties that our immigration laws have imposed on longtime members of our communities.

This Article: explores the novel concept of a civil immigration pardon. Specifically, it closely examines the language and drafting history of the Pardon Clause, exhaustively reviews early and modern pardon practice and jurisprudence, and considers whether a President could, consistent with the Constitution, use that power to protect some of the largest categories of noncitizens currently at risk of deportation. Ultimately, it argues that the President possesses the constitutional authority to categorically pardon broad classes of immigrants for civil violations of the immigration laws and to thereby provide durable and permanent protections against deportation. As millions of noncitizens and their families face a historically unprecedented wave of deportations and as traditional mechanisms

Joanna Heinz Page 2 of 38 93 N.Y.U.L. Rev. 58, *58 for policymaking continue to fail, the immigration pardon offers an important tool for future Presidents to forgive the civil offenses that result in some of the harshest penalties in our nation's justice system.

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[*59]

Introduction

In the closing days of the Obama Administration, with the Trump presidency looming, immigrants and their advocates besieged the White House with a long list of urgent requests for final presidential actions that could help protect immigrants from the storm approaching on the horizon. One such request, delivered in a letter from over one hundred community-based and immigrant advocacy organizations, was a plea for President Obama to use his pardon power to issue a categorical pardon that would permanently protect a broad swath of immigrants from deportation. 1

While President Obama had become notorious during his presidency, labeled the "Deporter-in-Chief" for deporting more immigrants than any other [*60] President in history, in the final years of his presidency, Obama instituted a meaningful prosecutorial discretion policy, which functionally exempted many immigrants from deportation. 2

The letter from community groups asked President Obama to make permanent certain aspects of his prosecutorial discretion policy and protect hundreds of thousands of immigrants from deportation by pardoning their breaches of the immigration laws. Pardons are one of the few presidential actions that cannot be undone by future Presidents and thus, with candidate Trump's vitriolic anti-immigrant rhetoric still ringing in the ears of immigrants

1 Letter from Action NC et al. to President Barack Obama (Dec. 5, 2016), https://populardemocracy.typeform.com/to/tairNm; see Caitlin Dickerson, A Creative Plea from Immigrants, and a Ticking Clock for Obama, N.Y. Times (Dec. 20, 2016), https://www.nytimes.com/2016/12/20/us/a-creative-plea-from-immigrants-and-a-ticking-clock-for-obama.html. The authors were heavily involved in the drafting of this letter and drafted the accompanying memorandum that was prepared for the White House Counsel in support of the immigration pardon request. Much of the analysis contained in this Article: is drawn from that memorandum.

2 See Memorandum from Jeh Charles Johnson, Sec'y, U.S. Dep't of Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S. Immigration & Customs Enf't, R. Gil Kerlikowske, Comm'r, U.S. Customs & Border Prot., Leon Rodriguez, Dir., U.S. Citizenship & Immigration Servs., & Alan D. Bersin, Acting Assistant Sec'y for Policy (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14 1120 memo prosecutorial discretion.pdf (setting forth enforcement priorities that functionally exempted most immigrants living in the United States who had no, or very minor criminal records, from becoming targets of Department of Homeland Security (DHS) enforcement actions); see also Memorandum from Jeh Charles Johnson, Sec'y, U.S. Dep't of Homeland Sec., to Leon Rodriguez, Dir., U.S. Citizenship & Immigration Servs., Thomas S. Winkowski, Acting Dir., U.S. Immigration & Customs Enf't, & R. Gil Kerlikowske, Comm'r, U.S. Customs & Border Prot. (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14 1120 memo deferred action.pdf (setting forth guidelines that sought to vastly expand the group of noncitizens eligible for prosecutorial discretion, though this memorandum was eventually enjoined from taking effect and thus never went into operation); Memorandum from Janet Napolitano, Sec'y of Dep't of Homeland Sec., to David V. Aguilar, Acting Comm'r, U.S. Customs & Border Prot., Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration Servs., & John Morton, Dir., U.S. Immigration & Customs Enf't (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf (setting forth guidelines for granting prosecutorial discretion to a large category of noncitizens who, inter alia, were brought to the United States as children).

Joanna Heinz Page 3 of 38 93 N.Y.U.L. Rev. 58, *60 across the country, the idea of a wide-scale immigration pardon garnered significant media and community attention. 3

Although immigrants and their advocates were once again disappointed by President Obama, who declined to exercise his pardon power on behalf of immigrants, the advocacy effort led to the conceptual development of a potent new legal mechanism - the immigration pardon - that could play an important role in future efforts to imbue our immigration system with some sense of proportionality and humanity. The Obama Administration's decision not to issue the [*61] immigration pardon was likely driven more by politics than by law, but the requested pardon would have been a novel exercise of the pardon power and thus various potential legal objections could also have formed the basis for the President's decision not to act. While it seems unfathomable that the current occupant of the Oval Office would consider using his pardon power to mitigate even the most brutal applications of our nation's immigration laws, there is no indication that the harshest aspects of the immigration laws are likely to be revised by the current political branches in the foreseeable future. Accordingly, we can expect that future Presidents will once again face the question of how prosecutorial discretion generally, and the pardon power specifically, may or may not be used to address the human toll of such laws. This Article: seeks to address, for the first time, the legal questions necessary to evaluate a President's ability to use categorical pardons as a policymaking tool in the immigration realm.

The Pardon Clause grants the President authority to effectively forgive any individual who has committed an offense against the United States and thereby protect that person from the legal penalties she could otherwise face. 4

A pardon can protect an individual from prosecution or can functionally overturn a conviction and punishment after it has been imposed. 5 However, while the language of the clause extends to all "offences against the United States," 6 it has been exercised almost exclusively in individual criminal cases. 7

3 See, e.g., Dickerson, supra note 1; Stephen Legomsky, Pardoning Lawful Immigrants for Minor Offenses, Huffington Post (Jan. 16, 2017), http://www.huffingtonpost.com/stephen-legomsky/pardoning-lawful-immigran b 14203040.html; Laura Litvan, Obama Should Pardon "Dreamer" Immigrants, Democrats Say, Bloomberg (Nov. 17, 2016), https://www.bloomberg.com/news/articles/2016-11-17/obama-should-pardon-dreamer-immigrants-house-democrats-say; Peter L. Markowitz, Can Obama Pardon Millions of Immigrants?, N.Y. Times (July 6, 2016), https://www.nytimes.com/2016/07/06/opinion/can-obama-pardon-millions-of-immigrants.html.

4 U.S. Const. art. II, § 2, cl. 1.

5 Ex parte Grossman, 267 U.S. 87, 120 (1925).

6 U.S. Const. art. II, § 2, cl. 1.

7 See Noah A. Messing, A New Power?: Civil Offenses and Presidential Clemency, 64 Buff. L. Rev. 661, 661 (2016). One notable and recent exception, however, is President Trump's pardon of Maricopa County Sheriff Joe Arpaio. See Exec. Office of the President, Executive Grant of Clemency to Joseph M. Arpaio (Aug. 25, 2017), https://www.justice.gov/pardon/file/993586/download. The infamous Sheriff Arpaio was held in contempt by a federal court for failing to adhere to its order to stop making unauthorized immigration arrests. See Julie Hirschfeld Davis & Maggie Haberman, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration, N.Y. Times (Aug. 25, 2017), https://nyti.ms/2vwUubN. Contempt, however, is not a crime. See discussion infra notes 73-82 and accompanying text. Accordingly, the Arpaio pardon is the most recent example of a noncriminal pardon.

Joanna Heinz Page 4 of 38 93 N.Y.U.L. Rev. 58, *61

Deportation offenses are civil - not criminal - in nature and thus a critical threshold question is whether the pardon power can extend to civil offenses generally and to deportation offenses specifically. 8

In addition, while there is significant historical precedent for widespread [*62] categorical pardons, which the Supreme Court has recognized, 9

there is no clear modern Supreme Court authority endorsing such broad use of the pardon authority. In the context of the modern administrative state, the ability to issue categorical pardons for civil offenses could represent a significant expansion of presidential pardon authority and thus would have serious implications for the Constitution's delicate balance and separation of powers between the executive, legislature, and judiciary. Accordingly, the present inquiry requires not only a full consideration of the historical precedent and origins of the pardon power, but also of the modern implications of categorical immigration pardons on our constitutional system.

Pardons are the most robust form of the executive's more general prosecutorial discretion powers. In recent years, Presidents have increasingly used systematic categorical prosecutorial discretion as a policymaking tool. Most famously, President Obama used his prosecutorial discretion power to categorically forgo the deportation of certain undocumented immigrants who came to the United States as children. 10 Before him, President George W. Bush also used robust assertions of categorical prosecutorial discretion to achieve policy goals in the environmental, civil rights, antitrust, labor, and securities enforcement arenas, to name a few. 11 President Trump has threatened to use his prosecutorial discretion power to undermine the Affordable Care Act by refusing to enforce penalties for individuals who fail to comply with the law's healthcare mandates. 12

While there is very limited relevant literature exploring civil or categorical pardons, 13

8 See Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (noting that while "deportation is a particularly severe 'penalty,' … it is not, in a strict sense, a criminal sanction"); Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893) (establishing the civil nature of deportation proceedings). 9 See infra Section IV.A.

10 Memorandum from Janet Napolitano, supra note 2; see also Peter L. Markowitz, Prosecutorial Discretion Power at Its Zenith: The Power to Protect Liberty, 97 B.U. L. Rev. 489, 507-14 (2017) (cataloging these and other assertions of robust prosecutorial discretion in the immigration arena). 11 Markowitz, supra note 10, at 501-07 (cataloging these and other modern assertions of robust prosecutorial discretion as a policymaking tool).

12 See, e.g., Danielle Kurtzleben, Even Without Congress, the Trump Administration Can Still Redo Obamacare, NPR (Mar. 29, 2017), http://www.npr.org/sections/health-shots/2017/03/29/521713002/even-without-congress-the-trump-administration-can- still-redo-obamacare; Ashley Parker & Amy Goldstein, Trump Signs Executive Order That Could Effectively Gut Affordable Care Act's Individual Mandate, Wash. Post (Jan. 20, 2017), https://www.washingtonpost.com/politics/trump-signs-executive-order- that-could-lift-affordable-care-acts-individual-mandate/2017/01/20/8c99e35e-df70-11e6-b2cf- b67fe3285cbc story.html; Trump May Not Enforce Individual Health Insurance Mandate: Aide, Reuters (Jan. 22, 2017),http://www.reuters.com/article/us-usa- obamacare-idUSKBN1560SX.

13 See, e.g., Rachel E. Barkow, Clemency and Presidential Administration of Criminal Law, 90 N.Y.U. L. Rev. 802, 836-37 (2015) (discussing categorical pardons); Messing, supra note 7 (discussing civil pardons); Zachary S. Price, Reliance on Nonenforcement, 58 Wm. & Mary L. Rev. 937, 1021-23 (2017) (discussing categorical pardons). A few scholars have specifically explored the role of pardons in the immigration arena. See, e.g., Jason A. Cade, Deporting the Pardoned, 46 U.C. Davis L. Rev. 355 (2012); Samuel T. Morison, Presidential Pardons and Immigration Law, 6 Stan. J. C.R. & C.L. 253 (2010). But the existing scholarship does not address the power of the President to pardon immigration offenses directly. See Cade,

Joanna Heinz Page 5 of 38 93 N.Y.U.L. Rev. 58, *62

there [*63] has been increased scholarly attention, in recent years, to this more general trend of policymaking through prosecutorial discretion in the immigration arena and beyond. 14 This Article: seeks to build upon this important existing body of scholarship.

This Article: proceeds in four parts. Part I sets forth the foundational nature and limits of the pardon power and draws into focus the critical, unresolved questions related to the broad use of the pardon power in the immigration realm. Part II explores the relevance of the civil-criminal divide to the pardon power. We conclude that the pardon power is not limited to the criminal realm; however, that does not mean that all civil provisions are pardonable. Rather, the constitutional text and framing history, as well as historical practice and jurisprudence, support the conclusion that the President may pardon any federal civil penalty but may not use his pardon power to relieve individuals of applications of civil regulatory qualifications. While the line between the two is not always easily drawn, this divide is well supported by historical practice and authority and preserves an appropriate balance of powers between the respective branches of the federal government. Part III applies these limits to the immigration context and concludes, for at least two sizable categories of immigrants, that immigration pardons can provide significant protections. Pardons are effective at protecting certain immigrants with legal status, such as lawful permanent residents with criminal convictions, from deportation. While pardons cannot convey status to undocumented immigrants, many of the critical barriers to status for undocumented immigrants are best conceived of as civil penalties, and thus a [*64] pardon can effectively eliminate such barriers. Finally, in Part IV we explore the potential application of the immigration pardon power. Pardoning individual immigrants is a clear and important application but, perhaps more critically, we look to the history of, and authority for, categorical pardons. We conclude that categorical immigration pardons are a potentially important presidential tool for immigration policymaking that future officeholders should consider going forward.

The Foundational Nature and Limits of the Pardon Power

The Pardon Clause of the Constitution states that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." 15

The Supreme Court has historically taken an expansive view of the President's pardon power. The Court has described the power as "unlimited, with the exception" of impeachment and explained that it "extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." 16 supra, at 371-73 (discussing the immigration consequences of a gubernatorial pardon of a state crime); Morison, supra (discussing the immigration consequences of a presidential pardon of a federal crime).

14 See, e.g., Shoba Sivaprasad Wadhia, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases 14-32 (2015); Kate Andrias, The President's Enforcement Power, 88 N.Y.U. L. Rev. 1031, 1034 (2013); Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale L.J. 458, 464 (2009) [hereinafter Cox & Rodriguez, President and Immigration Law]; Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law Redux, 125 Yale L.J. 104, 113 (2015) [hereinafter Cox & Rodriguez, Redux]; Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration's Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781, 783 (2013); Markowitz, supra note 10; Gerald L. Neuman, Discretionary Deportation, 20 Geo. Immigr. L.J. 611, 614 (2006); Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 717 (2014); Michael Sant'Ambrogio, The Extra-Legislative Veto, 102 Geo. L.J. 351, 411 (2014); Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243, 244 (2010).

15 U.S. Const. art. II, § 2, cl. 1.

16 Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866); see, e.g., Proclamation No. 4311, 39 Fed. Reg. 32,601, 32,601-02 (Sept. 10, 1974) (pardoning former President Nixon in advance of any prosecution); see also Samuel E. Schoenburg, Note: , Clemency, War Powers, and Guantanamo, 91 N.Y.U. L. Rev. 917, 923 (2016) ("The Framers adopted a final text of Article: II that allowed the President to 'single-handedly and conclusively' pardon offenses at any point after commission, even before

Joanna Heinz Page 6 of 38 93 N.Y.U.L. Rev. 58, *64

The Court has further explained that the Pardon Clause grants the President the "ultimate authority" to determine "that the public welfare will be better served" by mercy than by full applications of the penalties proscribed by law. 17

In addition to the textual limitation prohibiting the application of the pardon power to cases of impeachment, there are three axiomatic boundaries that constrain the President's pardon power. First, the language "offenses against the United States" makes clear that the [*65] President cannot pardon state law offenses. 18

This limit is consistent with our federal system of dual sovereigns. Second, the pardon power may not be used to interfere with privately vested rights - such as civil suits between two private parties - because only offenses "against the United States" may be pardoned. 19

Finally, as the Supreme Court has explained, a pardon may only be issued for an offense "after its commission." 20

The President may not grant anyone advance permission to violate the law. That is what distinguishes the pardon power from the repudiated dispensing and suspending powers, whereby the English King at common law was empowered to grant individuals prospective exemptions from operation of a law. 21

These well-established principles of pardon law, however, do little alone to clarify the central questions upon which we focus. In considering whether the pardon power can reach civil immigration offenses, it is beyond question that these offenses are federal in nature, can only be pardoned, if at all, after commission, and that immigration offenses would not implicate the prohibition of disturbing privately vested rights. Thus, these principles do not foreclose the possibility of immigration pardons, but neither do they elucidate whether immigration offenses are "offenses against the United States" within the meaning of the Pardon Clause. Moreover, these foundational principles of pardon law simply do not address the appropriateness of categorical versus individual pardons.

However, critically for the current inquiry, the Supreme Court has been clear, consistent, and emphatic in its holdings regarding another foundational principle of pardon law: that the reach of the pardon power is strictly a question of constitutional law and cannot be limited in any way by Congress. As the Court explained in 1974, "the

trial."); cf. Power of the President to Remit Fines Against Defaulting Jurors, 4 Op. Att'y Gen. 458, 460 (1845) ("The elementary writers on the constitutional law of the United States state the President's power of pardon as follows, (Kent, vol. i, p. 284:) 'The power of pardon vested in the President is without any limitation, except in the single case of impeachments.'" (emphasis added)).

17 Biddle v. Perovich, 274 U.S. 480, 486 (1927); see also Burdick v. United States, 236 U.S. 79, 95 (1915) (explaining that the categorical pardons are generally based on the President's assessment that "forgiveness" is "more expedient for the public welfare than prosecution and punishment").

18 See Hickey v. Schomig, 240 F. Supp. 2d 793, 795 (N.D. Ill. 2002) ("No federal official has the authority to commute a sentence imposed by a state court."); Office of the Pardon Att'y, Pardon Information and Instructions: , U.S. Dep't Just., http://www.justice.gov/pardon/pardon-information-and-instructions (last updated Oct. 12, 2017) ("The President cannot pardon a state criminal offense.").

19 See Ex parte Grossman, 267 U.S. 87, 108 (1925); Ex parte Wells, 59 U.S. (18 How.) 307, 312 (1855); see also Messing, supra note 7, at 694 (demonstrating the broad reach of pardon power at common law "so long as the rights of private parties were not impaired"); discussion infra notes 62-63 and accompanying text (establishing that the presidential pardon power is coextensive with the analogous power enjoyed by the King of England at the time of the framing).

20 Garland, 71 U.S. at 380 (emphasis added); see also Grossman, 267 U.S. at 120 ("The executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial … ." (emphasis added)). 21 See The Records of the Federal Convention of 1787, at 103-04 (Max Farrand ed., 1966) (explaining that the record of the Constitutional Convention demonstrates that the delegates unanimously rejected an effort to grant "suspending" powers to the President); see also Price, supra note 14, at 693.

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[*66] unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress." 22

One of the leading cases regarding the effect of a presidential pardon demonstrates this point. 23 In Ex parte Garland, Congress enacted a statute which required that any person wishing to practice in federal court take an oath asserting that he had never voluntarily borne arms against the United States. 24

The petitioner, Mr. Garland, had been a member of the Confederacy but had received a full presidential pardon for his actions. 25 Nevertheless, he was effectively barred from practicing in federal court because he could not truthfully take the required oath. 26

The Supreme Court held that the statute could not operate to limit the pardon and that Garland was therefore entitled to practice without taking the oath. 27

Specifically, the Court held that the pardon power "is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." 28

The principle that only the Constitution, and not Congress, can limit the pardon power is critical to the inquiry at hand. Federal immigration law does have a provision that arguably purports to limit the President's pardon authority in the immigration realm. 29

Specifically, the law dictates that only a "full and unconditional pardon by the [*67] President of the United States" for a "criminal conviction" can protect an individual from deportation based on that criminal conviction. 30

22 Schick v. Reed, 419 U.S. 256, 266 (1974); see also Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 485 (1989) (Kennedy, J., concurring) ("Where the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch… . We [have] reiterated … that Congress cannot interfere in any way with the President's power to pardon."); Garland, 71 U.S. at 380 ("This power of the President [i.e., the pardon power] is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions."); Effects of a Presidential Pardon, 19 Op. O.L.C. 160, 161 (1995) (stating that "congressional legislation cannot define or limit the effect of a presidential pardon").

23 Garland, 71 U.S. at 333.

24 Id. at 334.

25 Id. at 336-37.

26 Id. at 357.

27 Id. at 381.

28 Id. at 380; see also United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871) (holding that a different statute seeking to diminish the effect of the post-Civil War pardons was also invalid because it "impaired the effect of a pardon, and thus infringed the constitutional power of the Executive"); see also discussion infra notes 185-89 and accompanying text (discussing how pardons have been used throughout history as an essential check against overly harsh congressional action).

29 8 U.S.C. § 1227(a)(2)(A)(vi) (2012). 30 Id.

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In addition, the law expressly exempts certain criminal removal grounds, such as the removal ground triggered by controlled substance convictions, which purportedly would still operate even in the face of a full and unconditional presidential pardon of a controlled substance conviction. 31

If this statutory term were effective to limit the President's pardon power, it would significantly constrain the President's ability to issue the contemplated immigration pardons. For example, the vast majority of individuals who are deportable for criminal convictions have state, not federal, convictions. 32

Since the President cannot pardon state crimes, under this provision of law he is purportedly impotent to pardon the federal civil removal offense that flows from state crimes - insofar as such a pardon would not be a "full and unconditional pardon" for a criminal conviction. Since only "full and unconditional pardons" are deemed effective by Congress, 33

that would mean the President could never pardon a federal deportation offense flowing from a state conviction. In addition, if Congress could limit the President's pardon power, this provision of immigration law would prevent her from pardoning anyone who is deportable because of a controlled substance conviction. However, as Samuel Morison has ably explained, the well-established principle set forth above dictates that whatever Congress's intent was with this statutory provision, the statute cannot effectively impose any limit whatsoever on the President's constitutional pardon power. 34

Accordingly, the inquiry that remains then is whether the pardon power is limited to the criminal realm and, if not, whether it can operate against civil immigration offenses.

[*68]

Exploring the Boundaries of the Pardon Power Beyond the Criminal Realm

A. Pardoning Civil Offenses Against the United States

1. Text, Drafting History, and Early Exercise of the Pardon Power

As with all constitutional inquiries, we start with the text itself. It is notable, first, that the Framers used the term "offences" in the Pardon Clause and not "crimes." This is particularly true since the words "crimes," "criminal case," and "criminal prosecution" are used in many other places in the Constitution, 35

31 § 1227(a)(2)(B)(i) (provision for deportation based on controlled substances conviction).

32 Stephen Lee, De Facto Immigration Courts, 101 Calif. L. Rev. 553, 576-77 (2013) ("The reality is that the vast majority of convictions within the United States arise from violations of state law. Nationwide, 99 percent of all arrests, 94 percent of felony convictions, and 93 percent of prison sentences can be traced to decisions by state and local actors."). 33 § 1227(a)(2)(A)(vi). 34 Morison, supra note 13, at 324-25.

35 See, e.g., U.S. Const. art. II, § 4 (subjecting the President to impeachment for "high Crimes and Misdemeanors"); id. art. III, § 2 (defining the jurisdiction of the judiciary to include "The Trial of all Crimes"); id. art. IV, § 2 (requiring that a person "charged in any State with Treason, Felony, or other Crime" who flees shall be returned to the "State having Jurisdiction of the Crime"); id. amend. V (establishing various rights for people accused of "capital, or otherwise infamous crime" and for people in "any criminal case"); id. amend. VI (establishing various rights for people in "criminal prosecutions"); id. amend. XIII (prohibiting involuntary servitude except as "punishment for crime"); id. amend. XIV, § 2 (permitting disenfranchisement for "participation in rebellion, or other crime"). The only other place the word "offences" is used is in describing "Offences against the Law of Nations" in Article: I, Section 8.

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apparently indicating that, when the Framers meant to limit a provision to the criminal context, they did so clearly. Thus, well-accepted canons of statutory construction dictate that the decision to use the term "offences" rather than "crimes" in the Pardon Clause should be given effect and suggest that "offences" should be afforded a different meaning than "crimes." 36

The leading dictionary and treatise from the Founding period demonstrate that the terms "offense" and "crime" permit of distinct meanings. 37 The leading dictionary of the Founding era, authored by Samuel Johnson, provides two relevant definitions for "Offence": (1) "Crime; act of wickedness" and (2) "[a] transgression." 38

The latter definition demonstrates, as the canons of statutory construction suggest, that at the time of the Founding, the word "offense" could carry [*69] a broader and distinct meaning from the word "crime." This distinction is confirmed by the leading legal treatise at the time, which also used the word "offense" more broadly than crimes to include transgressions punishable only by fines. 39

Similarly, definitions of "pardon" during the period went beyond mere forgiveness for a crime and also included "forgiveness of an offender" and "remission of [a] penalty." 40

Thus, the common usage of the words "offense" and "pardon," as used at the time of the Founding, supports the inference from the text that "offense" was intended to have a distinct and broader meaning than the word "crime."

While the drafting history of the Pardon Clause is limited, 41

it lends some modest additional support to the contention that the pardon power was not intended to be limited to the criminal context. The first draft of the Pardon Clause was proposed by Charles Pinckney and gave the President the "power to grant pardons and reprieves, except in impeachments." 42

There is no reference to "offenses" or "crimes" in this first draft. Alexander Hamilton offered a second version and added "offenses," thereby giving the President "the power of pardoning all offences except treason." 43

36 See generally Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (explaining that where a statute uses "certain language in one part of the statute and different language in another" it indicates that "different meanings were intended"); Myers v. United States, 272 U.S. 52, 237 (1926) (McReynolds, J., dissenting) (explaining that the "Constitution must be interpreted by attributing to its words the meaning which they bore at the time of its adoption, and in view of commonly-accepted canons of construction, its history, early and long-continued practices under it, and relevant opinions of this court" (emphasis added)).

37 See Messing, supra note 7, at 712-13 (surveying Founding-era treatises and dictionaries regarding the meaning of the words "offenses" and "pardon").

38 2 Samuel Johnson, A Dictionary of the English Language 220 (7th ed. 1783). The Supreme Court has relied upon this dictionary as a key source of constitutional meaning. See, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550, 2561 (2014) (citing Johnson's dictionary).

39 See 4 Matthew Bacon, A New Abridgment of the Law 70 (5th ed. 1786). The Supreme Court has relied upon this treatise as a key source on eighteenth-century law. See, e.g., PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2579-80 (2011).

40 Johnson, supra note 38, at 271; see also Thomas Sheridan, To Pardon, A Complete Dictionary of the English Language (4th ed. 1779) (defining "To Pardon" as "to remit a penalty").

41 See Schick v. Reed, 419 U.S. 256, 260 (1974) (explaining that the Framers did not "devote extended debate to [the] meaning" of the Pardon Clause). 42 5 Debates on the Adoption of the Federal Constitution in the Convention Held at Philadelphia in 1787, at 131 (Jonathan Elliot ed., 1845) [hereinafter Debates]. 43 Id. at 179.

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The final version of the Pardon Clause provided that the President "shall have power to grant reprieves and pardons for offences against the United States." 44

Nowhere in the drafting history was there any suggestion that the pardon power is limited to crimes. Indeed, the evidence of Pinckney and Hamilton's other proposals to the Constitutional Convention and outside writings suggest an appreciation of the distinction between crimes and offenses. Pinckney's other proposals to the Convention include language limiting the application of the draft provisions to "criminal offences" and "felonies." 45

In Hamilton's outside writings [*70] he also used the word "offences" distinctly and more broadly than "crimes." 46

In assessing the word choice and drafting history of the Pardon Clause, it is critical to understand that the civil label, in the early years of the Union, was generally used solely in relation to suits between private parties (to which the pardon power unquestionably does not apply) and not in regard to regulatory noncriminal offenses against the United States. As Justice Frankfurter explained, the denomination of statutes as either civil or criminal in nature did not begin to take hold until the mid-nineteenth century. 47 Frankfurter listed hundreds of early statutes penalizing "petty offenses." 48 He demonstrated "the wholly capricious way in which infractions of the law were sometimes directed to be enforced by formal criminal prosecutions, and sometimes by civil penalties." 49 As Professor Beth Stephens further explained:

Civil and criminal proceedings were so intertwined at the time of the drafting of the Constitution that distinguishing between them in the historical record presents "particularly thorny" problems. "Colonial legislatures, like Parliament, made no sharp distinction between different forms directed to the same end." … Moreover, nominally civil proceedings could lead to imprisonment for failure to pay the fine imposed. These early legal proceedings did not distinguish between civil and criminal proceedings based on either the identity of the litigator of the action (public official or private citizen) or the form of the sanction (fine paid to the government, fine paid to a private person, or imprisonment). 50

While the dividing line was unclear, there was an acknowledgement at the time that some public offenses were criminal in nature and others were not. However, there was no specific term of art at the time of the Founding used to describe noncriminal offenses against the state. Today we might refer to such noncriminal offenses as [*71] regulatory violations, which we understand to be civil in nature. The best reading of the history and authority at the time of the Founding is that "offenses" was a broader category than "crimes" and encompassed all public law violations by individuals, including those we would now categorize as civil regulatory violations. Against this

44 Id. at 549. The record, see Debates, supra note 42, does not show that this version included the limiting language "except in cases of impeachment," but other sources confirm that the impeachment exception had been added by this time. E.g., Alex Simpson, Jr., A Treatise on Federal Impeachments 20 (1916). 45 See Messing, supra note 7, at 702-09 (detailing the other Pinckney provisions). 46 See, e.g., Letter from Alexander Hamilton to Comm. of the N.Y. Convention (Apr. 20, 1777) (describing crimes as serious actions and offenses as more trivial in comparison), in 6 The Works of Alexander Hamilton 574, 574-75 (John C. Hamilton ed., 1851); see also Messing, supra note 7, at 706 (discussing Hamilton's use of the two terms). 47 See Felix Frankfurter & Thomas G. Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917, 937 (1926); see also Messing, supra note 7, at 687 (explaining that, at the time of the framing, "statutes were not denominated as either criminal or civil offenses"). 48 See Frankfurter & Corcoran, supra note 47, at 938-65. 49 See id. at 937 n.91.

50 Beth Stephens, Federalism and Foreign Affairs: Congress's Power to "Define and Punish … Offenses Against the Law of Nations," 42 Wm. & Mary L. Rev. 447, 511-12 (2000) (alteration in original) (footnotes omitted) (quoting Frankfurter & Corcoran, supra note 47, at 937).

Joanna Heinz Page 11 of 38 93 N.Y.U.L. Rev. 58, *71 backdrop, the Framers' decision to use the broader term "offense" and not the more limited "crimes" used elsewhere in the Constitution seems particularly instructive. 51

While the text and drafting history strongly suggest that the Pardon Clause was intended to reach at least some noncriminal offenses, they are not alone dispositive. To supplement textual analysis, early historical practice is often relied upon by the Supreme Court as particularly probative of the Constitution's meaning. 52

Given that the civil label was not then used to describe offenses against the state, we will not find examples of pardons for offenses formally denoted as "civil" during this period. A functional review of early pardon practice, however, seems to confirm a broad conception of "offenses" that can be pardoned. A number of presidential pardons were issued following the framing of the Constitution for what we would now recognize as civil regulatory offenses. Presidents George Washington, John Adams, and Thomas Jefferson all issued early pardons for offenses punished only by fines, not imprisonment, which resemble in character and substance modern civil offenses. 53

[*72] Early case law also provides examples of pardons for offenses that would, by contemporary standards, carry the civil label. 54

In United States v. Yeaton, for instance, the Circuit Court for the District of Columbia considered a presidential pardon that was issued for remission of a forfeiture order of a boat that had violated an embargo. 55 Critically, the statute under which the forfeiture was ordered did not provide for the possibility of any incarceration or other uniquely criminal punishment. 56 It was akin to a modern civil forfeiture statute. 57 Nonetheless, there was no dispute as to the power of the President to remit the portion of the forfeiture due to the government. 58

51 Whatever one thinks of the general merits of originalism as an interpretive tool, the Supreme Court has been emphatic in the pardon context that the boundaries of the pardon power are defined by the original understanding of that power as it was exercised at the time of the Founding. See discussion infra notes 62-63 and accompanying text.

52 See Price, supra note 14, at 717; see, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550, 2553 (2014) ("In interpreting the Clause, the Court puts significant weight upon historical practice."); Town of Greece v. Galloway, 134 S. Ct. 1811, 1819 (2014) ("The Establishment Clause must be interpreted 'by reference to historical practices and understandings.'" (quoting County of Allegheny v. ACLU, 492 U.S. 573, 670 (1989) (Kennedy, J., concurring in part, dissenting in part), abrogated by Galloway, 134 S. Ct. 1811)); Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (evaluating a due process claim and finding "our primary guide in determining whether the principle in question is fundamental is, of course, historical practice"); Lynch v. Donnelly, 465 U.S. 668, 718 (1984) (Brennan, J., dissenting) ("Certainly, our decisions reflect the fact that an awareness of historical practice often can provide a useful guide in interpreting … abstract language … .").

53 See Messing, supra note 7, at 719-21 (citing specific pardons by relying upon a dataset of pardons compiled by Professor P.S. Ruckman). The authors thank Professor Ruckman for generously making his database available for the research underlying this Article: as well.

54 See generally Hepner v. United States, 213 U.S. 103, 108, 115 (1909) (demonstrating how the Court later came to view the types of pardoned offenses described in this and the prior paragraph as civil). 55 United States v. Yeaton, 2 D.C. (2 Cranch) 73 (1813).

56 See Act of Feb. 28, 1806, Pub. L. 9-9, 2 Stat. 351 (1806) (expired). 57 Cf. Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Pub. L. No. 106-185, 114 Stat. 202 (2000). 58 Yeaton, 2 D.C. (2 Cranch) at 73.

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Similarly in Ex parte Marquand, the Circuit Court for the District of Massachusetts was also called to consider a pardon for an offense that carried no potential for incarceration or other uniquely criminal penalty. 59 The offense related to underpaid tariffs and was conducted in civil court under civil procedures. 60 Finally, in United States v. Lancaster, the Circuit Court for the Eastern District of Pennsylvania held that the President could cancel the government's interest in what was, in essence, a qui tam action. 61

In none of these cases did any party or court question the power of the President to pardon these types of offenses.

These examples, together with the plain language of the Constitution and drafting history, provide strong support for the Framers' understanding that pardons could reach beyond the traditional criminal realm to offenses which, under modern standards, would be considered civil.

2. The King of England's Pardon Power

The Supreme Court has been clear and emphatic that the boundaries of the President's pardon power are coextensive with the boundaries of the analogous power enjoyed by the King of England at the [*73] time of the framing of the Constitution. As the Supreme Court explained in Ex parte Wells:

The language used in the constitution, conferring the power to grant reprieves and pardons, must be construed with reference to its meaning at the time of its adoption. At the time of our separation from Great Britain, that power had been exercised by the king, as the chief executive… . When the words to grant pardons were used in the constitution, they conveyed to the mind the authority as exercised by the English crown, or by its representatives in the colonies. At that time both Englishmen and Americans attached the same meaning to the word pardon. In the convention which framed the constitution, no effort was made to define or change its meaning, although it was limited in cases of impeachment. We must then give the word the same meaning as prevailed here and in England at the time it found a place in the constitution. 62

As a result, the Supreme Court has routinely looked to English pardon practice to determine the boundaries of the President's pardon power. 63

59 Ex parte Marquand, 16 F. Cas. 776, 776-77 (C.C.D. Mass. 1815) (No. 9100). 60 See id.; see also Messing, supra note 7, at 726.

61 United States v. Lancaster, 26 F. Cas. 859, 860-61 (C.C.E.D. Pa. 1821) (No. 15,557); see also Conn. Action Now, Inc. v. Roberts Plating Co., 330 F. Supp. 695, 697 (D. Conn. 1971), aff'd, 457 F.2d 81 (2d Cir. 1972) ("Recognition of the qui tam right of action appears to have been confined to lawsuits in which the informer seeks to recover statutory fines or penalties which are civil in nature.").

62 Ex parte Wells, 59 U.S. (18 How.) 307, 311 (1855); see also Burdick v. United States, 236 U.S. 79, 91 (1915) ("The principles declared in Wilson v. United States [pertaining to the adoption of England's conception of the pardon power] have endured for years; no case has reversed or modified them."); United States v. Wilson, 32 U.S. (7 Pet.) 150, 159-60 (1833) ("We adopt [Britain's] principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it."); cf. Effects of a Presidential Pardon, 19 Op. O.L.C. 160, 162 (1995) ("The pardon clause of the Constitution was derived from the pardon power held by the King of England at the adoption of the Constitution. Accordingly, the Supreme Court has repeatedly looked to English cases for guidance in interpreting the effect of a pardon."); Power of the President to Remit Fines Against Defaulting Jurors, 4 Op. Att'y Gen. 458, 459 (1845) ("We adopt, as the Supreme Court of the United States has decided we should do, the principles established by the common law respecting the operation of a pardon … .").

63 See, e.g., Herrera v. Collins, 506 U.S. 390, 411-13 (1993); Schick v. Reed, 419 U.S. 256, 261-64 (1974) (using the English practice of allowing conditions on grants of pardon as evidence of the Framers' incorporation of the practice to the American understanding of the pardon power); Ex parte Grossman, 267 U.S. 87, 109-10 (1925); Burdick, 236 U.S. at 89; Schick v.

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In evaluating the reach of the King's pardon power - known as the King's prerogative - to civil offenses, we are again faced with the fact that the civil-criminal divide was not well established, at least in the realm of public offenses, at the time of the Founding. 64

Without the aid of the formal civil and criminal labels, in order to evaluate the reach of the King's pardon power at the Founding, we look to the general principles that controlled the use of the power and to the [*74] characteristics of the categories of offenses that were pardonable at common law. This is the approach that has been employed by the Supreme Court in evaluating the reach of the pardon power. 65

English law drew a line between offenses against the Crown, which could be pardoned, and private civil matters, which could not. 66

Consistent with the broad principle that all offenses against the Crown were pardonable, there is a long history of Kings pardoning individuals for offenses against the Crown that would be considered civil by modern standards. 67

English Kings routinely issued pardons remitting fines for what we would now recognize as regulatory violations, like hunting, land use, tax, and tariff violations. 68

While fines can be used as both criminal and civil penalties, the King's pardon power reached all fines payable to the Crown. 69

King George III's pardon practice is, of course, particularly instructive regarding the conception of the pardon power at the time of the Founding. He too used pardons to remit fines for offenses analogous to modern civil regulatory violations, including gaming and land use violations. 70

United States, 195 U.S. 65, 69 (1904); Boyd v. United States, 142 U.S. 450, 453-54 (1892); The Laura, 114 U.S. 411, 416-17 (1885); Ex parte Garland, 71 U.S. (4 Wall.) 333, 341-42 (1866); Wells, 59 U.S. at 310-11. 64 See discussion supra notes 49-51 and accompanying text.

65 See, e.g., Reed, 419 U.S. at 263-64; Grossman, 267 U.S. at 111; Wells, 59 U.S. at 310-11.

66 See Grossman, 267 U.S. at 110-11; Power of the President to Remit Fines Against Defaulting Jurors, 4 Op. Att'y Gen. at 460 ("The King's right to pardon … is confined to cases in which the prosecution is carried on in his Majesty's name for the commission of some offence affecting the public, and which demands public satisfaction, or for the recovery of a fine or forfeiture to which his Majesty is entitled." (quoting 13 Peterdorff's Abridgment 78)); William F. Duker, The President's Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 526 (1977) ("If a suit was for the king's branch of a law only and not to the particular damage of any third party, the king could pardon or dispense; if the suit was … for the king's benefit … [and] profit or safety of a third person, the king could not release the party."). This is the source of the axiomatic limitation recognized in U.S. pardon jurisprudence that pardons may not be used to interfere with private rights. See also discussion supra note 19 and accompanying text.

67 Messing, supra note 7, at 689-94 (describing how an "unbroken line of kings and queens pardoned offenses that would almost undoubtedly be civil today" and exhaustively cataloging pardons for civil-type offenses by English Kings in the seventeenth and eighteenth centuries). 68 William G. Scroggins, Leaves of a Stunted Shrub 99, 347 (2009); Stephen Sedley, Lions Under the Throne: Essays: on the History of English Public Law 139 n.67 (2015); 2 Arthur Trevor, The Life and Times of William the Third, King of England and Stadtholder of Holland 176 (1836) (referring to actions taken by King William III in 1689); see also 1 Leonard Woods Labaree, Royal Instructions: to British Colonial Governors 1670-1776, at 330-31 (1935).

69 As one English judge explained during this era, if a "fine … came to the king's coffers … the king might pardon it." 6 T.B. Howell, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors 775

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In Hepner v. United States, in an era when the civil label for offenses against the state was [*75] still of relatively new vintage, the Supreme Court had occasion to grapple with the difficult task of assigning the criminal or civil label to statutes enacted before that distinction was firmly established. 71

The Court's analysis in Hepner, finding several statutes analogous to those pardoned by English Kings to be civil in nature, 72

further confirms that the pardon power, as exercised at the time of the Founding, extended to civil offenses against the United States.

3. The Supreme Court's Pardon Jurisprudence

While the Supreme Court has never held that the pardon power is limited to criminal offenses, in dicta, it has sometimes characterized the pardon power in ways that seem to assume such a limit. 73

At other times, however, the Court has seemed to recognize broader applications of the pardon power. 74

However, these cases are of limited utility to the current inquiry because in none of these cases was the Court actually called upon to consider whether the pardon power could be applied beyond the criminal realm. There is very limited Supreme Court precedent discussing the potential application of the pardon power to noncriminal offenses; however, the cases that do discuss the issue make clear the power is not strictly limited to the criminal realm. 75

Ex parte Grossman is the only case where the Supreme Court was squarely confronted with the question of whether a presidential pardon could operate on a noncriminal offense. In Grossman, a district court had enjoined Mr. Grossman from selling alcohol, which was prohibited under federal law at the time. 76

Mr. Grossman violated that order, prompting the district court to hold him in contempt and [*76] sentence him to a period of incarceration. 77

(1811); see also William Hawkins, A Treatise of the Pleas of the Crown 553 (6th ed. 1787) (noting that the power of pardon was so extensive as to be "dependent on the pleasure of the [king]"). 70 Hawkins, supra note 69, at 541, 543.

71 Hepner v. United States, 213 U.S. 103, 105 (1909).

72 See id. at 105-08 (examining the nature of statutes carrying fines and penalties without criminal punishment as the dividing line between civil and criminal suits).

73 See, e.g., United States v. Wilson, 32 U.S. (7 Pet.) 150, 150 (1833) ("A pardon … exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.").

74 See, e.g., Ex parte Wells, 59 U.S. (18 How.) 307, 312 (1855) ("Nor can the king pardon for a common nuisance, because it would take away the means of compelling a redress of it, unless it be in a case where the fine is to the king, and not a forfeiture to the party grieved." (emphasis added)); id. at 311 ("A pardon is said by Lord Coke to be a work of mercy, whereby the king, either before attainder, sentence, or conviction, or after, forgiveth any crime, offence, punishment, execution, right, title, debt, or duty, temporal or ecclesiastical … ."); Osborn v. United States, 91 U.S. 474, 478 (1875) (finding that the President's constitutional authority to pardon offenses carries with it the power to release all penalties and forfeitures that accrue from the offenses).

75 See, e.g., Ex parte Grossman, 267 U.S. 87, 115 (1925); The Laura, 114 U.S. 411, 413-14 (1885).

76 Grossman, 267 U.S. at 107. 77 Id.

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Thereafter, the President issued a pardon commuting Mr. Grossman's sentence of incarceration. 78 The district court, however, refused to release Mr. Grossman and ordered instead that he serve the full period of incarceration originally imposed. 79

The district court was explicit in its ruling that it did so because it believed the President was impotent to pardon a contempt finding. 80

In the view of the district court, contempt was not an "offense" within the meaning of the Pardon Clause, because it was not a "crime[]." 81

The Supreme Court ultimately disagreed. The Court held that "the term 'offense'" as used in the Pardon Clause is "more comprehensive … than are the terms 'crimes' and 'criminal prosecutions.'" 82

The Court's analysis was premised on the principle, discussed above, that the scope of the pardon power was identical to the scope of the "king's prerogative" at the time of the Founding. 83 The King's prerogative, the Court noted, had extended to analogous contempt orders because they were offenses against the Crown. 84

Unlike a private offense between two private parties, which could not be pardoned, contempt was an offense against the state and was thus within the King's power to pardon. 85

The Court recognized that pardons can undermine the authority of the coordinate branches of [*77] government; however, the Court appeared to view this tension as a healthy part of the larger system of checks and balances. 86

While the Grossman decision was issued nearly a century ago, modern practice confirms that the holding is still understood as good law. Indeed, President Trump's very first pardon was issued in precisely the same noncriminal

78 Id. 79 Id.

80 United States v. Grossman, 1 F.2d 941, 952-53 (N.D. Ill. 1924).

81 Grossman, 267 U.S. at 108.

82 Id. at 117-18 (citing Schick v. United States, 195 U.S. 65, 70 (1904)). The contempt order in Grossman was technically classified as "criminal" rather than "civil" contempt, but the Court was clear that it was not criminal in the sense of the Fifth and Sixth Amendments because no right to jury, nor other constitutional criminal procedure protection, attached. Id. The civil versus criminal distinction in the contempt context rested on the question of whether the penalty imposed was intended to vindicate the rights of the state (the dignity of the court) or the rights of a private party. Id. at 113-15. The former were designated as criminal contempt and the latter as civil contempt. Id.

83 Id. at 113; see also discussion supra notes 62-63 and accompanying text.

84 Grossman, 267 U.S. at 111; see also Heckler v. Chaney, 470 U.S. 821, 849 n.6 (1985) (Marshall, J., concurring) (discussing the tradition of broad discretion given to the executive in England and America and its relation to private prosecution); Duker, supra note 66, at 486 (noting the only limitation to the King's pardon power was a restriction on acts interfering with the rights of third parties).

85 See Grossman, 267 U.S. at 111 (noting the inefficacy of the King's pardon in a suit securing a private party's rights); Ex parte Wells, 59 U.S. (18 How.) 307, 312 (1855) (noting the King's inability to pardon a common nuisance where the fine is to be paid to a private party and not the Crown).

86 See Grossman, 267 U.S. at 120-21 (discussing the checks and balances between the branches as foundational to the Constitution); see also Power of the President to Remit Fines Against Defaulting Jurors, 4 Op. Att'y Gen. 458, 461 (1845) (noting the vesting of the powers of punishment and pardon in separate branches is a deliberate function of the Constitution).

Joanna Heinz Page 16 of 38 93 N.Y.U.L. Rev. 58, *77 context discussed in Grossman. On August 25, 2017, President Trump issued a pardon to the infamous Maricopa County Sheriff Joe Arpaio. 87 Sheriff Arpaio had defied a federal court order to cease illegally arresting individuals for immigration violations and, as a result, had been held in contempt. 88

Before sentencing, the pardon was issued. The pardon sparked significant controversy and some even advanced various theories that it was unconstitutional. 89

But no one challenged the noncriminal nature of the pardon.

The only other instance in which the Supreme Court had occasion to consider application of the pardon power outside the criminal realm was in the case of The Laura. 90 The Laura involved a damages suit brought by a private individual under a statute that permitted either the government or a private party to sue steamboat operators if they exceeded their permissible passenger load. 91 The statutory action was unquestionably civil in nature. 92 The statute under which that action was instituted permitted the Secretary of the Treasury to, in his discretion, absolve any violating carrier of the liability imposed by statute. 93 When the Secretary granted such absolution to the operator of The Laura, the case was dismissed. 94

The original plaintiff, [*78] however, appealed. 95

He argued that the provision of law allowing the Secretary of the Treasury to grant absolution was unconstitutional because the Pardon Clause granted that right exclusively to the President. 96 Ultimately, the Court rejected the appeal and held that the power to forgive individuals for offenses against the United States was not exclusive to the President and, thus, Congress too could grant such relief. 97

87 Exec. Office of the President, Executive Grant of Clemency to Joseph M. Arpaio (Aug. 25, 2017), https://www.justice.gov/pardon/file/993586/download. 88 See Davis & Haberman, supra note 7.

89 See Dahlia Lithwick, Was Trump's Pardon of Joe Arpaio Unconstitutional?, Slate (Sept. 15, 2017), http://www.slate.com/articles/news and politics/jurisprudence/2017/09/was trump s pardon of joe arpaio unconstitutional.html (detailing various constitutional objections to the pardon).

90 The Laura, 114 U.S. 411 (1885).

91 Id. at 411-12.

92 The statute at issue in The Laura was a qui tam statute, giving private individuals the right to stand in the shoes of the government and sue for damages. See Walker v. Globe Newspaper Co., 140 F. 305, 309 (1st Cir. 1905), rev'd on other grounds, 210 U.S. 356 (1908) (referencing the "qui tam" nature of the statute at issue in The Laura). Such qui tam actions are civil in nature. See Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749, 757 (5th Cir. 2001) (noting the "civil context in which qui tam suits are pursued").

93 The Laura, 114 U.S. at 412-13.

94 Id. at 413. 95 Id. 96 Id.

97 Id. at 414-15.

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Notably, however, the Court apparently accepted without controversy that the President's pardon power would permit the President to absolve the carrier of civil liability for the cause of action held by the United States. 98

Accordingly, the Court in The Laura appeared to view the Pardon Clause as empowering the President to pardon civil violations against the United States.

Thus, the Supreme Court squarely held in Grossman that the pardon power could be used in the context of noncriminal offenses against the federal government and that holding has been consistent with contemporary practice. Insofar as the analysis in Grossman turned in part on the particular history of the pardon power in the contempt context, Grossman does not go so far as to conclusively establish that the pardon power applies to all civil offenses against the United States. But the Grossman holding, which remains good law and has been cited by the Court with approval in recent decades, 99

forecloses any conception of the Pardon Clause as limited only to criminal offenses. Grossman does not resolve, however, whether contempt is a sui generis noncriminal application of the pardon power or whether contempt fits within a broader category of noncriminal applications of the Pardon Clause. The Laura did not involve the contempt context and thus supports a broader reading of the clause as generally applicable to a larger category of civil offenses against the United States, though the Court was not called upon in The Laura to rule directly upon this issue.

Accordingly, the plain language of the Pardon Clause, its drafting history, the lack of an established criminal-civil divide among public offenses at the Founding, and the Supreme Court's Pardon Clause jurisprudence collectively establish that the pardon power is likely not limited to the criminal context. The English pardon practice at the time of the framing, which the Supreme Court has held defines the boundaries of the presidential pardon power, goes a step further and [*79] strongly suggests that the power can be utilized in at least some civil regulatory contexts.

B. Limitations of the Civil Pardon Power

The foregoing demonstrates that the pardon power is not limited to the criminal context, but how far into the civil realm does it permit the President to reach? That question is difficult, particularly given the birth and vast expansion of the modern regulatory state, which encompasses areas of civil regulation beyond what the Framers could have envisioned and beyond the realms in which the pardon power was exercised in the Founding era. This Article: does not endeavor to establish an absolute line between which civil provisions can and cannot be pardoned, but, as is explained below, modern jurisprudence and Office of Legal Counsel opinions that distinguish between civil penalties and civil regulatory qualifications suggest an important limiting principle. Put briefly, the principle is that, since contemporary pardon law makes clear that criminal pardons can protect against a civil penalty, so too should the President be able to pardon such civil penalty directly (at least insofar as the provision is federal and thus constitutes an "offence against the United States"). But, since the President's pardon power cannot protect against the application of a civil regulatory qualification or requirement, the pardon power's reach into the civil realm should be limited by the same distinction. Thus, for example, a President could not pardon normal tax liability because it is an obligation not intended as a penalty, but could pardon a civil penalty imposed for failure to make a tax payment in a timely manner. This ability to pardon a civil offense is consistent with the general principle that the greater power to issue full and unconditional pardons encompasses the lesser power to commute only some portion of the penalty that flows from an offense. 100

98 See id. at 413-14.

99 See, e.g., Schick v. Reed, 419 U.S. 256, 266 (1974).

100 See, e.g., Office of the Press Secretary, President Obama Grants Commutations and Pardons, White House (Jan. 17, 2017), https://obamawhitehouse.archives.gov/the-press-office/2017/01/17/president-obama-grants-commutations-and-pardons (stating that the "death sentence [of Arboleda A. Ortiz was] commuted to life imprisonment without the possibility of parole").

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Early American case law established the principle - which has endured - that consequences which flow automatically from the fact of a conviction are generally penalties and therefore eliminated by the issuance of a presidential pardon. In Boyd v. United States, for example, the Supreme Court found that a pardon issued by President Harrison restored the competency of the pardoned witness to testify, explaining that, because "the disability to testify" was "a consequence, according to the principles of the common law, of the [*80] judgment of conviction, the pardon obliterated that effect." 101

Similarly, in Osborn v. United States, the Supreme Court held that the penalty of forfeiture, which was directly triggered by conviction for the pardoned offense, "must fall with the pardon of the offence itself." 102

This understanding of a pardon's impact is consistent with English common law, in which it was well settled that a "pardon by the king removed not only the punishment that flowed from the offense, but also 'all the legal disabilities consequent on the crime.'" 103

At points in the nineteenth century, it appeared that the Supreme Court endorsed a broader pardon power, in large part because of language in Ex parte Garland and Knote v. United States, a pair of decisions issued in the aftermath of the Civil War suggesting that a pardon could essentially erase the fact of prior misconduct from a person's history. 104

In those opinions, the Supreme Court used sweeping language to describe the effect of a pardon, stating that it "blots out the offence," releases an offender "from the consequences" 105 of his action, and makes the offender a "new man." 106 However, this language from Garland and Knote has "not been applied literally" by lower courts nor repeated by the Supreme Court. 107

Instead, courts, including the Supreme Court, have continued to consistently describe pardons as reaching "punishments, penalties, and disabilities" that are triggered by commission of the underlying offense. 108

101 Boyd v. United States, 142 U.S. 450, 453-54 (1892).

102 Osborn v. United States, 91 U.S. 474, 477 (1875).

103 Effects of a Presidential Pardon, 19 Op. O.L.C. 160, 162 (1995) (quoting 7 Matthew Bacon, A New Abridgment of the Law 416 (1852)); see, e.g., Cuddington v. Wilkins (1615) 80 Eng. Rep. 231, 232 (KB) ("The King's pardon doth not only clear the offence it self, but all the dependencies, penalties, and disabilities incident unto it … .").

104 Knote v. United States, 95 U.S. 149, 153 (1877); Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866).

105 Knote, 95 U.S. at 153.

106 Garland, 71 U.S. at 380-81.

107 Whether a Presidential Pardon Expunges Judicial and Executive Branch Records of a Crime, 30 Op. O.L.C. 104, 108 (2006) (citing Memorandum from Norbert Schlei, Assistant Att'y Gen., Office of Legal Counsel, to Andrew Oehmann, Exec. Assistant to the Att'y Gen., Re: Effect of Pardon on Disability to Hold Federal Office (Aug. 12, 1963)). On the contrary, subsequent Supreme Court decisions have indicated that it may no longer subscribe to this view, see, e.g., Carlesi v. New York, 233 U.S. 51, 59 (1914), and some have suggested that the language in Garland and Knote was merely dicta. See, e.g., In re North, 62 F.3d 1434, 1436-37 (D.C. Cir. 1994) (finding that the Garland Court "did not rest its judgment on the theory that the pardon blotted out Garland's guilt" and noting that, since its decision rested on the fact that the disability was punitive, the expansive language on the effect of a pardon "turned out to be dictum"); see also Effect of Presidential Pardon on Aliens Who Left the Country to Avoid Military Service, 1 Op. O.L.C. 34, 38 (1977) (noting that "Ex parte Garland may itself be viewed as a case in which the disability actually was imposed as a penalty").

108 Effects of a Presidential Pardon, 19 Op. O.L.C. at 166.

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[*81] In the twentieth and twenty-first centuries, courts have sharpened the principle that presidential pardons alleviate only punishments, penalties, and disabilities for commission of an offense against the United States - as opposed to every consequence flowing from the underlying facts. 109

Although "the Supreme Court has never expressly adopted a distinction between penalties that a pardon can remove and qualifications that a pardon does not affect," 110

courts and the executive branch have generally coalesced around the principle that pardons do not erase the fact that an individual committed an offense: As such, an individual whose past misconduct makes them unable to satisfy some type of qualification, such as meeting certain character requirements, is not helped by a pardon. 111

For example, a pardon for desertion did not eliminate the fact that a military officer previously abandoned his unit for purposes of the military's assessment of the pardoned individual's faithful service record when he sought to reenlist in the armed forces. 112

The statute imposing the faithful service requirement was, importantly, considered to impose a personal character requirement upon applicants for reenlistment rather than a penalty or disability triggered by the applicant's commission of an [*82] offense. 113

Accordingly, the pardoned individual could be denied reenlistment because, notwithstanding the pardon, it remained true that his past service had not been faithful, making him unable to meet the character requirement. Instead, courts determine whether a consequence of a past prohibited act can be eliminated by a pardon by asking whether the consequences are intended to be punitive or disabling, focusing in particular on whether the consequence attaches solely because of the violation of federal law. 114

For example, pardons eliminate additional penalties that flow automatically from a conviction, like the deprivation of the right to vote, 115

109 In 1915, Professor Samuel Williston wrote a seminal article on the issue that was explicitly endorsed by many courts making this distinction. Samuel Williston, Does a Pardon Blot Out Guilt?, 28 Harv. L. Rev. 647, 653 (1915); see, e.g., United States v. Noonan, 906 F.2d 952, 958-59 (3d Cir. 1990); Bjerkan v. United States, 529 F.2d 125, 128 n.2 (7th Cir. 1975).

110 Effects of a Presidential Pardon, 19 Op. O.L.C. at 163.

111 See, e.g., Noonan, 906 F.2d at 960 (holding that the President's pardon "does not eliminate [the] conviction and does not 'create any factual fiction' that Noonan's conviction had not occurred to justify expunction of his criminal court record"); Effect of Presidential Pardon on Aliens Who Left the Country to Avoid Military Service, 1 Op. O.L.C. at 38 (collecting Attorney General opinions); Naval Service - Desertion - Pardon, 31 Op. Att'y Gen. 225, 230 (1918) (stating that the statute in question "is properly to be regarded as a rule relating to qualifications for office," and "does not impose a penalty as such on individual offenders," and that "the incidental disabilities which they may suffer by reason of the statute are not removed by a pardon"); see also Effect of Presidential Pardon on Aliens Who Left the Country to Avoid Military Service, 1 Op. O.L.C. at 38 (noting that Garland may be harmonized with extant law on the scope of the pardon power if viewed as a case in which the disability was not about a qualification, but in fact a penalty); Williston, supra note 109, at 647 n.1 (noting that in an opinion issued the day before Garland was decided, the Supreme Court used a description of the pardon power that remains accurate to this day: "A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed" (quoting United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833)).

112 See Effects of a Presidential Pardon, 19 Op. O.L.C. at 163 (describing earlier Office of Legal Counsel (OLC) opinions holding that a pardon for desertion did not relieve a military deserter of the provisions requiring "honest and faithful" service in a prior term as a prerequisite for reenlistment).

113 See id.; see also Army - Enlistment - Pardon, 22 Op. Att'y Gen. 36, 39 (1898).

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serve on juries, 116 work in certain professions, 117 testify in court, 118 and own firearms, 119

but pardons do not permit a person to, for example, satisfy nonpunitive character requirements that their criminal conduct prevents them from establishing. 120

Consistent with this approach, the executive branch has concluded that a statute that made a person deportable because of a firearm-related conviction imposed a penalty that would be eliminated if the firearm offense was pardoned, and indicated that other civil penalties that the Immigration and Nationality Act (INA) [*83] imposes for pardoned misconduct can be eliminated by a pardon as well. 121

Through adherence to this rule, courts have circumscribed the reach of pardons to negative consequences that flow directly from the commission of an offense against the United States. While questions about the reach of pardons continue to emerge, the case law on these issues reflects the separation-of-powers concerns underlying the penalties-versus-qualifications rule. 122

For example, in the seminal case on the implications of the theory that a pardon "blots out" the existence of an offense for the other coordinate branches, the Third Circuit explained: The executive "may give what is his own, that is his protection, which the outlawed person has lost through his flight and contumacy, but that which is another's he cannot give by his own grace." 123

Thus, the distinction that has emerged through time has functioned to circumscribe the executive's powers, which makes it a particularly appealing approach for limiting civil pardons.

114 See Effects of a Presidential Pardon, 19 Op. O.L.C. at 162; Naval Service - Desertion - Pardon, 31 Op. Att'y Gen. at 229 (citing Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 319 (1866)); see also Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866).

115 See, e.g., In re North, 62 F.3d 1434, 1439 (D.C. Cir. 1994) (Sneed, J., dissenting); Bjerkan v. United States, 529 F.2d 125, 128 (7th Cir. 1975); In re Exec. Comm'n, 14 Fla. 318 (1872); Cowan v. Prowse, 19 S.W. 407, 411 (Ky. 1892); Wood v. Fitzgerald, 3 Or. 568, 577 (1870); see also Williston, supra note 109, at 654 n.25 (collecting cases).

116 See, e.g., Bjerkan, 529 F.2d at 128; see also United States v. Horodner, 91 F.3d 1317, 1319 n.2 (9th Cir. 1996).

117 See, e.g., Bjerkan, 529 F.2d at 128.

118 See, e.g., Thompson v. United States, 202 F. 401, 407 (9th Cir. 1913) ("The pardons were full and complete, and their effect in law was to remove penalties and disabilities and restore the witness to his full rights."); Boyd v. United States, 142 U.S. 450, 453-54 (1892).

119 See, e.g., Lewis v. United States, 445 U.S. 55, 60-61 (1980).

120 See, e.g., Hirschberg v. Commodities Future Trading Comm'n, 414 F.3d 679, 683-84 (7th Cir. 2005) (upholding denial of floor broker registration because the fraudulent conduct underlying a pardoned criminal conviction simply prevented the individual from fulfilling a nonpunitive qualification for the licensed position). Further, courts have recognized that even consequences that purport to be disqualifications rather than penalties will be eliminated by a pardon if they are obviously intended to inflict punishment for a past act or to add to the punishment of an offender who has been pardoned. Compare SEC v. Lewis, 423 F. Supp. 2d 337, 341 (S.D.N.Y. 2006) (removing the bar imposed by the SEC on a broker convicted of securities fraud against the association after the broker received a pardon because according to the court, the permanent bar functioned as a form of "continued punishment"), with Hirschberg, 414 F.3d at 683-84 (upholding denial of floor broker registration because the fraudulent conduct underlying a pardoned criminal conviction simply prevented the individual from fulfilling a nonpunitive qualification for the licensed position).

121 See, e.g., Effects of a Presidential Pardon, 19 Op. O.L.C. 160, 162 (1995); see also infra Part III.

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The fact that civil penalties may be removed as a result of a pardon for a criminal offense does not alone necessarily establish that such penalties can be directly pardoned. However, it would be odd to construe the pardon power to grant Presidents the authority to issue limited pardons, protecting an individual from civil penalties that flow from a crime (which is unquestionably within the pardon power), but to leave them impotent to pardon precisely the same civil penalty triggered by noncriminal conduct. Indeed, given the textual, historical, and jurisprudential support for civil pardons, 124

the modern distinction between civil penalties and civil regulatory qualifications offers an important limiting principle for the use of civil pardons, and one rooted in centuries of history and jurisprudence on the reach of presidential pardons. Under this logic, pardonable civil "offenses against the United States" would be limited to civil regulatory offenses that impose a penalty. Civil regulatory qualifications, which are not intended to penalize an individual but rather to ensure an individual is appropriately qualified for the benefit sought, would not be "offenses against the United States" and thus would not be pardonable. This approach serves to confine the instances in which pardons can be used [*84] and minimize any concern, discussed in greater depth in Part IV, that civil pardons would encroach upon the legislature's authority.

III

President's Pardon Power Encompasses the Power to Pardon Civil Immigration Offenses

In this Part, we consider which civil immigration violations, if any, are the type of civil penalties that pardons have traditionally protected against, and therefore fall within the scope of the pardon power as we conceive it. Immigration law is a notoriously complex maze of hypertechnical provisions including both qualifications for obtaining different forms of lawful immigration status, as well as a variety of penalties that prevent people from obtaining status or strip them of it. 125

Thus, recognizing the distinction between qualifications, which should not be pardonable, and penalties, which can be pardoned, raises the question of which provisions of the INA impose penalties and which merely set forth necessary qualifications.

This question is somewhat challenging, however, because the INA's qualification and penalty provisions are diverse and not necessarily straightforward. They include provisions that penalize noncitizens (even those with lawful immigration status) for various kinds of past acts. 126 For example, as discussed below, a conviction for certain crimes can trigger the penalty of deportation. 127

122 See, e.g., In re North, 62 F.3d 1434, 1434, 1438 (D.C. Cir. 1994); United States v. Noonan, 906 F.2d 952, 956 (3d Cir. 1990).

123 Noonan, 906 F.2d at 956 (quoting 2 Henrici de Bracton, De Legibus et Consuetudinibus Angliae 371 (Travers Twiss ed. & trans. 1880) (1257)); see also Williston, supra note 109, at 649 (quoting Bracton on the same point). 124 See discussion supra Section II.A.

125 See, e.g., Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003) (noting the "labyrinthine character of modern immigration law," which is "a maze of hyper-technical statutes and regulations"); Castro-O'Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988) (describing immigration law as "second only to the Internal Revenue Code in complexity" (quoting Elizabeth Hull, Without Justice for All: The Constitutional Rights of Aliens 107 (1985))).

126 See generally Immigration and Nationality Act (INA) § 237(a), 8 U.S.C. § 1227(a) (2012).

127 See generally id. § 1227(a)(2). We emphasize that pardoning the violation of the INA (i.e., the offense of violating federal immigration law) need not and would not pardon the underlying conviction, which is often - but not always - the incurring of a state criminal conviction. If the President pardoned the violation of INA in such instances, the criminal conviction would remain intact; only the offense of violating our civil immigration law would be pardoned.

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However, other provisions of the INA impose forward-looking regulatory qualifications. For example, the INA prohibits the admission of certain noncitizens on health-related grounds. 128

Presumably, these provisions are not intended to penalize immigrants for their health-related misfortune but are instead forward-looking qualifications for admission to determine the desirability, in the eyes of Congress, of their admission into the United States.

[*85] While there are many provisions of the INA worth analyzing to determine if they are pardonable, we focus here on the two sets of consequences imposed by the INA that, if eliminated by operation of a pardon, would have perhaps the greatest effect on the population of noncitizens who are longtime residents of the United States: those consequences affecting lawful permanent residents, who are subject to deportation because of criminal convictions, and those affecting noncitizens, who entered the United States without authorization and lack lawful immigration status. 129

A. Lawful Permanent Residents with Criminal Convictions

Section 237(a)(2) of the INA provides that lawful permanent residents - even those who have lived in the United States for decades - are deportable if they have been convicted of one or more of a broad range of criminal offenses. Deportation has long been considered civil in nature, 130 and its penal nature is not explicit in the text of INA § 237(a)(2), which states that, if an individual has been convicted of certain categories of offenses, the individual "is deportable." 131

Even so, the history, purpose, and effect of deportation leave no doubt that deportation is a penalty - and therefore, under the approach described in Section II.B, that the violation of INA § 237(a)(2) constitutes an "offense" within the meaning of the pardon power.

Historically, deportation - in early years, "transportation" - was not only a penalty, but also a punishment which was directly imposed as the result of criminal convictions, and which could unquestionably be eliminated by an executive pardon. At the time of the Founding, the only mechanism by which individuals were expelled from a nation was transportation, typically imposed as the result of conviction for a crime. 132

This practice evolved in England from the ancient [*86] punishment of banishment 133

128 See generally id. § 1182(a)(1).

129 See Robert Warren, Zero Undocumented Population Growth Is Here to Stay and Immigration Reform Would Preserve and Extend These Gains, 5 J. on Migration & Hum. Security 491, 504 (2017) (stating that the population of individuals who entered without inspection was estimated at approximately six million in 2015); Muzaffar Chishti & Michelle Mittelstadt, Unauthorized Immigrants with Criminal Convictions: Who Might Be a Priority for Removal?, Migration Pol'y Inst. (Nov. 2016), http://www.migrationpolicy.org/news/unauthorized-immigrants-criminal-convictions-who-might-be-priority-removal (describing how approximately one million noncitizens with legal status are potentially deportable as a result of a qualifying crime).

130 See, e.g., Padilla v. Kentucky, 559 U.S. 356, 365 (2010); Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893).

131 INA § 237(a)(2), 8 U.S.C. § 1227(a)(2) (2012).

132 See Javier Bleichmar, Deportation as Punishment: A Historical Analysis of the British Practice of Banishment and Its Impact on Modern Constitutional Law, 14 Geo. Immigr. L.J. 115, 129 (1999); Peter L. Markowitz, Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature of Immigration Removal Proceedings, 43 Harv. C.R.-C.L. L. Rev. 289, 320-27 (2008); see also United States v. Ju Toy, 198 U.S. 253, 269-70 (1905) (noting that both "transportation" and "deportation" refer to the banishment or "forcible removal of a citizen from his country"). 133 See Wm. Garth Snider, Banishment: The History of Its Use and a Proposal for Its Abolition Under the First Amendment, 24 New Eng. J. on Crim. & Civ. Confinement 455, 459-61 (1998) (citing examples of banishment as a criminal punishment in various societies dating back to 2285 B.C.).

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and was a form of criminal punishment whereby people would be sentenced to indentured servitude in the colonies or merely banished thereto. 134 During the eighteenth century, as a result of the Transportation Act of 1718, transportation became the most common form of punishment in felony cases in England. 135 In fact, aside from death, it was the only significant form of punishment used at the time. 136

Between the passage of the Transportation Act in 1718 and the end of transportation to the Americas in 1775, one- quarter of all British immigrants to America, approximately 50,000 people, were sent here as a result of being sentenced to transportation as punishment for a crime. 137 Clearly, as a historical matter, the precursor to deportation was transportation, which was penal in nature.

Transportation was a well-recognized penalty, and it was pardoned with some regularity. During this period, transportation was sometimes imposed directly as a sentence for a crime, and at other times was a condition of having a death sentence commuted. 138

The historical record demonstrates that not only was the King's pardon power able to relieve people of a sentence of transportation, but in fact such pardons were regularly granted. 139

A recent comprehensive study of individuals sentenced to transportation in England during one period around the time of the framing of the Constitution [*87] demonstrated that over twenty percent of all people sentenced to transportation were granted pardons protecting them from transportation. 140

Accordingly, the historical record makes clear that the historical analog of deportation, well known to the Framers, was considered a penalty and routinely eliminated by pardons. 141

134 See W.F. Craies, The Compulsion of Subjects to Leave the Realm, 6 L.Q. Rev. 388, 396 (1890). 135 Some scholars estimate that as many as seventy percent of felons in London were sentenced to transportation during the height of its use in the eighteenth century. Bleichmar, supra note 132, at 126. 136 See id. at 121. 137 Id. at 127.

138 See 1734, 7 Geo. 2, c. 21 (Gr. Brit.); 1768, 8 Geo. 3, c. 16 (Gr. Brit.); D.A. Thomas, Sentencing in England, 42 Md. L. Rev. 90, 108 (1983) ("As a sentence imposed by the court itself (as opposed to a term of a conditional pardon), transportation became firmly established by the Transportation Act 1717."); see also Bruce Kercher, Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700-1850, 21 Law & Hist. Rev. 527, 530-31 (2003) (describing transportation as a direct sentence for a crime and as a condition of the pardoning of a death sentence under the Transportation Act of 1718).

139 Richard Ward & Lucy Williams, Initial Views from the Digital Panopticon: Reconstructing Penal Outcomes in the 1790s, 34 Law & Hist. Rev. 893, 918-26 (2016) (surveying circumstances that gave rise to pardons, including in cases of young first-time offenders).

140 Id. at 919. This study's dataset involved individuals sentenced to transportation from England to Australia, not America; however, it nevertheless clearly demonstrates that the King's pardon power extended over sentences of transportation. Id. at 918-26. Other accounts confirm that pardons were exercised over transportation sentences to America. See Ashley T. Rubin, The Unintended Consequences of Penal Reform: A Case Study of Penal Transportation in Eighteenth-Century London, 46 Law & Soc'y Rev. 815, 820 (2012) (explaining that between 1718 and 1775, the height of transportation to America, "many" people were "sentenced to be transported but escaped their sentence, often by a conditional or full pardon"). There are also accounts of individual pardon processes for persons ordered transported during the period of American transportation. See Folio 32: Petition of Thomas Love, Sentenced to Transportation for Theft, for a Pardon, U.K. Nat'l Archives, http://discovery.nationalarchives.gov.uk/details/r/C7764898 (last visited Aug. 9, 2017); Folio 123: Certificate of Justice T [Thomas] Denison. Recommending Mary Malin for a Free Pardon, U.K. Nat'l Archives, http://discovery.nationalarchives.gov.uk/details/r/C16108401 (last visited Aug. 9, 2017).

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The understanding that deportation may be a penalty has carried through to modern day. Supreme Court jurisprudence has made clear that deportation, at least when imposed as the result of a criminal conviction, is a penalty. In Padilla v. Kentucky, the Court described deportation for a criminal conviction as "an integral part - indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants." 142 Thus, while the Supreme Court views deportation as civil in nature, Padilla established, and similar points in the recent Lee v. United States decision reaffirmed, that deportation, when triggered by criminal convictions, is a form of civil penalty. 143

The executive branch has agreed, and gone further to explicitly find, that the penalty of deportation can be alleviated by a pardon. In a 1995 opinion, the Department of Justice's Office of Legal Counsel (OLC) concluded that "a deportation order … is a consequence of a conviction that is precluded by a full and unconditional presidential pardon" because it is "an additional penalty." 144

In so opining, it [*88] considered the question of whether deportability due to a criminal conviction is "a penalty or disability based on an offense [or] rather only implements a decision regarding conduct Congress has deemed inconsistent with the qualifications aliens must have to remain in the country." 145

The OLC noted that deportation is not traditionally seen as punishment for purposes of other constitutional provisions, but ultimately found it clear that even under the narrower modern view of the consequences that pardons eliminate, deportability is "the type of consequence that is removed by a pardon." 146

Records from the Office of the Pardon Attorney demonstrate that it has long agreed, as it has issued a number of pardons for the explicit purpose of preventing deportation. 147

Moreover, in what appears to be the only OLC opinion to consider this issue, the OLC has suggested that the President could pardon punitive civil immigration consequences directly. 148

141 See Effect of Presidential Pardon on Aliens Who Left the Country to Avoid Military Service, 1 Op. O.L.C. 34, 39 (1977) (opining that a pardon protects against punitive exclusion grounds, in part because "exclusion from the United States … is analogous to the devices of banishment and exile that 'have throughout history been used as punishment'" (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 n.23 (1963))).

142 Padilla v. Kentucky, 559 U.S. 356, 364 (2010).

143 Lee v. United States, 137 S. Ct. 1958, 1967-68 (2017); Padilla, 559 U.S. at 364; see also Markowitz, supra note 132, at 330-41 (concluding that, under factors articulated in Mendoza-Martinez, 372 U.S. at 168-69, deportation proceedings are punitive in nature).

144 Effects of a Presidential Pardon, 19 Op. O.L.C. 160, 162 (1995); see also Matter of Rahman, 16 I. & N. Dec. 579, 580 (B.I.A. 1978) (terminating removal proceedings based upon a presidential pardon); Matter of M - , 3 I. & N. Dec. 310, 322 (B.I.A. 1950) (terminating deportation proceedings after the respondent was granted a presidential pardon for his violation of the Foreign Agents Registration Act); Effect of Presidential Pardon on Aliens Who Left the Country to Avoid Military Service, 1 Op. O.L.C. at 39 n. 10 (discussing OLC's suggestion that the President could directly pardon punitive civil removal provisions).

145 Effects of a Presidential Pardon, 19 Op. O.L.C. at 163.

146 Id. at 164.

147 See W.H. Humbert, The Pardoning Power of the President 131 (1941) (surveying stated reasons for each pardon issued between 1885 and 1905 and finding seventeen pardons issued to prevent deportation between 1928 and 1931).

148 Effect of Presidential Pardon on Aliens Who Left the Country to Avoid Military Service, 1 Op. O.L.C. at 35, 39 n.10 (considering whether the provision mandating inadmissibility could be pardoned). This opinion is discussed in greater detail in Section III.B, infra.

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Thus, considered in light of contemporary conceptions of the pardon power, it seems clear that the deportability that results when a noncitizen violates § 237(a)(2), which provides that individuals who incur certain criminal convictions are essentially "guilty" of a civil violation under the INA, is a penalty, and therefore a civil offense that may be directly absolved through a pardon. This distinction - between being able to directly pardon the provisions of § 237(a)(2) as opposed to only being able to use a criminal pardon to remove the penalties imposed by § 237(a)(2) - is critical because, as discussed above in Part I, the vast majority of individuals subject to deportation pursuant to § 237(a)(2) find themselves in deportation proceedings as the result of state criminal convictions. Because the President cannot pardon state convictions (just as a governor cannot pardon a federal offense), the only way that individuals facing deportation because of state convictions can be protected from deportation is through a pardon like the [*89] one we discuss here: one that can operate directly against the federal deportation offense.

B. Undocumented Noncitizens

A more complicated question arises in the case of noncitizens who lack immigration status at all because the pardon power cannot immunize a person against prosecution for future violations of the law or affirmatively grant an individual immigration status. 149 Undocumented noncitizens, 150 like the lawful permanent residents discussed above, are removable under the INA. 151 Unlike those lawful permanent residents, who are removable because of their convictions, undocumented noncitizens are removable because they lack authorization to be in the United States. 152

As explained above, a pardon can eliminate the penalty of deportation for a past violation of the INA - such as a past conviction. 153

But this is not enough for undocumented noncitizens because, unlike lawful permanent residents who would retain their lawful status if their deportability was pardoned, undocumented noncitizens pardoned for their prior period of unlawful status will be in unlawful status again the moment after the pardon is issued. [*90] In other words, even if the penalty of removal for being present in the United States in violation of the INA prior to the pardon was

149 See Passenger Laws. - Pardoning Power., 6 Op. Att'y Gen. 393, 403 (1854) ("If a pardon could be granted in advance for offences to be committed thereafter, it would include a power to grant indulgences to commit crimes and offences, to license vice, to dispense with the sanction of the laws, without good motive, without reason, but solely by arbitrary will … . A pardon for an offence not yet committed would be void."); Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866) ("The [pardon] power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment."). 150 Generally speaking, "undocumented" refers to noncitizens who do not have authorization to be present in the United States and therefore lack lawful immigration status. This group is largely comprised of people who have entered the country without authorization and people who had some authorization, such as a visa, but overstayed the timeline for which their presence was authorized.

151 The INA imposes immigration law sanctions for past prohibited acts (e.g., unlawful entry to the United States or incurring criminal convictions). These sanctions include inadmissibility (INA § 212) or deportability (INA § 237(a)). If a person is "inadmissible," that means that they will generally be denied admission into the United States and are barred from certain types of immigration status for which they are otherwise eligible. If a person is "deportable," that means that the person may have had lawful status, but they can be stripped of that lawful status because they have violated the INA in some way. Both sanctions fall under the larger canopy of removability, introduced with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which refers to persons who can be removed from the United States.

152 INA § 212(a)(6)(A), 8 U.S.C. § 1182(a)(6)(A) (2012) (stating that noncitizens present without being admitted or paroled into the country are removable); id. § 237(a)(3), 8 U.S.C. § 1227(a)(3) (stating that noncitizens who fail to register as required by INA § 265 are deportable). 153 See supra Section III.A.

Joanna Heinz Page 26 of 38 93 N.Y.U.L. Rev. 58, *90 eliminated retrospectively, undocumented individuals would become removable for this same reason as soon as the pardon was issued because a pardon cannot affirmatively grant them immigration status, nor can it immunize them from prosecution for future acts (here, being in the United States without authorization after the pardon is issued). 154

Thus, pardoning the ground of removability is of little practical value unless the noncitizen has some way to obtain lawful status prospectively.

For many undocumented individuals, there are a number of obstacles to obtaining lawful status. First, they may lack a basis for obtaining status. For example, they may not have a close familial relationship with a U.S. citizen or lawful permanent resident (a "qualifying relative") through whom they can adjust their status to that of a lawful permanent resident. 155 Second, the INA contains myriad other provisions that may bar an undocumented noncitizen from adjusting status even if he or she has a qualifying relative who could petition for them, or has some other basis for obtaining status. 156

Some of these obstacles are simple nonpunitive eligibility criteria that the undocumented individual cannot meet - which in our view cannot be pardoned - while others are penalties imposed for past misconduct, which in our view can be pardoned. Below, we focus on two common obstacles that are particularly important because, if those obstacles could be eliminated through a pardon, that would render potentially millions of noncitizens living in the United States eligible to affirmatively obtain lawful status. 157

[*91] First, even noncitizens who have a qualifying relative through whom they could adjust are often ineligible to adjust because the adjustment statute, INA § 245(a), requires that, to adjust status through a qualifying relative, the noncitizen must have been "inspected and admitted or paroled into the United States." This means that anyone who entered the United States without authorization is ineligible to adjust their status. Second - and relatedly - this same group is barred from adjustment because they are "inadmissible," which is a consequence that the INA imposes for a variety of past acts, including unlawful entry, and which bars individuals from obtaining different types of immigration benefits such as adjustment of status. Their entry into the United States without inspection triggers the ground of inadmissibility set forth at INA § 212(a)(6)(A)(i), which provides that, as a general matter, "an alien

154 See supra note 152.

155 Under INA § 245(a), 8 U.S.C. § 1255(a), certain foreign nationals who are, inter alia, physically present in the United States may obtain permanent resident status. To adjust under INA § 245(a), 8 U.S.C. § 1255(a), the statute requires that the individual has made a lawful entry into the United States, is not otherwise inadmissible, makes an application, and has an immigrant visa immediately available to him or her when they file their application. Id. While there are other ways that an immigrant visa may be available to a noncitizen, such a visa is immediately available to a noncitizen who is the "immediate relative" of a U.S. citizen. INA § 201(a)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i), INA § 204(a)(1)(A)(i), 8 U.S.C. § 1154(a)(1)(A)(i). Immediate relatives are spouses (twenty-one years and older) of U.S. citizens; unmarried sons and daughters (twenty-one years and older) of U.S. citizens; and the parents of a U.S. citizen who is older than twenty-one. INA § 201(a)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i).

156 See, e.g., INA § 212(a), 8 U.S.C. § 1182(a) (setting forth grounds of inadmissibility, which, absent a waiver, bar noncitizens from adjusting status); INA § 245(c), 8 U.S.C. § 1255(c) (prohibiting adjustment of status to individuals described in the enumerated categories).

157 This is because millions of individuals within this population are nearly eligible for lawful status because they have qualifying relatives through whom they could adjust status, but they are unable to do so because of the obstacles discussed below. At a minimum, more than three million noncitizens living in the United States would fall into this category based on the estimated number of noncitizens who would have benefitted from the Obama Administration's Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) because they are parents of minor children with U.S. citizenship. Randy Capps et al., Deferred Action for Unauthorized Immigrant Parents: Analysis of DAPA's Potential Effects on Families and Children, Migration Pol'y Inst. (Feb. 2016), http://www.migrationpolicy.org/research/deferred-action-unauthorized-immigrant-parents-analysis- dapas-potential-effects-families (estimating that there were 3.3 million people in this category).

Joanna Heinz Page 27 of 38 93 N.Y.U.L. Rev. 58, *91 present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible." 158 Thus, § 245(a) and § 212(a)(6)(A)(i) both operate to prevent many otherwise eligible noncitizens from adjusting status, although in slightly different ways.

To determine whether § 245(a) - requiring that a person be admitted or paroled into the country to adjust status - and § 212(a)(6)(A)(i) - making anyone who entered without being admitted or paroled inadmissible - are "offences against the United States" that can be pardoned, we must apply the penalty-versus-qualification test described above 159

and determine whether ineligibility to adjust and inadmissibility are penalties. At first blush, § 245(a)'s requirement that any status adjustment applicant has been "inspected and admitted or paroled into the United States" certainly sounds like a qualification, a straightforward eligibility criteria not unlike the character qualifications discussed in Section II.B. And, while § 212(a)(6)(A)(i) appears to be more akin to a penalty because it structurally and functionally operates as a bar status and is triggered [*92] only by a past prohibited act, one could argue that we should not look at inadmissibility itself, but rather at the requirement that a person be affirmatively admissible in order to adjust their status, which could be simply another qualification that must be satisfied.

While this analysis may initially seem compelling, it has long been established that this analysis of whether a consequence is a penalty should not be guided by mere semantics. As early as 1866, the Supreme Court made clear that the legislature's characterization of the penalty as an eligibility requirement should not be taken at face value and we must instead look at the function and purpose of the statute creating the consequence to determine whether it imposes a penalty. 160

The OLC has similarly considered the issue to be one determined by examining the purpose and function of the consequence. In a 1977 opinion considering the impact of a pardon for evasion of military service, for instance, the OLC analyzed the statutory language, legislative history, and legislative antecedents of the INA's provision stating that all noncitizens who left the country to avoid military service were inadmissible, and concluded that the provision was in fact a penalty. 161 The OLC considered the fact that some grounds of inadmissibility "could properly be regarded as establishing qualifications for entry" but found that the provision at issue there was punitive because it imposed an affirmative restraint, had a corollary criminal provision that punished the same misconduct, was motivated by punitive intent, and "its operation promoted the traditional aims of punishment - retribution and deterrence." 162

The OLC ultimately concluded that the executive order and accompanying proclamation pardoning individuals who had violated criminal provisions of the Military Selective Service Act eliminated the penalty of inadmissibility that flowed from the same acts (evasion of military service). 163

158 INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). 159 See supra Section II.B.

160 See Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866) (finding that eligibility "qualifications" for admission to the state bar were in fact penalties); Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 319, 329 (1866); see also Naval Service - Desertion - Pardon, 31 Op. Att'y Gen. 225, 229 (1918) ("Where a statute although purporting to prescribe qualifications for office has no real relation to that end but is obviously intended to inflict punishment for a past act or to add to the punishment of an offender who has been pardoned, the disguise may be penetrated.").

161 Effect of Presidential Pardon on Aliens Who Left the Country to Avoid Military Service, 1 Op. O.L.C. 34, 38-39 & n.10 (1977) (examining the ground of inadmissibility in the INA, 66 Stat. 166 (1952), then codified at 8 U.S.C. § 1182(a)(22), and considering the indicia of punitive intent set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-66 (1963)). 162 Id. at 38-39. 163 Id. at 37.

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Notably for present purposes, the OLC noted that the pardon would have the same effect whether it eliminated the penalty of [*93] inadmissibility "derivatively" (i.e., because the underlying criminal offense was pardoned) or directly, and suggested that the President could pardon the civil offense that imposed inadmissibility itself. 164

President Truman also appeared to subscribe to this view, issuing a general proclamation that pardoned convicted deserters of the penalty imposed by provisions of the Immigration and Nationality Act of 1940: ineligibility for naturalization. 165

Ultimately, considering their purpose, function, and effect, § 212(a)(6)(A)(i) and § 245(a) are best understood as penalties. In determining whether a consequence is a penalty or a qualification, courts look to the intent and function of the consequence, including whether it is triggered solely by the misconduct being pardoned. 166 Here, inadmissibility under § 212(a)(6)(A)(i) and ineligibility to adjust under § 245(a) are solely triggered by entry without authorization and reinforce each other to impose adverse consequences for this conduct. Preventing a person from obtaining status is an affirmative disability or restraint that has long been considered a way to punish the violator and deter others from entering the country, 167

and this [*94] same act is also punished criminally. 168 Indeed, in contrast to, for example, § 245(a)'s nonpunitive requirement that an adjustment applicant have a qualifying relative, submit an application, or pay the application fee, the adverse consequence that flows from unauthorized entry was the very purpose of § 212(a)(6)(A)(i) and § 245(a): to penalize those who entered unlawfully and deter future violations. 169 For example, as Representative Tate bluntly stated:

164 Id. at 35, 39 n.10.

165 Proclamation No. 3001, 67 Stat. C24, C25 (Dec. 24, 1952) (stating, in the text of the proclamation, his intent to relieve the beneficiaries of "section 314 and section 349(a)(8) of the Immigration and Nationality Act (66 Stat. 241, 268) … [and] sections 306 and 401(a)(g), respectively, of the Nationality Act of 1940").

166 See supra Section II.B. Even considered under the test articulated in Mendoza-Martinez, 372 U.S. at 168-69, a more demanding test used to determine whether legislation is punitive such that Sixth Amendment protections are required, the result would be the same. The Mendoza-Martinez test asks: Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment - retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned. Id.

167 The legislative history of INA § 245(a), 8 U.S.C. § 1255(a) (2012) evidences this intent. See S. Rep. No. 85-2133, at 3699 (1958) (explaining that the bill was "carefully drawn so as not to grant undeserved benefits to the unworthy or undesirable immigrant" such as "the alien who has entered the United States in violation of the law"); see also S. Rep. No. 103-309, at 134 (1994) (concluding that the requirement that unauthorized aliens obtain visas abroad before adjusting status was "originally designed to dissuade aliens from circumventing normal visa requirements" through an "intended deterrent effect"); Marisa S. Cianciarulo, Seventeen Years Since the Sunset: The Expiration of 245(i) and Its Effect on U.S. Citizens Married to Undocumented Immigrants, 18 Chap. L. Rev. 451, 465 (2015) (finding the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was "predicated on the theory that undocumented immigrants respond to deterrence and punitive measures").

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I am introducing legislation today to put an end to this madness. Under my bill, if an individual breaks our immigration laws by intentionally entering the United States illegally, he or she will never again be eligible for any kind of temporary or immigrant visa. Not 1 year later, not 20 years later, never. 170

In sum, although the bar to adjustment set forth in § 245(a) (and to a lesser extent the inadmissibility ground set forth in § 212(a)(6)(A)(i)) may look like an eligibility requirement, the purpose of both provisions appears to be to penalize noncitizens who have entered the United States in violation of the INA. Thus these provisions, like INA § 237(a)(2), impose penalties for the violation of the provision and therefore, under the limiting principle described above, set forth offenses within the meaning of the Pardon Clause. As such, these offenses can be pardoned directly and, with the penalties they impose eliminated, otherwise eligible noncitizens who committed the offenses described in § 245(a) and § 212(a)(6)(A)(i) would no longer be barred from adjusting their status to that of a lawful permanent resident. Put differently, the pardon would open a pathway to status for a potentially large number of undocumented individuals who are currently barred from adjusting as a consequence of their violation of § 245(a) and § 212(a)(6)(A)(i).

We note, somewhat separately, that because the bars to entry posed by § 245(a) and § 212(a)(6)(A)(i) are penalties, it is possible that they could be eliminated derivatively through a more traditional pardon for a crime: "entry by [an] alien" at "improper time or place" under INA § 275(a), which applies to "any alien who (1) enters or [*95] attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers." 171

If this criminal offense, which is based on entering without authorization, was pardoned, civil penalties, such as inadmissibility, that flow from the unlawful entry would be eliminated. 172

Thus, while the question of which criminal pardons might alleviate certain civil immigration penalties is not the focus of this Article: , we note that it may be possible to use criminal pardons in creative ways to protect immigrants as well.

Applications of the President's Immigration Pardon Power

Recognizing that the presidential pardon power extends into the civil immigration arena, but contains some significant limitations, it is worth considering the practical applications for this authority. While the current President is unlikely to use this power in ways favorable to noncitizens, future Presidents should consider the immigration pardons as a mechanism through which they can afford lasting reprieve to noncitizens who face unduly harsh penalties for certain violations of the INA. This Part describes how a President can use this type of pardon to grant

168 This offense, unlawful entry, is a federal misdemeanor. INA § 275, 8 U.S.C. § 1325 (2012) (criminalizing "improper entry by alien"). 169 See S. Rep. No. 85-2133, at 3699. The legislative materials that explicitly discuss § 212(a)(6)(A)(i) similarly evince an intent to create an admissibility regime that penalizes unlawful entry. See Full Committee Markup: Immigration Overhaul: Hearing on H.R. 2202 Before the H. Comm. on the Judiciary, 104th Cong. (1995) (statement of Rep. Lamar Smith), 1995 WL 596894; see also H.R. Rep. No. 104-469, pt. I, at 226 (1996) ("Under the new 'admission' doctrine, such aliens will not be considered to have been admitted, and thus, must be subject to a ground of inadmissibility, rather than a ground of deportation, based on their presence without admission."). 170 142 Cong. Rec. E85-01 (daily ed. Jan. 25, 1996) (statement of Rep. Tate).

171 INA § 275, 8 U.S.C. § 1325 (2012).

172 See supra Section II.B and notes 163-66 (describing the OLC's conclusion that the inadmissibility that was triggered by a criminal violation of the Military Selective Service Act was eliminated derivatively when the criminal violation of the Act was pardoned).

Joanna Heinz Page 30 of 38 93 N.Y.U.L. Rev. 58, *95 individual or broad-based relief and considers the question of whether using this power to alleviate the effects of duly enacted laws conflicts with our constitutional structure.

A. Individual and Categorical Immigration Pardons

The most straightforward manner of exercising this authority is, of course, through granting individual pardons to people who apply. This method of issuing pardons is typically done after a review of an applicant's individual circumstances and the facts of the underlying offense, and consideration of the consequences that a person would face if pardoned vel non. 173

Since 1865, a formal administrative structure for considering individual applications was established, and this [*96] model has historically been the primary mechanism for issuing presidential pardons. 174

Presidents can also exercise the pardon power categorically, without individual applications or review, and, though it is less common, have done so throughout our nation's history. In fact, over one-third of past Presidents have issued collective and large-scale pardons (sometimes referred to as "amnesties"), 175 generally to restore politically unpopular subgroups to the national embrace, or otherwise advance the national interest. 176

Just seven years after the Constitution was ratified, President Washington pardoned "all persons" guilty of treasonous offenses "or otherwise concerned in the late insurrection" now known as the Whiskey Rebellion. 177

President Madison similarly issued a broad pardon to "any person or persons whomsoever, being inhabitants of New Orleans and the adjacent country, or being inhabitants of the said Island of Barataria and the places adjacent" who assisted the Navy for "all offenses committed in violation of any act or acts of the Congress of the said United

173 See Samuel T. Morison, The Politics of Grace: On the Moral Justification of Executive Clemency, 9 Buff. Crim. L. Rev. 1, 35- 42 (2005) (describing the process by which the Office of the Pardon Attorney reviews individual clemency applications); Lauren Schorr, Note: , Breaking into the Pardon Power: Congress and the Office of the Pardon Attorney, 46 Am. Crim. L. Rev. 1535, 1544 (2009) (same).

174 See Morison, supra note 173, at 34-35 (describing the establishment of this administrative structure); Office of the Pardon Att'y, Clemency Statistics, U.S. Dep't Just., https://www.justice.gov/pardon/clemency-statistics (last visited Aug. 6, 2017) (reporting the number of individual pardons granted since 1900).

175 Pardons and amnesties are functionally the same for purposes of this discussion. See Brown v. Walker, 161 U.S. 591, 601 (1896) ("The distinction between amnesty and pardon is of no practical importance."); see also Knote v. United States, 95 U.S. 149, 152-53 (1877) (stating that the distinction is of no "legal importance"); Armstrong v. United States, 80 U.S. (13 Wall.) 154, 155-56 (1871) (recognizing the validity of President Johnson's "universal amnesty and pardon for participation in [the] rebellion"); Pardon - Removal of Disabilities - Pension, 27 Op. Att'y Gen. 178, 181 (1909) ("Nor is the form which this pardon may assume at all important, or the manner of its promulgation … . Whether by a formal pardon directed and delivered to the beneficiary … or by a proclamation of amnesty to a class of offenders, this is always and necessarily an exercise of the pardoning power … ."); Amnesty - Power of the President, 20 Op. Att'y Gen. 330, 337 (1892) (tracing Supreme Court approbation of general pardons and concluding that President Harrison had the power to issue a general grant of amnesty to convicted polygamists).

176 These include Presidents Washington, Adams, Jefferson, Madison, Buchanan, Lincoln, Johnson, Harrison, Cleveland, Roosevelt, Harding, Coolidge, Truman, Kennedy, Ford, and Carter. See Charles Shanor & Marc Miller, Pardon Us: Systematic Presidential Pardons, 13 Fed. Sent'g Rep. 139, 139-41 (2001) (discussing the use of systematic pardons by at least one-third of all U.S. Presidents); infra notes 177-89 and accompanying text (discussing how several Presidents have used large-scale pardons); see also Office of the Pardon Att'y, supra note 174 (providing clemency statistics for some of these Presidents).

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States touching the revenue, trade, and navigation thereof, or touching the intercourse and commerce of the United States with foreign nations." 178

In subsequent years, Presidents issued categorical pardons to even larger groups of people. During the Civil War, for example, [*97] President Lincoln issued a broad pardon to people who had participated in the rebellion, 179

and, after the war, President Johnson issued mass pardons to those who had deserted the army as a way to foster national unity. 180

In 1893 and 1894, Presidents Cleveland and Harrison, respectively, pardoned all Mormons who had been convicted of polygamy - relieving them of the resulting disenfranchisement and other penalties - in order to quiet the long-simmering hostility between the federal government and Utah Mormons and smooth the way for Utah to become a state. 181

After World War II, President Truman issued two broad pardons to individuals who had served in the army: individuals convicted of desertion, and individuals who had prior federal criminal convictions. 182

Of particular relevance here, Truman's pardon for convicted deserters was explicitly issued, in part, to relieve pardoned offenders from the INA's penalty for desertion convictions: ineligibility for naturalization. More recently, President Carter issued a categorical pardon that covered approximately a half-million men (most of whom had not been charged) who had violated draft laws during the Vietnam War in order to "heal the war's psychic wounds." 183

This broad pardon was based on special boards through which Presidents Truman and Ford granted clemency to tens of thousands of individuals who had violated draft laws during World War II and the Vietnam War. 184

177 George Washington, Proclamation Granting Pardon to the Western Insurgents (July 10, 1795), reprinted in 20 Op. Att'y Gen. 339, 339-40 (1895).

178 Amnesty - Power of the President, 20 Op. Att'y Gen. at 344.

179 See 2 Abraham Lincoln, Proclamation of Amnesty and Reconstruction (announcing the pardon), in Complete Works of Abraham Lincoln 442 (John G. Nicolay & John Hay eds., 1894); see also 2 Abraham Lincoln, Proclamation About Amnesty (defining who could benefit from the pardon), in Complete Works of Abraham Lincoln, supra, at 504.

180 See, e.g., President Johnson, Proclamation 179 - Granting Full Pardon and Amnesty for the Offense of Treason Against the United States During the Late Civil War (1868); President Johnson, Proclamation 134 - A Offer of Pardon to Deserters from the Regular Army Who Surrender, Gen. Order 43 (1866).

181 See Graham G. Dodds, Take Up Your Pen: Unilateral Presidential Directives in American Politics 114 (2013) (noting Presidents Harrison's and Cleveland's proclamations granting amnesty to Mormon polygamists); see also Harold J. Krent, Conditioning the President's Conditional Pardon Power, 89 Calif. L. Rev. 1665, 1675 (2001) (highlighting "President Benjamin Harrison's pardon of Mormons convicted of polygamy in the Utah territory"). 182 See Proclamation No. 3000 and 3001, 17 Fed. Reg. 11,833 (Dec. 31, 1952).

183 Andrew Glass, Carter Pardons Draft Dodgers Jan. 21, 1977, Politico (Jan. 21, 2008), http://www.politico.com/story/2008/01/carter-pardons-draft-dodgers-jan-21-1977-007974; see also Proclamation No. 4483, Granting Pardon for Violations of the Selective Service Act, August 4, 1964 to March 28, 1973,42 Fed. Reg. 4391 (Jan. 24, 1977). 184 Exec. Order No. 9814, 11 Fed. Reg. 14,645 (Dec. 25, 1946); U.S. Presidential Clemency Bd., Report to the President (1975) (containing an extensive description and analysis of the board's activities during its first year of existence, addressed to President Ford); Shanor & Miller, supra note 176, at 140, 142 (describing how President Ford's Clemency Board was modeled after President Truman's Amnesty Board).

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[*98] Notably, disagreement with Congress was often the key reason that these pardons were issued. One of the earliest examples is President Jefferson's pardon of each and every person who had been convicted under the Alien and Sedition Acts of 1798, which criminalized the writing, printing, and publication of defamatory or inflammatory materials about the U.S. government. 185

Jefferson, who had criticized these acts even prior to his election, was explicit about his motivation: He issued pardons because, "even though [the Sedition Act] had been upheld by the courts," he "believ[ed] that the Sedition Law was unconstitutional," and therefore "used his power as President to (in his own words) 'remit the execution' of the Act by pardoning all offenders." 186

Presidents Lincoln and Johnson's proclamations of amnesty and pardons were intended to thwart punitive laws imposed by Congress. 187

In a similar fashion, President Wilson expressed his opposition to prohibition laws after Congress overrode his veto of the Volstead Act by pardoning more than 500 liquor law violators, 188 and President Kennedy commuted the sentences of hundreds of drug offenders serving mandatory minimum sentences under the Narcotics Control Act of 1956, presumably because he deemed the Act's sentencing provisions too harsh. 189

[*99] The Supreme Court has upheld categorical pardons and recognized their constitutional validity. 190

The Court has explained that broad pardons, or "amnesties," are simply a permissible extension of the President's power to pardon an individual: "The Executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress." 191

185 See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R. Rep. No. 26-86 (1840) (refunding a fine imposed under the Sedition laws).

186 The Legal Significance of Presidential Signing Statements, 17 Op. O.L.C. 131, 133 n.8 (1993) (citing Norman J. Small, Some Presidential Interpretations of the Presidency 21 (1932)); see also Letter from Thomas Jefferson to Abigail Adams (Sept. 11, 1804) (discussing Jefferson's role as President and his views on the Sedition laws), in The Adams-Jefferson Letters 278, 279 (Lester J. Cappon ed., 1959); Saikrishna Bangalore Prakash, The Executive's Duty to Disregard Unconstitutional Laws, 96 Geo. L.J. 1613, 1666 (2008) (describing letters in which President Jefferson explained that he "discharged every person under punishment or prosecution under the Sedition laws, because [he] considered … that law to be nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image").

187 The validity of these amnesties was repeatedly upheld by the Supreme Court. See, e.g., United States v. Klein, 80 U.S. (13 Wall.) 128, 142 (1871) (upholding President Lincoln's pardon); United States v. Padelford, 76 U.S. (9 Wall.) 531, 542 (1869), superseded by statute, Act of July 12, 1870, ch. 251, 16 Stat. 235, as recognized in Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016) (same); Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866) (upholding President Johnson's pardon).

188 See Barkow, supra note 13, at 837; P.S. Ruckman, Jr., The Pardoning Power: The Other "Civics Lesson," 8 (Nov. 7, 2001), http://www.rvc.cc.il.us/faclink/pruckman/pardoncharts/paper5.pdf (describing President Wilson's pardons and providing clemency statistics).

189 See Barkow, supra note 13, at 837 (noting that President Kennedy "granted clemency to hundreds of first-time nonviolent drug offenders as an expression of disagreement with mandatory drug punishments in certain cases he viewed as disparate and not consistent with average sentences in comparable cases"); see also Shanor & Miller, supra note 176, at 140 (noting that President Kennedy pardoned offenders under the Narcotics Act of 1956).

190 See, e.g., Knote v. United States, 95 U.S. 149, 153 (1877) ("All the benefits which can result to the claimant from both pardon and amnesty would equally have accrued to him if the term 'pardon' alone had been used in the proclamation of the President. In Klein's case, this court said that pardon included amnesty." (citing United States v. Klein, 80 U.S. (13 Wall.) 128

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And it has explicitly rejected the argument that class-wide amnesties are different from a pardon in a way relevant here, remarking that "the distinction between amnesty and pardon is of no practical" 192 or "legal importance." 193

Thus, because the President could issue a categorical pardon that would relieve classes of noncitizens of certain immigration offenses, the immigration pardon can offer far-reaching protection to members of our community who Congress has, thus far, proven unable or unwilling to protect.

B. Structural Constitutional Implications of

Categorical Immigration Pardons

One need not be a constitutional scholar to wonder why the presidential pardon power - particularly when used to grant categorical relief from the penalties of duly enacted laws - does not violate the constitutional principle of separation of powers. After all, a President who could categorically absolve all violators of a particular law could effectively nullify it in many respects, thereby infringing on the legislature's constitutional authority "to make all Laws." 194

This concern is not surprising, as it is generally well accepted that a President may [*100] not, consistent with separation-of-powers principles enshrined in the Constitution, simply ignore or effectively override statutes because he or she disagrees with congressional policy. And yet, using a categorical pardon to absolve individuals of penalties for violating a law - as Presidents have done throughout history - seems to do exactly that. What would stop a President from using this power to gut congressional authority across any of the civil regulatory efforts prevalent in the administrative state that are contrary to presidential policy?

At the outset, it is important to recognize that, in examining the structural constitutional question here, context matters: Concerns about this issue should be least where the branch exercising the authority is effecting the goals underlying the separation-of-powers principle. 195

(1871))); supra note 175. The English King's power to pardon, which is coextensive with the scope of the presidential pardon power, see supra notes 62-63, offers further confirmation. See Duker, supra note 66, at 517 (first citing the Charta Forestae, 9 Hen. 3, c. 15 (1225) (King's first general pardon); then citing 50 Edw. 3, c. 3 (1376) (general pardon granted to celebrate the fiftieth year of Edward III's reign and confirmed by I Rich. 2, c. 10 (1377)); then citing 6 Rich. 2, c. 13, § 1 (1382) (pardon to all subjects after the late insurrection); then citing 6 Rich. 2, c. I, § 1 (1382) (a "more large Pardon"); then citing Act of Free and General Pardon, 12 Car. 2, c. 11 (1660) (general pardon issued by Charles II); then citing Act for the King's Majesties Most Gracious, General and Free Pardon, 25 Car. 2, c. 5 (1672); then citing 2 W. & M., c. 10, § 1 (1690); then citing 6 & 7 Will. 3, c. 20 (1695); then citing 3 Geo. 1, c. 19 (1716); and then citing 20 Geo. 2, c. 52 (1747)).

191 Ex parte Grossman, 267 U.S. 87, 120 (1925) (emphasis added) (citing Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866)).

192 Brown v. Walker, 161 U.S. 591, 601 (1896).

193 Knote, 95 U.S. at 153.

194 U.S. Const. art. I, § 8, cl. 18.

195 Although neither "separation of powers" nor any synonym is used in the Constitution itself, the constitutional structure and Framers' commentary have left little doubt that this principle was enshrined in the Constitution. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1215 (2015) (stating that "'separation of powers' and 'the constitutional system of checks and balances' [are] core principles of our constitutional design"); Stern v. Marshall, 564 U.S. 462, 483 (2011) (discussing "'the basic concept of separation of powers … that flows from the scheme of a tripartite government' adopted in the Constitution" (alteration in original) (quoting United States v. Nixon, 418 U.S. 683, 704 (1974))); Boumediene v. Bush, 553 U.S. 723, 742 (2008) (describing the historical context and rationale for the structural protection of individual rights adopted by the Framers and noting "the Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches"); Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 272 (1991) ("The ultimate purpose of this separation of powers is to protect the liberty and security of the governed."); Rebecca L.

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And that goal, the Framers made clear, was to secure and protect liberty. 196 In 1788, Madison made this very point when explaining the reason for separation of powers: "When the legislative and executive powers are united in the same person or body, … there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner." 197

Scholars and political theorists have echoed this point, emphasizing that the protection of liberty was a central goal [*101] underlying the separation of powers. 198 Moreover, they have recognized that this goal was so important that the Framers concluded that strict separation of powers did not adequately protect liberty. 199 With that in mind, they created a system of checks and balances that essentially permitted the branches to "invade" and "correct[]" overreach so that each branch acted as a check on the other. 200

That said, "liberty" materializes in many forms, and the Framers undoubtedly sought to protect political liberty as well as physical liberty. 201 But even so, physical liberty is unique in terms of the protections written into the Constitution. Indeed, the Constitution contains at least three separate provisions that authorize coordinate branches to review and correct unjust deprivations of physical liberty. The Due Process Clause, 202 which offers protection against deprivation of life, liberty, and property, reserves its greatest procedural protections for deprivations of physical liberty. The Supreme Court has reaffirmed the extent of its protections time and again, and recognized the fact that physical restraint is "at the core of the liberty protected by the Due Process Clause." 203

Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1533-40 (1991) (discussing the historical and intellectual development of the separation of powers); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 578 (1984) (describing how checks and balances and the separation of powers were designed "to protect the citizens from the emergence of tyrannical government").

196 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) ("The Constitution diffuses power the better to secure liberty … ."); see also Boumediene, 553 U.S. at 742; Metro. Wash. Airports Auth., 501 U.S. at 272. 197 The Federalist No. 47, at 303 (James Madison) (Clinton Rossiter ed., 1961) (emphasis added and omitted) (quoting Montesquieu).

198 See, e.g., Brown, supra note 195, at 1534 ("In general … separation of powers aimed at the interconnected goals of preventing tyranny and protecting liberty."); Harold J. Krent, Separating the Strands in Separation of Powers Controversies, 74 Va. L. Rev. 1253, 1259-60 (1988) (describing how the constitutional system of checks and balances was designed "as a means of protecting individual liberty from arbitrary governance"); Markowitz, supra note 10, at 530 ("Rather than aggrandizing one branch above the others, the unilateral power of each branch to prevent liberty deprivation reflects a constitutional structural bias against liberty deprivation in general.").

199 See The Federalist No. 48, at 308 (James Madison) (Clinton Rossiter ed., 1961) ("Unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation … essential to a free government[] can never in practice be duly maintained."); see also Garry Wills, Explaining America: The Federalist 119 (1981) ("Checks and balances do not arise from separation theory, but are at odds with it … [and] have to do with corrective invasion of the separated powers … ."); Brown, supra note 195, at 1532 (same).

200 Wills, supra note 199, at 119; see also Brown, supra note 196, at 1531-32 ("The best evidence that the Framers intended to reject a strict separation of powers is that they created a system of checks and balances requiring participation by each branch in some functions that may be considered part of the power of the others … .").

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This protection, together with Article: III, [*102] provides authority for the judiciary to protect against overreach by the executive and legislative branches. 204 Similarly, the Suspension Clause, which provides access to judicial review for restraints on liberty, permits the judiciary to correct unjust deprivations of liberty by the executive and/or legislative branches. 205

Finally, the Pardon Clause, as discussed, permits the executive to limit or eliminate restraints upon liberty that could be imposed or have been imposed by the legislature and/or the judiciary. 206 Moreover, underscoring the unique place of physical liberty in the Constitution, the Framers went further even than some of their exemplars who tolerated bills of attainder - legislative pronouncements of guilt - as necessary evils. 207

Instead, out of a desire to guard against the possibility of unjust deprivations of liberty, the Framers drafted a constitutional provision explicitly prohibiting them. 208

Thus, to the extent that the statements of the Framers leave any doubt that the separation-of-powers principle is animated by a concern for protecting physical liberty, the constitutional structure is clear about the primacy of liberty protection. Given that a key aim of separating powers was to protect liberty, this principle should be least offended when presidential authority - indeed any branch's authority - is effected to further that goal. Since an immigration pardon power acts as a one-way ratchet in favor of [*103] liberty protection, separation-of-powers concerns are somewhat mitigated.

In addition to these structural constraints, characteristics of the Pardon Clause itself provide powerful limits on its reach and incentives against abusing the pardon power. 209

201 Markowitz, supra note 10, at 528 ("While political theorists generally agree that the system of separation of powers was envisioned primarily as a 'prerequisite for civil liberty,' political liberty as well as physical liberty was surely encompassed in this vision." (footnote omitted) (quoting Brown, supra note 195, at 1533)); see also Brown, supra note 195, at 1533 ("On the American side of the Atlantic the primary impetus for separated powers was the establishment and maintenance of political liberty."). 202 U.S. Const. amend. V.

203 E.g., Turner v. Rogers, 564 U.S. 431, 445 (2011) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)); see also Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (describing physical liberty as "the most elemental of liberty interests"); Humphrey v. Cady, 405 U.S. 504, 509 (1972) (describing the deprivation of physical liberty as "a massive curtailment of liberty"). 204 U.S. Const. art. III; see Markowitz, supra note 10, at 529-30, 532 (describing how the Supreme Court "has not only extended a panoply of special procedural protections when physical liberty is at issue, but it has also characterized the deprivation of physical liberty as being 'at the core of the liberty protected by the Due Process Clause'" and explaining that "modern jurisprudence demonstrates that creating special protections against unwarranted liberty deprivations is entirely consistent with the constitutional scheme").

205 U.S. Const. art. I, § 9, cl. 2. More specifically, the Suspension Clause guarantees access to the writ of habeas corpus to challenge a restraint on liberty except "in Cases of Rebellion or Invasion [when] the public Safety may require it." Id.; see Boumediene v. Bush, 553 U.S. 723, 745 (2008) ("[The Suspension Clause] ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the 'delicate balance of governance' that is itself the surest safeguard of liberty." (citing Hamdi, 542 U.S. at 536)); INS v. St. Cyr, 533 U.S. 289, 300-03 (2001) (surveying the history of the Suspension Clause, describing its fundamental purpose of protecting against unlawful deprivations of liberty, and finding deportation to be one such deprivation of liberty).

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Most importantly, even at its most expansive, the pardon power does not permit a President to, in fact or effect, actually nullify a duly enacted law because he or she cannot pardon future offenses. 210

This foundational limitation, discussed in Part I, was an essential element of the Pardon Clause from the outset, and an important way in which the Constitution differed from old English common law. In England, at common law, the King had "dispensing" and "suspending" powers which allowed the King to authorize individuals to violate laws enacted by Parliament and to abrogate parliamentary laws, respectively. 211

The pardon power, by contrast, only permits the President to relieve an individual of prosecution for, or penalties flowing from, the commission of past offenses. 212 In this way, the Framers ensured that the President's power to offer mercy would not be used to abrogate or suspend laws and thereby encroach on Congress's lawmaking authority.

Pardons are also limited by their nature to operate in a space that the executive has exclusive authority to create. That is, they reduce or eliminate the consequences of an enforcement proceeding, which only the executive may commence. 213

To return briefly to the tax law example, this means that a President is powerless to change what the [*104] tax law requires individuals to report or pay, or what it prohibits individuals from writing off. The President's pardon authority is limited to a question in which the executive is constitutionally assigned a significant amount of power: whether to prosecute someone who fails to pay what they owe, what charges to file, and what penalties to seek. In this sense, pardons are, for constitutional purposes, much like prosecutorial discretion, which, with some recent exceptions, is generally accepted as consistent with the Constitution and separation of powers. 214

206 U.S. Const. art. II, § 2, cl. 1.

207 Brown, supra note 195, at 1536-37 (describing Montesquieu's view of bills of attainder as "a necessary, single instance in which a branch other than the Judiciary should be permitted to make a decision affecting the liberty of an individual … 'in order to preserve it for the whole community'" (quoting Baron De Montesquieu, The Spirit of the Laws 199 (Thomas Nugent trans., 1949))).

208 See U.S. Const. art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed.").

209 See Morison, supra note 13, at 278-88 (describing a range of structural constraints that the Constitution imposes on the pardon power).

210 See Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866) ("The [pardon] power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment."); Stauffer v. Brooks Bros. Grp., 758 F.3d 1314, 1321 (Fed. Cir. 2014) (defining pardons and finding that amendments to law "do not constitute a pardon").

211 Edward Wavell Ridges, Constitutional Law of England 134-35 (1905) (discussing dispensing and suspending powers and legal challenges to use); Markowitz, supra note 10, at 500-01 (discussing the King's suspending and dispensing powers); Price, supra note 14, at 691 (discussing suspending and dispensing powers and their ultimate invalidation); Daniel Stepanicich, Comment, Presidential Inaction and the Constitutional Basis for Executive Nonenforcement Discretion, 18 U. Pa. J. Const. L. 1507, 1513-14 (2016) (same).

212 See Passenger Laws - Pardoning Power, 6 Op. Att'y Gen. 393, 403 (1854) ("A pardon for an offence not yet committed would be void."); see also Garland, 71 U.S. at 380 (stating how the pardon power "extends to every offence known to the law,

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In short, the very definition of a pardon makes it operate primarily in the arena of decisions that the executive branch is authorized to make, such that the executive is "giving what is his own," not "that which is another's [and that] he cannot give by his own grace." 215

Ultimately, history and the Supreme Court have made clear that, under the Constitution, "each of the great coordinate departments of the government - the Legislative, the Executive, and the Judicial - shall be, in its sphere, independent of the others," and that "to the executive alone is entrusted the power of pardon," even if used in conflict with congressional policy. 216

[*105] Any expansive view of presidential power should be embraced cautiously and with due consideration of the potential for abuse. The reckless and unprincipled approach of the current Oval Office occupant only serves to heighten such caution. Indeed, grave concerns about the abuse of the pardon power by President Trump have been center stage in the early months of his presidency. 217 and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment" (emphasis added)).

213 See Hickey v. Schomig, 240 F. Supp. 2d 793, 795 (N.D. Ill. 2002) ("No federal official has the authority to commute a sentence imposed by a state court."); Office of the Pardon Att'y, supra note 18 ("The President cannot pardon a state criminal offense.").

214 For example, under President Clinton, the Department of Justice (DOJ) enacted a "Corporate Leniency Policy" that, in the words of DOJ, is an "amnesty or corporate immunity policy" that grants corporations effective immunity from criminal prosecution, as well as their directors, officers, and employees, if the corporation is the first to come forward and report illegal antitrust activity and take certain other remedial steps. See Antitrust Div., Corporate Leniency Policy, U.S. Dep't Just., https://www.justice.gov/sites/default/files/atr/legacy/2007/08/14/0091.pdf [https://perma.cc/V5VS-MKZX]. Note: that DOJ itself made clear that this policy was categorical and "not subject to the exercise of [individualized] prosecutorial discretion." Gary R. Spratling, Deputy Assistant Att'y Gen., Antitrust Div., U.S. Dep't of Justice, Remarks at the ABA Antitrust Section 1998 Spring Meeting: The Corporate Leniency Policy: Answers to Recurring Questions (Apr. 1, 1998),http://www.usdoj.gov/atr/public/speeches/1626.htm [https://perma.cc/CNZ6-HNBK]. Presidents Truman and Carter's broad grants of amnesty after WWII and the Vietnam War are another example. Exec. Order No. 9814,11 Fed. Reg. 14,645 (Dec. 25, 1946) (creating the President's Amnesty Board to review convictions of persons under the Selective Training and Service Act of 1940); U.S. Presidential Clemency Bd., Report to the President xi-xii (1975) (discussing President Ford's clemency program); Shanor & Miller, supra note 176, at 142 (describing examples of "systematic pardons").

215 United States v. Noonan, 906 F.2d 952, 956 (3d Cir. 1990) (quoting 2 Henrici de Bracton, De Legibus et Consuetudinibus Angliae 371 (Travers Twiss ed. & trans., 1879) (1257)); see supra Section II.B; supra notes 110-11 and accompanying text. Modern pardon jurisprudence also underscores this limitation on a pardon's reach. As described above, it distinguishes between penalties for an offense, which are eliminated by a pardon, from qualifications that a person cannot satisfy due to past misconduct, which a pardon does not affect. The inability of pardons to affect a person's ability to satisfy nonpenalty requirements or qualifications is an additional mechanism that preserves legislatures' and courts' authority in areas outside those that implicate actual or potential enforcement.

216 United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871); see Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 485 (1989) (Kennedy, J., concurring) ("Where the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch… . We [have] reiterated in most direct terms the principle that Congress cannot interfere in any way with the President's power to pardon."); Schick v. Reed, 419 U.S. 256, 266 (1974) ("The unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress."); Garland, 71 U.S. at 380 ("This power of the President is not subject to legislative control… . The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.").

217 See, e.g., John Yoo, Opinion, Trump Can Pardon Manafort. He Shouldn't., N.Y. Times (Oct. 31, 2017), https://nyti.ms/2z3Rl72; see also Neil H. Buchanan, Will Trump Use Arpaio Pardon as a Precedent to Pardon Russia Colluders?, Newsweek (Aug. 30, 2017),http://www.newsweek.com/will-trump-use-arpaio-precedent-pardon-russia-colluders- 657025; Philip Allen Lacovara, Opinion, How the Pardon Power Could End Trump's Presidency, Wash. Post (Aug. 29, 2017), http://wapo.st/2go0SAe?tid=SS mail&utm term =.455b1c45a98c.

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Every grant of power comes with the risk of abuse; however, on balance, the vision of the pardon power we embrace carries a greater potential for serving justice than for prompting abuse. Issuance of a broad categorical immigration pardon would be a robust assertion of presidential power, but one consistent with the Constitution's structural bias in favor of liberty protection and with the President's primary control of enforcement more generally.

Conclusion

The brutality of our nation's current immigration enforcement scheme is difficult to overstate: Hundreds of thousands of mothers, fathers, sons, and daughters each year face detention and permanent separation from their families in the United States. The ideal solution is, unquestionably, significant legislative reform to provide a path to legalization for undocumented immigrants and to eliminate the harshest aspects of the detention and removal provisions of the INA. However, congressional reform of our immigration system has long been a dead letter, and with the current presidential administration addressing the issue through vilification and shotgun-style enforcement, there is little short-term hope of meaningful legislative progress. If the congressional gridlock cannot be broken, there will come a time when future Presidents - particularly those elected by an increasingly minority electorate with more recent immigrant roots - will need to [*106] find ways to ameliorate the devastating penalties that our immigration laws have imposed on longtime members of our communities.

The immigration pardon, one exercise of the executive's more general prosecutorial discretion powers, offers an important part of that solution. While direct categorical application of the pardon power to civil immigration offenses has no immediate precedent in history, it accords with the very purpose for which Presidents have, for centuries, issued categorical pardons: to use their inherent power of mercy and duty to promote the national interest to alleviate the toll of harsh laws on politically unpopular groups. It is for these reasons that the Framers bestowed the pardon power upon Presidents - as a critical check against Congress's general authority to make all laws. The pardon power serves as an essential backstop to avert unduly harsh negative consequences of legislative enactments. As the devastation caused by current immigration laws continues to grow and traditional mechanisms for policymaking continue to fail, future Presidents should consider using the pardon power to forgive the civil offenses that result in some of the most unforgiving penalties in our justice system.

End of Document

Joanna Heinz Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions

A Report by CATHOLIC LEGAL IMMIGRATION NETWORK, INC. (CLINIC)

Written by Sibora Gjecovi, Esther James and Jeff Chenoweth

A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. Catholic Legal Immigration Network, Inc. 415 Michigan Avenue, NE, Ste. 150 Washington, DC 20017 202-635-2556 Ⅲ www.cliniclegal.org Copyright 2006 Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions

A Report by CATHOLIC LEGAL IMMIGRATION NETWORK, INC. (CLINIC)

Written by Sibora Gjecovi, Esther James and Jeff Chenoweth

MAY 2006

Presented to Carnegie Corporation of New York LAURA SIKES ACKNOWLEDGEMENTS

Funding from the Carnegie Corporation of New York was used to conduct research and write this report. Oversight for the report’s development was provided by Donald Kerwin, CLINIC’s Executive Director, and Jeff Chenoweth, CLINIC’s Director of National Operations and Support. Laura Burdick, CLINIC’s Deputy Director for National Programs, offered written content and editorial suggestions. Linda Plitt Donaldson, Ph.D., Assistant Professor of the National Catholic School of Social Work, Catholic University of America, contributed a chapter on evaluating organizing. Molly Marsh edited the report. CLINIC thanks the organizers featured here for their dedication to justice and social change. Finally, CLINIC is grateful to the Catholic Campaign for Human Development for generously funding the National Immigrant Empowerment Project (NIEP). The organizers featured in the report are mostly NIEP grantees. TABLE OF CONTENTS

Introduction ...... 2 Literature Review ...... 3 Purpose of the Report ...... 3 Methodology ...... 4

Chapter 1: Leadership Development ...... 5 Leadership Identification ...... 5 Leadership Training ...... 6 Leadership Retention ...... 8 Obstacles to Leadership Development ...... 9

Chapter 2: Partnerships ...... 11 Immigrants Forging Partnerships with Each Other ...... 11 Intergenerational Partnerships ...... 12 Partnerships with Community Leaders and Power-Brokers ...... 13 Partnerships with Faith Groups and Civic Organizations ...... 14 Volunteers ...... 16 National Networks ...... 16 Funding ...... 18

Chapter 3: Evaluating Community Organizing ...... 20 Challenges in Measuring Community Organizing ...... 20 A Participatory Approach ...... 20 Outcomes for Community Organizing ...... 21 Summary ...... 21

Report Summary ...... 22

Appendixes ...... 24 A. Organizations and Individuals Interviewed ...... 24 B. National Immigrant Empowerment Project Accomplishments ...... 25 C. Interview Questions ...... 30 D. Success Measures for Community Organizing ...... 31 E. References ...... 33 INTRODUCTION

he United States is experiencing historically unprecedented levels of immigration. As of March 2005, there were 37 million foreign-born persons in the United States, making up 12 percent of the population.1 Approximately 14 T million immigrants arrived during the 1990s.2 From the early 1990s to 2000, the number of immigrants increased by 61 percent. Today, immigrants are changing the face of the cities in which they settle. Some have argued that immigration policies, including immigrant integration, are necessary to ensure our nation’s security and domestic harmony.3 While society as a whole should be responsible for addressing the integration needs of immigrant communities, in many cases immigrants themselves have taken the primary initiative to integrate into U.S. society. Many have chosen organizing as a powerful way of doing this.

The way an immigrant enters a foreign country deeply immigrants organize today encompasses much more than impacts his or her life. Immigrants leave their home the political sphere. Depending on the constituency, along communities with the hope of improving their lives and with the needs and assets of a particular community and creating other communities to which they can belong. its neighbors, organizing groups work on a variety of During this process, an immigrant struggles to gain the pertinent issues. Often, partnerships are created among respect that has been eroded by the difficult entry experi- communities of varying perspectives and interests. ence. Community organizing is about creating a bond to Depending on the issues, immigrants can collaborate with connect people to each other and to help them work on the native-born, the undocumented, labor and tenant difficult issues that the particular community or society groups, and others. at large is facing.4 It is about gaining both personal and communal respect in a constantly changing and Organizing efforts are not only a vital part of the immi- challenging society. grant community; they are also effective in helping address society-wide struggles. Immigrants are crucial participants Immigrants come with a variety of experiences. Some have in the U.S. labor market, for example. Half of the workers been active in their home countries, while others have who entered the U.S. labor force during the 1990s were utilized passivity as a technique to survive politically immigrants.5 Immigrants also participate in many aspects hostile environments at home. Such profound experiences of social life in the United States. They belong to more guide and influence immigrants’ organizing in the United than just the immigrant community. They are often poor, States; every group has its own perspectives, weaknesses, discriminated against, and in need of good economic and and strengths. While it is helpful to have American-born educational opportunities. Immigrants who are part of organizers assist immigrants in community organizing, educated, professional communities may still face discrimi- it is also crucial that immigrants do this for themselves, nation based on race, nationality, or immigration status. adapting their ways to those of their current environment. This experience often involves a deep shift in immigrants’ If immigrants are involved in so many arenas of U.S. civic way of thinking and working, but it is clear that no life, why shouldn’t they have a voice and the opportunity matter where they come from, immigrants can to impact both broad and population-specific policies? organize effectively. Shouldn’t we rely on the accounts of those at the center of such experiences in order to make progressive decisions? At its core, organizing is an expression of democracy. It is Immigrant organizing can be powerful and significant for this very notion that attracts many to the United States. But all communities in the United States, but particularly for democracy does not often come easily for those who are the poor and oppressed. Immigrants play an important disadvantaged. Many immigrants associate organizing with role in seeking fair solutions to social problems. political engagement, but the range of topics around which

1 Pew Hispanic Center. “The Size and Characteristics of the Unauthorized Migrant Population in the U.S.,” (March. 7, 2006), p. 4. 2 Urban Institute. http://www.urban.org/toolkit/issues/immigration.cfm 3 Edgar, J., Meissner, D., & Silva, A. “Keeping the Promise: Immigration Proposals from the Heartland,” The Chicago Council on Foreign Relations, (2004), p. 3. 4 Amato, T. “Lessons from Immigrant Organizing in Stockton,” Social Policy (March 2003), p. 30. 5 Urban Institute. http://www.urban.org/toolkit/issues/immigration.cfm

2 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. According to the Urban Institute, immigrants in National Immigrant Empowerment Project the last decade have Participating Organizations* settled primarily in non- traditional states, such as Austin Interfaith Sponsoring Committee those in the Southeast, Midwest, and the Rocky Border Network for Human Rights Mountain region. These Immigrant Services Diocese of Rockville Centre immigrants have fewer marketable skills, are Central American Resource Center generally poorer, and Chelsea Latino Immigrant Committee have weaker English- language skills. In Coalition for Humane Immigrant addition, these states lack Rights of Los Angeles experienced bilingual Colonias Development Council teachers and immigrant Diana Mejia support organizations, Contra Costa Interfaith Supporting and have limited public benefits and social safety nets. Community Organization Thus, new immigrants desperately need the leadership of El Buen Samaritano effective organizers. In this report, CLINIC will look closely at the birth, development, and maintenance of the Iowa Immigrant Rights Network organizing process among immigrants. National Association of Latino and Appointed Officials Educational Fund National Coalition for Dignity and Literature Review Permanent Residency The literature overall is focused on the daily lives of Sunflower Community Action immigrants, rather than on their organizing efforts. Few Tenants and Workers United scholarly articles analyze immigrant-led organizing. These articles emphasize the personal experience of organizing VOZ Workers’ Rights Education Project and the individual benefits, rather than the community Wind of the Spirit Immigrant Resource Center experience and the impact on society and policy issues. The Workplace Project Newspaper articles seem to be a richer source of coverage of immigrant organizing activities. Major events and *See Appendix B for detailed descriptions proposed legislation, such as the “Immigrants Freedom Ride” of 2003 or the “Dream Act” in Congress, have a better chance of gaining coverage, but local stories of immigrant struggles and successes are becoming more Purpose of the Report frequent as immigrants move into new communities. In Despite record levels of immigration, the United States addition, newspaper articles have primarily covered labor lacks coordinated and responsive integration policies. organizing among immigrants; in the last couple of years, CLINIC has recognized the increasing need for immigrants they have most often featured immigrants’ efforts to to integrate effectively, and the benefits that this provides exercise their voting rights. for both the foreign- and the native-born. Pro-immigrant organizations have produced reports that This report attempts to give voice to immigrants as they shed some light on immigrant organizing. However, these struggle in their migration and integration experiences. reports have primarily targeted grant makers. While As a result, it contains numerous quotes from community organizing groups undoubtedly need to educate potential organizers, particularly on why and how they organize. funders, this report aims for a broader audience. In addition, it seeks to foster collaboration between policy Over the course of three years (2001-2004), with generous makers, grant makers, nonprofit organizations, community funds from the Catholic Campaign for Human groups, and others. Development of the United States Conference of Catholic Bishops, CLINIC provided grants and technical assistance to 17 community organizing organizations across the country that are engaged in fighting systemic barriers to immigrant integration and civic participation. Active in

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 3 communities as geopolitically and socio-economically disparate as the colonias along the U.S.-Mexico border and African-American and Hispanic neighborhoods in Wichita, Kansas, these agencies shared the common objective of empowering low-income immigrants to engage in civic participation and community integration. While observing the obstacles and achievements of these particular groups, CLINIC recognized the need to study immigrant-led organizing, particularly from the perspective of organizers themselves. This report analyzes the unique contributions of immigrants to community organizing in the United States.

The report demonstrates that community organizing increases civic engagement and integration of immigrant communities. Its intended audience includes community organizers and immigrant advocates; national networks of immigrant services and policy development; faith-based institutions; elected officials; researchers; and funders. Diana Mejia CLINIC hopes that the inspirational words of immigrant organizers will encourage others to share in their struggle Interviewees ranged from staff of large national groups to for justice through social change. organizers of grassroots community efforts. Geography was varied as well, with four West Coast organizations; four Southwestern; three Midwestern; and six on the East Coast. The majority of interviewees work with immigrant Methodology communities in large cities, such as Boston, Los Angeles, New York, and Washington, D.C., while a few organize CLINIC gathered information for this report through smaller rural or suburban communities in Des Moines, El phone interviews with immigrant organizers across the Paso, Las Cruces, and Wichita. Organizers were of diverse United States. (See Appendix C for a list of interview ethnicity and national origin, with varying degrees of questions). It conducted full interviews with staff and organizing experience and educational backgrounds. representatives from participating organizations in its National Immigrant Empowerment Project. In addition, CLINIC also met with academics and other experts in the CLINIC interviewed other organizers recommended by organizing field. This report benefits from their perspec- various interviewees. tives and scholarship.

4 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. LEADERSHIP DEVELOPMENT Ⅵ CHAPTER 1

eaders are at the core of organizing. They draw others into organizing efforts and guide the process to achieve set goals. Leadership development is not necessarily a linear process, but it does involve stages. Leaders are identified L and then trained to enhance their skills, values, and commitments. Some groups have resources to train leaders in human rights and social justice issues. Organizations have employed a range of strategies to identify, train, and retain leaders. Immigrant organizers and advocates at all levels of development are best served by organizations that value culturally appropriate, thoughtful, and strategic action.

Leadership Identification

Groups concerned with immigrant community organizing may identify and recruit potential leaders by providing services in the immigrant community. Many groups provide “Know Your Rights” presentations, where immigrants learn about the rights they have as employees, tenants, students, or consumers. Such presentations are an excellent educational and organizational recruitment tool, as they build trust between organizers and the community. Sometimes individuals become involved in organizing efforts after having received direct services from an agency. When the Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA) helps an immigrant laborer who has been mistreated by an employer, the laborer is invited LAURA SIKES to become involved in helping another immigrant work through a similar issue. The Chinese Progressive Immigrant community organizers report that leaders need Association (CPA) of Boston reported similar experiences not be the most articulate or dominant group members. with their worker’s center. Qualities interviewees seek in leaders include commitment and willingness to learn. Angelica Salas, Executive Most community organizations – particularly new ones — Director of CHIRLA, says that a leader should demonstrate struggle with whether to provide individual services.6 Most commitment to the organization’s mission; commitment of of the groups interviewed for this report avoid individual his or her time; and a track record of leadership within services altogether. A few separate their service provision other communities (such as being a leader in one’s home from organizing. The latter include Central American country). Leaders who have emerged at CHIRLA have Resource Center (CARECEN), El Buen Samaritano, and started as volunteers or service-seekers. “We don’t neces- Catholic Charities of Rockville Centre. These organizations sarily look for individuals to be articulate,” she adds. seek to channel “clients” into organizing efforts. For “Sometimes an individual can be very shy, yet a very example, a client seeking affordable housing might be good leader.” recruited to join a campaign to expand the city’s budget for low-cost family-housing construction. One risk to organ- “A community leader must be relational so he or she can izing effectiveness is when funding for services comes develop a network,” says Don Stahlhut of Contra Costa from contracts with federal, state, or local government, and Interfaith Supporting Community Organization (CCISCO). community action is directed at the same source of He notes that the leader should also have the ability to be funding. In these circumstances, the organization risks a follower; be willing to learn and take risks; be curious losing funding and community leader support.7 about the community; be compassionate; and be directly involved and impacted by issues on which CCISCO is working.

6 Brooks, F. “Resolving the Dilemma between Organizing and Services: Los Angeles’ ACORN’s Welfare Advocacy,” Social Work (Vol. 50, No. 3, July 2005), p. 262-270. 7 National Housing Institute. “The Power of a Community-Based Development Coalition: Lessons from the Demise of the Chicago Association of Neighborhood Development Organizations,” Shelterforce (May/June 2005), p. 29.

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 5 Other organizations recruit leaders with the help of pastors who refer congregation members interested in community Something to Declare: Organizers’ organizing. Seeing that faith moves people to action, Experiences in their Countries of Origin CCISCO values leaders who are part of an established reli- Saul Solorzano, Executive Director of the Central gious community. CCISCO’s church-based networks are an American Resource Center, is originally from El effective way to develop organizers and advocates. Austin Salvador, which suffered from civil war throughout Interfaith Sponsoring Committee also uses its religious the 1980s. “In El Salvador I was a member of the leaders to recruit new organizers. Christian-based communities. We organized support to internal refugees in the countryside. Because of this, I had to leave the country because Leadership Training of persecution.” His journey as an immigrant took him to Los Angeles. There, he says, “I got together Community organizing groups often use curricula to with other young people like me who were forced teach leadership skills and to educate immigrants on the to leave El Salvador. In Los Angeles, we organized U.S. political process, as well as on human and civil committees for human rights with the support of rights issues. churches. Then I got involved with churches working in the refugee movement in the United Most groups interviewed have created, borrowed, or States. We did a lot of organizing before NACARA adapted leadership training manuals. Some of these (the Nicaraguan Adjustment and Central American resources are quite thorough and include evaluation Relief Act.) In 1986 I joined a Latino coalition. We measures that are helpful in ensuring the appropriateness organized as many as 25,000 people to participate and effectiveness of the leadership training and develop- in a march for legalization for undocumented immi- ment practices. Common sources for externally-produced grants. I was very involved in organizing tenants‘ manuals are Midwest Academy, Industrial Areas associations to [address] the city’s housing policies Foundation, Partnership for Immigrant Leadership Action, discriminating against Latinos. We filed a case Association of Community Organizations for Reform Now, against the city and the landlords.” Mr. Solorzano and labor unions. Other sources and documents include the has gone on to be a major figure in community Immigrant Legal Resource Center’s “Immigrant Leadership organizing in the Washington, D.C., area. Training Curriculum” and Lutheran Immigration and Refugee Service’s “Inspiring Leadership in Immigrant Communities.” The Center for Community Change has many training materials on organizing methods, policy Colonias Development Council (CDC) recruits leaders development, storytelling for media outlets, and revenue- through one-on-one interviews and focus groups with generating ideas. The Funders’ Collaborative on Youth people who have shown a commitment to the issues Organizing also issued an “Annotated Bibliography on affecting immigrants and a willingness to learn. These Youth Organizing.” leaders then become a crucial part of what CDC calls research action groups. These groups hold meetings to The Border Network for Human Rights (BNHR) in El research problems and design action plans to address Paso, Texas, has developed its own leadership curriculum, the issues. which it describes as “experience-based.” The curriculum consists of modules organized around key concerns, such CDC recognizes a broad range of skills that different people bring to the table. “Recruiters look at many different qualities in a potential leader that can range from person to person and that depend on the job that needs to get done,” says Sheila Black of CDC. “However, two of the core qualities desirable in every leader are willingness to learn and commitment. CDC’s goal for leadership development is that people learn a process that they can apply in many situations and to many issues.”

CDC values an open-door policy and gives its participants permission to move in and out of leadership roles without reprisal. “Issues are always changing and people’s lives are always changing. That is why it is key to provide leaders with more flexibility and to welcome them at any point in the process,” says Ms. Black.

LAURA SIKES

6 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. The return on even basic leadership training can be tremendous. El Buen Samaritano, which serves the Stony Point Training Immigrants in U.S. neighborhood of Austin, Texas—home to some of the Protocols of Public Dialogue poorest Latino immigrants in the central Texas region—has Almost every immigrant community organizer has a seen a community transformed through leadership develop- story to tell of how institutions have confounded the ment. “El Buen Samaritano is helping residents work with communities with which they work. Marcelo Gaete, government officials to improve services in the area,” says Director of Constituency Services for the National Executive Director Rev. Ed Gomez. “After a course in Association of Latino Elected Officials (NALEO), leadership training that included learning how to work with points to Robert’s Rules of Order—the book that government, transportation, health, and education systems, codifies procedures for private societies, loosely these men and women are making progress getting their modeled after procedures of the U.S. House of roads fixed and establishing new bus routes that will help Representatives—as an example. “In my opinion, them with employment and medical services.” Robert‘s Rules of Order is overused by some neighborhood councils. Youth especially are put off Community organizers also cited success in achieving by it. The rules make people uncomfortable, afraid tangible goals within larger campaigns. The CDC’s to share their view.” Mr. Gaete also pointed out the environmental justice campaign is a case in point. role of education in understanding rules and regula- Environmental justice can be a broad and abstract issue for tions. The NALEO Educational Fund is considering many people, but CDC’s leaders made the topic relevant to including Robert’s Rules of Order within its its specific constituency. The community decided that it curriculum for community organizers, as well as wanted to address environmental issues through a neigh- (perhaps contradictorily) making a policy recom- borhood cleaning project. Soon residents discovered that mendation discouraging neighborhood councils the largest contributors to the neighborhood’s trash from using it. In addition, it will advocate for a problem were private businesses and the county govern- policy requiring professional translators to be ment. This led community leaders to organize and enter present at neighborhood council meetings for those talks with the county and others in an effort to protect neighborhoods in which 50% or more people are their environment. not fluent in English.

Motivating Organizers as “how to break the myth that immigrants, especially the through Power-Mapping undocumented, are not able to organize themselves due to fear, frustration, or tiredness,” and “how to transform, Colonial Development Council in Las Cruces, New within immigrant communities, the culture of abuse and Mexico, finds that mapping decision-makers in the fear into a culture of human and constitutional rights.” community by name, entity, and function—often Through collective analysis, leaders in training compare called “power-mapping”—can either make people their self-identified rights with those rights enumerated in upset at the lack of power they have exercised so international and U.S. laws and policies as they are practi- far, or help them feel that they can shift that power. cally implemented. Using this curriculum, BNHR trains In either case, when they know who holds specific community members to become promotores de derechos powers and what can be done to change the (rights organizers) who give rights presentations to others balance of power, people are motivated to act. As in their community and organize community-based most organizers know, empowerment is a key step committees that help document law enforcement abuses. toward reaching the campaign goal.

Gladys Vega of Chelsea Latino Immigrant Committee says that as an organizer, “you never stop training people. You According to the Central Valley Partnership for always put them in a leadership role. You encourage people Citizenship, “the public sector is increasingly fragmented to grow and never take leadership development for as municipalities, special districts, counties, states, and a granted.” She says that leadership training manuals have huge range of special interests pursue issues of particular their role, but she also provides developing leaders with concern to them, in ways that are bewildering to the personal mentoring and coaching. For example, she will average citizen, not to mention an immigrant who grew up prepare people to participate in meetings. in a very different sociopolitical context.”8 One practical solution is to coach immigrants “on strategies for posing

8 Kissam, E., Garcia, A., Jeter, I., & Levitt, M. “Evaluation of the Central Valley Partnership for Citizenship,” (December 31, 1999), Chapter 6, p. 25.

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 7 Something to Declare: Organizers’ Experiences in their Countries of Origin

Prior to immigrating to the United States, Lucia Veronica Carmona of Colonias Development Council worked with indigenous communities in Guadalajara and low-income suburban communities in Monterrey, Mexico. She also was involved with an adult education center in the suburbs of Mexico City that drew on Paulo Freire’s model of popular education to help adults complete elementary and high school. Ms. Carmona learned about popular education and other pillars of community organizing from books, interactions with independent groups, and Catholic parishes inspired by liberation theology. “In the Mexico City suburbs, I Chelsea Latino Organizing Committee saw people struggling with issues of housing, labor, difficult questions, issues about protocol, and ways of salaries, environment, education, and health. Now thinking about the objectives of meetings.”9 Immigrants in this part of the United States [New Mexico and should be given progressively more challenging communi- west Texas], I am seeing the same faces and the cation and analytic thinking “assignments” to develop as same needs. Poor communities in both countries leaders and effective organizers: are the target of environmental abuse and suffer social injustice. In both countries, I have been part “Building experience and skill in civic action should of efforts to turn people toward civic participation. be an integrated ‘curriculum’ of action learning. This I like to see people learn who is making the deci- is the fundamental insight of theorists of popular sions in communities—what the decision-making education such as Freire and Macedo, as well as boards are, and how economically poorer people contemporary adult educators concerned with can join these boards.” She views this type of building civic skills. Immigrants’ skill development power as key to community organizers “delivering should be unequivocally oriented toward informed alternatives, not just complaints.” and strategically thoughtful action (or inaction where merited). To build skills needed to participate effectively with collective efforts to address civic the tools to examine the underlying (and perhaps problems, it is necessary to provide learners with inaccurate) assumptions they may make based on their opportunities to gain successively more demanding own experiences.”11 experience in teamwork, communication, and decision-making. Their experiential involvement needs to be based on analysis of facts, issues, pros Leadership Retention and cons, strategic options.”10 Talented leaders stay involved with a community organ- Other experts concur that training must involve an orienta- izing effort when its mission and work are relevant to their tion to U.S. politics on all levels. According to a report by daily lives. Community organizing entities can help keep Mosaica, refugees and immigrants may view the political their leaders and/or volunteers engaged the same way any system through experiences in their countries of origin, organization retains its staff: with clear expectations (best which may be irrelevant to the U.S. political context: when written), training, and accommodations for special needs. In addition, organizers generally find it helpful to “Organizing training that does not address the differences recognize certain individuals or groups for their work. in political systems, experiences, and contexts may not Most of the groups interviewed engage in various forms of provide immigrant and refugee-led organizations with the celebration after a victory (whether that victory is one of understanding necessary to navigate the U.S. system or outcome or process).

9 Ibid., p. 33. 10 Ibid. 11 Mosaica: The Center for Nonprofit Development and Pluralism. “Immigrant and Refugee-Led Organizations and their Technical Assistance Needs: Report of a Study conducted for the Ford Foundation, Migrant and Refugee Rights Portfolio,” (2000), p. 22.

8 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. According to Chinese Progressive Association staff, their participants tend to feel they should show appreciation to the organization, not the other way around. A successful campaign is its own reward. “Appreciation is not for us to show them. It is for them to see the impact that they make in the community,” said Karen Chen, Lead Organizer.

Similarly, Gladys Vega, Project Director of Chelsea Latino Immigrant Committee, says that the best reward for an immigrant organizer is to see the results of his or her efforts, such as “when they see their apartment getting fixed. Organizers have a checklist that they use to go in people’s houses and check to see what needs to be fixed or is in violation of the laws. Then they call the inspectors. This can sometimes lead to a rent strike. The reward is to seek change on their behalf. By sticking together we give them a lot of power.” Obstacles to Leadership Development

Organizers face many obstacles in recruiting and retaining leaders. Some of these difficulties are group- or leader- specific; others are population-specific or related to a particular situation. It is safe to say, however, that most organizers struggle to engage certain groups of individuals, such as those who work long hours, women who are juggling multiple roles and responsibilities, or men who LAURA SIKES might lack a community approach to solving problems.

CHIRLA shows appreciation to the entire community by Newly-arrived immigrants are also considered difficult to arranging special meals or events, sometimes to benefit organize. Many do not understand U.S. policies and indi- community members in particularly difficult circum- vidual rights (which is why “Know Your Rights” presenta- stances. For example, the group buys roses for mothers tions are effective at engaging and empowering them). whose children are not with them on occasions such as New immigrants are also struggling to cope with language Mother’s Day, or they plan Thanksgiving dinners for day barriers, family separation or reconfiguration, and work- laborers. In this way, CHIRLA recognizes the contributions place issues. Community organizing is often not a priority and the needs of all who belong to the community. In for them. CHIRLA often writes letters to employers, addition, CHIRLA engages in more typical recognition of asking them to allow newer immigrants to attend events or people involved in its efforts. “We celebrate all who volun- meetings. In doing so, CHIRLA draws on its good reputa- teer their time at the worker’s center,” says Executive tion in the community. Director Angelica Salas. “Constituents as well as staff are asked to nominate people to receive certificates in recogni- “It’s easier for us to organize immigrants who have been tion of volunteer service.” here longer, because they understand the American life better and the value of organizing,” says Karen Chen of CCISCO finds that recognizing specific individuals can be the Chinese Progressive Association. “For the newer immi- beneficial, but it risks creating the misconception that only grants, we start with education in the drop-in centers to certain accomplishments merit recognition. However, this cultivate leadership. People can be intimidated by those risk is outweighed by the way that recognition encourages with power, which is another obstacle.” leadership development. Immigrants may come to the United States with differing CDC shows its appreciation of leaders by not judging their expectations of political entities, such as unions. Sister sporadic or changing involvement in the group. At CDC, Mignonne Konecny, Lead Organizer of Austin Interfaith organizing is seen as a process in which issues are always Sponsoring Committee, says that, “sometimes immigrants changing along with the course of people’s lives. As a who have had some experience with unions in home result, CDC welcomes the involvement of leaders at any countries have difficulty understanding why they can’t point in the process and on any issue. operate like that here.”

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 9 For some communities, like those that the Colonias Development Council organizes, the interconnectedness Something to Declare: Organizers’ between people is strong However, at times this asset makes Experiences in their Countries of Origin confrontation and accountability difficult. Another drawback of small rural communities is that the activity Beatriz Maya of the National Coalition for Dignity level may not be as high as in large urban areas with a and Permanent Residency, which is associated with greater number of participants. the Farm Labor Organizing Committee, AFL-CIO, is a native of Argentina. “When I was a student, Group-specific obstacles often have to do with balancing I participated in the Argentinean resistance the goals and objectives of training leaders and the movement against a military dictatorship," she said. problems that are being addressed. For example, some "But the reality of being a professional organizer immigrant-organizing groups are more engaged in changing only exists here in the United States. In other coun- government policies than on leadership recruitment goals. tries, you engage in community organizing because CHIRLA, for example, has responded to the immigration you are resisting a form of government, because it policy crises and deemphasized its leadership development is the right thing to do. As a student you may do activities. In this sense, it may be evolving to become more leafleting or spread the word in your university or of an advocacy organization than an organizing entity. workplace. You do many of the things you do here as an organizer, but without the title. It is interesting Fear is an obstacle that can appear in all stages of the to think about the effect of ‘professionalizing’ com- organizing processes. Some immigrants fear becoming munity organizing. There are pros and cons to it. involved in community organizing because of their status as When you are a professional organizer, you can do undocumented migrants. They may shy away from the visi- it all day long, maybe 24-7. On the other hand, as a bility and media coverage that community-level political paid organizer some people become part of the involvement can bring. Other immigrants may avoid middle-class. They may become too comfortable.” community organizing because they are intimidated by those with power. Others fear losing jobs or access to education for their children. For example, Gladys Vega of Chelsea Latino Immigrant Committee, finds that it can be To say there are obstacles does not mean there are no solu- difficult to retain leaders and volunteers—“to keep people tions. CCISCO responds to language obstacles by providing fighting for the cause” of improved housing conditions— simultaneous translation at meetings and by treating every because they fear being evicted due to their organizing, and community member, whether they speak English or not, as the committee cannot provide them with housing. “Some of equal partners. CCISCO also chooses not to become our models of confronting those with power can intimidate involved in issues that are “unwinnable” given a certain people,” she said. Fear can be debilitating, but it is not local or national political climate. By identifying problems insurmountable. Working one on one with individuals, that can be solved, CCISCO builds trust and self-confi- achieving small victories, being established for many years dence within communities. The Chinese Progressive within a community, and other tactics can build confidence. Association and several other organizations use drop-in community and workers’ centers to cultivate leadership among newer immigrants who may otherwise lack the time, confidence, or connections to become involved.

Leadership development is crucial in addressing issues and bringing about social change. It is not only central to the birth and growth of an organization, but it is also beneficial to individuals who continue to struggle against injustice.

Leadership development tactics differ depending on the constituency, culture, length of time in the United States, and other factors. However, the most effective leadership comes from within the community. In addition, leadership development is a process in which organizers sometimes step away from leadership roles or the organization’s priorities change.

LAURA SIKES

10 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. PARTNERSHIPS Ⅵ CHAPTER 2

Immigrants Forging Partnerships with Each Other

“ e have encouraged our leaders that, regardless of where we come from, our main issues Wshould be the advancement of our community.” Gladys Vega, Chelsea Latino Immigrant Committee.

Opinions differ among community organizers and their driver’s licenses, access to social services, health care, and supporters about how immigrants’ shared nationality tuition assistance. We want the office to be a center for contributes to organizing efforts. Some say that networks services, but the life of the organization should be outside.” of family, village, or national groups are not necessarily In short, CARECEN uses native-country concerns to relevant or helpful to community organizing in the United educate immigrants on U.S. issues. This can be seen as a States. Others find that these networks can be bridges to novel form of the “Know Your Rights” teaching technique. effective organizing for U.S. communities. Sheila Black of Colonias Development Council in New Home-country social relationships, cultural norms, and Mexico says “the communities are very small, so everyone political concerns play a significant role in how immi- knows each other and conflict can arise. This makes it grants view community life, and how they perceive difficult to hold someone accountable. Getting confronta- community organizing in the United States. Immigrant tional is very difficult because of the inter-connectedness organizing groups need to confront the dual concerns of the communities and makes for an obstacle to action immigrants have for their native countries and the new by leaders.” communities in which they live. Immigrants engaged in local organizing efforts are often compelled to build new Chelsea Latino Immigrant Committee’s Gladys Vega says and larger social networks between immigrant groups, and that partnerships need to be based on a sense of shared establish principles for how people work together on mission. “Setting a specific goal and addressing the issues shared concerns. in a general way makes a powerful partnership. I tell people to leave your personal interests at home and come In evaluating the Central Valley Partnership for Citizenship with the mentality that you want this community to grow. in California, the Aguirre Group found that immigrants We have encouraged our leaders to believe that regardless often have strong expectations of social reciprocity and of where we come from, our main issues should be the collective action based on home-country ties. However, the advancement of our community.” Aguirre Group strongly suggests that these ties cannot be the foundation for meaningful civic and political engage- Wind of the Spirit Immigrant Resource Center, based in ment in the United States. Immigrants, the evaluators said, Morristown, New Jersey, organizes immigrants based on need to be “introduced to the distinctive organizational their current employment or neighborhood realities, not by styles and processes of California life.12” kinship or nationality. “Our immigrant rights committees have a minimum of five people who meet at least once a Saul Solorzano, Executive Director of the Central month,” explains Lead Organizer Angel Patiño. American Resource Center (CARECEN) in Washington, “Committees are created on the basis of where these D.C., has tried to use existing networks to achieve his people work, live, or study. When people are organized group’s goals. He points to the valuable role of nationality- from the same country, it is very difficult because they based philanthropic groups in U.S. immigrant community tend to care a lot about the national issues and are more organizing: “We have partnerships with hometown associa- interested in the politics of their country, not the politics tions [of immigrants who] get together to support their and living conditions here in the United States. They tend overseas hometown. We help them to facilitate the develop- to be more like philanthropic groups that want to help ment of their organizations. Sometimes we sponsor their people in their countries. We want them to change the events, and they in turn get involved in local issues to try focus to organize around issues that are here in the United to prevent negative legislation, such as restrictions on States. This has been very difficult. So, now we put them

12 Kissam, E.; Garcia, A.; Jeter, I.; Levitt, M. “Evaluation of the Central Valley Partnership for Citizenship,” (December 31, 1999).

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 11 in groups according to where they live or work or study The Chinese Progressive Association, based in Boston, instead of nationality. We want them to focus on the immi- encourages youth to connect their ethnic history to current grant issues, and they have to work together.” realities. “We teach them Chinese American history and relate that to the issues Chinese immigrants today face,” It is no surprise that immigrants express dual concerns for Karen Chen explains. “They then do a project that relates their home countries and their chosen communities in the to what they have learned. Throughout the years, we have United States. This is particularly true for newer immi- had youth get involved in our campaigns. They have their grants confronting systemic barriers to integration. own campaigns also. Our youth are now trying to get a Organizers know not to ignore these dual concerns. Rather, public library built in Chinatown. Every neighborhood has they use them to help shape new communal bonds focused a library except for us. The youth researched the history on achieving what is best for the future. and then did a survey among the community to see what the community would like for a library.”

Intergenerational Partnerships The Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA) values the involvement of youth but Organizing for social justice is a challenge. Including has found it difficult to organize them. Executive Director youth in the organizing process can increase the challenge Angelica Salas notes that young people are pulled by high but also adds many benefits. Organizing for the improve- school and college responsibilities, are often far away from ment of a community reinforces in adults’ minds why they their home communities, and need to work to earn money live and work hard in the United States: for the betterment for tuition. “To sustain a relationship we have created a of their children’s group that meets on the breaks. CHIRLA was not organ- future. Good citizen- izing youth prior to 2000, but we thought it would be good ship is modeled to have youth be an equal part of our work. So we made a when adults organize commitment to this process and it was one of the best deci- in front of youth; it is sions we ever made. The organization has grown much as a a form of civic result of this. It has presented challenges for the organiza- education that young tional culture to treat youth equally and work with them people do not receive equally, yet differently. The adults are also happy to see in school. Also, youth attend our meetings and events that they turn around organizing youth and become volunteers also.” with adults energizes the process. Adults Youth involvement in CARECEN in Washington, D.C. who encourage youth has been tied to the college admissions process. Executive to participate inform Director Saul Solorzano says that based on performance— Paula Endo the younger genera- which is measured against the youth volunteers’ job tion that they are needed to be torch-bearers in the pursuit descriptions—CARECEN writes letters of recommenda- of justice. In addition, community organizing engages and tion for college applications. empowers young people, which is particularly important for those who are vulnerable to violence. Massachusetts’ Chelsea Latino Immigrant Committee coordinated a successful summer youth employment/gang Immigrant marches across the country on April 10, 2006 prevention program, which was born from the violence of for comprehensive immigration reform and against a bill to September 11. “The morning of September 11, we had a make illegal presence a felony involved many youth who meeting of Latino leaders, youth advocates, Catholic nuns, marched with schoolmates and their families. An important police officers, and many others. Two kids had been killed question for adult organizers is how to continue to build by joining a gang and another one had been shot and para- momentum following the historic marches and nurture lyzed within the space of six months,” says Gladys Vega. youth who have leadership potential. In the words of one “Chelsea Latino Immigrant Committee gathered all these Woodbridge, Virginia high school student leading hundreds different interest groups to do something about [violence] of fellow students to march, “I think the perfect leader is a as a community and to address the issue of gangs, because human one. You need a leader that understands his people. we knew that a Salvadorian gang called MS 13 was I think that’s why people listen to me. People can relate to recruiting in the city. Once you have a gang, another one me. They say, ‘Hey, he’s going through what I’m going comes, so something needed to be done. This group of through.’”13 collaborators decided to create a program that would keep kids busy, especially in the summertime. The program

13 Shapira, I. “Cause Transforms Woodbridge Teen Into Activist Leader,” The Washington Post, (April 17, 2006), p. A01.

12 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. would provide structure, mentoring, and education on Some organizers have developed nuanced relationships avoiding gang membership. We knew that once we had the with government that may surpass those understood by tough kids involved with us, we could control the recruit- classic community organizing models. Marcelo Gaete, ment of gangs. This program gave youth jobs, which was Senior Director of Programs and Javier Angulo, Director of very desirable because the community is so poor. Last Civic Education, of the NALEO Educational fund reflect summer 265 kids were hired.” that there are opportunities to an organizing style that can engage government as a partner. As an association of elected officials, they say the NALEO Educational Fund Partnerships with Community is an aspect of government. Yet much of the NALEO Education Fund’s work with grassroots Latino participation Leaders and Power-Brokers may conflict with its members who are elected officials. They point to an example of tension sparked by the Organizers frequently use power-mapping skills to analyze NALEO Educational Fund forum which invited members and chart who makes decisions in a particular community of the community chosen at random from a large list of and the relationships that can be influenced to redress a voters to speak to a media group about issues of concern to problem or unjust condition. Organizers who were inter- them. The intention of the forum, says Gaete, was to give viewed said that they mostly targeted elected officials and “the elected leadership a sense of community concerns.” business owners as power-brokers. They emphasized that However, when a participant from East Los Angles used organizing efforts with power-brokers need not always be the forum to complain about actions of an elected confrontational, but they must seek to shift power to official and a newspaper published the quote, the official community members. These efforts often involve engage- was angry at the NALEO Educational Fund. “Some ment with their own boards of directors and community- officials take a while to understand that the issues are based boards, or collectivos. Organizers find that allies, not about them but about the community as a whole,” including immigrant elected officials, cannot be taken for concludes Gaete. granted and must be held accountable. Despite such tensions, NALEO’s membership of elected Jon Liss, Executive Director of Tenants and Workers officials has been supportive to community organizing United, based in Alexandria, Virginia, points to the impor- efforts. Angulo and Gaete recall that several years ago, tance of “a regional power analysis that situates your when the Los Angeles City Council proposed that neigh- work.” He says power analysis can help an organization borhoods with burglar alarms receive first response to identify the issues on which it should be working. Power crime, poorer communities without alarms were threatened analysis depends on the insights of community members with a loss of policing services. The neighborhood council, who have personal experiences with injustice and a supported by NALEO, contended that police allocation systems perspective on institutional authority. Power- should be based on crime reports and statistics, not the mapping is critical in the earliest stages of developing presence or absence of burglar alarms. A City Council a campaign strategy, but it needs to be repeated to member who belonged to NALEO helped broker an identify alternative strategies when success is not agreement to this effect. achieved as expected. Chelsea residents are constituents of the first Latino Sheila Black of Colonias Development Council, located in senator elected in Massachusetts, according to Gladys Las Cruces, New Mexico, has learned that “power- Vega. That elected official is using Chelsea Latino mapping and power analysis as part of a basic organizing Immigrant Committee’s successful youth summer employ- training can be significant in motivating people.” She gives ment project as a “poster project” to help pass a bill that the example of an environmental justice campaign. At first, would allocate funds to summer employment for immi- CDC found it difficult to motivate the community around grant youth, as well as a victim’s protection program to environmental justice because the issue seemed too combat gang violence and protect families. abstract. The agency then found out that its constituents wanted to organize a neighborhood cleaning project. In Board members can be well-established power-brokers, carrying out the project, community members discovered or if not, encouraged to use their respected status in the that the entities contributing to the inappropriate amounts community to act in support of immigrant needs. Most of trash were not just individuals, but also the county and of the organizations interviewed for this report enjoyed corporations. “The community decided that something diverse boards. “The board is made up of people close should be done about this. This led the community to enter to Voz—its supporters,” explains Romeo Sosa, Lead talks with the county and the companies to protect the Organizer of Portland Voz Workers’ Rights Education environment,” reported Ms. Black. Project. Voz’s board is typical of most organizations interviewed. It is comprised of a professional grant proposal writer; an American Friends Service Committee employee;

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 13 a Portland State University student; a high school English teacher; and a pastoral counselor working in a Las Posadas: A Story of Faith in Action Catholic parish. Beatriz Maya of the National Coalition for Dignity Some organizations do not rely solely on traditional boards and Permanent Residency tells of an advocacy for direction and leadership. Angel Patiño, Lead Organizer action with religious resonance. Honoring Mary of Wind of the Spirit, explains that his group has two and Joseph’s journey from Nazareth to Bethlehem governing bodies. “The board has legal and fiscal responsi- in search of shelter, "Las Posadas" [which literally bility for the organization. They decide to approve the means "shelter"] is a neighborhood event that budget and the annual working plan, and they approve takes place at Christmastime throughout Mexico. annual reports and make changes in the bylaws if needed. Children and adults dressed in costumes repre- They meet twice a year. The second governing body is the senting Mary, Joseph, and others central to the Colectivo, an assembly of all stakeholders. We hold open story form a procession, walking from house to Colectivo meetings each month. This is where we decide house to plead for shelter. The National Coalition all the policy issues. We have working groups; these people for Dignity and Permanent Residency reinterpreted are in charge of the day-to-day work of the organization "Las Posadas" to communicate the struggles of and this group includes paid staff. The two annual board undocumented workers in the United States. "We meetings have more authority, but the Colectivo and the took Las Posadas to the local offices of our working groups operate under a more cooperative environ- Congress people [representatives and senators]," ment. Ours is more of a circular structure. We do not say says Beatriz Maya. "We dressed as Jesus, Mary, the board is higher than the Colectivo. It is more of a hori- shepherds, and others, and sang traditional songs. zontal hierarchy.” The idea was to call attention to Mariá and José as immigrants in a new country looking for shelter and Similarly, Chelsea Latino Immigrant Committee “provides hospitality. We related that to the position of the the staffing for the organizing, but the committees do all undocumented here, the way they are treated and the work,” says Gladys Vega. While the governance and the respect they deserve." Ms. Maya said this administrative functions in support of the committees are action received excellent media coverage and was behind the scenes, their work needs to be made transparent. satisfying to her group for its cultural and social Nevertheless, the people of Chelsea see first and foremost relevance. the committees working on their interests.

Partnerships with Faith Groups Belief that God has power in individual lives gives and Civic Organizations many communities hope. This hope may empower “…efforts for justice, the struggle against every oppres- individuals to take action on sion, and the safeguarding of the dignity of the person…are issues of concern to their choices and acts that have a profoundly religious inspira- communities. In addition, tion; they are true and proper sacrifices that are pleasing faith-based institutions to God.” Pope John Paul II (January 10, 2001). often hold considerable power in a community, It is important for immigrant community organizers to which can be used to bring form as many partnerships with people of good will, faith, about desired change. These hope, and a commitment to justice. Organizers may find are important dynamics to churches institutionally poised to engage in immigrant-led understand in the context community organizing, or, if not, they have members who of community organizing. are supportive. Organizing among allies may take place within religious institutions, especially on issues as divisive Although the National and complex as immigration and workers’ rights. Forging Immigrant Empowerment partnerships across faith and civic group lines expands and Project was funded by two strengthens the efforts. Catholic institutions, CCHD and CLINIC, only Faith is often a foundation of immigrant community organ- one of the 17 sub-grantees izing. Religious groups typically have a strong commit- was a Catholic organiza- ment to human rights and the just treatment of people. tion. The remaining organizations were a combination LAURA SIKES

14 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. of non-sectarian or interfaith-based groups. However, since and teach that a true leader is a servant leader, and that most of the organizers and community leaders were from personal prosperity depends upon prosperity of the Mexico and Central America, the Christian faith—Catholic community at large.” Rev. Gomez asks the organization’s and Protestant—was pre-eminent in their identity. In a paid promotores (community outreach workers) to 2001 study, 64.7 percent of immigrants expressed a prefer- consider themselves in the context of “the Jesus model, ence for Christianity, with 42 percent described themselves the servant model.” as Catholic, 18.6 percent Protestant, and 4.2 percent Orthodox. Immigrants identifying themselves as Muslim, CARECEN in Washington, D.C. formed a partnership with Buddhist, or Hindu totaled 15 percent.14 several local churches and community-based nonprofit organizations serving immigrants—such as AYUDA, Casa “There is a natural alliance between immigrant-led and De Maryland, and Hispanic Committee of Virginia—in faith-based organizations, partly because they share the order to write a multi-agency grant proposal. CARECEN same constituency base.” says Tom Chabolla, CCHD’s also works with other community organizing entities, Associate Director for Programs. “Leaders in community unions, pro bono attorneys, and the city government’s organizations often turn immediately toward faith-based Office of Latino Affairs. “Now we are in the stages of groups because their leadership and religious congregants joining other regional efforts,” says Saul Solorzano. provide spiritual and moral support as well as political “If we are leading the coalitions, we go to find partners. power,” he says. His colleague Renee Brereton adds, If we are just supporting the coalition, we provide strategic “Places of worship are one of the few safe places immi- support. Finding our role is what can make partnerships grants, particularly the undocumented, can have open very successful.” conversation and be heard. Churches are expanding how they respond to immigrant needs by adding leadership Gladys Vega provides examples of Chelsea Latino training that bridges native and foreign-born members Immigrant Committee’s partners: “Centro Latino (they acting in solidarity in the public arena.” provide ESL classes and citizenship application assistance); La Communida (they provide direct immigration Reverend Ed Gomez is Executive Director of El Buen services); and St. Luke’s Episcopal Church. We partner Samaritano Episcopal Mission, which provides integrated with agencies such as boys and girls clubs. Chelsea Latino health care, emergency food, advocacy, leadership develop- Immigrant Committee is always recruiting new immigrants ment, and basic education for working-poor Hispanic so we look for agencies [to partner with] that draw many families in Austin, Texas. Rev. Gomez says that his organi- families and communities.” zation’s leadership model is “community-centered, with a spiritual component. The Hispanic model of leadership tends to follow the pattern of the oppressed and the oppressor, where whoever is in charge gets as much as he Faith-Based Inspiration can for as little as he can do. This is a brutal model. El in Seeking Justice Buen Samaritano’s programs introduce a call to ministry Credible Signs of Christ Alive: Case Studies from the Catholic Campaign for Human Development identifies clear theological principles at work in the lives of low-income people striving for justice in their communities. The book vividly details projects initiated and led by the poor, including attention to immigrants’ experiences in changing oppressive social structures. Readers are offered insightful reflections, questions, action steps, and further study references at the conclusion of each chapter.

Rev. Ed Gomez says El Buen Samaritano, in coalition with churches, has partnered with some of the most established community institutions—banks and law enforcement—to improve the lives of undocumented immigrants. It is not uncommon to find these employees as members of a congregation. “With the undocumented, there’s a lot you Amanda Morgan

14 Jasso, G, Massey, D. S., Rosenzweig, R., Smith, M., & James, P. “Exploring the Religious Preference of Recent Immigrants to the United States: Evidence from the New Immigrant Survey Pilot,” (2001), p. 5.

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 15 can do. We can empower them to understand their rights within the system. We can teach them that they have a right A Volunteer in Action to be protected from crime.” El Buen Samaritano has partnered with Austin’s police department, as well as with busi- Mr. Martinez (not his real name) is a volunteer nesses that provide banking services to immigrants. “The organizer in the San Francisco Bay community of police department and Wells Fargo were concerned that the Richmond, California. He came to the United undocumented people in Austin without bank accounts were States from Mexico in the 1980s and worked hard getting mugged. The police worked with Buen Samaritano’s to support his wife and children until he became promotores to inform the community about the availability disabled on the job. Sadly, his son was acciden- of banking services for the undocumented. tally struck and killed by a car as he walked home from school. There was no crosswalk caution signal to alert the driver, which was a persistent Volunteers complaint among neighborhood parents concerned for their children’s safety. Mr. Martinez’s grief, “Leaders in community organizing do not come in to do combined with a disability that left him with time on what others tell them to do. They come in with ideas and to his hands, motivated him to organize his neighbors build relationships.” Sister Mignonne Konecny, Lead to get the city to place crosswalks and safety Organizer, Austin Interfaith Sponsoring Committee. signals on roads around the school. The group was successful. But Mr. Martinez didn’t stop there. While volunteers share concerns with the wider community, He continues to work with Contra Costa Interfaith they also wish to improve their personal situations. It is Sponsoring Committee (CCISCO) and a local important in recruiting and retaining volunteers to recognize parish to work against gang and drug-selling both motives. It is also important not to view them simply activity, organizing hundreds of residents in his as unpaid helpers or “just” volunteers but as a linchpin of apartment complex. future success. Organizers know their limitations and help empower volunteers to outlive particular social causes—or even the community organizing entity itself. Immigrants (ACI). Carmen Maquilon, Director of Immigration Services, says, “We use volunteers from ACI Sheila Black of Colonias Development Council says that for advocacy. When an issue comes up and we need to “paid staff does not drive the action. Community groups make visits to legislators in Albany, or if we need people to drive the action, and they deserve a lot of credit when make phone calls or write letters, that’s the group we call something does happen. Colonias Development Council’s first.” ACI is comprised of high-school youth who speak to main role is to provide direction and funding for these legislators about their situation and the struggles of undoc- groups. Community group members do not consider them- umented children. “Having these volunteers makes our selves as volunteers of Colonias Development Council. advocacy real,” continues Ms. Maquilon. “It makes a big They see themselves as being autonomous, and they difference to have the U.S. citizen spouse of an undocu- actually have their own names for their groups. One of mented immigrant show up in Albany with his two kids, Colonias Development Council’s primary goals is to train saying to a legislator, ‘Look, without my wife’s legal status, leaders who will continue their work even if the I cannot function.’” Development Council ceased to exist.”

In order to motivate the community to action, CCISCO starts with the principle of self-interest. “Self-interest National Networks moves people,” says Don Stahlhut. “It is important to find out what the interests of the community and the particular Most immigrant-led community groups have worked in leaders are. People act on issues that impact them or their local and national networks urging Congress to pass families. CCISCO identifies the issues that impact large comprehensive immigration reform that would legalize the numbers of people and organizes community leaders roughly 11 million undocumented immigrants believed to around them. Leaders will stay involved as long as the be living in the United States. A series of demonstrations organization addresses issues that impact the community across the country with hundreds of thousands of immi- at large.” grants joined by church groups, labor unions, and civil rights organizations marching on streets and into public Catholic Charities of Rockville Centre, located in Long squares gives evidence to the growing ties between local 15 Island, New York, created a formal partnership with immi- organizers and national networks. grant community leaders under its Alliance of Citizens and

15 Swarns, R. “Immigrants Rally in Scores of Cities for Legal Status,” The New York Times, (April 11, 2006).

16 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. National organizations partnering National and Regional Networks as with local groups on Another Layer of Community Organizing legislative advocacy include National According to the Central Valley Partnership for Council of La Citizenship, national and regional networks of politi- Raza, Center cally active immigrants comprise another layer of for Community immigrant community organizing. “Immigrants can Change, National be meaningfully involved in national and state-level Immigration Forum, issues as well as in the civic life of the local and the United community in which they live. This represents an States Conference important insight, the awareness that immigrants jameswpuckett of Catholic Bishops. ‘belong’ both to local geographically-defined Local advocacy communities and to larger ‘virtual’ communities efforts have presented compelling cases to the media and comprised of ethnic groups and the community of Congress of young people who have been barred from immigrants in general.” (Kissam, E.; Garcia, A.; higher education due to their lack of legal status. Although Jeter, I.; Levitte, M. “Evaluation of the Central “Dream Act” legislation has been pending in Congress for Valley Partnership for Citizenship.”) several years, the momentum to pass legislation is a tribute to the partnerships formed between local organizers and national immigrant advocacy groups. Conversely, says Brereton’s colleague Tom Chabolla, “local organizations have leaders and untapped constituents who are not easily accessed by national networks.”

To make a network function well, it is important for members, particularly leaders, to implement checks and balances in the decision-making process. Imbalances happen when either the national organization gets out too far in front of local members on a policy issue, or local members remain too rigid to be active in a national partnership.

Beatriz Maya of the National Coalition for Dignity and Permanent Residency offers advice on creating policy networks that include the voices of non-immigrants, forge equitable partnerships, and identify broad priority issues. She notes that the National Coalition values collaboration Amanda Morgan with labor unions, faith communities, organizations of people of color, and progressive social change groups. Many community groups also belong to local and national “When we talk to members of Congress, we need to show networks that support comprehensive immigration reform that these issues we care about are not just immigrant legislation. They support providing a path to legal status issues, but they are national issues and there are many for qualified undocumented persons and creating a labor- different citizens who are supporting us.” based visa system rooted in the country’s workforce needs. Community organizing groups have created or joined the She cautions that partnerships and collaborations are National Coalition for Dignity and Permanent Residency, satisfying for her group only when people come to them the Center for Community Change’s Fair Immigration “willing to listen…. We avoid partnerships where we can Reform Movement, and the United States Conference of have no say on the agenda. We look for people who are Catholic Bishops’ Justice for Immigrants Campaign, and willing to share and to work in honest ways.” the New Americans Opportunity Campaign. Success in reforming U.S. immigration laws can only be achieved In identifying priority issues, she stresses the need to through grass-roots mobilization. include those most impacted. “If you don’t have farm- workers in your base, you can’t decide to push for AgJobs “National networks and local groups have strength in [immigrant farmworker legislation]. It would also be knowledge and experience in different ways,” says inappropriate to get behind a bill that would provide CCHD’s Renee Brereton. “National networks can take legalization only for Mexicans, even though some of our time to pioneer into new directions and create new training members, such as Associacion Tepeyac, have primarily using resources that local groups can’t easily tap into.” Mexican constituents.”

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 17 The literature affirms that funding is tight for immigrant community organizers. “The time and energy spent in raising funds is seen as the most serious obstacle to immigrant and refugee-led organizations’ development…. Organizations [studied] most needed funding for long-term and flexible or general support; staff; programs, especially organizing and advocacy programs; space; training and technical assistance; and developing leadership.”16

The literature also shows that unlike more mainstream U.S. associations, immigrant organizing groups cannot count on constituents as a funding base due to their limited understanding of U.S. nonprofit structures and limited financial resources. “While they may give funds to organizations for specific emergencies—to start a language class, or as a fee for services—constituents are less inclined to give general donations and may believe that general operating funds will simply ‘go into the executive director’s pocket.’ As a David Bacon result, it has often been very difficult for organizations to Romeo Sosa, Lead Organizer for Portland Voz Workers’ develop a constituent funding base for their advocacy.”17 Rights Education Project, notes that his organization has benefited from the National Day Laborer Organizing In its public report for the Hyams Foundation, Mosaica Network, which is based in Los Angeles. A Portland Voz found that “relatively new, small groups…often lack the organizer attended the Network’s national gathering in New funding to provide salaries or fringe benefits sufficient to York, but budget restrictions prevented Mr. Sosa and others retain talented individuals—especially those with families from attending. Several organizations interviewed for this to support.”18 It can be difficult to take on or retain staff report are members of this immigrant laborers’ group, members who sacrifice their time, resources, and which is a collaborative of 18 community-based organiza- earning potential. tions that organize day laborers in different parts of the country. The Network is in the process of determining Rev. Ed Gomez of El Buen Samaritano notes that a big how to reorganize itself in order to sustain itself and challenge is to retain immigrant community organizers increase its effectiveness. through the organization’s promotores program. “Promotores is a management nightmare,” he says candidly. “This is grassroots organizing. They need a real Funding job and we can only pay $40 per presentation. That’s only $160 over a month. You can clean two houses in a week “Developing a culture and practice of democratic and for this. Why go through it?” He notes that promotores transparent finances is very important to us.” Jon Liss, devote their own resources to this service. Promotores Executive Director of Tenants and Workers United. enjoy intangible benefits, including new connections and stature in the community, and satisfaction in seeing the It is easy for a study of community organizing to conclude results of their work. that a lack of resources hobbles progress. This is true. It is difficult to raise money from foundations for community CARECEN’s Saul Solorzano says, “it is most difficult organizing, and particularly difficult to raise money from to get money for organizing. Now we are getting some constituents who are poor. However, addressing financial support from the Jewish Fund for Justice. We used to challenges with community members can raise awareness have CLINIC money under the National Immigrant and spur people to action. Scarce funding can also help Empowerment Project, funded by the Catholic Campaign them to prioritize their work and partner with others who for Human Development. We are trying to persuade the have resources. Mayor’s Office for Latino affairs to fund us. We are getting

16 McKay, E.G., Scothmer, K., Ros, M.E., & Figueroa, M. “Immigrant and Refugee-Led Organizations and Their Technical Assistance Needs,” (2001), p. 7, 15. 17 Mosaica: The Center for Nonprofit Development and Pluralism. “Immigrant and Refugee-Led Organizations and their Technical Assistance Needs: Report of a Study Conducted for the Ford Foundation, Migrant and Refugee Rights Portfolio,” (2000), p. 21. 18 Mosaica: The Center for Nonprofit Development and Pluralism. “Research on Barriers and Opportunities for Increasing Leadership in Immigrant and Refugee Communities: Public Report,” (April 2000), p. 7.

18 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. money from the D.C. Housing Department. Close to the The Alliance for Citizens and Immigrants views member- presidential elections, a lot of sources offer us grants to ship fees as a way to promote ”buy-in” to the entity’s struc- increase the numbers of registered voters, but after [the ture and mission. “When a client pays for something,” elections] we don’t have any.” Mr. Solorzano says the explains Ms. Maquilon, “it brings a commitment from the group has not had the capacity to develop private donors. client and from us, keeping us both in check. It gives us “CARECEN does sponsor events, but proceeds are used more freedom [to do what we need to do] and holds us mostly to support the hometown associations. After the accountable to do something. And I think clients don’t earthquakes in El Salvador, we raised a lot of money. But appreciate things as much when they are free. The $5 for local [D.C.-area] programs, we still need to find a way represents almost one hour of work, hard work, for the to make people respond to local issues.” client. If we gave the membership for free, they might not appreciate it as much.” Even if unrestricted gifts from constituents are rare, fees for services can be part of a group’s funding stream. Although many immigrants engaged in organizing efforts Mr. Solorzano says that developing as a membership are poor, they give what they can. Money may not be the organization can help raise funds; asking for modest fees primary resource at their disposal. Working in solidarity for services has helped CARECEN. He estimates that and gaining trust are precursors to establishing a dues- membership and fees for services contribute 15% of the paying membership. organization’s budget. Jon Liss, Executive Director of Tenants and Workers Catholic Charities of Rockville Centre, in Long Island, United, sees organizational development advantages in New York, created the Alliance for Citizens and scarce funding. “We are evolving. We have had a sponta- Immigrants as a means to strengthen the immigrant neous approach [to issue identification] in the past, but as community’s advocacy agenda. ACI is structured as a funding became scarcer, we started to become more membership group. Carmen Maquilon, Director of specific. We now organize around seven to eight Immigration Services, says, “We charge $5 per year for campaigns; all can fall under the bigger umbrellas of membership in ACI. This allows us to help defray the cost race, nationality, gender, and class. We negotiate based of postage for anything we need to send to members, and on what resources we have, interest among members, and to defray the cost of membership card production. It also staff time.” allows us to support staff time conducting outreach at different parishes and helps with the cost of our travel expenses that we can’t charge to grants. With 1,000 members, the $5 can add up so it really helps.”

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 19 Ⅵ EVALUATING COMMUNITY CHAPTER 3 ORGANIZING19

Importance of Evaluation

rantmakers and other nonprofit agency stakeholders use evaluation as a tool to assess program performance and monitor the accountability of agency staff. In most nonprofit agencies, success can be measured by criteria like G the number of children participating in school breakfast programs; number of new housing units produced; and percentage of participants placed in jobs. For community organizers, evaluating “success” or “effectiveness” is less clear than measuring service outcomes; “change” does not always lend itself to quantifiable measurement and causal relationships between actions and success are not always clear. Still, the need for evaluation remains.

change work. Measuring shifts in power poses an added Challenges in Measuring challenge to evaluating community organizing. Community Organizing Some researchers argue that quantitative evaluation models Winning a community organizing campaign is usually the are ill-suited to community change efforts, and that they result of a confluence of factors, including: can harm an organizing campaign by diverting resources away from what is most important. For example, essential Ⅵ Many years of educational, persuasive, and sometimes steps to a legislative victory might include gaining greater coercive strategies applied by a host of organizations respect for the organizing group among policy makers; and/or individuals; increasing savvy and sophistication of grassroots leadership and constituencies; and building confidence of grass- Ⅵ A favorable economic environment when governments roots leadership to participate in policy processes. Yet these have budget surpluses or at least are not facing deficits; successes may be given short shrift in a rush to achieve more measurable outcomes. In addition, grassroots Ⅵ A political environment where legislators and/or community groups must have the flexibility to respond to the executive is predisposed to supporting the crises, and not have their actions hampered by working to constituency; and achieve an outcome promised before a crisis existed. New policies and sudden budget cuts can legitimately divert a Ⅵ Socio-cultural trends and counter-trends that might campaign from its original intent. Therefore, evaluations make social change more politically feasible. that do not take the need for flexibility into account can be counterproductive. These factors highlight the non-linear, long-term, and context-specific nature of community organizing and social A Participatory Approach

“This [evaluation] is our weakness. We recognize Approaches to evaluating community organizing are typi- this and have started making some changes within cally process-oriented, flexible, and participatory. the agency. We do more evaluation of campaigns. We are trying to develop an evaluation about Process-oriented outcomes reflect the steps necessary whether we are reaching our goal—especially to build power to affect social change. Some process our policy goals—as it relates to leaders and outcomes can be quantified, such as number of new leaders coalitions.” Angelica Salas, of the Coalition for developed; size of active membership; membership partici- Humane Immigrant Rights of Los Angeles. pation in public speaking, mobilization, meetings, or other events. Although these outcomes may not demonstrate a

19 The authors wish to thank Catholic University professor Linda Plitt Donaldson, Ph.D. for writing this chapter.

20 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. an important research method when the purpose of the research is to be useful to community partners and contribute to community development or social change.

To achieve accuracy in evaluating community organizing, one needs to engage directly and build trust with community partners to gather relevant data and to assess more accurately cause-and-effect. Because of the complexity of social change practice, distance from a project and reliance on “expertise” of trained researchers may lead to false conclusions.

Outcomes for Community Organizing

David Bacon Outcomes for community organizing will vary based on direct causal link to the ultimate campaign victory, they the campaign, the socio-political-economic context, and still show success and are valuable. An added benefit of the skills and level of cohesiveness that exist in the process outcomes is that they help to tell the story of how community. Therefore, no single template for evaluating a the group built power over time, an important component community organizing campaign exists. Some measures for building momentum for the next campaign. used by organizers as benchmarks for success are included in Appendix D. The list does not include progress goals Flexibility is an important benefit to participatory evalua- associated with legislative or administrative policy tive methods. If a group is working collectively to evaluate campaigns.21 In addition, since every community its work, it can decide to shift “outcome measures” based organizing strategy is context- and issue-specific, groups on emerging crises. should work collectively to identify the outcomes that make the most sense for their unique situations. The Participatory evaluation engages the people directly purpose of Appendix D is to stimulate thinking around involved in the campaign at all levels of the evaluation possible outcomes. process, including identifying the outcomes; selecting how data will be collected; gathering and analyzing the outcome data; writing the evaluation; and learning it. Participatory Summary evaluation does not mean that a group cannot bring in an “outside” evaluator, but an outside evaluator must be Community organizing is a social-change strategy designed willing to facilitate a process where the grassroots commu- to alter power relationships between marginalized groups nity is a collaborator. and people who have control over funding, policy decisions, and other resources. It takes time, often years, to Participatory evaluation began in less developed countries build power and the road is fraught with difficulties. in the 1970s, where traditional research methods, distance Consequently, community organizers must educate funders from subjects, and control over development and distribu- and other potential supporters about the nature of their tion of knowledge, produced findings that were irrelevant work. Community groups need to be given the time and to the community.20 Since that time the academic commu- flexibility to effect long-lasting change. nity has begun to acknowledge participatory evaluation as

20 Strand, K., Marullo, S., Cutforth, N., Stoecker, R., & Donohue, P. Community-Based Research and Higher Education: Principles and Practices. (San Francisco: Jossey-Bass, 2003). 21 Alliance for Justice. “Investing in Change: A Funder’s Guide to Supporting Advocacy,” Washington, D.C., (2004).

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 21 REPORT SUMMARY

he United States must find ways to integrate its record number of foreign-born residents. Community organizing can be an effective and meaningful way to promote integration. It allows immigrants to navigate the social, political, and T economic terrain of their new country, and to tackle the thorny problems of injustice and discrimination.

There are few studies that Community groups employ a variety of means to retain examine immigrant-led leaders including training, recognition of leaders’ work, organizing, but journal and special celebrations. For many organizers, seeing the and newspaper articles have fruits of their work is a compelling enough reason to yielded important information continue working for change. about the organizing challenges particular to immigrant Success is achieved in large part due to partnerships. communities. This report adds Partnerships take many forms, including between individ- a rich stream of voices to this uals and organizations with similar goals; community literature. It highlights the leaders and power-brokers; civic organizations; volunteers; importance of immigrant-led and national networks. Each type of partnership brings organizing, but also its unique rewards and challenges. For example, difficulties many challenges. may arise when organizing work conflicts with the policies of elected officials. Such relationships require nuance and A central challenge is to balance in order to achieve the group’s goals. develop and retain leaders. Immigrants—newly arrived Churches and faith-based organizations can be rich immigrants, in particular— resources, both institutionally and as communities where National Immigration Forum struggle with myriad difficul- supportive individuals can be found. Many religious ties: language barriers, low traditions strongly value human rights and social justice. income, family separation, and unfamiliarity with the In addition, faith can instill hope, and motivate and social, political, and economic realities of their new inspire action. country, to name a few. Many are intimidated by power, while others fear reprisal—such as job loss—if they Partnerships are also essential because immigrant organ- become involved in groups working to effect change. izing groups have to work with limited resources. Raising money from outside sources is difficult, as is generating Despite these challenges, organizations are developing revenue from inside the community. But some organiza- good leaders within immigrant communities. Sometimes tions have found creative ways to increase their revenue leaders are identified as a result of an existing relationship streams. One way is to create a “membership” organization between the immigrant and organization. Leaders may also where members contribute $5 a year, which can at least come to the attention of the organization through a “Know help defray the cost of postage when organizations need to Your Rights” presentation, focus groups, one-on-one inter- mail information to their constituents. Many report that views, volunteer efforts, or referral from others. Leaders immigrants place the organizations’ work in higher esteem are not always the most vocal or dominant personalities in if they are required to contribute monetarily to it. a group; nor do they have to be. Organizations look for commitment, compassion, the ability to work with others, Another challenge is how to evaluate campaign outcomes. and a willingness to learn. Determining what makes a campaign successful cannot always be quantified. In most cases, organizing is a long- Once leaders are identified, they are trained and oriented term process that must respond to changing political, to U.S. social and political processes and to the reality of economic, and cultural environments. their own communities. This occurs in a variety of ways, including through leadership manuals and formal Promising approaches to evaluating community organizing training. For many, a key part of the training process is are process-oriented, flexible, and participatory. Process- power-mapping. oriented outcomes look to quantifiable measures, such as the group’s size and number of new leaders developed, but

22 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. also at the steps necessary to build power that will effect At its core, community organizing is an expression of change. Flexibility allows groups to evaluate their work democracy. The freedom to effect change is a powerful regularly and to change benchmarks for “success” based on right, and the work of immigrant-led organizers toward evolving conditions. Participatory evaluation directly achieving fair and just policies represents a meaningful involves community members in identifying outcomes, way to integrate them into our participatory democracy. selecting how data will be gathered, analyzing the informa- Immigrants are changing the face of the United States, and tion, and writing the evaluation. Such methods try to take it is essential that their voices and experiences contribute to into account the changing nature of organizing, while positive social change. ensuring that the evaluation’s results actually reflect what the organizers are experiencing.

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 23 Ⅵ ORGANIZATIONS AND APPENDIX INDIVIDUALS INTERVIEWED

Austin Interfaith Sponsoring Committee, Austin, TX Contra Costa Interfaith Supporting Community Sister Mignone Konecny, Lead Organizer Organization, Richmond, CA Don Stahlhut, Executive Director Catholic Campaign for Human Development, Washington, DC El Buen Samaritano, Austin, TX

A Tom Chabolla, Associate Director of Programs Reverend Ed Gomez, Executive Director Renee Brereton, Community Organizing Grants Coordinator Iowa Immigrant Rights Network of Catholic Charities, Des Moines, IA Catholic Charities of Rockville Centre, NY Carlos Rios, Coordinator Carmen Maquilon, Director of Immigrant Services National Association of Latino Elected and Appointed Central American Resource Center, Washington, DC Officials, Los Angeles, CA Saul Solorzano, Executive Director Javier Angulo, National Director of Civic Education, and Marcelo Gaete, Director of Constituency Services Chelsea Latino Immigrant Committee, New York, NY Gladys Vega, Project Director National Coalition for Dignity and Permanent Residency for Undocumented Immigrants, Toledo, OH Chinese Progressive Association, Boston, MA * Beatriz Maya, Executive Committee Member Karen Chen, Lead Organizer (*On the suggestion of other interviewees, CLINIC Tenants and Workers United, Alexandria, VA contacted the Chinese Progressive Association for an Jon Liss, Executive Director interview even though this organization was not part of the National Immigrant Empowerment Project. We thank Portland Voz Workers’ Rights Education Project, Karen Chen for sharing the organization’s story with us.) Portland, OR Romeo Sosa, Organizer Coalition for Humane Immigrant Rights of Los Angeles, CA Wind of the Spirit Immigrant Resource Center, Angelica Salas, Executive Director Morristown, NJ Angel Patino, Lead Organizer Colonias Development Council, Las Cruces, NM Sheila Black, Grant Writer, and Lucia Veronica Carmona, Organizer

24 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. NATIONAL IMMIGRANT Ⅵ APPENDIX B EMPOWERMENT PROJECT ACCOMPLISHMENTS

LINIC’s National Immigrant Empowerment Project (NIEP) aimed to promote collective action among low-income immigrants to effect change in the systems that negatively impact their communities and lives. Generously C supported by the Catholic Campaign for Human Development, CLINIC awarded 17 community-based nonprofit agencies with grants to help immigrant communities identify problems that impede their full participation in this country, develop a plan of action to address these problems, and draw upon a network of local and national agencies for support. Collectively, the NIEP grantees worked on a broad range of issues, including legalization for undocumented immigrants; U.S.-Mexico border enforcement abuses and immigrant deaths on the border; immigrant access to drivers’ licenses and consular identification; immigrant workers’ rights, health, and safety; leadership development; civic engagement and participation; community safety and access to community services; affordable and safe housing; access to healthcare; and access to education for immigrant students.

Austin Interfaith Sponsoring Committee Border Network for Human Rights 1301 S. IH 35, Suite 313 2101-B Myrtle Ave. Austin, TX 78714 El Paso, TX 79901 512-916-0100 915-577-0724 Austin Interfaith Sponsoring Committee organized immi- Border Network for Human Rights (BNHR) organized grants to form an “education action team” to work on the human rights committees in border communities. issue of immigrants’ access to community colleges. The Approximately 140 people participated in committee action team held an accountability session with candidates meetings each month and helped monitor abuses on the for the community college board that was attended by border. In addition, BNHR filed 22 complaints with the more than 100 immigrants. The city subsequently passed U.S. Office of Inspector General against the former U.S. a referendum bringing the area of DelValle into the Austin Border Patrol – El Paso Sector. These incidents of abuse Community College (ACC) district. The referendum was a were collected during BNHR’s 2002 Abuse Documentation major victory for immigrants in the DelValle area because Campaign and were analyzed by the Texas Lawyers’ it made college much more affordable for them. (Because Committee for Human Rights. The cases included inci- ACC is partially funded by tax revenues from residents of dents of excessive force, unlawful entries into homes, and participating school districts, students living within a deprivation of food and water. In response to the various participating district pay about half the tuition of those abuses committed by the Border Patrol, BNHR organized a outside the district.) In addition, the Committee secured one-month campaign for human and constitutional rights. funding for English classes that will serve approximately This event engaged 25 human rights promoters in southern 2,000 immigrants. The budget for the classes was threat- New Mexico border areas to post 300 signs on streets, ened by cuts, but preserved when immigrant leaders homes, and grocery stores to raise community awareness attended meetings and spoke with city and county officials. of human and constitutional rights. Also, BNHR held a “Luminaries on the River” event on All Souls Day, November 1, at the banks of the Rio Grande to bring attention to the hundreds of migrant deaths on the border. Migrant families placed more than 300 luminaries to honor the dead.

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 25 Immigrant Services Diocese of Rockville Chelsea Latino Immigrant Committee Centre, New York 300 Broadway 143 Schleigel Blvd. Chelsea, MA 02150 Amityville, NY 11701 617-889-6080 631-789-5224 Chelsea Latino Immigrant Committee registered more than Catholic Charities organized the “Alliance of Citizens and 1,400 new voters during the project period, including 75 Immigrants” (ACI) to advocate on issues affecting immi- newly naturalized immigrants. The Committee mobilized grants in the community. During the project period, the 955 Latino voters in city elections. The percent of Latinos ACI registered more than 3,000 new members. A local who voted in these elections exceeded the percent of non- bank agreed to accept the ACI membership card as a valid Latinos who voted. The Committee also convinced the City document for opening a savings account. This policy Council president to sponsor the appointment of a Latino makes immigrants safer by not making them have to carry immigrant to the Housing Authority Commission and a lot of cash, and it allows them to begin creating an recruited five Latino immigrants as School Committee official record of their presence in the U.S. in order to candidates under a newly organized School Committee qualify for legalization in the future. In addition, Catholic structure. The School Committee election had a record Charities organized a community meeting in Riverhead to Latino turnout, and Latinos achieved much better represen- explain a new Department of Motor Vehicles (DMV) tation on the School Committee, with two Latinas elected policy that threatened to revoke the driver’s licenses of tens to serve on it. In addition, the Committee provided 18 of thousands of immigrants who cannot verify their Social workshops on workers’ health and safety for more than 305 Security numbers. Members of ACI participated in a letter- workers to inform them of their right to organize. As a writing campaign that yielded 5,000 letters protesting the result, the Committee succeeded in winning health and policy to the New York DMV commissioner and Gov. safety improvements for 45 food-processing workers at George Pataki. Approximately 300 people took part in a Logan Airport. The Committee also helped eight workers Good Friday protest at the DMV office in Riverhead. to file wage and overtime complaints to the State Attorney General’s Office, and secured an agreement from one employer to provide back pay to 10 day laborers. The Central American Resource Center Committee also helped draft state legislation to protect (CARECEN) temporary workers. 1459 Columbia Road, N.W. Washington, DC 20009 202-328-9799 Coalition for Humane Immigrant Rights of Los Angeles – Leticia A. Network and The Central American Resource Center (CARECEN) the Immigrant Youth Leadership conducted a citizenship campaign in the Latino commu- Development Project nity, with extensive outreach on voting, elections, and 2533 W. 3rd Street, Suite 101 the importance of being civically engaged. In addition, Los Angeles, CA 90057 CARECEN worked with the Fair Budget Coalition on 213-353-1333 a D.C. Voter Guide for the primaries and the general election, formulating the issues and questions for the The Coalition for Humane Immigrant Rights of Los candidates to address. The organization also translated the Angeles (CHIRLA) collected 6,000 petitions urging guide into Spanish and distributed it widely in the Latino President Bush to sign the Development, Relief and community. CARECEN joined the D.C. Latino Coalition Education for Alien Minors (DREAM) Act in 2004, as part and other ethnic organizations to support the passage of the of a national coalition that collected more than 100,000 Language Access Act, which was signed into law by the petitions. Together with a local DREAM coalition, mayor of Washington, D.C., on April 21, 2004. The legisla- CHIRLA sent a delegation of 10 students to Washington, tion requires translators in city agencies and the appoint- D.C. The students spent three days making legislative visits ment of a citywide coordinator to ensure that residents to key supporters and to senators who have opposed the who are not proficient in English are provided equal access DREAM Act. The delegation held a large press conference to services. that generated dozens of national articles on the DREAM campaign, and marched to the Department of Education to turn in the 100,000+ petitions to President Bush, where they held a mock graduation ceremony, dressed in caps and gowns, to highlight the situation of undocumented students. In addition, CHIRLA’s youth group initiated and carried out a two-week fast and vigil demonstration in September 2004 to draw attention to the DREAM Act

26 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. before the end of the Congressional year. This effort was El Buen Samaritano coordinated nationally, with students participating in 7000 Woodhue Dr. fast/vigils in New York, Massachusetts, and Oregon. The Austin, TX 78745 California fast/vigil took place in front of the University of 512-439-0700 Southern California in Los Angeles, where more than 100 participants fasted for varying lengths of time. It opened El Buen Samaritano used NIEP funds to support its with a press conference and included visits from elected Community Leadership Promotores (CLP) program. The officials, local leaders, and other supporters throughout the CLP has a decision-making group of 68 low-income immi- fasting period. This event garnered a great deal of media grants divided into 13 community groups that provide attention and resulted in the DREAM Act being passed people with information on civic, social, and health-related through the Senate Judiciary Committee as an attachment topics. El Buen Samaritano held information and training to a Department of Justice bill. sessions for its promotores during the project period, covering topics such as voting, community organizing, and community needs assessment. In addition, El Buen Colonias Development Council Samaritano organized a committee of four promotores to 1050 Monte Vista meet with representatives of the city of Bastrop to nego- Las Cruces, NM 88001 tiate for adequate sewage and street repair for the Stony 505-647-2744 Point neighborhood. They succeeded in getting the city to agree to install sewage lines and in getting one street Colonias Development Council (CDC) organized residents repaired. The committee also worked with the city to get of border communities called colonias to obtain needed bus service for the area. infrastructure in their communities. During the NIEP project period, CDC recruited 16 colonias residents to be trained and employed as application processors for a waste- Iowa Immigrant Rights Network water hook-up project in Dona Ana County, where more Catholic Charities, Diocese of Des Moines than 3,000 households were signed on to the project. In 601 Grand Avenue addition, residents in five communities met with their state Des Moines, IA 50303 representative, state senator, country commissioner, and 515-244-3761 mayor to discuss ways to address their infrastructure needs, including problems with flooded roads, crime, and the The Iowa Immigrant Rights Network held a statewide wastewater system. CDC also worked with a housing meeting that was attended by 210 people representing organization to help residents of Montana Vista apply for every local chapter and other locations across the state. home rehabilitation loans and to develop a homebuyer More than 75% of the participants were immigrants. The training program. day began with training on asset-based community development, followed by local area presentations, open dialogue to share experiences, and workshops to plan direct Contra Costa Interfaith Supporting action. In addition, the Network distributed talking points Community Organization (CCISCO) for a local version of the DREAM Act, and issued action 724 Ferry Street alerts to call and write local representatives that yielded Martinez, CA 94553 more than 200 calls and postcards. More than 20 immi- 925-313-0206 grant members of the Network planned and carried out a Contra Costa Interfaith Supporting Community rally calling for passage of the DREAM Act and other pro- Organization (CCISCO) helped to secure passage of immigrant legislation during a visit by President Bush to an inclusionary zoning law in the city of Brentwood, Dubuque. In 2004, the Iowa state legislature passed a bill California, that will result in 675 new low- and very low- supported by the Network that is the first step in creating a income homes over the next five years—a benefit of more process for training and certifying translators and inter- than $202 million. Following passage of a similar law in preters. The new law will reduce the barriers faced by the city of Concord, California, CCISCO met with housing immigrants in accessing basic services. officials to encourage the development of 27 affordable homes. In addition, CCISCO organized three “Immigrant to Citizenship” forums in the cities of Richmond, Concord, and Brentwood. More than 550 immigrants attended these forums, where they heard inspirational speeches on civic participation, learned how to move toward full citizenship, and consulted with attorneys on their individual cases.

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 27 National Association of Latino Elected and Sunflower Community Action Appointed Officials Educational Fund 1528 N. Broadway, # 103 1122 W. Washington Blvd., 3rd floor Wichita, KS 67214 Los Angeles, CA 90015 316-264-9972 213-747-7606 Sunflower Community Action (SCA) participated in a The National Association of Latino Elected Officials march and rally in the state capitol to support pending (NALEO) Educational Fund worked to organize, certify, driver’s license and in-state tuition legislation for immi- and support neighborhood councils in Los Angeles’ immigrants. The event attracted 2,000 people from 13 cities and grant areas. During the project period, NALEO organized towns, including 54 members of SCA’s North Chapter. As a a leadership training program for two of the neighborhood result, Kansas state legislators passed a law May 7, 2004, councils, and staff provided technical assistance and allowing undocumented immigrant students to pay in-state support in the Board of Directors election for the Pico- tuition. In addition, SCA organized a public meeting Union Neighborhood Council. NALEO assisted in between immigrants and local officials that was attended conducting a massive outreach campaign with door-to-door by 150 people. The state secretary of labor was in atten- canvassing to encourage stakeholder participation in the dance to hear testimony and concerns from immigrant pre-election voter forum and the election. As a result, 350 workers. A local judge announced new efforts under way to community members voted in the election, and 23 volun- address concerns with fraudulent immigration attorneys, teers from the community and neighboring councils and a bank vice president announced newly available assisted with the election. In addition, NALEO assisted the services to the undocumented community in opening bank Pacoima Neighborhood Council in organizing its executive accounts with Individual Tax Identification Numbers. After board election, writing the bylaws, and facilitating immigrants organized by SCA identified better police meetings. During its Election Day 2004 activities, NALEO protection as a major issue they wanted to address, they recruited many volunteers to staff its bilingual voter infor- met with the captain of the local police station, who agreed mation hotline through its network of neighborhood to work to address unsolved crimes in their neighborhood. councils, and received an overwhelming response. Tenants and Workers United National Coalition for Dignity and 3801 Mt. Vernon Ave., #5 Permanent Residency Alexandria, VA 22305 1221 Broadway St. 703-684-5697 Toledo, OH 43609 Tenants and Workers United, formerly known as Tenants 419-243-3456 and Workers United, worked to improve access to health- The National Coalition for Dignity and Permanent care for the uninsured in Fairfax County, Virginia. A Residency conducted legislative advocacy visits in regional sub-committee was formed to work on a Washington, D.C., with key congressional players on campaign, aimed at Inova Health Systems, to end the legalization. The Coalition also created an “Immigrant unfair practice of differential billing of the uninsured. After Manifesto” outlining principles for immigration reform two years of advocacy, TWSC secured an agreement from and delivered it to more than 100 congressional offices. Inova Health Systems to end the practice of differential The Coalition launched a postcard campaign to encourage billing of the uninsured by giving a 35% discount to unin- President Bush to act on immigration reform before the sured patients. TWSC held a press conference to announce elections, and mailed 3,500 postcards to the White House. this victory, where immigrant leaders spoke. TWSC In addition, the Coalition organized a national day of members also participated in quarterly meetings of the fasting and prayer for legalization on Good Friday. Local Community Health Advisory Committee of Fairfax actions such as vigils, pilgrimages, and media events County. In addition, TWSC met with two members of the happened in Seattle, Washington; Owatonna, Minnesota; Fairfax County Board of Supervisors about creating low- Toledo, Ohio; New York, New York; Providence, Rhode income housing cooperatives in the county. After the super- Island; Houston, Texas; Palo Alto, California; Cleveland, visors indicated their general support for cooperative Ohio; Washington, D.C.; Maryville, Tennessee; housing, TWSC members worked to research and identify Atlanta, Georgia; Goldsboro, North Carolina; and suitable properties in the county. Indianapolis, Indianapolis.

28 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. VOZ Workers’ Rights Education Project The Workplace Project 330 SE 11th Avenue 91 N. Franklin Street, Ste. 207 Portland, OR 97214 Hempstead, NY 11550-3003 503-233-6787 516-565-5377 VOZ Workers’ Rights Education Project organized commu- The Workplace Project offered weekly orientations to nity forums to educate immigrants about legalization workers with labor-related problems and presented a proposals in Congress. The forums were attended by 50 proposal to the mayor to improve a day laborer pick-up site people, including 18 day laborers. In an effort to build in Freeport, New York. The organization also escorted better relations with local law enforcement, VOZ invited workers to small claims court to sue for unpaid wages, and cadets from the Oregon Police Corps to meet with day held protests against five local employers that resulted in laborers for dialogue and the exchange of life histories. more than $50,000 recuperated in lost wages. In July 2004, Eighteen cadets and 20 day laborers participated in this the Workplace Project held a meeting between the chief of event. In addition, VOZ provided monthly workshops, each police for Suffolk County and more than 40 workers to attended by approximately 30 day laborers, on how to discuss enforcement of laws against the non-payment of prevent employer abuse, worker rights and responsibilities, wages. The police chief agreed to initiate criminal investi- and collective problem solving. The laborers took a leader- gations against employers reported by workers, meet regu- ship role in the meetings by organizing meals, setting the larly with workers to follow up on these investigations, and agenda, and giving presentations on topics such as how to proceed with the investigations regardless of workers’ file a wage claim. VOZ also organized an annual leader- immigration status. In addition, the Workplace Project ship training at a local college that was attended by 25 organized tenants in a Farmingdale, New York, apartment community members. building that the town planned to demolish and replace with luxury condominiums. The building is one of the only affordable housing units in the town, and is home to many Wind of the Spirit Immigrant Latino immigrants. Shortly after the first tenant meeting, Resource Center more than 100 residents were evacuated due to a suspicious 19 Market Street leaking pipe and placed in shelters. The Workplace Project Morristown, NJ 07960 helped the tenants obtain legal representation, and they 973-538-2035 were allowed to return to the building two days later. Wind of the Spirit worked with the New Jersey Immigration Policy Network to launch a statewide campaign for legalization and secured support for pro- immigrant legislation from two New Jersey legislators. The organization also collected 365 signatures for the Dream Act campaign and participated in a legislative action to support a state version of DREAM by contacting the chairs of the education committee in the state legislature. In addition, Wind of the Spirit organized three new Immigrant Rights Committees (IRCs) in the neighboring towns of Madison, Parsippany, and Morris Plains, and provided two leadership training workshops for IRC members. The organization provided monthly outreach presentations on legalization and highlighted border deaths in its public education efforts, offering a community training session on legalization entitled, “No Human Being is Illegal.”

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 29 Ⅵ INTERVIEW QUESTIONS APPENDIX C

he following is a list of questions asked by CLINIC in interviews with immigrant-led organizers. T Interviews were semi-structured. Not all questions were asked of, or answered by, every interviewee. Introduction Leadership Identification The purpose of this interview is to gather information to be and Development documented, with your permission, in a report on best practices of immigrant-led organizing efforts. We are 1. Are there certain characteristics/competencies that are seeking to highlight the challenges and successes of the sought in a community leader or that help identify a agencies we interview and not to evaluate the efforts in a community leader? If yes, what are they? negative way. The purpose of the interview is only to 2. How do you recruit leaders to organize around gather information, particularly quotes from organizers on community-prioritized issues? Are there any specific important aspects of their work. recruitment methods you use? 3. How many trained leaders, paid or volunteers, do you General Questions depend on? 4. Whom do you consider to be your key leaders? Are 1. When was your organization founded? they paid staff? Are they volunteers? Board members? 2. What is your organization’s stated mission 5. What methods do you use to motivate and educate regarding organizing? leaders to be active? 3. How does your organization operationally 6. How do you show appreciation to leaders? How do define organizing? you retain leaders to prevent burnout and turnover? 4. What is your professional and non-professional back- 7. What leadership development curricula do you use? ground in organizing? Did someone within your agency develop it? Did you 5. Is there a staff member or volunteer who was an organ- borrow or adapt it from another organization? izer in their home country and applies those experi- 8. Do you evaluate your leadership recruitment, training, ences in the United States? and development strategies? If yes, how often and what 6. Is there a particular document (book, training manual, tools do you use? If no, why not? report) that has inspired you or that you hold to be very 9. What are the challenges you encounter in recruiting, important in your organizing models and efforts? If training, and retaining leaders? yes, what is it? 10. How are you involved in training youth as leaders? 7. Is there a document, published or unpublished, dealing with best practices on organizing issues that has guided your work? Campaign Strategies 8. What are your organization’s needs for growth and capacity building? 1. How do you use the technique of framing an issue to leverage more support, particularly from power brokers? Needs Assessment and Prioritizing 2. Can you provide us with an example of an issue that gained larger support and achieved success after 1. What are the primary issues around which framing it in a better way? you organize? 3. Who are your main community partners in organizing? 2. How do you determine and prioritize those issues? 4. What are the main challenges you face? How do you 3. Do you have an example of when you had a priority respond to such challenges? but had to change it because of a change in circum- stance or wishes of the community? 5. Can you give an example of a successful campaign and a less successful one? Why were they successful 4. What is your decision-making model? or not successful? 5. What are the barriers in accurately assessing the needs of the community and setting priorities?

30 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. SUCCESS MEASURES FOR Ⅵ APPENDIX D COMMUNITY ORGANIZING

Benchmark Quantitative Indicators Qualitative Questions

Developing Grassroots Ⅲ # of new leaders participating in skills Ⅲ Do participants have a sense of polit- Leadership training ical efficacy and confidence, and how Ⅲ # of times new leaders report (or were has this changed through participating observed) practicing: in a group or skills training? ● Conducting research on issues Ⅲ Do new leaders demonstrate knowl- ● Public speaking edge about systems affecting them? ● Chairing meetings ● Testifying ● Planning strategy sessions Ⅲ # of members serving in leadership roles: ● Participating on committees, block clubs, neighborhood associations ● Serving as board members, officers, or committee chairs ● Other leadership roles specific to the campaign

Demonstrated Political Power Ⅲ # of new voters Ⅲ Are politicians/staff of public agencies Ⅲ Changes in voting rates of constituency aware of issues, and do they have a Ⅲ # of media hits deep understanding of the issues? Ⅲ # of members placed on key policy Ⅲ Are politicians/staff of public agencies working groups aware of the community organization Ⅲ # of public events sponsored by group, and the issue positions? e.g., rallies, protests, candidate forums, Ⅲ How is the issue “framed” in local press conferences media stories? Ⅲ # times participated in hearings Ⅲ How great is the community’s influence on external policy? Ⅲ Do elected officials feel accountable to the community organization? Ⅲ Is government data more transparent?

Building Coalitions, Ⅲ # of partnerships, alliances, or member- Ⅲ Does coalition/partnership build Partnerships, & Alliances ship with: collective power and/or leverage ● Local coalitions resources? ● City, county, state agencies Ⅲ Does association with coalition/ ● Local businesses or associations partnership result in relationships of ● Public schools and universities mutual trust and reciprocity? ● Cultural and faith-based institutions ● Other community organizations

continued on page 32

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 31 Benchmark Quantitative Indicators Qualitative Questions

Organization Building Ⅲ # of years of continuous Ⅲ What is the organization’s capacity to leadership/membership monitor programs/issues? Ⅲ # of active members Ⅲ What is the organization’s capacity to Ⅲ Amount of money raised through grants, plan and carry out an organizing membership dues, contributions strategy? Ⅲ # of people organization can turn out at events (mobilization capacity)

Policy Outcomes Ⅲ # of issue campaigns won Ⅲ What is the organization’s capacity to Ⅲ Funds leveraged as a result of plan and carry out an organizing organizing effort strategy? Ⅲ Improved public service delivery or community Ⅲ # of physical improvements to community

Economic Outcomes Ⅲ In-kind resources provided to Ⅲ How is the community better off organization economically as a result of the Ⅲ Volunteer hours provided to organization organizing efforts? Ⅲ Funds leveraged for community Ⅲ Employment/unemployment rates Ⅲ Homeownership

*The authors wish to thank Catholic University professor Linda Plitt Donaldson, Ph.D. for contributing these success measures.

32 A REPORT BY CATHOLIC LEGAL IMMIGRATION NETWORK, INC. REFERENCES Ⅵ APPENDIX E

Alliance for Justice. “Investing in Change: A Funder’s Guide to Supporting Advocacy,” Washington, D.C. (2004). Available at http://www.afj.org/. Amato, T. “Lessons from Immigrant Organizing in Stockton,” Social Policy (March 2003). Development Leadership Network. Success Measures Guidebook (2005). Available at http://www.developmentleadership.net Edgar, J., Meissner, D., & Silva, A. “Keeping the Promise: Immigration Proposals from the Heartland,” The Chicago Council on Foreign Relations, (2004). Gold, E., and Simon, E. “Successful Community Organizing for School Reform,” (2003). Available at http://commorg.utoledo.edu.edu/papers2003/goldsimon/goldsimon.htm. Jasso, G, Massey, D.S., Rosenzweig, R., Smith, M., & James, P. “Exploring the Religious Preference of Recent Immigrants to the United States: Evidence from the New Immigrant Survey Pilot,” (2001). Available at http://www.pop.upenn.edu/nis/papers/jmrsrel.pdf. Kissam, E., Garcia, A., Jeter, I., & Levitt, M. “Evaluation of the Central Valley Partnership for Citizenship,” Report to the James Irvine Foundation, (December 31, 1999). Mosaica: The Center for Nonprofit Development and Pluralism. “Immigrant and Refugee-Led Organizations and their Technical Assistance Needs: Report of a Study Conducted for the Ford Foundation, Migrant and Refugee Rights Portfolio,” (2000). Available at http://www.mosaica.org/main.asp. Mosaica: The Center for Nonprofit Development and Pluralism. “Research on Barriers and Opportunities for Increasing Leadership in Immigrant and Refugee Communities: Public Report,” (April 2000). Available at http://www.mosaica.org/main.asp. Mott, A. “Strengthening Social Change Through Organizational Learning and Evaluation,” Community Learning Project (2003). Available at http://comm-org.uwisc.edu/papers2005/mott.htm. Naimark, S. “Organizing Outcomes,” (February 5, 2004). Message posted to Comm-Org electronic mailing list. Available at http://comm-rg.wisc.edu/mailman/listinfo/colist. Pew Hispanic Center, “The Size and Characteristics of the Unauthorized Migrant Population in the U.S.,” (March. 7, 2006). Shapira, I. “Cause Transforms Woodbridge Teen Into Activist Leader,” The Washington Post, (April 17, 2006). Available at http://www.washingtonpost.com/wp-dyn/content/article/2006/04/16/AR2006041600643.html. Shields, J. “Evaluating Community Organization Projects: The Development of an Empirically- Based Measure,” Social Work Research & Abstracts, 28, 2; p. 15-28. Sooy, N. “Organizing Outcomes,” (February 5, 2004). Message posted to Comm-Org electronic mailing list, archived at http://comm-org.wisc.edu/mailman/listinfo/colist. Stoecker, R. Research Methods for Community Change: A Project-Based Approach, (Thousand Oaks: Sage Publications, 2005). Strand, K., Marullo, S., Cutforth, N., Stoecker, R., & Donohue, P. Community-Based Research and Higher Education: Principles and Practices, (San Francisco: Jossey-Bass, 2003). Swarns, R. “Immigrants Rally in Scores of Cities for Legal Status,” The New York Times, (April 11, 2006). Available at http://www.nytimes.com/2006/04/11/us/11immig.html?ei=5094&en=8545caf92ae2ba64&hp=&ex=1144814400&partner=h omepage&pagewanted=print. Swart, H. “Organizing Outcomes,” (February 3, 2004). Message posted to Comm-Org electronic mailing list. Available at http://comm-org.wisc.edu/mailman/listinfo/colist.

Urban Institute. Available at http://www.urban.org/toolkit/issues/immigration.cfm.

Immigrant-Led Organizers in Their Own Voices: Local Realities and Shared Visions 33

Catholic Legal Immigration Network, Inc. 415 Michigan Avenue, NE, Ste. 150 Washington, DC 20017 202-635-2556 Ⅲ www.cliniclegal.org