The Section on Immigration Law promotes the communication of ideas, interests, and activities among members and makes recommendations on matters of interest in the teaching and improvement of the law relating to immigration.
Chair: Rose Cuison Villazor, University of California, Davis, School of Law
Chair-Elect: Anil Kalhan, Drexel University Thomas R. Kline School of Law
What can you tell us about the membership of the Section on Immigration Law and their work?
Rose Cuison Villazor: Our membership is unique compared to many other AALS sections in that we have a strong collaboration between clinical law and non-clinical professors and practitioners who are adjuncts or lecturers in other institutions are able to participate as well. This has given our members rich and robust opportunities for engaging in each other’s work—including co-writing law review articles, drafting and signing-on to amicus briefs, or organizing symposia on various immigration law topics, among others—regardless of one’s academic status (whether tenured, tenure-track or not). The Section is also extremely active on current events and members are willing to share theories, victories, and best practices. Often during exchanges among our members, someone will comment about a case that just came out and someone else will say, “Oh, this is also happening in this part of the country and here’s what we did.” I am often in awe of how collaborative this section is and its members’ generous willingness to share ideas, learn from each other, celebrate victories, and help each other when immigration law cases do not turn out well.
Anil Kalhan: There’s a lot of fluidity in our section between our members who do doctrinal teaching and those who do clinical experiential work in one form or another. Those perspectives inform each other quite a bit within the community of immigration law scholars and teachers, and that fluidity is an important part of the ethos of the section.
That’s interesting because that is unique, at least among the sections I have talked to.
AK: This is also a field that has grown in a relatively short period. When the section was founded in the mid-1980s, there were probably only somewhere between 15 and 20 members. Immigration law was not a subject that many law schools would have been prioritizing for full-time positions. Immigration-focused clinics are also relatively recent.
I entered law teaching around 2004 and the first time I was at a national gathering of immigration law scholars and teachers, there were something like 80-90 people in attendance and that was the largest it had ever been. Especially after the enactment of major immigration legislation in 1996 and the 2001 terrorist attacks, immigration law issues became increasingly prominent and salient, and faculty hiring in the field increased. Now, many law schools have full-time faculty members with expertise in immigration law, but that’s a relatively recent phenomenon.
What are the important conversations happening right now in legal education regarding immigration law?
RCV: Based on the first six months of the Trump administration, quite a lot. I’m not sure where to begin. Arguably at the top would be the case before the Supreme Court right now about whether the President possesses executive power to limit who can come to the country based on religion and national origin. The power of the presidency regarding immigration law is a larger ongoing discussion that began with President George W. Bush and later President Obama. A second important issue focuses on sanctuary cities. Like the question regarding the President’s executive authority, issues about sanctuary cities and federalism have been part of a broader discussion in legal education for some time. What is different is that far more cities and even states (such as California) have enacted sanctuary-like policies since the election. The third is detention, including the rights of children who are being detained and whether their rights should be treated differently from adults who are detained, and what does the right against unlawful detention mean today in light of ongoing exclusionary and removal proceedings during the Trump Administration. Another issue centers on DACA and the “Dreamers.” The Trump administration has said on the one hand that recipients of DACA are “special” and on the other hand, removed some DACA recipients. What will happen to these undocumented immigrants who grew up here? These are some of the critical conversations happening right now. They raise questions about human rights and civil rights, and also larger discussions about plenary power, the ability of the country to exclude people, and determine who should be allowed in and who can stay.
AK: In addition to the specific issues that Rose has identified, at a broader level immigration law scolars and teachers have increasingly focused on the intersections between immigration law and other areas of law. For example, intersections between immigration and constitutional law issues (whether that’s federalism or the role of the judiciary or executive power), immigration and criminal law, immigration and labor law, immigration and family law, immigration and humanitarian protection, immigration and international human rights law.
Scholarship examining these and other intersections has developed significantly in recent years, and I think something that undoubtedly will happen under Trump is that scholars who have not necessarily had an interest in immigration law as such, but are in these other areas of law, will increasingly find this field to be relevant and of interest to their study of those areas. I’ve seen increasing conversation and collaboration between people who work primarily in immigration law and people whose primary interests fall in these other areas. Immigration law is a technical and specialized area which requires knowledge and understanding of a very long, complicated, and confusing statute. It takes a lot of work and expertise for people to wrap their heads around that statute and basic immigration law doctrine, which can make it intimidating or tedious for folks working in other areas. But as immigration law has become more of an issue in the public conversation in a broad range of settings, the interest in exploring those relationships to other areas of law has continued to increase significantly.
The Section on State and Local Government Law discussed sanctuary cities in our previous Spotlight on Sections.
AK: Questions about federalism and the role of state and local governments in federal immigration control have been percolating for a while, but they have become particularly salient in the last several years. Those questions can be quite complex and novel. When Arizona adopted its aggressive immigration enforcement measures in 2010, the new law raised issues touching on a variety of different areas of law, including constitutional law and criminal law, and ultimately its constitutionality was addressed by the Supreme Court. Many states and localities have continued to try to become involved in immigration policy from an enforcement perspective, but there are also states and localities that have instituted policies seeking to protect and integrate immigrants in their communities. The Trump executive order on so-called “sanctuary cities” has drawn attention to these developments, and I believe these issues will remain salient in the years to come—particularly as the disjunction between the immigration-related policies sought by many states and localities and those advanced by the federal government continues to widen under the Trump administration.
How do you see this playing out?
AK: This is a critical turning point for the United States with respect to immigration law and policy, which intersects with a much broader and more fundamental set of questions about where we’re going politically and legally as a country. This administration has tried to put a lot of basic, longstanding principles about immigration law and policy on the table in the last several months—sometimes in ways that raise novel legal issues, and sometimes in ways that raise issues that have not required attention in some time. Things may not ultimately change very much in a number of areas, but particularly where the executive branch has authority to act on its own, the shift toward more aggressive enforcement along the lines that Rose described earlier has been very significant.
RCV: One way to respond to litigation around sanctuary cities and whether the President has the power to issue an executive order punishing sanctuary cities is to think of it in broad terms. Right now in the courts, we’re seeing challenges—individual and state responses to Trump’s policy—and the judiciary taking those cases and ruling positively (though not always) in favor of non-citizens. In the past, the courts were less than willing to impose limits on the executive power. Thus, in addressing the issue of the constitutionality of sanctuary cities, it is important to remember that the issue raises a broader question about the judiciary’s ability or inclination to limit the President’s power.
The other way to think about sanctuary cities is that they reflect the tension between Congress and states and localities. There are bills gaining support in Congress that seek to punish sanctuary cities. Courts will need to address the scope of congressional power to punish or restrict the ability of sanctuary cities to exercise their own local power and authority to integrate and protect non-citizens within their own jurisdiction without violating the anti-commandeering principles embedded in federalism principles.
What has it been like to teach and focus your scholarly efforts on immigration law as President Trump first campaigned and now governs with a focus on immigration? What are some of the more interesting developments or lessons that you have learned?
RCV: I taught Immigration Law in the fall as a visiting professor at Columbia Law School. In the syllabus that I prepared for that semester, I anticipated that Clinton would win. I was going to devote my post-election class to what immigration reform would look like under the Clinton presidency. After the election, I had to quickly change my plan for that day. Instead of talking about comprehensive immigration reform, I went through Trump’s 10 points on his website about all the things he wanted to change about immigration law.
Also, within two weeks of the election, some Columbia Law School faculty members and I, along with lawyers from non-profit organizations and students, put together a teach-in and “know your rights” presentation that was open to the public. We provided information about basic rights—when you are stopped by the police, when ICE is at your door, if you are detained, etc.— because students, faculty, and people in the neighborhood expressed massive fear about deportation, detention, and racial profiling by immigration authorities.
In the spring, when I returned to UC Davis Law, my colleagues there and I put together a “teach-in” about the travel ban. I also incorporated a “know your rights” workshop as a project my Advanced Immigration Law seminar students could do for schools and communities. I had students writing about how churches, public schools, neighborhoods, and others can better protect undocumented immigrants.
In sum, my teaching has become more proactive and community-based in ways I haven’t been before. My Advanced Immigration Seminar, for example, is a class about scholarship—the students write research papers and I help them get published—but that focus certainly changed in the spring semester. My students and I worked closely with one of my colleagues in the Immigration Law Clinic, Amagda Perez, in developing “know your rights” presentations. I’m not sure if I will teach it that way again in the spring of 2018. But I felt a need to contribute in that way this past spring semester.
AK: I wasn’t teaching immigration law in the spring semester, but I did teach the course in the fall semester of 2016, and in the immediate aftermath of the election students had lots of questions about the direction that immigration law and policy would take under the new administration, and like Rose, I adjusted my coverage accordingly. In the months since the election, it’s true for me, and I think it’s been true for a lot of people in our section, that our expertise and knowledge has been in demand. People from the community have been looking for support, knowledge, and information. I think the longstanding ethos of our section that we were discussing earlier has been helpful as all of us have responded to these demands because while we’re not all clinical faculty, the fluidity of different perspectives within our section and the values of seeking to serve the community in various ways has been a natural part of how members of our section understand their role as scholars and teachers.
To give a few examples, members have met with local officials and brought our knowledge to bear about the law and policy questions that might arise if local law enforcement agencies formally enter into agreements to enforce immigration law, which is something that the Trump administration is aggressively pursuing. Not every locality wants to do that, and members of our section have been active in engaging these questions in their communities. With respect to the Trump executive order banning the entry of many Muslims into the United States, one of the early challenges to the travel ban in late January filed by immigration law faculty and students working in the Yale Law School clinic, who did remarkable work in a short time after the first executive order was issued on Friday to get it stayed by a federal court in Brooklyn by the next evening. And since then, other members of our section have engaged the issues arising from the Muslim entry ban in other ways—for example, by writing and signing amicus briefs in the litigation challenging that executive order. University central administrations have turned to members of our section as they have faced questions arising from the Muslim entry ban: what happens to faculty and students and staff from the affected countries? Many universities suddenly found themselves confronting these questions, and at least in the short term, many of them turned to members of our section teaching at their institutions to provide this sort of emergency guidance.
There is a pretty broad range of things that people have been doing in addition to writing traditional scholarly articles and teaching students about these issues. Traditional scholarship in law reviews develops more slowly, but members of our section have actively been contributing to both academic and public discussions about immigration law under the Trump administration by writing op-eds and blog posts and doing interviews with journalists. And it’s been pretty relentless, because of the sheer number of substantive immigration law issues that the Trump administration has aggressively sought to put on the table. In May, I was a panelist at a conference that primarily included junior immigration law scholars and teachers. People were exhausted. It was very taxing semester, and many of the individuals facing these demands are junior faculty who of course have a lot of other demands on their time in the first place.
RCV: The lawyers who rushed to the airports certainly received incredible support from the public, as we saw in the news during the travel ban. One thing I’ve heard since then is that people wish they could have that kind of support for immigrants who are already here, who are undocumented and are being detained or removed. We’re not seeing a flock of people protesting in the same way people protested at the airports. Right now the travel ban has garnered, rightly so, a lot of criticism, but there are so many other issues in immigration law that should also warrant the same kind of attention.
What can you tell me about your program at the 2018 Annual Meeting?
RCV: We have one main program and one co-sponsored program. The main program will be centered on mass deportation in the era of Trump and we have issued a call for papers in which we will select one or two speakers who will join our invited speakers. Our program’s goal is to highlight how Trump’s deportation policies are affecting non-citizens and their families on the ground, in immigration courts, and federal courts. The program will also examine the challenges that non-citizens who have been removed face in the countries to which they have deported. The other program is co-sponsored with the Human Rights Law section, and it’s more a general response to various Trump policies and how those issues, whether it’s the building of the wall or the travel ban, implicate civil rights and human rights. We’re also doing a border tour on the first day. We did this the last time the Annual Meeting was in San Diego.
AK: That last border tour in 2009 was really enlightening and informative. It’s not always possible, but when we can, we’ve tried to have some kind of engagement with the local community at the Annual Meeting so we can learn about immigration issues from a local perspective. In addition to the San Diego border tour, the other activity along those lines that immediately comes to mind is a tour of the Port of New Orleans that the section organized when the Annual Meeting was held in New Orleans a few years ago. That was also quite fascinating.
RCV: In January 2017, we went to the historic Angel Island immigration station in San Francisco Bay.
How do your section members interact and collaborate outside of the AALS Annual Meeting?
RCV: This is outside of the context of the AALS itself, but there have been periodic workshops for immigration law teachers and scholars—Anil is hosting the next one at Drexel. In recent years, a group of emerging immigration law teachers and scholars have also organized a periodic workshop to focus on the particular interests and concerns of junior faculty members teaching immigration law.
AK: The last time a large gathering of immigration law professors occurred, there were somewhere on the order of 120-130 participants. The conference started with a day focused on the specific interests of immigration clinicians, and then proceeded with a day and a half that was not as specialized—there was some discussion of teaching and pedagogy, some discussion of issues of broad interest to the field, and smaller breakout sessions for individuals to present and get feedback on works-in-progress. There also were opportunities to interact with immigration lawyers and advocates in the local community.
RCV: Members of the section also end up engaging with each other’s work outside of these formal meetings. Our section has a norm of being supportive to junior scholars and others in general. I’ve always felt comfortable asking my colleagues on the listserv if they would be interested in providing comments to something I’m working on.
AK: There’s also a terrific and very active immigration prof blog that Kevin Johnson of UC Davis and Bill Ong Hing of University of San Francisco started some years ago. A number of different folks have rotated through as contributors to that blog, and both Kevin and Bill have been very open and welcoming of guest contributions. Those guest posts have often been useful vehicles for people to incubate new scholarly ideas, to present their scholarship in shorter and more accessible forms, or to apply the ideas in their scholarship to new developments as they arise in real time.
How does your section support the scholarship of your members?
AK: Providing opportunities for scholars to present and share works-in-progress is a big priority for members of this section—it’s a very supportive section and community and folks do prioritize that in both formal and informal ways.
RCV: In addition to the periodic workshops, this year at AALS, we’re including a works-in-progress session at the Annual Meeting to provide additional space for people to support our members’ scholarship.
What improvements to law school curriculums have you seen as a direct or indirect result of the work of this section? How has the study of immigration law changed since you’ve been teaching it?
RCV: I am not sure if these can really be attributed to the section. There are a lot more specialized courses related to immigration law, including criminal law and immigration law, family law and immigration law, business immigration law. Those courses were certainly not around when I was in law school. That’s not to say that all law schools are offering those classes, but there have been a number of them who do. To fill the demand, many law schools have hired practitioners as adjuncts and lecturers to help students learn the more technical and specialized side of immigration law. Perhaps because of the move in legal education toward more experiential opportunities for law students, law schools have offered specialized classes on how to draft contracts for employment-based immigration, or how to put together an adoption petition for U.S. citizens who are petitioning for kids from abroad. That’s certainly a welcome development because in the general immigration law survey that many of us teach, one really can’t spend as much time focusing on those specialized areas.
AK: And as we discussed earlier, even making sure that the basic immigration law doctrinal course is regularly offered at all is a recent development. When I was in law school, immigration law was not regularly offered as a doctrinal survey course—there was a seminar, but I don’t think it was offered regularly. I think a lot of schools now recognize the importance of offering the course more regularly and hiring people to teach it.
What is your vision for the section, this year and in the years to come? What new initiatives, project-based or ongoing, would you like to see as part of the section?
RCV: I would love to figure out how to honor those who are retiring and contributed significantly to the section, legal academy and the development of immigration law. This is not to say that their work hasn’t been recognized—again, through our active listserv, we have honored and recognized the many contributions of our members—but it would be great to do a send-off for people who are retiring or about to retire.
AK: The members of this section have done amazing work to build this community. One of the things we haven’t talked about in detail as yet is building our relationships with scholars and teachers who work primarily in other areas of law. Immigration law can be a very technical field because the statute is so complex and intricate in detail, so it can be very easy to focus inward. But especially as immigration law issues have become more intertwined with developments in other areas of law, and scholars and teachers primarily working outside of immigration law have become more interested in this field, the intellectual connections across these different areas have become more important. I think it will be important to continue to develop and build upon those connections. That’s been happening already for a long time, but there may be new areas in which those connections become more salient. For example, some of my scholarship has focused on the intersection between immigration law and privacy and surveillance issues. There may be other areas where those kinds of intersections have not received as much attention, and we should keep our eyes open for that.
This is also increasingly a very interdisciplinary field. Finding spaces for cross disciplinary conversations with people outside of the legal academy has become important to people in our section, to a greater extent over time. We have more people now with PhDs in other fields or other disciplines, and facilitating relationships to scholars working in other disciplines is going to be something that continues to grow in importance for our section.
RCV: In terms of initiatives, I would like to see the section, through its AALS programs, examine more deeply questions of citizenship. The U.S. Supreme Court takes on a case every year about citizenship and these cases affect citizens and non-citizens alike. Most of the people in the section work on and explore immigration law issues. There are some who focus on citizenship, and sometimes the citizenship aspect gets pushed aside. Thus, for me, I would suggest more panels and conversations regarding citizenship and how the federal, state and local governments define who belongs.
Section on Immigration Law at the 2017 AALS Annual Meeting
AALS Sections provide opportunities for law school faculty and staff to connect on issues of shared interest. Each of the 102 AALS sections is focused on a different academic discipline, affinity group, or administrative area. For a full list of AALS sections and information on how to join, please visit aals.org/services/sections.