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Above the Law immigration column

SCOTUS Bars Immigrants From Even Applying To Stay If Law Is Ambiguous” March 2021, Above the Law
In my final ATL column, I explain a Supreme Court decision on the modified categorical approach, and more importantly, I urge everyone to keep paying attention. Immigration is not solved just because a Democrat is president.

The Biden Administration Is Putting Kids Back Into Temporary Tent Shelters” February 2021, Above the Law
The Biden administration reopened temporary shelters for immigrant minors in late February. This column explains why they felt it was necessary and why that’s a problem before essentially begging them to do better.

What Are These Biden Executive Orders Trying To Achieve On Immigration?” February 2021, Above the Law
The Trump administration pretty much vandalized federal immigration policy and agencies; Joe Biden issued a bunch of orders trying to clean it up. This is a brief explainer for four executive orders from early February 2021, plus my opinions. I am particularly pleased that one order singled out the Special Immigrant Visa program for Iraqi and Afghan former employees of the U.S. military; I am particularly unpleased that they’re dragging their feet on canceling all the blatantly illegal anti-asylum policies.

Trumpism Reaches Out From The Grave To Gum Up The Immigration Works,” January 2021, Above the Law
On their way out the door, the Trump DHS (in the persona of the illegally appointed Ken Cuccinelli) created a contract purportedly giving the state of Texas veto power over immigration policy for the entire nation. That’s not how any of this works.

Judge Saves United States Asylum Law, With More Than A Little Snark,” January 2021, Above the Law
It’s a new year, but the Trump DOJ was still making tired old arguments in a marquee asylum case, and they landed before a district judge who used several colorful metaphors to express his disapproval.

The Biden Administration Is Already Breaking Promises On Immigration,” December 2020, Above the Law
I got to do a bonus column at the end of 2020, expressing my displeasure that certain Biden advisors don’t plan to end “Remain in Mexico” right away, despite having expressly said they would.

About That Right-Wing Argument That Kamala Harris Isn’t A Citizen,” December 2020, Above the Law
At the end of the year, I looked at the legal support for the idea that the Fourteenth Amendment doesn’t mean what it expressly says. Surprise, there isn’t any!

Judge ‘Disturbed’ That Feds Withheld Contact Information For Separated Parents,” December 2020, Above the Law
Just before Thanksgiving—a convenient time if you’d like to bury some news—the federal government finally thought to check more places for contact information for the parents whose children it stole 2+ years ago.

The Trump Administration Is Still Making Immigration Rules,” November 2020, Above the Law
In this column, I take a look at what the lame-duck Trump administration can do in the immigration sphere before it leaves.

Some Things To Expect From The Biden Administration On Immigration,” November 2020, Above the Law
The dust is clearing, the Trump voter fraud lawsuits are a joke, and Joe Biden is our next president. Here’s what the Biden immigration platform says, along with my guesses about how that’s gonna work out for them.

Lawyers Still Can’t Find Parents Of 545 Children Taken By The Trump Administration,” October 2020, Above the Law
More than two years after family separation was supposed to have ended, 545 kids who were stolen by the Trump administration for political purposes are still unable to reunite with their parents.

A Whole Bunch Of Anti-Immigrant DHS Rules Might Be Moot Under Federal Law,” October 2020, Above the Law
The Government Accountability Office says the last two acting heads of DHS were unlawfully appointed, and the courts are therefore starting to void administrative rules that they passed. As you might imagine, this benefits immigrants.

Nurse Accuses ICE Doctor Of Performing Hysterectomies At Suspiciously High Rates,” September 2020, Above the Law
Somehow, this is my ATL column and not a dystopian science fiction story.

Muslim ICE Detainees In Florida Given Choice Between Rotten Food And Pork,” September 2020, Above the Law
Muslims in federal custody, like all people in federal custody, have a right to practice their religion, including by eating halal foods. Prior to the pandemic, this was not difficult, but for months, inmates at the Krome detention center in Miami have been given spoiled halal meals. Those who understandably refuse those meals can eat whatever is being served to others—which not only may contain pork, but is not labeled so they can tell where the pork is. Otherwise, they can starve.

ICE Is Lying About Its COVID-19 Death And Testing Rates,” August 2020, Above the Law
U.S. Immigration and Customs Enforcement, the agency charged with overseeing the immigration jails, claims on its website that it’s had a mere handful of deaths in custody—but journalists and public interest workers say that’s because they discharge people who are seriously ill. They also seem to be claiming widespread testing and compliance with CDC guidelines, even though several local branches of the ACLU have discovered that they are actively refusing to test detainees (or staff members). Lies, damned lies and statistics.

It’s About To Become A Lot More Expensive To Immigrate Legally,” August 2020, Above the Law
Led by the guy who tried to rewrite the poem on the Statue of Liberty to add an income requirement, U.S. Citizenship and Immigration Services is planning to increase fees substantially on October 2, 2020. This will make the immigration benefits USCIS administers—things like green cards, naturalized citizenship, asylum and family visas—so expensive that they may be out of reach for many applicants. USCIS rejected numerous public comments pointing this out, because pricing people out of legal immigration is the point.

After SCOTUS Smackdown On Census Question, Trump Tries To Achieve Same Goal Via Executive Order,” July 2020, Above the Law
Remember in 2019, when the estranged daughter of a Republican operative gave documents to the media showing that the point of the Census citizenship question was racial and political gerrymandering? Remember how that showed that Commerce Secretary Wilbur Ross lied under oath? Remember how the Supreme Court ultimately said no to the citizenship question? Trump doesn’t follow rulings and laws he doesn’t like, so he announced in late July that he was going to cleanse the Census data, except oops, that’s unconstitutional.

Immigration Judges Sue DOJ for Blocking Their Speech,” July 2020, Above the Law
Under the Trump administration, immigration judges have had their ability to control their own dockets taken away in multiple ways, seen precedent wiped out for expressly political purposes, and fought an attempt to dissolve their union. In 2020, the administration continued down this path by making a rule that judges can’t speak publicly in their personal capacities about anything related to immigration. They filed a free speech lawsuit.

The Trump Administration Is Trying to Cancel Asylum. Yes, All of It,” June 2020, Above the Law
Of course, this headline has been true all along, but the column is specifically about the June 2020 proposal to “change the rules” that apply to federal asylum law. Rather than faithfully implementing the statute, the proposal violates it in multiple ways with the goal of gutting U.S. asylum law. If you’re reading this before July 15, 2020 and you think victims of sex slavery should be eligible for asylum, please consider leaving a comment saying so at

While You Weren’t Looking, Trump Banned Some Chinese Grad Students,” June 2020, Above the Law
While Americans were in the street fighting each other about whether it’s OK for the police to kill people (spoiler alert: it’s not), the Trump administration quietly made a blanket policy denying visas for graduate or postgraduate studies to Chinese nationals with a connection to the Chinese military. The order took effect three days after it was issued, so nobody had any guidance to universities that actually had to implement it. In this piece, I draw some obvious analogies to the Chinese Exclusion Act.

Family Separation Is Back,” May 2020, Above the Law
The Trump administration has failed in its attempts to weaken or end the Flores settlement in order to achieve its goal of incarcerating families indefinitely. Their new method for getting around the settlement is a policy called “binary choice”: asylum-seekers who come with their children are given a choice between separating from the children or waiving those children’s right to be released “without unnecessary delay.”

FOIA Documents Show Trump Administration Stacked The Immigration Courts With Political Hires,” May 2020, Above the Law
The American Immigration Council and the American Immigration Lawyers Association received documents, via a FOIA lawsuit, confirming everyone’s suspicions: The Justice Department is hiring immigration judges according to political criteria. Specifically, they’re looking for judges with a strong record of saying no to immigrants, and their hires reflect that.

Merry Excusemas For Racists!,” April 2020, Above the Law
In this Above the Law column, I talk about Trump’s April 2020 order to stop issuing green cards on the grounds that immigrants compete with Americans for jobs. Substantial scholarship shows otherwise.

The Trump Administration Is STILL Trying To Keep Immigrant Kids In Lockup,” April 2020, Above the Law
Having covered the Flores case about unaccompanied minor immigrants’ rights a few times, I was interested to see what those plaintiffs were doing to protect unaccompanied immigrant minors in federal custody. As of early April, the answer is everything they can, but of course the Trump administration is trying to keep them locked up despite that being both a violation of the settlement and not medically advised.

Immigration Lawyers and Judges Beg to Suspend Court and Open Detention Centers Before People Die,” March 2020, Above the Law
Did you know that during the time of coronavirus, the White House was deciding whether to close immigration courts on a case-by-case basis? Immigration judges and the lawyers who appear before them—including the DHS attorneys who act as prosecutors—banded together to call for a full closure of the courts, and immigrant advocates are suing to get the most vulnerable out of detention.

Bill Would End Trump Administration Practice Of Using Therapy Notes Against Immigrant Kids,” March 2020, Above the Law
I opened my March opinion column with a post trying to bring broader attention to the horrific betrayal of children’s trust committed by the Trump administration when it used notes from their discussions with therapists against the children in immigration court.

Applying For A Green Card Will Now Make It Harder To Get A Green Card,” February 2020, Above the Law
My second February column is all about the public charge rule, which was rewritten by DHS to ensure that as few immigrants as possible would qualify for visas or green cards.

New Yorkers Kicked Out Of Trusted Traveler Program Because DHS Is Petty AF,” February 2020, Above the Law
Another opinion column (the plan is to do this on the regular) explaining that DHS kicked all New Yorkers out of the Trusted Traveler program as a punishment for their refusal to do ICE’s job for it.

CBP Burritos Are Making Immigrants Sick, Because Of Course They Are,” January 2020, Above the Law
This is an opinion column denouncing the CBP habit of feeding immigrants half-frozen burritos that make a large minority of them sick.


Justice Neil Gorsuch suggested New York’s COVID restrictions hold back Orthodox Jewish women. The truth is far more complicated,” November 2020, Jewish Telegraphic Agency
In his concurrence in Roman Catholic Diocese of Brooklyn v. Cuomo, Justice Neil Gorsuch mentioned offhand that the ruling, which lifted pandemic-related restrictions on occupancy of religious institutions, could be good for Orthodox women. This op-ed explains why I disagree.

The Supreme Court May Criminalize Immigrant Advocacy,” November 2019, Slate
This is an opinion piece arguing that the Supreme Court case U.S. v. Sineneng-Smith, to be decided during the 2019-2020 session, is a threat to the routine work of immigration attorneys and immigrants’ rights activists.

If Corporations Are Christians,” November 2013, Slate
This article for Slate’s Jurisprudence section is about the contraception mandate for the Affordable Care Act, which has generated a huge amount of lawsuits and split decisions from the federal Courts of Appeal. Some of those courts have found that corporations are entitled to the free exercise of religion because they are “people” within the meaning of the Religious Freedom Restoration Act. My piece argues that this would be bad for the religious freedom of their employees, because it would give secular-purpose, for-profit corporations the right to cite freedom of religion when they violate civil rights laws.

Could a Kansas Grand Jury Really Indict a Sculpture?,” October 2013, Slate
This is a piece for Slate’s Jurisprudence section, in which I argue that citizen-empaneled grand juries are a well-intentioned idea that doesn’t work in contemporary society, tagged to an American Family Association effort to indict a Kansas statute it believes is obscene.