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Empirical Studies of the State’s Treatment of Noncitizens in the United States: A Mixed Method Approach


This dissertation provides three studies on the state’s treatment of noncitizens in the United States, focusing on two groups in particular: asylum seekers and farmworkers. Together, these three chapters probe decisionmaking in each branch of the government, with particular attention to the interplay between them. The first chapter examines decisionmaking within the federal courts and considers their role in reviewing decisions of the immigration agency, the second explores how support for the detention of asylum seekers evolved within the executive and the legislature, and the third explores how the administrative state engages with a particularly vulnerable population: migrant farmworkers.

Chapter 1 considers appeals of asylum claims from the immigration agency to the United States Courts of Appeals. While there is consensus among attorneys and scholars alike that immigration adjudication is in a state of crisis, very few studies have examined how federal courts are reviewing this agency in crisis, and what role they play (or ought to play) through their review. This chapter focuses on asylum appeals at the federal appellate level, and builds an original database of asylum cases across five circuits over seven years. As it reveals, the Courts of Appeals have created a wide variety of court-fashioned rules that serve to either expand or constrict the scope of their review of asylum appeals. As it demonstrates, the elasticity of the appellate review model permits this wide variation. I argue that the more expansive approach to review is normatively beneficial, as we ought to have an appellate review model that permits courts to be responsive to evidence of an agency in crisis. Since larger changes aimed at addressing the underlying flaws at the agency level are unlikely to be forthcoming soon, federal courts may be the only institutions equipped to meaningfully address problems within asylum adjudication.

Chapter 2, co-authored with Smita Ghosh, traces the institutional history of the mass detention of noncitizens in the United States. Drawing upon an analysis of congressional records and media coverage from 1981 to 1996, it examines the growth of mass immigration detention. It traces an important shift during this period: while detention began as an ad hoc executive initiative that was received with skepticism from the legislature, Congress was ultimately responsible for entrenching the system over objections from the agency. As Chapter 2 reveals, a critical component of this evolution was a transformation in the legislative perception of asylum seekers: while lawmakers initially decried their detention, they later branded them as dangerous. It illuminates how elements of the new penology, such as the rhetoric of risk, were also critical in transforming the perception of asylum seekers.

Chapter 3 turns to the institutional treatment of another vulnerable group of noncitizens, farmworkers, and considers the failure of the administrative state to protect them. While the administrative state is said to pervade nearly every aspect of modern life, it has largely failed this population. Despite a robust regulatory framework governing the treatment of farmworkers, these laws are rarely enforced. One agency, the Equal Employment Opportunity Commission (EEOC), has emerged as a leader in enforcing the rights available to farmworkers, and won millions of dollars in settlements and verdicts and secured a wide range of injunctive relief. Chapter 3 explores the process by which the EEOC became much more assertive in enforcing its mandate to protect farmworkers. While its progress was slowed by its initial hesitation to view its civil rights mandate as encompassing farmworkers, it eventually changed course, and began to pursue discrimination claims on behalf of farmworkers. This runs contrary to the narrative often told about the agency, and suggests that the EEOC has employed non-bureaucratic, carefully tailored ways of achieving structural reform in the context of farmworkers. While far from perfect, the EEOC’s trajectory provides a model for other agencies that are poised to have a much larger impact in enforcing the rights of farmworkers.

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