Immigration Articles of the Day: Two by Mary Hoopes
Here are two immigration articles by Mary Hoopes:
1. Regulating Marginalized Labor, Hastings Law Journal, Forthcoming
Abstract
Farmworkers are one of many vulnerable groups who remain far from the administrative state’s reach, existing largely in the shadows of the law. While there is a relatively robust regulatory framework that ostensibly governs the conditions under which they work, it is highly fragmented and seldom enforced. One agency, the Equal Employment Opportunity Commission (EEOC), has emerged as an important exception, adopting innovative strategies to win millions of dollars in settlements and secure a wide range of injunctive relief. Decades before contemporary movements on behalf of low-wage workers of color began, the EEOC was mounting an initiative to bring farmworkers into the core of Title VII’s protections and jurisprudence. Drawing upon an original database of EEOC farmworker litigation and interviews with both EEOC employees and farmworker advocates, this Article provides the first empirical analysis of the agency’s groundbreaking initiative over the past two decades, which has gone unnoticed within legal scholarship.
Conventional accounts of the EEOC portray an agency hampered by managerialist, bureaucratic approaches that do little to combat systemic discrimination. By contrast, I argue, the Commission’s farmworker initiative evinces a carefully tailored, creative approach that has enabled it to achieve meaningful structural reform in this context. At least two features were critical to its success. First, the EEOC’s de-centralized, entrepreneurial structure permitted this initiative to diffuse from the bottom up within the agency, and helped to insulate it from oscillation across administrations. Second, its unique and sustained partnerships with advocacy organizations enabled the Commission to surmount many of the bureaucratic obstacles that prevent agencies from responding effectively to the needs of vulnerable populations. These findings contribute to a growing literature on how to entrench the enforcement of civil rights within administrative agencies. This Article further echoes the call to reinvigorate the enforcement apparatus of the federal government. As it suggests, the EEOC’s trajectory provides insight into how to develop a more robust vision of public enforcement in the context of marginalized communities like farmworkers.
2. Judicial Deference and Agency Competence, Berkeley Journal of International Law (BJIL), Forthcoming
While there is consensus among practitioners and scholars alike that immigration adjudication is in a state of crisis, very few studies have examined the role that federal courts play in reviewing this system. This Article focuses on asylum appeals at the federal appellate level, and constructs an original database of cases across five circuits over seven years. It reveals that the Courts of Appeals have created a wide variety of court-fashioned rules that serve to either expand or constrict the scope of judicial review, with important implications for the likelihood of remand. In these data, having one’s asylum appeal heard in the Seventh or Ninth Circuits was associated with a significantly higher likelihood of remand than in the First, Tenth, or Eleventh Circuits. This variation does not merely reflect a difference in the types of cases across circuits. Rather, a qualitative analysis reveals very different approaches to reviewing the agency’s decision-making. Across these five circuits, the Seventh and Ninth Circuits have adopted a much more searching level of review that arguably reflects a distrust of the agency’s competence.
As this analysis demonstrates, the elasticity of the appellate review model permits this wide variation, as courts applying a nearly identical standard of review are reaching starkly different results. 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. This is particularly compelling in the context of asylum seekers, as their lack of political power has enabled both a long history of politicization of the adjudication process and a disregard for quality assurance initiatives within the agency. 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.
KJ