Research 

My research focuses on public law (including U.S. constitutional law, federal courts, legal institutions such as the American jury system) and U.S. immigration policy history, primarily from a historical institutionalist perspective.

Below are my current and recent projects:

Federalism in U.S. Antebellum Migration and Citizenship

In this book, now under contract with Oxford University Press, I am seeking to answer the question: Which level of government, the national or subnational, had control of of migration and citizenship policies and why?

Dating back to the colonial period, the power sharing arrangement between the English metropole and its satellite North American colonies was one in which the colonies primarily managed migration policy. Citizenship during the period remained nebulous in two ways: what was included in national and subnational citizenship rights was undefined, and the relationship between national and state citizenship was little understood. That pattern and practice of local instead of central control of migration and citizenship continued through the early republic and until the last quarter of the nineteenth century, a period of over a century when these policies were managed at the local level. Migration policy federalized in 1882, the year when the federal Chinese Exclusion Act was passed and national citizenship was elevated above state citizenship with the Reconstruction Amendments.

That there was no national control over migration policies until 1882 did not mean that the antebellum international and intrastate borders were open. The federalism division of labor between the national and subnational governments, and the politics of each age, left vulnerable classes of people to navigate a patchwork of state and local restrictions when attempting to migrate internationally and domestically or, to remain in the place of their choosing. Poor, sickly, disabled, criminal and free Black people discovered that subnational control over migration multiplied the types of restrictions on their freedom of movement and remain. While these groups were subject to state migration laws, the national government retained authority to manage Native people through that period and until the present. The U.S. federal system determined the nature and scale of the government power arrayed against all these groups.

Central to the determining the location of the dividing line between national and subnational authority over migration and citizenship policies in the antebellum period was the institution of slavery. For too long U.S. immigration policy history and African American history have remained in separate silos. Slavery, rather than just an economic system or an institution of social control unto itself was an institution that shaped and circumscribed many other aspects of American life and politics, including broader U.S. immigration policy through the federal system.

I’ve published portions of two chapters:

• “The Historical Amnesia of American Immigration Federalism.” Polity, 47 (2): 302–19 (July 2015).

• “Lunatics, Idiots, Paupers, and Negro Seamen: Immigration Federalism and the Early American State.” Studies in American Political Development 28(2): 107–128 (October 2014).

Gender-Based Asylum in the Immigration Court

Under a National Science Foundation collaborative research grant with Karen Musalo of University of California Hastings College of the Law, we are seeking to answer the question: How do U.S. immigration courts decide gender-based asylum cases? For this project, we are analyzing hundreds of immigration agency administrative decisions and creating two original data sets that we will analyze both quantitatively and qualitatively to assess which factors affect legal outcomes.

This collaborative study focuses on the decision making processes in the evolving field of gender-based asylum law. It is especially timely because the legal definition of “refugee” and “asylee” does not explicitly designate gender as a ground for protection making gender-based claims fraught. We will undertake a study of the largest known repository of immigration courts and Board of Immigration Appeals asylum decisions from around the country (more than 760 decisions) and supplement those with decisions obtained through FOIA requests. These will be coded and turned into two original data sets that systematically tracks the characteristics of the adjudicators and asylum claimants as well as case fact patterns. Because administrative opinions on asylum are not available to the public, this unique study will examine a level of immigration bureaucracy never before studied in this regard.

The Immigration Battle in American Courts

In my first book, The Immigration Battle in American Courts (Cambridge University Press: Hardcover 2010, Paperback 2014), I examine the role of the Supreme Court and the U.S. Courts of Appeals—the two highest federal appellate courts—in U.S. immigration policy.

Immigrants have a better chance of winning their cases at the U.S. Courts of Appeals rather than the Supreme Court. This situation is not due to any Supreme Court xenophobia or racial animus against immigrants, but due to each court’s institutional setting. Just as one would behave differently at a funeral than at a wedding, the distinct institutional settings of the two highest federal courts affects the way these judges and justices approach their job.

Over time, the courts have diverged in mission and function. While the Courts of Appeals retained its function of looking for mistakes made by the trial court, the Supreme Court, based on its ability to select what cases it hears, has turned into a policy court. Immigrants have a better chance of winning when a court examines and weighs their claim individually in the approach taken by the U.S. Courts of Appeals. They tend to lose when a court views them as representative of a class of similarly situated individuals, the approach favored by the Supreme Court.

Book reviews:

• Perspectives on Politics

• Harvard Law Review