By Shoba Wadhia. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)
This author welcomes responses to this abstract and the upcoming article. The author may be contacted at:
- E-mail: ssw11@psu.edu
- Phone: (814) 865-3823
Abstract:
While the impact of the Iqbal decision on notice-pleading standard is striking, its effects on the permissiveness of selective enforcement policies against foreign nationals are minimal, when contextualized against the government’s practices following 9/11. This Article challenges Justice’s Kennedy’s assertion that the government’s post 9-11 detention policy was merely incidental and places Iqbal in the larger context of how immigration law and policy was made and applied in the aftermath of September 11, 2001. Following this history, it describes the continued residual impact of post 9-11 immigration practices on individual noncitizens and their families. Thereafter, the Article argues that far from creating a new standard for the immigration scholars and lawyers, the Iqbal decision perpetuates an accepted legal standard that permits the government to selectively discriminate against foreign nationals based on race, religion, ethnicity and political ideology, with minimal accountability of the actors who administer, approve of, or overlook such practices. In doing so, Iqbal threatens basic principles of due process and equal treatment under the law that most citizens take for granted. Critical of this standard, the Article makes some recommendations to Congress and the Executive Branch moving forward.