Law Commons^™

The Immigration Implications Of Presidential Pot Pardons, Jason A. Cade

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This Essay examines the immigration implications of President Joe Biden’s Proclamation on October 6, 2022, pardoning most federal and D.C. offenders who committed the offense of simple marijuana possession. A late twentieth century interpretive shift by the Board of Immigration Appeals holds that pardons only prevent deportation for certain criminal history categories, which do not include controlled substance offenses, and thus far lower federal courts have deferred to the agency’s approach.Nevertheless, according to the analysis I offer, President Biden’s cannabis pardons should be deemed fully effective to eliminate all immigration penalties. All of the immigrant pardon cases to reach the …

'Water Is Life!' (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade

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Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy “dissent,” including blacklists, …

All The Border's A Stage: Humanitarian Aid As Expressive Dissent, Jason A. Cade

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Immigration enforcement along the Southwest border between the United States and Mexico has long channeled immigrants into perilous desert corridors, where many thousands have dies, out of the public view. In response to this humanitarian crisis, activists from organizations such as No More Deaths (NMD) trek deep into the treacherous desert, hoping to save lives, honor the remains of those who did not survive, and influence public opinion about border enforcement policies. NMD's activism is not merely utilitarian but also deeply expressive; ultimately, they hope to convey the message that all lives -- including those of unauthorized migrants-- are worth …

Restoring The Statutory Safety-Valve For Immigrant Crime Victims: Premium Processing For Interim U Visa Benefits, Jason A. Cade, Mary Honeychurch

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This essay focuses on the U visa, a critical government program that has thus far failed to live up to its significant potential. Congress enacted the U visa to aid undocumented victims of serious crime and incentivize them to assist law enforcement without fear of deportation. The reality, however, is that noncitizens eligible for U status still languish in limbo for many years while remaining vulnerable to deportation and workplace exploitation. This is in large part due to the fact that the agency has never devoted sufficient resources to processing these cases. As a result, the potential benefits of the …

Teaching Tomorrow’S Lawyers Through A (Semi-) Generalist, (Mostly-) Individual Client Poverty Law Clinic: Reflections On Five Years Of The Community Health Law Partnership, Jason A. Cade

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Design options when starting a live-client clinic from scratch can be somewhat overwhelming. Should the clinic focus on systemic impact or individual representation? Appellate work or hearings? Should the clinic specialize or cover multiple legal issues? Another set of issues concerns how the clinic should find and accept its clients, and whether students should have a role in the intake process. The list of choices goes on. In this Essay, written for the Georgia Law Review’s Online Issue celebrating 50 years of clinics at the University of Georgia School of Law, I describe how I have navigated these and other …

Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade

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This Article focuses attention on two recent and notable federal court opinions considering challenges to Trump administration deportation decisions. While finding no statutory bar to the noncitizens’ detention and deportation in these cases, the court in each instance paused to highlight the injustice of the removal decisions. This Article places the opinions in the context of emerging immigration enforcement trends, which reflect a growing indifference to disproportionate treatment as well as enforcement actions founded on retaliation for the exercise of constitutional rights. Judicial decisions like the ones considered here serve vital functions in the cause of immigration law reform even …

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

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Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn …

Of Mice And Men: On The Seclusion Of Immigration Detainees And Hospital Patients, Stacey A. Tovino

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With a special focus on federal provisions strictly regulating Medicare-participating hospitals' use of seclusion, this Article uses developments in health law as a lens through which the uses and abuses of seclusion in immigration detention centers might be assessed and through which the standards governing detention centers might be improved. In particular, this Article argues that the unenforceable standards governing seclusion in immigration detention, including the most recent version of ICE's Performance-Based National Detention Standards, were incorrectly modeled on correctional standards developed for use in jails and prisons with respect to convicted criminals. This Article asserts that correctional standards are …

Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions, Michael Kagan

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President Obama’s ambitious use of executive discretion in immigration – especially the DACA and DAPA programs – should be understood in context of a struggle within the executive branch between the President and frontline enforcement officers in the Department of Homeland Security who have actively resisted his policy agenda. The so far successful litigation by 26 states to partially halt these programs has focused on this struggle within the executive branch, rather than on the stalemate between the President and Congress over legislative immigration reform. In preliminary rulings, the federal district court and the Court of Appeals have interpreted ambiguous …

Limiting Deterrence: Judicial Resistance To Detention Of Asylum-Seekers In Israel And The United States, Michael Kagan

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Governments have advanced the argument that asylum-seekers may be detained in order to deter other would-­be asylum­-seekers from coming. But in recent litigation in the United States and Israel, this justification for mass detention met with significant resistance from courts. This Essay looks at the way the American and Israeli courts dealt with the proposed deterrence rationale for asylum-seeker detention. It suggests that general deterrence raises three sequential questions:

1. Is deterrence ever legitimate as a stand alone justification for depriving people of liberty?

2. If deterrence is sometimes legitimate, is it valid as a general matter in migration control, …

When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan

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The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have …

Shrinking The Post-Plenary Power Problem, Michael Kagan

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In this essay, Professor Michael Kagan responds to Professor Matthew J. Lindsay's article, Disaggregating “Immigration Law.” Professor Kagan posits a majority of Supreme Court justices appear to be at least occasionally uneasy with the plenary power doctrine that has shaped immigration law since the Chinese Exclusion Case, but they are not all sure how to live without it either. He argues so long as this remains the case, the Court’s immigration jurisprudence is likely to be incrementally favorable to immigrants on the whole, but tentative, inconsistent, and incoherent in some important ways. He concludes the importance of Professor Lindsay’s intervention …

Enforcing Immigration Equity, Jason A. Cade

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Congressional amendments to the immigration code in the 1990s significantly broadened grounds for removal while nearly eradicating opportunities for discretionary relief. The result has been a radical transformation of immigration law. In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement officials to implement rigid immigration rules in a normatively defensible way, primarily through the use of prosecutorial discretion. This Article contextualizes recent executive enforcement actions within this scheme and argues that the Obama Administration’s targeted use of limited enforcement resources and implementation of initiatives such as Deferred Action for …

Return Of The Jrad, Jason A. Cade

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Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors. And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar, he recommended that the government not deport him, even though no legal rules provided him with a route to that result. This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime. Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability. …

Assumed Sane, Fatma Marouf

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In 2014, the Board of Immigration Appeals (BIA) held in Matter of G-G-S- that a noncitizen’s mental health status at the time of an offense is irrelevant to determining whether the offense is a “particularly serious crime” for immigration purposes. Since a “particularly serious crime” is a bar to asylum and withholding of removal, it can result in a noncitizen’s deportation to a country where he or she faces a serious risk of persecution. In deciding that immigration judges “are constrained by how mental health issues were addressed as part of the criminal proceedings,” the BIA failed to recognize the …

Believable Victims: Asylum Credibility And The Struggle For Objectivity, Michael Kagan

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Asylum adjudication is often the invisible frontline in the struggle by oppressed groups to gain recognition for their plights. Through this process, individual people must tell their stories and try to show that they are genuine victims of persecution rather than simply illegal immigrants attempting to slip through the system. In 2002, because the world had not yet acknowledged the nature of the calamity from which they were escaping, many Darfurian asylum cases would have relied on the ability of each individual to convince government offices to believe their stories. They would have had to be deemed “credible,” or they …

A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan

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Broad executive action has been the Obama Administration’s signature contribution to American immigration policy, setting off a furious debate about whether the President has acted outside his constitutional powers. But the legal debate about the scope of the President’s authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies, and thus has not focused on those areas where he has taken executive discretion into uncharted territory. This essay aims to add new focus to the debate about Pres. Obama’s executive actions by defining five different types of presidential discretion: Congressionally-authorized discretion, non-enforcement discretion, …

Plenary Power Is Dead! Long Live Plenary Power!, Michael Kagan

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For decades, scholars of immigration law have anticipated the demise of the plenary power doctrine. The Supreme Court could have accomplished this in its recent decision in Kerry v. Din, or it could have re-affirmed plenary power. Instead, the Court produced a splintered decision that did neither. This essay examines the long process of attrition that has significantly gutted the traditional plenary power doctrine with regard to procedural due process, while leaving it largely intact with regard to substantive constitutional rights.

The Unconstitutional Use Of Restraints In Removal Proceedings, Fatma Marouf

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This Article challenges the constitutionality of indiscriminately restraining civil immigration detainees during removal proceedings. Not only are immigration detainees routinely placed in handcuffs, leg irons, and belly chains without any individualized determination of the need for restraints, but Immigration and Customs Enforcement (ICE), the prosecuting party, makes the decisions about the use of restraints, rather than the judge. After examining the rationale for the well-established prohibition against the indiscriminate use of restraints during criminal and civil jury trials, and discussing how some courts have extended this rationale to bench trials, this Article contends that ICE’s practice violates substantive and procedural …

The New Era Of Presidential Immigration Law, Michael Kagan

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At the dawn of the Obama Administration, Professors Adam Cox and Cristina Rodríguez wrote: “[T]he inauguration of a new President can bring with it remarkable changes in immigration policy.” At the time they wrote that, this proposition was in some ways more a matter of advocacy than a description of reality. As we approach the election of a new president in 2016, we finally live in the world that Professors Cox and Rodríguez advocated. The election of a new President will likely carry significant immediate consequences for immigration policy. My goal in this short space will be to focus on …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

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Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

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Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

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Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

Buying Time? False Assumptions About Abusive Appeals, Michael Kagan, Fatma Marouf, Rebecca Gill

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The federal government has expressed fear that immigrants abuse the appellate process to delay their deportations by filing meritless petitions for review with the federal courts. Some courts have responded to these concerns by imposing stricter standards for issuing stays of removal, so that the government can more easily deport petitioners even while their appeals remain pending. The risk with this approach is that immigrants who ultimately prevail may be erroneously deported. What is often overlooked is that the potential for abuse is really a function of time, with longer appeals posing a greater threat to immigration enforcement. This study …

Justice On The Fly: The Danger Of Errant Deportations, Fatma Marouf, Michael Kagan, Rebecca Gill

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The government may deport an immigrant appealing a deportation order in federal court even before the court rules on the case, unless the court issues a stay of removal. In its 2009 decision in Nken v. Holder, the Supreme Court clarified that the legal standard for stays of removal is the same test courts use for preliminary injunctions. Yet Justice Kennedy expressed frustration that the Court had little data to inform its decision. The Court will likely need to revisit this issue, as doubts cloud the meaning of Nken’s main holdings, in part because the government misled the …

Dubious Deference: Reassessing Appellate Standards Of Review In Immigration Appeals, Michael Kagan

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The long-standing doctrine of deferential review by appellate courts of findings of fact by administrative agencies is seriously flawed for two main reasons. First, the most prominent justification for deference relies on the empirical assumption that first-instance adjudicators are best able to determine the truth because they can directly view witness demeanor. Decades of social science research has proven this assumption about the value of demeanor false. Second, in principle, the deference rule applies to all types of administrative adjudication, with no attention to the relative gravity of interests at stake in different types of cases or to the varying …

The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf

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U.S. asylum law is based on a domestic statute that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum provisions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. This Article highlights this significant omission and urges courts to examine the interpretations of other States Parties to the Protocol in asylum cases. Using as an example the current debate over social …

Talking Union In Two Languages Labor Rights And Immigrant Workers In East Tennessee, Fran Ansley

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No abstract provided.

Ten Years After Hoffman Plastic Compounds, Inc. V. Nlrb: The Power Of A Labor Law Symbol, Ruben J. Garcia

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No abstract provided.

Regrouping America: Immigration Policies And The Reduction Of Prejudice, Fatma Marouf

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No abstract provided.