Law Commons^™

Immigration Enforcement And The Future Of Discretion, Shoba Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

National Security, Immigration And The Muslim Bans, Shoba Wadhia

Shoba Sivaprasad Wadhia

National security language has continued to guide the creation and defense of Executive Orders and related immigration policies issued in the Donald J. Trump administration. This Article builds on earlier scholarship examining the relationship between national security and immigration in the wake of September 11, 2001, under the Obama administration, and during the campaign leading to the 2016 Election. While the Article is largely descriptive, it ultimately questions the longevity of using national security to create and defend immigration law. This Article is limited in scope -- it does not provide a deep dive into the constitutionality of the Muslim …

Remarks On Prosecutorial Discretion And Immigration, Shoba Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

Foia Response On Deferred Action (Non-Daca), Shoba S. Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

The Aftermath Of United States V. Texas, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

On June 23, 2016, the Supreme Court issued a 4-4 ruling in the immigration case of United States v. Texas, blocking two “deferred action” programs announced by President Obama on November 20, 2014: extended Deferred Action for Childhood Arrivals (DACA Plus) and Deferred Action for Parents of Americans and Legal Residents (DAPA). The 4-4 ruling by the justices creates a non-precedential non-decision, upholding an injunction placed by a panel of federal judges in the Fifth Circuit Court of Appeals. While the future of these programs remains uncertain in the long term, the immediate effects are pronounced, as millions of qualifying …

Is Immigration Law National Security Law?, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

The debate around how to keep America safe and welcome newcomers is prominent. In the last year, cities and countries around the world, including Baghdad, Dhaka, Istanbul, Paris, Beirut, Mali and inside the United States - have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War. This article is based on remarks delivered at Emory Law Journal’s annual Thrower Symposium on February 11, 2016. It explores how national security concerns have shaped recent immigration policy in the Executive Branch, Congress and the states and the moral, legal and …

Beyond Deportation: Understanding Immigration Prosecutorial Discretion And United States V. Texas, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

In this article, I place the Supreme Court case of United States v. Texas into a broader context by describing the history and legal authority for prosecutorial discretion in immigration law and highlighting the contents and recommendations in my book, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases. Part I of this article offers a primer on the role of prosecutorial discretion in immigration law and also describes two related programs announced by President Obama on November 20, 2014 and the subject of litigation for nearly two years as of this writing. Part II provides a history and …

Foia Response From Uscis On Deferred Action Records: 2016, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

The History Of Prosecutorial Discretion In Immigration Law, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

This Article describes the historical role of prosecutorial discretion in immigration law and connects this history to select executive actions announced by President Obama on November 20, 2014.

Foia Response From Uscis On Parole, Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

Foia Response On Orders Of Supervision, Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

Standard Operating Procedure For Deferred Action (Non-Daca), Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia

In January 2015, I filed a FOIA request seeking updated internal policies and correspondence regarding deferred action (non-DACA) with USCIS. In August 2015, I received a response containing the Standard Operating Procedure (SOP) (version date 3/7/2012) and some e-mails regarding the jurisdiction that applies when a person's case has been administratively closed. Attached is the Cover Letter and Response. Notably, the SOP provided is identical to the one I received through FOIA in 2013, leading to the conclusion that 1) the SOP has not been updated in three years; or 2) the updated version was not provided.

Foia Response From Ice On Parole, Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia

In Fall 2014 I filed a Freedom of Information Act (FOIA) Request with ICE seeking policy documents and communications relating to parole. ICE provided me with a formal response dated May 22, 2015, 2013. I received 198 pages, many of which have been redacted. Below are some of the items contained in the FOIA Response: • ICE Lesson Plan: Alien Encounters- Detention and Removal Operations Training Division (January 2009) • ICE Lesson Plan: Alternate Orders of Removal- Detention and Removal Operations Training Division (December 2008) • ICE Powerpoint: Parole Policy Training –including o Parole Procedures o Worksheets o Denial Letters …

Immigration Law's Catch-22: The Case For Removing The Three And Ten-Year Bars, Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia

Congress has made family immigration a priority in statute but the unlawful-presence bars, also known as the three and ten-year bars, create unique barriers for family reunification that prevent many immigrants from legalizing their status through the existing immigration system. The three and ten-year bars prevent immigrants who have overstayed their visas or entered unlawfully from earning a green card even if they are otherwise capable of legally acquiring it. Removing or reforming the unlawful presence bars would remove a major legislative catch-22 that impedes the legalization of many unauthorized immigrants. Take the example of Maria, a 23 year-old woman …

Immigration Remarks For The 10th Annual Wiley A. Branton Symposium, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

Business As Usual: Immigration And The National Security Exception, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

Javaid Iqbal is a native and citizen of Pakistan and a Muslim. After moving to the United States, Iqbal worked as a cable television installer on Long Island. Iqbal was one among hundreds of men apprehended and detained by the United States Department of Justice in the weeks that followed the September 11, 2001 attacks. Iqbal was held in a federal prison in Brooklyn, New York called the Metropolitan Detention Center (MDC), for more than one year. In January 2002, Iqbal was transferred to the maximum security section of the jail known as the Administrative Maximum Special Housing Unit (ADMAX …

The Role Of Prosecutorial Discretion In Immigration Law, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

The concept of "prosecutorial discretion" appears in the immigration statute, agency memoranda and court decisions about select immigration enforcement decisions. Prosecutorial discretion extends to decisions about which offenses or populations to target; whom to stop, interrogate, and arrest; whether to detain or release a noncitizen; whether to initiate removal proceedings; and whether to execute a removal order; among other decisions. Similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving cost-effective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances. Yet there is a dearth of literature on the …

Foia Request To Uscis On Deferred Action Records, Shoba Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

The Immigration Prosecutor And The Judge: Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these …

My Great Foia Adventure And Discoveries Of Deferred Action Cases At Ice, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

This Article describes my adventures in FOIA litigation and analyzes deferred action data collected informally by 24 ICE field offices between October 1, 2011, and June 30, 2012. This Article also offers recommendations for the agency on data collection, recordkeeping, and transparency in deferred action cases. Deferred action is a form of prosecutorial discretion that can be granted at any stage of the immigration enforcement process and historically has been applied both to people who meet group characteristics and on an individual basis in compelling humanitarian circumstances. The theory behind deferred action and prosecutorial discretion more generally is to enable …

Foia Response Deferred Action Policy At Uscis, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

I filed a Freedom of Information Act (FOIA) Request with USCIS seeking internal documents and guidance pertaining to deferred action since June 17, 2011. In July 2013, USCIS responded with 34 identifiable pages that were responsive to my request. Of note, the response includes: • A few pages about DA screening for VAWA self-petitioners • Standard Operating Procedures (SOP) for Handling Deferred Action Requests At USCIS Field Offices (p. 14-20) • Templates for a DA Approval and DA Denial • Blank Form G-312 Deferred Action Summary

Response, The Obama Administration, In Defense Of Daca, Deferred Action, And The Dream Act, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

This essay responds to “The Obama Administration, the DREAM Act and the Take Care Clause” by Robert J. Delahunty and John C. Yoo. Though I credit Yoo and Delahunty for considering the relationship between the DACA program and the President’s duties under the “Take Care” clause, they miss the mark in at least three ways: 1) Contrary to ignoring immigration enforcement, the Obama Administration has executed the immigration laws faithfully and forcefully; 2) Far from being a new policy that undercuts statutory law, prosecutorial discretion actions like DACA have been pursued by other presidents, and part of the immigration system …

Standard Operating Procedure: Deferred Action For Childhood Arrivals (Daca), Shoba S. Wadhia

Shoba Sivaprasad Wadhia

My Foia Complaint On Deferred Action Cases At Ice, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

Data From Ice On Deferred Action, Fall 2012, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

Use Of The Term 'Illegal Alien', Shoba S. Wadhia

Shoba Sivaprasad Wadhia

This essay examines the use of the terms “alien,” “illegal,” and “illegal alien.” It will show that use of the term “illegal alien” is problematic because it is subject to many definitions that are often inaccurate. Moreover, even if there is agreement on the scope of the phrase “illegal alien,” the term cannot be fully understood without studying the individual characteristics of those defined by this term as well as the role of the government in sustaining an outdated immigration structure that creates illegal immigration an inevitability. Finally, this essay will show that the term “illegal alien” is dehumanizing because …

The Immigration Prosecutor And The Judge Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these …

Foia Request To Dhs On Daca Program, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

Sharing Secrets: Examining Deferred Action And Transparency In Immigration Law, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law

Abstract

This Article is about deferred action and transparency in related immigration cases falling under the jurisdiction of the Department of Homeland Security (DHS). While scholars from other genres have written extensively on the topic of prosecutorial discretion, the subject is largely absent from immigration scholarship, with the exception of early research conducted by Leon Wildes in the late 1970s and early 2000s, and a law review article I published in 2010 outlining the origins of prosecutorial discretion in immigration law and related lessons that can be drawn from administrative …

Response From Uscis On My Foia Re: Deferred Action, Shoba Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.