Law Commons^™

Improving Lawyers & Lives: How Immigrant Justice Corps Built A Model For Quality Representation While Empowering Recent Law School And College Graduates And The Immigrant Communities Whom They Serve, Jojo Annobil, Elizabeth Gibson

Fordham Law Review

The late Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit formed a study group in 2008 called the Study Group on Immigrant Representation to assess the scope of the problem and find a solution. The study group determined that the representation crisis was an issue “of both quality and quantity” and that the two most important variables for a successful outcome in a case were having counsel and not being detained. To address this need, the study group established two innovative programs: the New York Immigrant Family Unity Project (NYIFUP), the first public defender …

Imperialist Immigration Reform, Cori Alonso-Yoder

Fordham Law Review

For decades, one of the most challenging domestic policy matters has been immigration reform. Dogged by controversial notions of what makes for a “desirable” immigrant and debates about enforcement and amnesty, elected officials have largely given up on achieving comprehensive, bipartisan immigration solutions. The lack of federal action has led to an outdated and impractical legal framework, with state and local lawmakers unable to step into the breach. Well over 100 years ago, the U.S. Supreme Court firmly stated that regulation of the U.S. immigration system is within the sole constitutional authority of the federal government.

Yet there is one …

Judicial Antifederalism, Anthony M. Ciolli

Fordham Law Review

The United States has a colonies problem. The more than 3.5 million Americans who live in the U.S. territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands lack some of the most fundamental rights and protections, such as the right to vote. This is due to a series of decisions decided more than a century ago, collectively known as the Insular Cases, in which the U.S. Supreme Court held that the “half-civilized,” “savage,” “ignorant and lawless” “alien races” that inhabited America’s overseas territories were not entitled to the same constitutional rights and …

Concepts Of Citizenship In The Controversy About Constitutional Citizenship For People Born In U.S. Territories, Janet M. Calvo

Fordham Law Review

In 2019, the District of Utah in Fitisemanu v. United States rejected the Insular Cases and held that persons born in American Samoa acquired Fourteenth Amendment constitutional citizenship at birth. The Tenth Circuit reversed through an analysis that attempted to “repurpose” the Insular Cases. This Essay discusses the differing concepts of citizenship presented in Fitisemanu, which raise significant questions about the nature and import of American constitutional citizenship. The Supreme Court’s recent denial of certiorari in Fitisemanu unfortunately leaves these questions unresolved, further continuing the second-class status of individuals born in the territories and underscores the uncertainty of …

A Living Legacy: The Katzmann Study Group On Immigrant Representation, The Honorable Denny Chin

Fordham Law Review

On March 9, 2023, hundreds of individuals—including immigration lawyers, advocates, government officials, academics, journalists, and philanthropists—gathered for a symposium at Fordham University School of Law entitled Looking Back and Looking Forward: Fifteen Years of Advancing Immigrant Representation. The symposium was organized by the Fordham Law Review and sponsored by law school centers and clinics, nonprofit organizations, and the Katzmann Study Group on Immigrant Representation (the “Study Group”). For members of the Study Group, the day was particularly poignant because several sessions at the symposium honored the life and accomplishments of the Hon. Robert A. Katzmann, the Study Group’s founder and …

Advancing Immigrant Legal Representation: The Next Fifteen Years, Muzaffar Chishti, Charles Kamasaki, Laura Vasquez

Fordham Law Review

As a judge on the U.S. Court of Appeals for the Second Circuit, Robert A. Katzmann found that immigration matters represented a severe and growing bottleneck of the cases at the court. Instead of treating this phenomenon purely as a case management problem, he chose to delve deeper to understand the underlying cause for the high level of appeals from immigration agency determinations. Judge Katzmann concluded that lack of effective counsel was a major factor, and he turned that understanding into a cause. In his 2007 clarion call, he implored the enlightened members of the legal community to rise to …

Representing Noncitizens In The Context Of Legal Instability And Adverse Detention Precedent, Nancy Morawetz

Fordham Law Review

This Essay addresses three structural aspects of immigration law that have shifted in recent years and present important challenges for delivering adequate representation. Although the Katzmann study group’s many initiatives have shored up access to counsel in immigration courts and for immigration applications, the ground has been shifting under our feet. This Essay discusses three (of many) phenomena that make it harder than ever to lawyer on behalf of noncitizens. The first is the rise of red-state lawsuits that lead to enormous unpredictability about the agency rules under which lawyers can expect to operate. The second is the individuation and …

The Crisis Of Unrepresented Immigrants: Vastly Increasing The Number Of Accredited Representatives Offers The Best Hope For Resolving It, Michele R. Pistone

Fordham Law Review

The U.S. immigration system is exceedingly complex, and access to legal representation is the primary determinant in obtaining a just immigration outcome. Immigrants must navigate a byzantine, burdensome, and high stakes legal process, conducted in a language they often do not speak. They often must do so without any legal representation. Unlike criminal defendants, immigrants are not entitled to government-funded lawyers. Legal services organizations, such as Legal Services Corporation, that receive any federal funding are prohibited from providing legal representation to most immigrants. Faith-based and charitable legal services organizations provide some legal representation to immigrants through attorneys, staff members, and …

Fee Retrenchment In Immigration Habeas, Seth Katsuya Endo

Fordham Law Review

For noncitizens facing removal, habeas corpus provides one of very few avenues for Article III review. For decades, habeas proceedings have been interpreted as falling under the ambit of the Equal Access to Justice Act (EAJA), which provides for the award of attorneys’ fees to prevailing parties in suits against the federal government. But this understanding is being challenged, threatening the judicial backstop to executive and legislative overreach in immigration. Reducing the ability of lawyers to recover their fees in these circumstances will reduce the number and quality of habeas challenges by individuals being detained while they await removal—a particularly …

How To Explain To Your Twins Why Only One Can Be American: The Right To Citizenship Of Children Born To Same-Sex Couples Through Assisted Reproductive Technology, Lena K. Bruce

Fordham Law Review

Sections 301 and 309 of the Immigration and Nationality Act (INA) govern birthright citizenship by descent. Per the U.S. Department of State’s (DOS) interpretation of these sections, to transmit citizenship to a child, the U.S. citizen-parent must have a biological connection with the child. For couples who use assisted reproductive technology (ART) to have children, however, this means that one parent will always be barred from transmitting citizenship to their own child. This is because in ART families, at least one parent will always lack the biological connection that the DOS requires to transmit citizenship pursuant to the INA. This …

Daca, Government Lawyers, And The Public Interest, Stephen Lee, Sameer M. Ashar

Fordham Law Review

On June 15, 2012, the Obama administration announced a significant change in immigration policy: Homeland Security Secretary Janet Napolitano began to instruct immigration officials to defer enforcement actions against those noncitizens who would likely be eligible for relief under the DREAM Act, should Congress choose to pass it. This program, which came to be known as Deferred Action for Childhood Arrivals (DACA), has become the most significant immigration-benefits program in a generation. Not since Congress passed a comprehensive reform bill in 1986, which included a pathway to citizenship, has an immigration program so quickly and positively changed the lives of …

Study Group On Immigrant Representation: The First Decade, Robert A. Katzmann

Fordham Law Review

All of us here have a common goal: ensuring adequate legal representation of the immigrant poor. A courtroom has multiple players with different roles, but all would agree that adequate legal representation of the parties is essential to the fair and effective administration of justice. Deficient representation frustrates the work of courts and ill serves litigants. All too often, and throughout the country, courts that address immigration matters must contend with such a breakdown in legal representation, a crisis of massive proportions with severe, tragic costs to immigrants and their families. For our nation’s immigrants, the urgent need for competent …

Universal Representation, Lindsay Nash

Fordham Law Review

In an era in which there is little good news for immigrant communities and even holding the line has become an ambitious goal, one progressive project has continued to gain steam: the movement to provide universal representation for noncitizens in removal proceedings. This effort, initially born out of a pilot project in New York City, has generated a host of replication projects throughout the nation and holds the promise of even broader expansion. But as it grows, this effort must confront challenges from within: the sort-of supporters who want to limit this representation system’s coverage in a number of ways, …

A Constitutional Case For Extending The Due Process Clause To Asylum Seekers: Revisiting The Entry Fiction After Boumediene, Zainab A. Cheema

Fordham Law Review

In the last two decades, the U.S. Supreme Court has actively grappled with balancing the interests of immigrant detainees and the federal government in the context of prolonged immigration detention by reconciling the statutory framework with constitutional guarantees of due process. The Court has focused on how prolonged detention without an opportunity for an individualized custody determination poses a serious constitutional threat to an alien’s liberty interest. The Court’s jurisprudence has focused, however, on aliens who have effected an entry into the United States. The constitutional entitlements of nonresidents who are detained upon presenting themselves at the border have so …

Immigration Blame, David S. Rubenstein

Fordham Law Review

This Article provides the first comprehensive study of blame in the U.S. immigration system. Beyond blaming migrants, we blame politicians, bureaucrats, and judges. Meanwhile, these players routinely blame each other, all while trying to avoid being blamed. As modeled here, these dynamics of “immigration blame” have catalyzing effects on the politics, policies, and structures of immigration law. Yoking key insights from a range of social sciences, this Article offers unique perspectives on the operation and design choices of the immigration system. Moreover, through a blame lens, the terms of debate over amnesty, immigration enforcement, the travel ban, sanctuary cities, and …

Algorithmic Jim Crow, Margaret Hu

Fordham Law Review

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …

“I Am Undocumented And A New Yorker”: Affirmative City Citizenship And New York City’S Idnyc Program, Amy C. Torres

Fordham Law Review

The power to confer legal citizenship status is possessed solely by the federal government. Yet the courts and legal theorists have demonstrated that citizenship encompasses factors beyond legal status, including rights, inclusion, and political participation. As a result, even legal citizens can face barriers to citizenship, broadly understood, due to factors including their race, class, gender, or disability. Given this multidimensionality, the city, as the place where residents carry out the tasks of their daily lives, is a critical space for promoting elements of citizenship. This Note argues that recent city municipal identification-card programs have created a new form of …

American Nationals And Interstitial Citizenship, Rose Cuison Villazor

Fordham Law Review

Citizenship scholarship is pervasively organized around a binary concept: there is citizenship (which is acquired at birth or through naturalization) and there is noncitizenship (which accounts for everyone else). This Article argues that this understanding is woefully incomplete. In making this argument, I tell the story of noncitizen nationals, a group referred to by this Article as American nationals. Judicially constructed in the 1900s, and codified by Congress in 1940, American nationals possess some of the rights inherent to citizenship, such as the right to enter and reside in the United States without a visa. Yet, they do not have …

Time, Due Process, And Representation: An Empirical And Legal Analysis Of Continuances In Immigration Court, David Hausman, Jayashri Srikantiah

Fordham Law Review

Since 2014, U.S. immigration courts have expedited the cases of many children and families fleeing persecution in Mexico and Central America. This Article conducts an empirical and legal analysis of this policy, revealing that reasonable time between immigration court hearings is necessary to protect the statutory and constitutional rights to legal representation. A large majority of immigrants facing deportation- including those part of the recent surge of children and families from Central America and Mexico-appear at their first deportation hearing without a lawyer, often because they cannot afford one. When an immigrant appears without a lawyer and does not expressly …

Tortured Language: Lawful Permanent Residents And The 212(H) Waiver, Julianne Lee

Fordham Law Review

Recent amendments to the Immigration and Nationality Act have greatly expanded the grounds for removal of lawful permanent residents (LPRs) and, at the same time, constricted judicial review of agency decisions to deport immigrants. Language added to the 212(h) waiver of inadmissibility has increased the number of LPRs that are now ineligible for relief from removal by barring certain LPRs from applying for a waiver if, since the date of their admission, they have committed an aggravated felony or have failed to accrue seven years of continuous presence. The controversy discussed in this Note stems from differing interpretations of this …

Enforcing Immigration Equity, Jason A. Cade

Fordham Law Review

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 …

Involuntary Return And The “Found In” Clause Of 8 U.S.C. § 1326(A): An Immigration Conundrum, Matthew J. Geyer

Fordham Law Review

Illegal reentry into the United States by previously removed aliens is a major problem that has risen steadily in recent years. 8 U.S.C. § 1326(a) punishes such aliens. Specifically, § 1326(a) provides for criminal fines or imprisonment (or both) of any previously removed alien who enters, attempts to enter, or is “found in” the United States at any time after his or her initial removal.

What does it mean to be “found in” the United States in violation of § 1326(a)? The easy case is when a previously removed alien surreptitiously reenters the United States illegally, remains in the United …

There And Back, Now And Then: Iirira’S Retroactivity And The Normalization Of Judicial Review In Immigration Law, Austen Ishii

Fordham Law Review

The U.S. Supreme Court has a long tradition of treating immigration law as “exceptional,” deferring to Congress and executive agencies when determining the scope of various immigration laws. The Court’s refusal to subject immigration statutes to the ordinary level of judicial review has left immigrants even more susceptible to the effects of anti-immigrant legislation.

When the Court decided Fernandez-Vargas v. Gonzales in 2006 it increased the scope of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) by allowing portions of the statute to be applied to immigrants who had reentered the United States prior to its effective …