"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless
Dec 2015
"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless
Rebecca Sharpless
Scholars and law reformers advocate for better treatment of immigrants by invoking a contrast with people convicted of a crime. This Article details the harms and limitations of a conceptual framework that relies on a contrast with people—citizens and noncitizens—who have been convicted of a criminal offense and proposes an alternate approach that better aligns with the racial critique of our criminal justice system. Noncitizens with a criminal record are overwhelmingly low-income people of color. While some have been in the United States for a short period of time, many have resided in the United States for much longer. Many …
Confronting Cops In Immigration Court, Mary Holper
Feb 2015
Confronting Cops In Immigration Court, Mary Holper
Mary Holper
Immigration judges routinely use police reports to make life-altering decisions in noncitizens’ lives. The word of the police officer prevents a detainee from being released on bond, leads to negative discretionary decisions in relief from removal, and can prove that a past crime fits within a ground of removability. Yet the police officers who write these reports rarely step foot in immigration court; immigration judges rely on the hearsay document to make such critical decisions. This practice is especially troubling when the same police reports cannot be used against the noncitizen in a criminal case without the officer testifying, due …
An Unexceptional Aspect Of President Obama's Immigration Executive Actions, Jill Family
Jan 2015
An Unexceptional Aspect Of President Obama's Immigration Executive Actions, Jill Family
Jill E. Family
Discussing Obama's recent immigration executive actions and the Obama administration's exercises of executive power.
Human Rights For All Is Better Than Citizenship Rights For Some, Daniel Kanstroom
Dec 2014
Human Rights For All Is Better Than Citizenship Rights For Some, Daniel Kanstroom
Daniel Kanstroom
No abstract provided.
Dapa And The Future Of Immigration Law As Administrative Law, Jill Family
Dec 2014
Dapa And The Future Of Immigration Law As Administrative Law, Jill Family
Jill E. Family
Immigration law is a type of administrative law, of course. In some ways, however, linking immigration law to administrative law is an awkward fit. As a branch of administrative law, immigration law is about the direct regulation of human beings. In immigration law, administrative law doctrines are applied to determine some of the most fundamental and basic human concerns: where an individual will live and work, and whether that individual will live with family or will be separated from a spouse and children. Also, while immigration law is a part of administrative law, at times the two can appear to …
The Procedural Fortress Of Us Immigration Law, Jill Family
Dec 2014
The Procedural Fortress Of Us Immigration Law, Jill Family
Jill E. Family
Immigrants face many obstacles. This paper reveals a less obvious one: the procedural system designed to adjudicate immigration removal cases. In the United States, the procedural system itself has become a barrier for immigrants. A structure intended to provide procedural safeguards for immigrants has instead become an obstruction. Instead of facilitating fair and efficient process, the system is dysfunctional. It is collapsing under its own weight and is unable to adjudicate consistently in a fair and competent manner. This failed procedural system is a barrier to immigration that needs to be fixed. The failure to fix it, despite longstanding and …
Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless
Dec 2014
Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless
Rebecca Sharpless
In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizens client of the “clear” immigration consequences of a proposed plea agreement. This Article argues that the Court’s reference to clarity denotes predictability, not simplicity, and that defense attorneys must advise their clients of predictable immigration consequences, even if they are difficult to ascertain. The scope of this duty has broadened as the U.S. Supreme Court has made the crime-related deportation rules more determinate, although many rules remain complex. A legislative move to a regime of simple deportation rules would greatly …
Book Review: National Insecurities: Immigrants And U.S. Deportation Policy Since 1882 By Deirdre M. Moloney, Daniel Kanstroom
May 2014
Book Review: National Insecurities: Immigrants And U.S. Deportation Policy Since 1882 By Deirdre M. Moloney, Daniel Kanstroom
Daniel Kanstroom
No abstract provided.
Doesn't Love A Wall: U.S. Deportation And Detention, Daniel Kanstroom
Dec 2013
Doesn't Love A Wall: U.S. Deportation And Detention, Daniel Kanstroom
Daniel Kanstroom
No abstract provided.
Migrant Labour In The United States: Working Beneath The Floor For Free Labour?, Maria Ontiveros
Dec 2013
Migrant Labour In The United States: Working Beneath The Floor For Free Labour?, Maria Ontiveros
Maria L. Ontiveros
This chapter argues that the combination of United States employment and immigration laws create a system for the exploitation of immigrant workers that runs counter to the purpose of the Thirteenth Amendment to the US constitution. The chapter provides an overview to US employment and migration laws and then identifies specific problems raised for immigrant workers. The chapter then describes Thirteenth Amendment jurisprudence and shows how the current system of laws runs afoul of the amendments purpose.
May It Please The Court, Jeri Zeder
Dec 2013
May It Please The Court, Jeri Zeder
Kari E. Hong
In a real federal appeals court,in real time, four students endure judges’ withering questions but introduce novel concepts and argue masterfully on behalf of their immigrant clients.
Feature on the Ninth Circuit Appellate Project in Boston College Law School Magazine
Constructing Illegality In America: Immigrant Experiences, Critiques, And Resistance, Daniel Kanstroom, Cecilia Menjívar
Oct 2013
Constructing Illegality In America: Immigrant Experiences, Critiques, And Resistance, Daniel Kanstroom, Cecilia Menjívar
Daniel Kanstroom
The topic of 'illegal' immigration has been a major aspect of public discourse in the United States and many other immigrant-receiving countries. From the beginning of its modern invocation in the early twentieth century, the often ill-defined epithet of human 'illegality' has figured prominently in the media; in vigorous public debates at the national, state, and local levels; and in presidential campaigns. In this collection of essays, contributors from a variety of disciplines - anthropology, law, political science, religious studies, and sociology - examine how immigration law shapes immigrant illegality, how the concept of immigrant illegality is deployed and lived, …
Stirring The Melting Pot: A Recipe For Immigrant Acceptance (Review Of The Immigration Crucible: Transforming Race, Nation, And The Limits Of The Law By Philip Kretsedemas), Michael Scaperlanda
Mar 2013
Stirring The Melting Pot: A Recipe For Immigrant Acceptance (Review Of The Immigration Crucible: Transforming Race, Nation, And The Limits Of The Law By Philip Kretsedemas), Michael Scaperlanda
Michael A. Scaperlanda
No abstract provided.
Easing The Guidance Document Dilemma Agency By Agency: Immigration Law And Not Really Binding Rules, Jill Family
Dec 2012
Easing The Guidance Document Dilemma Agency By Agency: Immigration Law And Not Really Binding Rules, Jill Family
Jill E. Family
Immigration law relies on rules that bind effectively, but not legally, to adjudicate millions of applications for immigration benefits every year. This article provides a blueprint for immigration law to improve its use of these practically binding rules, often called guidance documents. The agency that adjudicates immigration benefit applications, United States Citizenship and Immigration Services (USCIS), should develop and adopt its own Good Guidance Practices to govern how it uses guidance documents. This article recommends both a mechanism for reform, the Good Guidance Practices, and tackles many complex issues that USCIS will need to address in creating its practices. The …
Teague New Rules Must Apply In Initial-Review Collateral Proceedings: The Teachings Of Padilla, Chaidez And Martinez, Rebecca Sharpless, Andrew Stanton
Dec 2012
Teague New Rules Must Apply In Initial-Review Collateral Proceedings: The Teachings Of Padilla, Chaidez And Martinez, Rebecca Sharpless, Andrew Stanton
Rebecca Sharpless
In Padilla v. Kentucky, the U.S. Supreme Court ruled that the Sixth Amendment requires defense attorneys to counsel their noncitizen clients about the immigration consequences of a plea. Padilla left undecided the critical question of whether its holding applies to other noncitizen defendants whose pleas were final before March 31, 2010, when the Court issued its opinion. The Court took up this question in Chaidez v. United States, a case raising this issue in the context of a writ of coram nobis under 28 U.S.C. § 1651(a) involving a federal conviction. Assuming, but not deciding, that the retroactivity framework set …
Taming The Asylum Adjudication Process: An Agenda For The Twenty-First Century, Katherine Vaughns
Oct 2012
Taming The Asylum Adjudication Process: An Agenda For The Twenty-First Century, Katherine Vaughns
Katherine L. Vaughns
No abstract provided.
Opinion Analysis: Deferring To (Even More) Limited Relief From Removal, Jill Family
May 2012
Opinion Analysis: Deferring To (Even More) Limited Relief From Removal, Jill Family
Jill E. Family
In a unanimous decision on Monday, the Court held that the Department of Justice’s Board of Immigration Appeals (BIA) reasonably construed a statute to forbid the imputation of a parent’s U.S. residency and immigration status to a child to compute the child’s eligibility for relief from removal (deportation). The Court reversed the decision of the Ninth Circuit in Holder v. Gutierrez, consolidated with Holder v. Sawyers.
Argument Recap: Imputing Eligibility For Relief From Removal, Jill Family
Jan 2012
Argument Recap: Imputing Eligibility For Relief From Removal, Jill Family
Jill E. Family
At oral argument on January 18, the Court questioned the attorneys in Holder v. Gutierrez and Holder v. Sawyers about calculating relief from removal. At issue in these consolidated cases is whether a parent’s immigration status and residency in the United States may be imputed to a minor child to calculate eligibility for relief from removal. The Board of Immigration Appeals (BIA) said no; the U.S. Court of Appeals for the Ninth Circuit said yes.
Argument Preview: Calculating Relief From Removal, Jill Family
Jan 2012
Argument Preview: Calculating Relief From Removal, Jill Family
Jill E. Family
Holder v. Gutierrez and Holder v. Sawyers call into question the BIA’s decision to forbid the imputation of a parent’s immigration status and residency in the United States to a minor child for the purpose of calculating eligibility for relief from removal. Scratching that simple surface reveals a complex history of imputation and relief from removal.
Aliens, Pilgrims, And Solidarity: Reflections In The Mirror, Michael Scaperlanda
Dec 2011
Aliens, Pilgrims, And Solidarity: Reflections In The Mirror, Michael Scaperlanda
Michael A. Scaperlanda
No abstract provided.
Administrative Law Through The Lens Of Immigration Law, Jill Family
Dec 2011
Administrative Law Through The Lens Of Immigration Law, Jill Family
Jill E. Family
Immigration law does lag behind in the advancement of public law, but not in all respects. While immigration law is idiosyncratic in many ways, this article finds immigration law in the administrative law mainstream when it comes to its troubles with nonlegislative rules (sometimes called guidance documents). There are concerns throughout administrative law that agencies use such rules to bind regulated parties practically, even if not legally, without the procedural protections of notice and comment.
This article analyzes immigration troubles with nonlegislative rules and makes three main contributions. First, it casts new light on the negative effects of guidance documents …
Immigration Law: Current Challenges And The Elusive Search For Legal Integrity, Daniel Kanstroom
Dec 2011
Immigration Law: Current Challenges And The Elusive Search For Legal Integrity, Daniel Kanstroom
Daniel Kanstroom
This chapter offers an overview of deep questions about immigration and deportation law and practice. It includes a discussion of recent deportation policies and Supreme Court precedents.
Shelter From The Storm: An Analysis Of U.S. Refugee Law As Applied To Tibetans Formerly Residing In India, Eileen Kaufman
Jul 2011
Shelter From The Storm: An Analysis Of U.S. Refugee Law As Applied To Tibetans Formerly Residing In India, Eileen Kaufman
Eileen Kaufman
No abstract provided.
Beyond Decisional Independence: Uncovering Contributors To The Immigration Adjudication Crisis, Jill Family
Feb 2011
Beyond Decisional Independence: Uncovering Contributors To The Immigration Adjudication Crisis, Jill Family
Jill E. Family
The conversation about immigration adjudication has shifted from one detailing shortcomings to one addressing solutions. When formulating solutions, it is important to look beyond any one contributor to the crisis and to promote a holistic view. Recent proposals for immigration adjudication reform acknowledge that fixing the system requires a multi-faceted approach. This article confirms the need for such an approach by showing how one popular cause of the crisis - a lack of decisional independence - only scratches the surface of what ails the immigration adjudication system. Along the way, the article uncovers and evaluates underappreciated crisis contributors.
While decisional …
Murky Immigration Law And The Challenges Facing Immigration Removal And Benefits Adjudication, Jill Family
Dec 2010
Murky Immigration Law And The Challenges Facing Immigration Removal And Benefits Adjudication, Jill Family
Jill E. Family
Immigration adjudication is more diverse than it may seem. Scholars tend to focus on one aspect of administrative immigration adjudication, the decision-making process established to determine whether an individual may be removed (deported) from the United States. But there is a whole other function of administrative immigration adjudication that relatively is ignored in the legal literature. Immigration adjudicators are also tasked with determining whether to grant immigration benefits, such as whether to grant lawful permanent resident (green card) status.
Both types of administrative immigration adjudication, removal and benefits, are in crisis. This article explores the challenges facing each and argues …
Immigrant Workers And The Thirteenth Amendment, Maria Ontiveros
Dec 2009
Immigrant Workers And The Thirteenth Amendment, Maria Ontiveros
Maria L. Ontiveros
This chapter examines the treatment of immigrant workers through the lens of the Thirteenth Amendment. It examines how the intersection of labor and immigration laws impact immigrant workers in general, "guest workers" and undocumented immigrants. It argues that immigrant workers can be seen as a caste of nonwhite workers laboring beneath the floor for free labor in ways which violate the Thirteenth Amendment. Further, it suggests ways in which immigrant workers can use the Thirteenth Amendment to improve their situation and offers an analysis of how the Thirteenth Amendment can form a bridge for organizing between labor, civil rights, immigration …
Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless
Dec 2009
Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless
Rebecca Sharpless
The ill-defined law-fact distinction often stands as the gatekeeper to judicial review of an agency deportation order, restricting non-citizens facing deportation to raising only questions of law when appearing before an appellate court. The restriction on review most affects cases whose dispositions typically turn on the resolution of factual issues, including claims under Article 3 of the Convention Against Torture and claims for discretionary relief from deportation like cancellation of removal. Convention Against Torture claims, for example, often involve extensive fact-finding on the part of the immigration judge regarding conditions in the applicant’s home country and the applicant’s personal circumstances. …
Conflicting Signals: Understanding Us Immigration Reform Through The Evolution Of Us Immigration Law, Jill Family
Dec 2009
Conflicting Signals: Understanding Us Immigration Reform Through The Evolution Of Us Immigration Law, Jill Family
Jill E. Family
This essay, published in the Revista catalana de dret public (Catalan Journal of Public Law), highlights the conflicting signals sent throughout the history of US immigration law. One consistent feature of the development of US immigration law is that it has exhibited signs of welcome and of tight control. Understanding this conflicted narrative helps to explain modern debates about immigration reform in the United States. The conflicting signals are evident in debates about the effectiveness of the system designed to select immigrants (including its enforcement features) and in debates over the future of the immigration adjudication system. Opposing views in …
Slavery As Immigration?, Rhonda Magee
Dec 2008
Slavery As Immigration?, Rhonda Magee
Rhonda V Magee
No abstract provided.
A Broader View Of The Immigration Adjudication Problem, Jill Family
Dec 2008
A Broader View Of The Immigration Adjudication Problem, Jill Family
Jill E. Family
Are too many individuals diverted from civil immigration adjudication? Each year, the government completes millions of diversions from civil immigration adjudication through explicit and implicit waivers, the expedited removal program and the increasing criminalization of immigration law.
By uncovering and analyzing this diversion phenomenon, this article exposes an important piece of the immigration adjudication problem that has been largely undiagnosed. While judges, scholars, government officials and practitioners have acknowledged serious problems within the civil immigration adjudication system, this article widens the view to incorporate the issue of whether too many are being sidetracked from the system altogether.
This article concludes …
