Law Commons^™

Freedom In The Balance: Procedural Due Process Rights And The Burden Of Proof In Detention Hearings In Immigration Removal Proceedings, Colin Brady

William & Mary Bill of Rights Journal

Part I of this Note considers the statutory and regulatory basis for immigration detention. Part II reviews prior cases decided by the Board of Immigration Appeals (BIA) that bear on the question. Part III discusses how the Supreme Court has addressed previous procedural due process concerns within the immigration system and how lower courts have reacted. Part IV lays out how the Supreme Court has conceptualized the constitutional due process rights extended to noncitizens and how that has changed over the years. Part V considers how other categories of individuals are treated with respect to involuntary detention and the burden …

Beyond Legal Deserts: Access To Counsel For Immigrants Facing Removal, Emily Ryo, Reed Humphrey

Faculty Scholarship

Removal proceedings are high-stakes adversarial proceedings in which immigration judges must decide whether to allow immigrants who allegedly have violated U.S. immigration laws to stay in the United States or to order them deported to their countries of origin. In these proceedings, the government trial attorneys prosecute noncitizens who often lack English fluency, economic resources, and familiarity with our legal system. Yet, most immigrants in removal proceedings do not have legal representation, as removal is considered to be a civil matter and courts have not recognized a right to government­appointed counsel for immigrants facing removal. Advocates, policymakers, and scholars have …

Limited Protection: The Impact Of Illegal Entry On Due Process Rights In Expedited Removal Proceedings, Sun Shen

William & Mary Bill of Rights Journal

[...] This Note argues that illegal entry often limits the scope of asylum seekers’ due process rights in court and negatively impacts the asylum process in a way that runs afoul with the spirit of due process and fairness. Asylum eligibility should not hinge on whether entry is legal, but whether applicants are able to meet the evidentiary burden. Conditioning asylum seekers’ procedural due process rights on the legality of entry creates arbitrary asylum results and carries high risks of sending back asylum seekers to danger, simply because they were not able to obtain valid travel documents from the governments …

The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams

Faculty Scholarship

In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the rights of marriage. In particular, it asked whether a person has a constitutional liberty interest in living with his or her spouse. This case is suddenly of paramount importance: executive orders targeting particular groups of immigrants implicate directly this right to family reunification.

This Article …

Being Deprived Of The Right To Effective Counsel In Removal Proceedings: Why The Eighth Circuit’S Decision In Rafiyev Must Be Overturned, Charles Shane Ellison

Faculty Scholarship

The situation for immigrants who have received frightfully defective assistance from their attorneys, or non-attorneys masquerading as such, is all too common. For the reasons discussed more fully in this article, immigrant victims are at particular risk in tribunals beneath the Eighth Circuit because of its aberrant precedent in the area of ineffective assistance of counsel in immigration proceedings. In this article, I will first provide an overview of the procedure for making a claim for ineffective assistance of counsel in removal proceedings and give a brief history of this procedure as used since the Board’s seminal decision in Matter …

The Padilla Wrecking Ball: Advocating For Change In Post-Padilla Jurisprudence To Address What Really Ails The Immigration System’S Treatment Of Noncitizen Defendants In The Post-Conviction Context, Daniel Mcdermott

University of Miami Inter-American Law Review

No abstract provided.

Alienating Our Nation's Legal Permanent Residents: An Analysis Of Demore V. Kim And Its Impact On America's Immigration System , Shaneela Khan

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Clark V. Martinez: Striking A Balance Between United States Security And Due Process Rights Of Illegal Immigrants, Michelle Mitsuye Shimasaki

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

United States V. Lopez-Velasquez: What Is A "Reasonable Possibility" Of Apparent Eligibility For Relief From Deportation?, Kristina M. Seil

Golden Gate University Law Review

Modern deportation procedure is circumscribed by regulations intended to guarantee fairness and uniformity. Federal regulations thus mandate that immigration judges inform noncitizens of their eligibility for relief from deportation in an effort to ensure that unrepresented respondents in immigration proceedings make informed decisions.

Unhappily, the U.S. Court of Appeals for the Ninth Circuit has recently limited this regulation-mandated duty to inform. In United States v. Lopez-Velasquez, the Ninth Circuit held that the duty to inform is not triggered when sources outside the Ninth Circuit indicate that relief may be possible because the relevant Ninth Circuit precedent is no longer …

Rodriguez V. Hayes: Government Accountability For Immigrants In Prolonged Detention, Otis Carl Landerholm

Golden Gate University Law Review

United States Immigration and Customs Enforcement (ICE) chooses to keep many immigrants incarcerated while they await the results of their hearings before immigration judges, appeals to the Board of Immigration Appeals (BIA), or second appeals to the federal courts of appeals. Starting with Zadvydas v. Davis in 2001, federal courts have been facing the question of whether such lengthy detentions are permissible under either the Immigration and Nationality Act (INA) or the U.S. Constitution. The U.S. Supreme Court in Zadvydas held that indefinite detention “would raise serious constitutional concerns” and decided to construe the prolonged-detention statute at issue “to contain …

Preserving The Essence Of Zadvydas V. Davis In The Midst Af A National Tragedy, N. Alejandra Arroyave

University of Miami Law Review

No abstract provided.

In Aid Of Removal: Due Process Limits On Immigration Detention, David Cole

Georgetown Law Faculty Publications and Other Works

In this Article, I seek to demonstrate the radical consequences that taking due process seriously would have for immigration detention as currently practiced. Part I lays out the general principles that apply to civil preventive detention, which establish that substantive due process is violated without an individualized showing after a fair adversarial hearing that there is something to prevent, namely danger to the community or flight. Part II applies this general framework to immigration detention. It first demonstrates, by a review of Supreme Court decisions, that the Court has applied the same due process principles to immigration detention that it …

The Illegal Immigration Reform And Immigrant Responsibility Act Of 1996: Another Congressional Hurdle For The Courts, Sonia Chen

Indiana Journal of Global Legal Studies

No abstract provided.

Dead Man Talking: Competing Narratives And Effective Representation In Capital Cases Essay., Jeffrey J. Pokorak

St. Mary's Law Journal

As Karl Hammond’s case indicates, to serve justice, balance between the Kill Story and Human Story is necessary in a capital trial. This Essay seeks, through deconstruction of Karl Hammond’s case, to identify and illustrate the values of telling these combating stories. Part III describes the Kill Story and the Human Story in Karl’s case from the record of his trial, appeals, and petitions. Part III also demonstrates how the failure to tell one side of the story in either the guilt-innocence phase or the punishment phase can have a prejudicial effect on the jury’s decision. Part IV then discusses …

Preserving The Fundamental Right To Family Unity: Championing Notions Of Social Contract And Community Ties In The Battle Of Plenary Power Versus Aliens' Rights, Linda Kelly

Villanova Law Review

No abstract provided.