Administrative Law Commons^™

287(G) Agreements In The Trump Era, Huyen Pham

Huyen T. Pham

No abstract provided.

The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman

John C. Eastman

Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes

Elizabeth Keyes

In a unique corner of immigration law, a significant reallocation of power over immigration has been occurring with little fanfare. States play a dramatic immigration gatekeeping role in the process for providing protection to immigrant youth, like many of the Central American children who sought entry to the United States in the 2014 border “surge.” This article closely examines the history of this Special Immigrant Juvenile Status provision, enacted in 1990, which authorized a vital state role in providing access to an immigration benefit. The article traces the series of shifts in allocation of power between the federal government and …

Deferred Action, Supervised Enforcement Discretion, And The Rule Of Law Basis For Executive Action On Immigration, Anil Kalhan

Anil Kalhan

In November 2014, the Obama administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative, which built upon a program instituted two years earlier, the Deferred Action for Childhood Arrivals (DACA) initiative. As mechanisms to channel the government’s scarce resources toward its enforcement priorities more efficiently and effectively, both DACA and DAPA permit certain individuals falling outside those priorities to seek “deferred action,” which provides its recipients with time-limited, nonbinding, and revocable notification that officials have exercised prosecutorial discretion to deprioritize their removal. While deferred action thereby facilitates a highly tenuous form of quasi-legal recognition …

Removing The Distraction Of Delay, Jill E. Family

Jill E. Family

Immigration adjudication is in an awkward position. There is an intricate system to adjudicate immigration removal (deportation) cases, but that system is hindered by restrictions, and the constant threat of further restrictions, that reflect distaste for providing process to foreign nationals facing removal. There is a push and pull phenomenon, with immigration adjudication stretched uncomfortably in between two forces. On the one side, there is a push to apply common notions of due process to immigration removal cases, to push that the same concepts of procedural justice should apply in immigration cases as they would in any other context. On …

Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan

Anil Kalhan

With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth …

The Legitimacy Of Crimmigration Law, Juliet P. Stumpf

Juliet P Stumpf

Crimmigration law—the intersection of immigration and criminal law—with its emphasis on immigration enforcement, has been hailed as the lynchpin for successful political compromise on immigration reform. Yet crimmigration law’s unprecedented approach to interior immigration and criminal law enforcement threatens to undermine public belief in the fairness of immigration law. This Article uses pioneering social science research to explore people’s perceptions of the legitimacy of crimmigration law. According to Tom Tyler and other compliance scholars, perceptions about procedural justice—whether people perceive authorities as acting fairly—are often more important than a favorable outcome such as winning the case or avoiding arrest. Legal …

Padilla Postconviction Claims In Florida: Squaring Chaidez, Hernandez And Castaño, 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 had pled guilty in state court to a drug crime and, after his conviction became final, filed a state postconviction motion alleging that his attorney rendered ineffective assistance of counsel by failing to advise him that his plea would trigger deportation. In holding that Padilla was entitled to competent advice regarding the consequences of his plea, the Court recognized what professional norms have required for at least the last two decades. …

Chevron Without The Courts? The Supreme Court's Recent Chevron Jurisprudence Through An Immigration Lens, Shruti Rana

Shruti Rana

The limits of administrative law are undergoing a seismic shift in the immigration arena. Chevron divides interpretive and decision-making authority between the federal courts and agencies in each of two steps. The Supreme Court may now be transforming this division in largely unrecognized ways. These shifts, currently playing out in the immigration context, may threaten to reshape deference jurisprudence by handing more power to the immigration agency just when the agency may be least able to handle that power effectively. An unprecedented surge in immigration cases—now approximately 90% of the federal administrative docket—has arrived just as the Court is whittling …

Beyond Decisional Independence: Uncovering Contributors To The Immigration Adjudication Crisis, Jill Family

Jill E. Family

Murky Immigration Law And The Challenges Facing Immigration Removal And Benefits Adjudication, Jill Family

Jill E. Family

Rethinking Immigration Detention, Anil Kalhan

Anil Kalhan

In recent years, scholars have drawn attention to the myriad ways in which the lines between criminal enforcement and immigration control have blurred in law and public discourse. This essay analyzes this convergence in the context of immigration detention. For decades, courts and observers have documented and analyzed a wide range of detention-related concerns, including mandatory and presumed custody, coercion and other due process violations, inadequate access to counsel, prolonged and indefinite custody, inadequate conditions of confinement, and violations of international law obligations. With the number of detainees skyrocketing since the 1990s, these concerns have rapidly proliferated - to the …

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. …

"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana

Shruti Rana

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …

A Broader View Of The Immigration Adjudication Problem, Jill Family

Jill E. Family

Toward A True Elements Test: Taylor And The Categorical Analysis Of Crimes In Immigration Law, Rebecca Sharpless

Rebecca Sharpless

When determining the legal effect of a conviction under immigration law, adjudicators claim to apply a uniform, federal standard that prohibits fact finding regarding the underlying circumstances that gave rise to the conviction. This categorical analysis of crimes is firmly rooted in all levels of administrative and federal court case law. Yet fundamental confusion exists concerning what it means to apply a categorical approach to evaluating when a criminal conviction is of a type that triggers deportation. This article demonstrates that a source of this confusion is a misunderstanding of the nature of a conviction and the difference between a …