Immigration Law Commons^™

Self-Deportation Nation, K-Sue Park

Georgetown Law Faculty Publications and Other Works

“Self-deportation” is a concept to explain the removal strategy of making life so unbearable for a group that its members will leave a place. The term is strongly associated with recent state and municipal attempts to “attack every aspect of an illegal alien’s life,” including the ability to find employment and housing, drive a vehicle, make contracts, and attend school. However, self-deportation has a longer history, one that predates and made possible the establishment of the United States. As this Article shows, American colonists pursued this indirect approach to remove native peoples as a prerequisite for establishing and growing their …

Immigration, Criminalization, And Disobedience, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

This symposium essay explores two contending visions of immigration justice: one focused on expanding procedural rights for immigrants, and a second associated with a movement of immigrant youth who have come out en masse as “undocumented and unafraid,” issuing a fundamental challenge to immigration restrictionism. As immigration enforcement in the United States increasingly relies on criminal prosecution and detention, advocates for reform have increasingly turned to constitutional criminal procedure, seeking greater procedural protections for immigrants. But this essay argues that this focus on enhanced procedural protections is woefully incomplete as a vision of immigration justice. Although a right to counsel, …

Arrests As Regulation, Eisha Jain

Georgetown Law Faculty Publications and Other Works

For some arrested individuals, the most important consequences of their arrest arise outside the criminal justice system. Arrests alone—regardless of whether they result in conviction—can lead to a range of consequences, including deportation, eviction, license suspension, custody disruption, or adverse employment actions. But even as courts, scholars, and others have drawn needed attention to the civil consequences of criminal convictions, they have paid relatively little attention to the consequences of arrests in their own right. This article aims to fill that gap by providing an account of how arrests are systemically used outside the criminal justice system. Noncriminal justice actors …

The Difference Prevention Makes: Regulating Preventive Justice, David Cole

Georgetown Law Faculty Publications and Other Works

Since the terrorist attacks of September 11, 2001, the United States and many other countries have adopted a ‘‘paradigm of prevention,’’ employing a range of measures in an attempt to prevent future terrorist attacks. This includes the use of pre textual charges for preventive detention, the expansion of criminal liability to prohibit conduct that precedes terrorism, and expansion of surveillance at home and abroad. Politicians and government officials often speak of prevention as if it is an unqualified good. Everyone wants to prevent the next terrorist attack, after all. And many preventive initiatives, especially where they are not coercive and …

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …

The U.S. Criminal-Immigration Convergence And Its Possible Undoing, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

The intensifying convergence of U.S. criminal law and immigration law poses fundamental structural problems. This convergence--which manifests in the criminal prosecution of immigration law violators, in deportation of criminal law violators, and in a growing immigration enforcement and detention apparatus--distorts criminal law incentives and drains enforcement resources, misguides immigration regulation, and undermines efforts to implement alternative immigration regulatory frameworks. This article offers an account, informed by social psychological and literary theory, of why this convergence persists notwithstanding these problems, as well as how the convergence (and inherently associated problems) might be undone. The U.S. criminal-immigration convergence holds powerful sway, despite …

Improving Immigration Adjudications Through Competent Counsel, Andrew I. Schoenholtz, Hamutal Bernstein

Georgetown Law Faculty Publications and Other Works

The immigration adjudication system in the United States is in serious need of reform. While much attention has focused on one of the principal adjudicators, the Immigration Judges, recent research conducted by Philip Schrag, Jaya Ramji-Nogales, and Andrew Schoenholtz has shown that policymakers and adjudicators should be examining all levels of decision making. This includes not only decisions at the Immigration Court level but also at the Asylum Office, the Board of Immigration Appeals and the Circuit Courts. In Refugee Roulette: Disparities in Asylum Adjudication, the authors found a troubling degree of inconsistency at all levels that track individual …

The Idea Of Humanity: Human Rights And Immigrants' Rights, David Cole

Georgetown Law Faculty Publications and Other Works

This essay asks whether international human rights arguments are likely to be effective in advancing immigrants' rights in the United States. There are certainly reasons to be pessimistic. Despite its history as a nation of immigrants and the ever-increasing diversity of its populace, the United States remains a deeply parochial and nationalist culture. International human rights arguments are often seen as the advocates' last refuge. In the absence of an international forum that can hold the United States accountable, and in the face of Congressional directives that the international human rights treaties it has ratified are not self-executing, international human …

Arthur C. Helton 1949-2003, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

Through his advocacy, teaching and scholarship, Arthur Helton enabled some of the most vulnerable people on earth, as well as those who work to advance their rights, to ensure that governments strive to live up to their legal and moral obligations to protect and assist the displaced.

Their Liberties, Our Security: Democracy And Double Standards, David Cole

Georgetown Law Faculty Publications and Other Works

Some maintain that a "double standard" for citizens and noncitizens is perfectly justified. The attacks of September 11 were perpetrated by nineteen Arab noncitizens, and we have reason to believe that other Arab noncitizens are associated with the attackers and will seek to attack again. Citizens, it is said, are presumptively loyal; noncitizens are not. Thus, it is not irrational to focus on Arab noncitizens. Moreover, on a normative level, if citizens and noncitizens were treated identically, citizenship itself might be rendered meaningless. The very essence of war involves the drawing of lines in the sand between citizens of our …

The State Of Asylum Representation: Ideas For Change, Andrew I. Schoenholtz, Jonathan Jacobs

Georgetown Law Faculty Publications and Other Works

The plight of refugees-those who flee persecution-touches a chord with Americans, who have supported both a substantial overseas resettlement program and a fair system for asylum seekers. U.S. laws provide a seemingly full opportunity for asylum applicants to explain their fear or actual experience of persecution. In fact, the U.S. offers an extensive process of interviews, hearings, and appeals to ensure that bona fide refugees are not sent back to their persecutors. The substantive law, too, has been developed considerably through administrative and judicial precedents. But how meaningful is a process that, no matter how extensive and developed, leaves asylum …

Secrecy, Guilt By Association, And The Terrorist Profile, David Cole

Georgetown Law Faculty Publications and Other Works

In this essay, I will argue that the use of secret procedures and guilt by association in immigration trials is not only unconstitutional but counterproductive. I will begin with a case study, then discuss in turn the practices of secret evidence and guilt by association, and finally conclude with a consideration of how these two tactics perpetuate invidious stereotypes about Arabs and Muslims.

The Summary Affirmance Proposal Of The Board Of Immigration Appeals, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

The Board of Immigration Appeals is on the verge of making a tragic mistake, trading away a key element of fair adjudication--the written opinion--for the sake of what it hopes will be greater administrative efficiency. The cost of eliminating written adjudication is too great, and the Board has given no indication that it has sufficiently canvassed less drastic alternatives.

The Board of Immigration Appeals (the "Board") is the primary appellate body for immigration law. The "staple" of its work is to decide appeals from decisions of Immigration Judges in removal proceedings, though it also hears appeals in several other categories, …

Unaccompanied Children In I.N.S. Detention, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

It is important to note that children who end up in INS detention centers in the United States are not criminal detainees, but rather, administrative detainees. That is, they are not being held because they are accused or convicted of crimes. They are being held for two reasons only. First, the INS holds them in order to ensure their presence at immigration proceedings. They fear that if they let a child out, into foster care for instance, that child might not appear at any subsequent hearings or proceedings. Second, the government is legally required to look after these children in …

The Summary Affirmance Proposal Of The Board Of Immigration Appeals, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

The Board of Immigration Appeals is on the verge of making a tragic mistake, trading away a key element of fair adjudication-the written opinion-for the sake of what it hopes will be greater administrative efficiency. The cost of eliminating written adjudication is too great, and the Board has given no indication that it has sufficiently canvassed less drastic alternatives.

The Board of Immigration Appeals (the "Board") is the primary appellate body for immigration law. The "staple" of its work is to decide appeals from decisions of Immigration Judges in removal proceedings, though it also hears appeals in several other categories, …