Immigration Adjudication Bankruptcy, Jill E. Family
Feb 2019
Immigration Adjudication Bankruptcy, Jill E. Family
Jill E. Family
The Trump Administration is pushing an adjudicatory system on the brink over the edge. The system designed to decide whether to remove (deport) individuals from the United States has longstanding problems that predate the Trump Administration. Those problems are being exasperated rather than improved. It is time to consider the notion of immigration adjudication bankruptcy. Immigration adjudication bankruptcy involves a declaration that the removal adjudication system is not satisfying the basic principles of administrative process: accuracy, acceptability, and efficiency. This Article, a part of a symposium on executive power and immigration law, raises questions about when bankruptcy should be declared …
The Executive Power Of Process In Immigration Law, Jill Family
Dec 2015
The Executive Power Of Process In Immigration Law, Jill Family
Jill E. Family
The role of the executive branch in enforcing immigration law is the subject of renewed focus. In the academic realm, the spotlight rests on the executive branch itself, as opposed to lumping together both Congress and the executive as the political branches. This new focus on the executive branch alone creates space for scholars to approach thorny separation of powers and federalism questions surround the president's exercise of discretion in enforcing immigration law. In the political realm, the contours of the executive's discretionary authority in immigration law have become a point of contention between the president and Congress and have …
Removing The Distraction Of Delay, Jill E. Family
Mar 2015
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 …
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.
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 …
What Every Lawyer Needs To Know About Immigration Law, Anna Shavers, Jennifer Hermansky, Jill Family, Lillian Kalmykov, William Jordan
Dec 2013
What Every Lawyer Needs To Know About Immigration Law, Anna Shavers, Jennifer Hermansky, Jill Family, Lillian Kalmykov, William Jordan
Jill E. Family
This practical guide provides legal practitioners with tips on issues that they may encounter when representing clients that may necessitate an examination of immigration-related issues.
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 …
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.
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 …
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 …
A Broader View Of The U.S. Immigration Adjudication Problem, Jill Family
Dec 2010
A Broader View Of The U.S. Immigration Adjudication Problem, Jill Family
Jill E. Family
Immigration adjudication is ailing. A combination of problems within the administrative system and steady efforts to narrow the role of the federal courts has resulted in a system subject to much criticism. It is not unusual to find court of appeals judges describing the administrative adjudication system as dysfunctional.
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 …
Becoming An Immigration Lawyer, Jill Family
Dec 2009
Becoming An Immigration Lawyer, Jill Family
Jill E. Family
This book is an essential resource for law students and lawyers interested in a career in administrative law. In the first half of the book, a national expert describes the field, and outlines your optimal entry strategies. The second half offers individual, personalized examples of the various career paths in administrative law, and details the demands and rewards of each. The "how-to" essays are authored by 19 of the leading law firm practitioners, government agency counsels, federal administrative law judges, non-profit group advocates and legal educators. In plain language, they open your eyes to the many rewarding careers that lie …
Pro Bono In Action: An Immigrant's Need For Representation, Jill E. Family
Dec 2009
Pro Bono In Action: An Immigrant's Need For Representation, Jill E. Family
Jill E. Family
Legal representation always matters, but the need for representation intensifies when the most basic rights are at
stake. In immigration removal (deportation) cases, the federal government adjudicates whether an individual may
live and work in the United States, or whether that person must relocate to another country. Reasons for wanting
to be in the United States vary, from a desire to remain with family to a fear for one's life in a home country. In these immigration proceedings, an executive branch employee, an immigration judge, applies the Immigration and Nationality Act, a body of statutes long recognized to rival the …
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 …
Developments In The Immigration Courts, Jill Family
Dec 2008
Developments In The Immigration Courts, Jill Family
Jill E. Family
This is the tenth in the annual series of volumes on Developments in Administrative Law and Regulatory Practice. This book describes and analyzes current developments in administrative law and regulatory practice, both by process, (e.g. judicial review and rulemaking), and by areas (i.e. particular areas of practice).
Introduction: Immigration Law In Pennsylvania: Policy And Practice, Jill E. Family
Jan 2008
Introduction: Immigration Law In Pennsylvania: Policy And Practice, Jill E. Family
Jill E. Family
The first panel fulfilled goal one: to host a thoughtful, Pennsylvania-focused analysis of state and local efforts to legislate in the area of immigration law. The second panel fulfilled goal two: to provide a forum for Pennsylvania immigration attorneys to share their experiences amongst themselves and with the public. The panels together fulfilled goals three and four: to help bridge the gap between policy and practice and to increase the involvement of the Institute in this important debate.
Stripping Judicial Review During Immigration Reform: The Certificate Of Reviewability, Jill E. Family
Dec 2007
Stripping Judicial Review During Immigration Reform: The Certificate Of Reviewability, Jill E. Family
Jill E. Family
Congress contemplated a drastic change during the 2005-2006 immigration reform debate that sought to narrow access to the federal courts: a proposed certificate of reviewability requirement. The requirement would compel foreign nationals subject to an administrative removal order to obtain permission from a single federal court of appeals judge to access the federal courts. The U.S. House of Representatives endorsed the requirement but the U.S. Senate dropped it from its slate of immigration reform priorities. Why did the requirement disappear from the Senate's agenda during an era of increased congressional restrictions on judicial review of immigration cases?
A definitive answer …
Threats To The Future Of The Immigration Class Action, Jill E. Family
Dec 2007
Threats To The Future Of The Immigration Class Action, Jill E. Family
Jill E. Family
The immigration class action, a form of action that litigants have used to achieve systematic reform, is under threat. This paper examines three threats to the immigration class action: (1) a general congressional willingness to restrict immigration judicial review; (2) the application of waivers of judicial review to immigration law and (3) legislative jurisdiction-stripping attacks more specific to the immigration class action. The general congressional willingness to strip immigration judicial review sets the atmosphere for proposals to require judicial review waivers as a condition of obtaining an immigration benefit and for jurisdiction-stripping legislation aimed more specifically at the class action. …
The Rush To Limit Judicial Review, Jill Family
Aug 2006
The Rush To Limit Judicial Review, Jill Family
Jill E. Family
Access to an independent judiciary with the power to hold the government accountable in its dealings with individuals is a founding principle of the United States. In contrast, imagine a system where there is no access to independent judgment; where, instead, the referee works for the opposing team. The House of Representatives took a step away from this founding principle by passing the Border Protection, Antiterrorism, and Illegal Immigration Control Act (H.R. 4437) on December 16, 2005. A provision of the bill would erode access to independent judgment by severely restricting access to the federal courts for individuals in removal …
The Many Sides Of Immigration Law And Policy, Jill E. Family
Dec 2005
The Many Sides Of Immigration Law And Policy, Jill E. Family
Jill E. Family
At First Glance, immigration law might appear as a narrow and secluded area of the law. While practicing and
studying immigration law does require focused expertise, immigration law, in fact, has strong connections to many other areas of law, and the field itself is diverse. The number of immigration cases in the federal courts has increased greatly over the last five years.This increase has led to court reform proposals that exemplify the nexus between immigration law and other legal issues.
Another Limit On Federal Court Jurisdiction? Immigrant Access To Class-Wide Injunctive Relief, Jill Family
Dec 2004
Another Limit On Federal Court Jurisdiction? Immigrant Access To Class-Wide Injunctive Relief, Jill Family
Jill E. Family
This article examines a statute that may embody another limit on the power of the federal courts. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) implemented sweeping changes that substantially restrict federal court review of administrative immigration decisions. One provision implemented as a part of IIRIRA, 8 U.S.C. § 1252(f)(1), appears, at least at first glance, to prohibit courts from issuing class-wide injunctive relief in immigration cases. Such a restriction would be significant because federal courts have issued class-wide injunctions in the past to stop unconstitutional immigration practices and policies of the federal government. The Supreme Court …
Wal-Mart’S Woes: Verification Of Employment Eligibility Of Independent Contractors, Jill Family
Nov 2003
Wal-Mart’S Woes: Verification Of Employment Eligibility Of Independent Contractors, Jill Family
Jill E. Family
When federal agents raided 60 Wal-Mart stores and Wal-Mart's executive offices on October 23, 2003, an important issue was brought to the headlines: a company's obligation to verify the employment eligibility of independent contractors, and individuals employed by an independent contractor or a subcontractor, to perform services on behalf of the company.
Foreign Nationals: Phila.’S Untapped Resource, Jill Family
May 2003
Foreign Nationals: Phila.’S Untapped Resource, Jill Family
Jill E. Family
Desperately Seeking New Philadelphians was the title of a program recently attended by Philadelphia civic and business leaders. The program, sponsored by the Pennsylvania Economy League and the Daily News, featured a panel discussion focused on generating ideas on how to attract more new residents to Philadelphia. Among other things, the panel discussed Philadelphia's comparatively low rate of attracting foreign nationals to live and work in the city.
Immigration Law Forces Foreign Doctors To Return Home
May 2002
Immigration Law Forces Foreign Doctors To Return Home
Jill E. Family
Many foreign doctors come to the United States to complete advanced medical training unavailable in their home countries. It is not unusual for a foreign doctor to desire to remain in the United States after completion of that training.The Immigration and Nationality Act (INA) presents a major obstacle to this desire by requiring the doctor to return to his or her home country for two years after the completion of training in the United States. Many subject to this obligation will want to create a strategy to either avoid or ease fulfillment of this requirement. The options are limited, but, …
