Law Commons^™

Does The Legal Standard Matter? Empirical Answers To Justice Kennedy’S Questions In Nken V. Holder, Christopher J. Walker

Christopher J. Walker

In response to Fatma Marouf, Michael Kagan & Rebecca Gill, Justice on the Fly: The Danger of Errant Deportations, 75 Ohio St. L.J. 337 (2014).

In Justice on the Fly: The Danger of Errant Deportations, Professors Fatma Marouf, Michael Kagan, and Rebecca Gill take on the ambitious task of answering the empirical questions posed by Justice Kennedy and others in Nken v. Holder with respect to the proper legal standard for judicial stays of removal in the immigration adjudication context. To answer these questions, the authors review, code, and analyze 1,646 cases in all circuits that hear immigration appeals and …

The Ordinary Remand Rule And The Judicial Toolbox For Agency Dialogue, Christopher J. Walker

Christopher J. Walker

When a court concludes that an agency’s decision is erroneous, the ordinary rule is to remand to the agency to consider the issue anew (as opposed to the court deciding the issue itself). Despite that the Supreme Court first articulated this ordinary remand rule in the 1940s and has rearticulated it repeatedly over the years, little work has been done to understand how the rule works in practice, much less whether it promotes the separation-of-powers values that motivate the rule. This Article is the first to conduct such an investigation—focusing on judicial review of agency immigration adjudications and reviewing the …

Social Protection Afforded To Irregular Migrant Workers: Thoughts On International Norms, The Southern African Development Community, Botswana And South Africa, Bruno Ps Van Eck, Felicia Snyman

Bruno PS Van Eck

The majority of migrant workers target those countries in southern Africa that have stronger economies. Irregular migrants are in a particularly vulnerable position, and this article discusses the protection that this category of persons may expect to experience in the southern African region. The authors recommend that the broad notion of “social protection”, rather than the narrower concept “social security” should be emphasized. International, continental and regional instruments providing protection to irregular migrants are traversed and the constitutional and legislative frameworks in relation to social protection in Botswana and South Africa are compared. The article concludes that there are significant …

Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, Mark Noferi

Mark L Noferi

When a Department of Homeland Security officer mandatorily detains a green card holder without bail pending his removal proceedings, for a minor crime committed perhaps long ago, the immigrant’s life takes a drastic turn. If he contests his case, he likely will remain incarcerated in substandard conditions for months or years, often longer than for his original crime, and be unable to acquire a lawyer, access family whom might assist, or access key evidence or witnesses. In these circumstances, it is all but certain he will lose his deportation case, sometimes wrongfully, and be banished abroad from work, family, and …