Law Commons^™

The Expansion Of “Particularly Serious Crimes” In Refugee Law: Mirroring The Severity Revolution, Mary Holper

Mary Holper

Refugees are not protected from deportation if they have been convicted of a “particularly serious crime” (“PSC”) which renders them a danger to the community. This raises questions about the meaning of “particularly serious” and “danger to the community.” The Board of Immigration Appeals, Attorney General, and Congress have interpreted PSC quite broadly, leaving many refugees vulnerable to deportation without any consideration of the risk of persecution in their cases. This trend is disturbing as a matter of refugee law, but it is even more disturbing because it demonstrates how certain criminal law trends have played out in immigration law. …

Learning From Our Mistakes: Using Immigration Enforcement Errors To Guide Reform, Amanda Frost

Amanda Frost

Immigrants Unshackled: The Unconstitutional Use Of Indiscriminate Restraints, Fatma E. Marouf

Fatma E Marouf

This Article challenges the constitutionality of indiscriminately restraining civil immigration detainees during removal proceedings. Not only are immigration detainees routinely placed in handcuffs, leg irons, and belly chains without any individualized determination of the need for restraints, but Immigration and Customs Enforcement (ICE), the prosecuting party, makes the decisions about the use of restraints, rather than the judge. After examining the rationale for the well-established prohibition against the indiscriminate use of restraints during criminal and civil jury trials, and discussing how some courts have extended this rationale to bench trials, this Article contends that ICE’s practice violates substantive and procedural …

Making Civil Immigration Detention “Civil,” And Examining The Emerging U.S. Civil Detention Paradigm, Mark Noferi

Mark L Noferi

In 2009, the Obama Administration began to reform its sprawling immigration detention system by asking the question, “How do we make civil detention civil?” Five years later, after opening an explicitly-named “civil detention center” in Texas to public criticism from both sides, the Administration’s efforts have stalled. But its reforms, even if fully implemented, would still resemble lower-security criminal jails.

This symposium article is the first to comprehensively examine the Administration’s efforts to implement “truly civil” immigration detention, through new standards, improved conditions, and greater oversight. It does so by undertaking the first descriptive comparison of the U.S.’s two largest …

Surveillance, Speech Suppression And Degradation Of The Rule Of Law In The “Post-Democracy Electronic State”, David Barnhizer

David Barnhizer

None of us can claim the quality of original insight achieved by Alexis de Tocqueville in his early 19th Century classic Democracy in America in his observation that the “soft” repression of democracy was unlike that in any other political form. It is impossible to deny that we in the US, the United Kingdom and Western Europe are experiencing just such a “gentle” drift of the kind that Tocqueville describes, losing our democratic integrity amid an increasingly “pretend” democracy. He explained: “[T]he supreme power [of government] then extends its arm over the whole community. It covers the surface of society …

The Immigration Detention Risk Assessment, Mark Noferi, Robert Koulish

Mark L Noferi

In early 2013, U.S. Immigration and Customs Enforcement (“ICE”) deployed nationwide a new automated risk assessment tool to help determine whether to detain or release noncitizens pending their deportation proceedings. Adapted from similar evidence-based criminal justice reforms that have reduced pretrial detention, ICE’s initiative now represents the largest pre-hearing risk assessment experiment in U.S. history—potentially impacting over 400,000 individuals per year. However, to date little information has been released regarding the risk assessment algorithm, processes, and outcomes.

This article provides the first comprehensive examination of ICE’s risk assessment initiative, based on public access to ICE methodology and outcomes as a …

Border Searches In The Age Of Terrorism, Robert M. Bloom

Robert Bloom

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns will likely have …

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 …

Specific Intent And The Purposeful Narrowing Of Victim Protection Under The Convention Against Torture, Mary Holper

Mary Holper

Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (“CAT”) prevents removal of a person to a country where there is a substantial likelihood of torture. The U.S. ratified the CAT in 1994, yet modified the treaty’s definition of “torture” by inserting an understanding that “torture” includes only pain or suffering that is “specifically intended.” Specific intent, an antiquated criminal law term, has several different meanings in criminal law jurisprudence. In Matter of J-E-, the Board of Immigration Appeals in 2002 chose the most narrow definition of specific intent, “purposeful,” and …

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 …

Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom

Daniel Kanstroom

The general hypothesis put forth in this Article is that well-accepted historical matrices are increasingly inadequate to address the complex issues raised by various U.S. government practices in the so-called “war on terrorism.” The Article describes certain stresses that have recently built upon two major legal dichotomies: the citizen/non-citizen and criminal/civil lines. Professor Kanstroom reviews the use of the citizen/non-citizen dichotomies as part of the post-September 11th enforcement regime and considers the increasing convergence between the immigration and criminal justice systems. Professor Kanstroom concludes by suggesting the potential emergence of a disturbing new legal system, which contains the worst features …

Deportation, Social Control, And Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, Daniel Kanstroom

Daniel Kanstroom

From the Author’s Introduction: We live in a time of unusual vigor, efficiency, and strictness in the deportation of long-term permanent resident aliens convicted of crimes. This situation is the result of some fifteen years of relatively sustained attention to this issue, which culminated in two exceptionally harsh laws: the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In many cases, these laws have brought about a rather complete convergence between the criminal justice and deportation systems. Deportation is now often a virtually automatic consequence of criminal …

The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, Or Judicially-Constructed “Victor’S Impunity”?, C. Peter Erlinder

C. Peter Erlinder

ABSTRACT The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Juridically-Constructed “Victor’s Impunity”? Prof. Peter Erlinder [1] ________________________ “…if the Japanese had won the war, those of us who planned the fire-bombing of Tokyo would have been the war criminals….” [2] Robert S. McNamara, U.S. Secretary of State “…and so it goes…” [3] Billy Pilgrim (alter ego of an American prisoner of war, held in the cellar of a Dresden abattoir, who survived firebombing by his own troops, author Kurt Vonnegut Jr.) Introduction Unlike the postWW- II Tribunals, the U.N. Security Council tribunals for the former Yugoslavia [10] …

The Revitalization Of The Common-Law Civil Writ Of Audita Querela As A Post-Conviction Remedy In Criminal Cases: The Immigration Context And Beyond, Ira P. Robbins

Ira P. Robbins