Law Commons^™

Questioning The Legitimacy Of The Expedited Removal Process – The Tall Task Of Protecting The Constitutional Rights Of One Of America’S Most Marginalized Groups, Jacob J. Bourquin

Cleveland State Law Review

This Note explores the origin and development of 8 U.S.C. § 1225—a heavily debated facet of the United States’ immigration law. Section 1225, colloquially referred to as the “expedited removal process,” has been interpreted to permit low-level immigration officers to summarily remove certain “arriving” noncitizens from the United States without affording them the procedural due process protections guaranteed under the Fifth Amendment of the United States Constitution to all individuals present in the United States. This Note posits that the current interpretation of § 1225, particularly the interpretation of “is arriving,” and application of the expedited removal process is inconsistent …

Challenging The Criminalization Of Undocumented Drivers Through A Health-Justice Framework, Jason A. Cade

Scholarly Works

States increasingly use driver’s license laws to further policy objectives unrelated to road safety. This symposium contribution employs a health justice lens to focus on one manifestation of this trend—state schemes that prohibit noncitizen residents from accessing driver’s licenses and then impose criminal sanctions for driving without authorization. Status-based no-license laws not only facilitate legally questionable enforcement of local immigration priorities but also impose structural inequities with long-term health consequences for immigrants and their family members, including US citizen children. Safe, reliable transportation is a significant social determinant of health for individuals, families, and communities. Applying a health justice lens …

The U.S. Government Taking Under Eminent Domain: When Just Compensation Is Unjust (Comment), Michael Perez

The Scholar: St. Mary's Law Review on Race and Social Justice

The true effects of private takings do not occur in a vacuum and are not solely academic in nature. The consequence of losing property implicates loss of income, loss of value in residual property, and loss of familial land. The importance of protecting the rights of individual land-owners becomes increasingly apparent when analyzing the effect of the taking.

This comment will explore how the government’s taking of private property occurs—including how the government has loosened restrictions and procedural hurdles. The analysis will focus specifically on processes, policies, and statutes, created and used by the federal government to facilitate takings necessary …

Why Cost/Benefit Balancing Tests Don't Exist: How To Dispel A Delusion That Delays Justice For Immigrants, Joshua J. Schroeder

West Virginia Law Review

In 2022, the U.S. Supreme Court nullified its earlier presumption that indefinite immigrant detention without bond hearings is unconstitutional under Zadvydas v. Davis. If Zadvydas is a nullity, those who raise due process balancing tests during the post-removal-period in immigrant habeas review may need to find new grounds for review. However, since Boumediene v. Bush was decided in 2008, there are several reasons not to despair Zadvydas’s demise

.

For one, Zadvydas spoke to an extremely narrow subset of cases. It granted a concession under the Due Process Clause to immigrants detained beyond the statutory 90-day removal period. It …

Issues Of Right To Legal Counsel In Immigrant Removal Proceedings: Due Process Framework And Applicability, Cambria A. Judd Babbitt

Honors Projects

Immigration removal proceedings suffer from a lack of procedural due process protections for non-citizens facing deportation charges. This research examines constitutional due process framework, what it entails, and how it is to be fairly applied to non-citizens in the United States. Special attention is paid to ways the immigration court system is subject to unjust and biased procedures that make it difficult for immigrants to succeed in their removal cases. The main focus of this study is on the importance of direct legal representation in removal proceedings to support non-citizens and keep courts accountable for upholding the due process of …

Asylum Under Attack: Restoring Asylum Protections In The United States, Lindsay M. Harris

Journal Articles

The U.S. asylum system has endured four years of systematic attack. The Trump Administration attempted to dismantle the United States’ system to protect asylum seekers through changes to case law, executive orders, presidential proclamations, internal agency guidance and sweeping regulatory changes, among other measures. The system largely ground to a halt after the Trump Administration co-opted the coronavirus public health crisis to effectively close the southern border to asylum seekers with its March 2020 Centers for Disease Control order. This catastrophic order was not even the last in a long line of the Trump Administration’s efforts since assuming power to …

Practical Abolition: Universal Representation As An Alternative To Immigration Detention, Matthew Boaz

Scholarly Articles

A federally funded universal representation program can serve as a practical first step toward the abolition of immigration detention and the other harsh enforcement mechanisms that are utilized today. While abolition is typically an ideology espoused by a small subsection of the general population, its purpose can be achieved through a less partisan and broader reaching ideal -- fiscal efficiency and responsibility. By demonstrating that the provision of counsel and other wrap around services is significantly less costly than immigration detention, while also showing that providing counsel and wrap around services is an extremely effective way to ensure compliance, this …

Discretionary Injustice: Limiting Due Process Rights Of Undocumented Immigrants Upon Removal After Re-Entry, Brendan Dauscher

Touro Law Review

No abstract provided.

The End Of Deportation, Angélica Cházaro

Articles

This Article introduces to legal scholarship a new horizon for pro-immigrant scholarship and advocacy: deportation abolition. The ever-present threat of deportation shapes the daily lives of noncitizens. Instead of aiming for a pathway to citizenship, most noncitizens must now contend with dodging the many pathways to banishment. Despite growing threats to immigrant survival, most pro-immigrant scholarship and advocacy that aims to reduce migrant suffering assumes deportation as inevitable. The focus remains on improving individual outcomes by aligning the process of deportation with due process and the rule of law. But considered from the point of view of those facing deportation, …

It Is Time To Get Back To Basics On The Border, Donna Coltharp

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Making Litigating Citizenship More Fair, Ming H. Chen

Publications

No abstract provided.

How To Decrease The Immigration Backlog: Expand Representation And End Unnecessary Detention, Kara A. Naseef

University of Michigan Journal of Law Reform

This Note recommends federal policy reform and local implementation in order to decrease the immigration backlog and protect the rights of non-citizens in immigration proceedings. Although non-citizens hold many of the fundamental rights and freedoms enumerated in the Constitution, several core rights— including due process and the right to counsel—are not rigorously upheld in the context of immigration proceeding. By carefully regulating expanded access to representation and ending unnecessary immigration detention, the Executive Office of Immigration Review and Congress will ensure the swift administration of justice and protect non-citizens under the federal government’s jurisdiction.

The Right To Migrate: A Human Rights Response To Immigration Restrictionism In Argentina, David C. Baluarte

Scholarly Articles

Within days of President Donald Trump’s 2017 Executive Orders on border security and immigration enforcement, President Mauricio Macri of Argentina issued a Decree to address what he declared was an urgent problem of immigrant criminality. The timing of the two Presidents’ actions triggered concerns that U.S.-style restrictionist immigration regulation was spreading to South America, a continent that has taken progressive steps towards recognizing the human rights of migrants in recent years. Until Macri’s 2017 Decree, Argentina was considered a leader in this regard, with its 2004 immigration law that boldly codified a “right to migrate” and included robust substantive and …

(Un)Civil Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.

Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends …

The Asylum Makeover: Chevron Deference, The Self-Referral And Review Authority, Jessica Senat

Touro Law Review

No abstract provided.

Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby

The Scholar: St. Mary's Law Review on Race and Social Justice

On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.

There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply with 8 U.S.C. …

The Privileges And Immunities Of Non-Citizens, R. George Wright

Cleveland State Law Review

However paradoxically, in some practically important contexts, non-citizens of all sorts can rightly claim what amount to privileges and immunities of citizens. This follows from a careful and entirely plausible understanding of the inherently relational, inescapably social, and essentially reciprocal nature of at least some typical privileges and immunities.

This Article contends that the relationship between constitutional privileges and immunities and citizenship is more nuanced, and much more interesting, than usually recognized. Crucially, allowing some non-citizens to invoke the privileges and immunities of citizens often makes sense. The intuitive sense that non-citizens cannot logically claim the privileges or immunities of …

Rethinking Conspiracy Jurisdiction In Light Of Stream Of Commerce And Effects-Based Jurisdictional Principles, Alex Carver

Vanderbilt Law Review

For decades, some courts have been willing to exercise personal jurisdiction over nonresident defendants based solely on the forum contacts of their coconspirators. This practice, termed "conspiracy jurisdiction," has proven controversial among courts and commentators alike. On one hand, the actions of one member of a conspiracy are ordinarily attributable to other members of the conspiracy, and jurisdiction-conferring acts should arguably be no exception. On the other hand, attributing forum contacts from one actor to another based solely on their joint membership in a civil conspiracy seems to stretch due process protections to the breaking point. This Note provides new …

Due Process And The Right To Legal Counsel For Unaccompanied Minors, Marielos G. Ramos

Dissertations, Theses, and Capstone Projects

Unaccompanied minors arriving to the United States fleeing violence and seeking protection are apprehended, detained in facilities, and placed in removal proceedings in accordance with U.S. immigration laws. Like adults, these children have to appear in immigration court to fight deportation and must apply for any form of legal relief for which they may be eligible. However, removal proceedings work as a civil and not a criminal process, and immigration laws have established that while noncitizens have the right to an attorney, they are not entitled to legal counsel at the government’s expense. This thesis examines how the denial of …

Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade

Scholarly Works

This Article focuses attention on two recent and notable federal court opinions considering challenges to Trump administration deportation decisions. While finding no statutory bar to the noncitizens’ detention and deportation in these cases, the court in each instance paused to highlight the injustice of the removal decisions. This Article places the opinions in the context of emerging immigration enforcement trends, which reflect a growing indifference to disproportionate treatment as well as enforcement actions founded on retaliation for the exercise of constitutional rights. Judicial decisions like the ones considered here serve vital functions in the cause of immigration law reform even …

Finality Of A Conviction: A Noncitizen's Right To Procedural Due Process, Daniela Mondragon

St. Mary's Law Journal

Abstract forthcoming

Toward Universal Deportation Defense: An Optimistic View, Michael Kagan

Scholarly Works

One of the most positive responses to heightened federal enforcement of immigration laws has been increasing local and philanthropic interest in supporting immigrant legal defense. These measures are tentative and may be fleeting, and for the time being are not a substitute for federal support for an immigration public defender system. Nevertheless, it is now possible to envision many more immigrants in deportation having access to counsel, maybe even a situation in which the majority do. In this paper, Professor Michael Kagan makes no real predictions. Instead, he offers a deliberately-perhaps even blindly optimistic assessment of how concrete steps that …

Finding A Right To Remain: Immigration, Deportation, And Due Process, Simon Y. Svirnovskiy

Northwestern Journal of Law & Social Policy

No abstract provided.

Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson

VA Engage Journal

The immigration legal system exists as a function of the executive branch rather than the judicial branch, and many of the constitutional rights guaranteed in a judicial court do not continue into the immigration legal sphere. Noncitizen defendants in the immigration court system are not guaranteed the same due process rights or right to appointed counsel as United States citizens, which severely limits their chance of a successful outcome. Moreover, while many noncitizens await their trials in these courts, they are often placed in one of the 234 immigration detention facilities across the nation, which further exacerbates the direness of …

Judging Immigration Equity: Deportation And Proportionality In The Supreme Court, Jason A. Cade

Scholarly Works

Though it has not directly said so, the United States Supreme Court cares about proportionality in the deportation system. Or at least it thinks someone in the system should be considering the justifiability of removal decisions. As this Article demonstrates, the Court’s jurisprudence across a range of substantive and procedural challenges over the last fifteen years increases or preserves structural opportunities for equitable balancing at multiple levels in the deportation process. Notably, the Court has endorsed decision makers’ consideration of the normative justifiability of deportation even where noncitizens have a criminal history or lack a formal path to lawful status. …

Proposing A One-Year Time Bar For 8 U.S.C. § 1226(C), Jenna Neumann

Michigan Law Review

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires federal detention of certain deportable noncitizens when those noncitizens leave criminal custody. This section applies only to noncitizens with a criminal record (“criminal noncitizens”). Under section 1226(c), the Attorney General must detain for the entire course of his or her removal proceedings any noncitizen who has committed a qualifying offense “when the alien is released” from criminal custody. Courts construe this phrase in vastly different ways when determining whether a criminal noncitizen will be detained. The Board of Immigration Appeals (BIA) and the Fourth Circuit read “when …

The Executive Power Of Process In Immigration Law, Jill E. Family

Chicago-Kent Law Review

This article, part of an AALS symposium on executive power during the Obama administration, focuses on the role of procedure in the president’s implementation of immigration law. The president undeniably has power over immigration law, but the exact contours of that power are not clear. At times, the president acts via delegation from Congress. The president also may have inherent power over immigration law that is not dependent on a delegation. Such inherent power would be subject to the president’s discretion. Even when acting pursuant to delegated immigration power, the president operates within a wide ring of discretion granted by …

Plenary Power Is Dead! Long Live Plenary Power, Michael Kagan

Michigan Law Review First Impressions

For decades, scholars of immigration law have anticipated the demise of the plenary power doctrine. The Supreme Court could have accomplished this in its recent decision in Kerry v. Din, or it could have reaffirmed plenary power. Instead, the Court produced a splintered decision that did neither. This Essay examines the long process of attrition that has significantly gutted the traditional plenary power doctrine with regard to procedural due process, while leaving it largely intact with regard to substantive constitutional rights.

Substantive Due Process For Noncitizens: Lessons From Obergefell, Anthony O'Rourke

Michigan Law Review First Impressions

The state of Texas denies birth certificates to children born in the United States—and thus citizens under the Fourteenth Amendment—if their parents are undocumented immigrants with identification provided by their home countries’ consulates. What does this have to do with same-sex marriage? In a previous article, I demonstrated that the Supreme Court’s substantive due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This Essay builds on my earlier analysis by examining United States v. Obergefell’s applications outside the context of same-sex marriage. Obergefell’s due process holding, I argue, can …

Charles Demore V. Hyung Joon Kim: Antoher Step Away From Full Due Process Protections, Brian Smith

Akron Law Review

Part II of this note traces the development of substantive due process protections for aliens, including general due process jurisprudence, the statutory authority for detaining criminal aliens, significant Supreme Court decisions, and approaches taken by the circuit courts. Part III examines the Supreme Court’s decision in Hyung Joon Kim. Part IV evaluates the due process analysis used by the Court and addresses the implications of this decision. Part V of this note concludes that the Court’s strained departure from strict scrutiny and its failure to provide an adequate explanation of the departure will have implications for aliens, citizens, and future …