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Addiction Informed Immigration Reform Dec 2018

Addiction Informed Immigration Reform

Rebecca Sharpless

Immigration law fails to align with the contemporary understanding of substance addiction as a medical condition. The Immigration and Nationality Act regards noncitizens who suffer from drug or alcohol substance use disorder as immoral and undesirable. Addiction is a ground of exclusion and deportation and can prevent the finding of “good moral character” needed for certain immigration applications. Substance use disorder can lead to criminal behavior that lands noncitizens, including lawful permanent residents, in removal proceedings with no defense. The time has come for immigration law to catch up to today’s understanding of addiction. The damage done by failing to …


Zone Of Nondeference: Chevron And Deportation For A Crime Dec 2016

Zone Of Nondeference: Chevron And Deportation For A Crime

Rebecca Sharpless

The U.S. Supreme Court lacks a jurisprudence for when courts should defer to immigration agency interpretations of civil removal statutes that involve criminal law terms or otherwise require analysis of criminal law. This Article represents a first step toward such a jurisprudence, arguing for an expansive principle of nondeference in cases involving ambiguity in the scope of crime-based removal statutes. The zone of nondeference includes not only statutes like the aggravated felony provision that have both civil and criminal application, but all removal grounds premised on a crime. The animating principles of Chevron U.S.A., Inc. v. Natural Resources Defense Council, …


"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless Dec 2015

"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless

Rebecca Sharpless

Scholars and law reformers advocate for better treatment of immigrants by invoking a contrast with people convicted of a crime. This Article details the harms and limitations of a conceptual framework that relies on a contrast with people—citizens and noncitizens—who have been convicted of a criminal offense and proposes an alternate approach that better aligns with the racial critique of our criminal justice system. Noncitizens with a criminal record are overwhelmingly low-income people of color. While some have been in the United States for a short period of time, many have resided in the United States for much longer. Many …


Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless Dec 2014

Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless

Rebecca Sharpless

In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizens client of the “clear” immigration consequences of a proposed plea agreement. This Article argues that the Court’s reference to clarity denotes predictability, not simplicity, and that defense attorneys must advise their clients of predictable immigration consequences, even if they are difficult to ascertain. The scope of this duty has broadened as the U.S. Supreme Court has made the crime-related deportation rules more determinate, although many rules remain complex. A legislative move to a regime of simple deportation rules would greatly …


Padilla Postconviction Claims In Florida: Squaring Chaidez, Hernandez And Castaño, Rebecca Sharpless, Andrew Stanton Feb 2013

Padilla Postconviction Claims In Florida: Squaring Chaidez, Hernandez And Castaño, Rebecca Sharpless, Andrew Stanton

Rebecca Sharpless

In Padilla v. Kentucky, the U.S. Supreme Court ruled that the Sixth Amendment requires defense attorneys to counsel their noncitizen clients about the immigration consequences of a plea. Padilla had pled guilty in state court to a drug crime and, after his conviction became final, filed a state postconviction motion alleging that his attorney rendered ineffective assistance of counsel by failing to advise him that his plea would trigger deportation. In holding that Padilla was entitled to competent advice regarding the consequences of his plea, the Court recognized what professional norms have required for at least the last two decades. …


Teague New Rules Must Apply In Initial-Review Collateral Proceedings: The Teachings Of Padilla, Chaidez And Martinez, Rebecca Sharpless, Andrew Stanton Dec 2012

Teague New Rules Must Apply In Initial-Review Collateral Proceedings: The Teachings Of Padilla, Chaidez And Martinez, Rebecca Sharpless, Andrew Stanton

Rebecca Sharpless

In Padilla v. Kentucky, the U.S. Supreme Court ruled that the Sixth Amendment requires defense attorneys to counsel their noncitizen clients about the immigration consequences of a plea. Padilla left undecided the critical question of whether its holding applies to other noncitizen defendants whose pleas were final before March 31, 2010, when the Court issued its opinion. The Court took up this question in Chaidez v. United States, a case raising this issue in the context of a writ of coram nobis under 28 U.S.C. § 1651(a) involving a federal conviction. Assuming, but not deciding, that the retroactivity framework set …


More Than One Lane Wide: Against Hierarchies Of Helping In Progressive Legal Advocacy, Rebecca Sharpless Dec 2011

More Than One Lane Wide: Against Hierarchies Of Helping In Progressive Legal Advocacy, Rebecca Sharpless

Rebecca Sharpless

Progressive legal scholars and practitioners have created a hierarchy within social justice lawyering. Direct service attorneys — nonprofit attorneys who focus on helping individuals in civil cases — sit at the bottom. In the 1960s, progressive theorists advanced a negative portrayal of direct service attorneys as a class. This discourse has continued through different phases in the development of progressive legal theory. Direct service work is done primarily by women in the service of women, has the aesthetic of traditional women’s work, and can be understood as embodying the thesis that women have a greater existential and psychological connection to …


Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless Dec 2009

Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless

Rebecca Sharpless

The ill-defined law-fact distinction often stands as the gatekeeper to judicial review of an agency deportation order, restricting non-citizens facing deportation to raising only questions of law when appearing before an appellate court. The restriction on review most affects cases whose dispositions typically turn on the resolution of factual issues, including claims under Article 3 of the Convention Against Torture and claims for discretionary relief from deportation like cancellation of removal. Convention Against Torture claims, for example, often involve extensive fact-finding on the part of the immigration judge regarding conditions in the applicant’s home country and the applicant’s personal circumstances. …


Toward A True Elements Test: Taylor And The Categorical Analysis Of Crimes In Immigration Law, Rebecca Sharpless Dec 2007

Toward A True Elements Test: Taylor And The Categorical Analysis Of Crimes In Immigration Law, Rebecca Sharpless

Rebecca Sharpless

When determining the legal effect of a conviction under immigration law, adjudicators claim to apply a uniform, federal standard that prohibits fact finding regarding the underlying circumstances that gave rise to the conviction. This categorical analysis of crimes is firmly rooted in all levels of administrative and federal court case law. Yet fundamental confusion exists concerning what it means to apply a categorical approach to evaluating when a criminal conviction is of a type that triggers deportation. This article demonstrates that a source of this confusion is a misunderstanding of the nature of a conviction and the difference between a …