Immigration Law Commons^™

Children Seek Refuge From Gang-Forced Recruitment: How Asylum Law Can Protect The Defenseless, Frank Paz

Fordham Urban Law Journal

No abstract provided.

Defending One-Parent Sijs, Rodrigo Bacus

Fordham Urban Law Journal

No abstract provided.

Relief For Guestworkers: Employer Perjury As A Qualifying Crime For U Visa Petitions, Lucy Benz-Rogers

Fordham Urban Law Journal

No abstract provided.

Time, Due Process, And Representation: An Empirical And Legal Analysis Of Continuances In Immigration Court, David Hausman, Jayashri Srikantiah

Fordham Law Review

Since 2014, U.S. immigration courts have expedited the cases of many children and families fleeing persecution in Mexico and Central America. This Article conducts an empirical and legal analysis of this policy, revealing that reasonable time between immigration court hearings is necessary to protect the statutory and constitutional rights to legal representation. A large majority of immigrants facing deportation- including those part of the recent surge of children and families from Central America and Mexico-appear at their first deportation hearing without a lawyer, often because they cannot afford one. When an immigrant appears without a lawyer and does not expressly …

Padilla V. Kentucky: Sound And Fury, Or Transformative Impact, Steven Zeidman

Fordham Urban Law Journal

No abstract provided.

Realizing Padilla’S Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Conviction, Yolanda Vàzquez

Fordham Urban Law Journal

No abstract provided.

Do I Need To Pin A Target To My Back?: The Definition Of "Particular Social Group" In U.S. Asylum Law, Nitzan Sternberg

Fordham Urban Law Journal

No abstract provided.

Conference Report: Padilla And The Future Of The Defense Function, Joel M. Schumm

Fordham Urban Law Journal

No abstract provided.

You Are The Last Lawyer They Will Ever See Before Exile: Padilla V. Kentucky And One Indigent Defender Office's Account Of Creating A Systematic Approach To Providing Immigration Advice In Times Of Tight Budgets And High Caseloads, Carlos J. Martinez, George C. Palaidis, Sarah Wood Borak

Fordham Urban Law Journal

No abstract provided.

A View Through The Looking Glass: How Crimes Appear From The Immigration Court Perspective, Hon. Dana Leigh Marks, Hon. Denise Noonan Slavin

Fordham Urban Law Journal

No abstract provided.

Evolving Standards Of Reasonableness: The Aba Standards And The Right To Counsel In Plea Negotiations, Margaret Colgate Love

Fordham Urban Law Journal

The ABA Criminal Justice Standards have been recognized by the Supreme Court as one of the most important sources for determining lawyer competence in right to counsel cases. Because the constitutional test under the Sixth Amendment is whether defense counsel’s performance was “reasonable” under “prevailing professional norms,” the standard of competence is necessarily an evolving one. The Supreme Court's decision in Padilla v. Kentucky underscores the defense bar’s stake in participating in the ABA standard-setting process to guide the development of defense counsel's obligations in plea negotiations. In addition, to the extent the courts give the ABA Standards credence in …

Padilla And Beyond: The Future Of The Defense Function, Hon. Jonathan Lippman

Fordham Urban Law Journal

No abstract provided.

The Lawyer's Obligation To Correct Social Injustice!, James F. Gill

Fordham Urban Law Journal

No abstract provided.

A Gauntlet Thrown: The Transformative Potential Of Padilla V. Kentucky, Malia Brink

Fordham Urban Law Journal

No abstract provided.

Bureaucratic Administration: Experimentation And Immigration Law, Joseph Landau

Faculty Scholarship

In debates about executive branch authority and policy innovation, scholars have focused on two overarching relationships—horizontal tension between the president and Congress and the vertical interplay of federal and state authority. However, these debates have overlooked the role of frontline bureaucratic officials in advancing the laws they administer. This Article looks to immigration law—in which lower-level federal officers exercise discretion delegated down throughout federal agencies—to identify how bottom-up agency influences can inform categorical, across-the-board executive branch policy. In this Article, I argue that decisions by frontline officers can and should be better harnessed to pair local laboratories of executive experimentation …

Tortured Language: Lawful Permanent Residents And The 212(H) Waiver, Julianne Lee

Fordham Law Review

    Recent amendments to the Immigration and Nationality Act have greatly expanded the grounds for removal of lawful permanent residents (LPRs) and, at the same time, constricted judicial review of agency decisions to deport immigrants. Language added to the 212(h) waiver of inadmissibility has increased the number of LPRs that are now ineligible for relief from removal by barring certain LPRs from applying for a waiver if, since the date of their admission, they have committed an aggravated felony or have failed to accrue seven years of continuous presence. The controversy discussed in this Note stems from differing interpretations of this …

Enforcing Immigration Equity, Jason A. Cade

Fordham Law Review

    Congressional amendments to the immigration code in the 1990s significantly broadened grounds for removal while nearly eradicating opportunities for discretionary relief. The result has been a radical transformation of immigration law. In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement officials to implement rigid immigration rules in a normatively defensible way, primarily through the use of prosecutorial discretion. This Article contextualizes recent executive enforcement actions within this scheme and argues that the Obama Administration’s targeted use of limited enforcement resources and implementation of initiatives such as Deferred Action for …

Involuntary Return And The “Found In” Clause Of 8 U.S.C. § 1326(A): An Immigration Conundrum, Matthew J. Geyer

Fordham Law Review

    Illegal reentry into the United States by previously removed aliens is a major problem that has risen steadily in recent years. 8 U.S.C. § 1326(a) punishes such aliens. Specifically, § 1326(a) provides for criminal fines or imprisonment (or both) of any previously removed alien who enters, attempts to enter, or is “found in” the United States at any time after his or her initial removal.

    What does it mean to be “found in” the United States in violation of § 1326(a)? The easy case is when a previously removed alien surreptitiously reenters the United States illegally, remains in the United …

Due Process And The Non-Citizen: A Revolution Reconsidered, Joseph Landau

Faculty Scholarship

Mathews v. Eldridge is typically understood to be a ruling limiting due process protections in benefits determinations, but this case of judicial restraint in ordinary domestic law has activist features where non-citizens are concerned. The transplantation of Mathews into the critical areas of immigration and national security has produced a body of law that is slowly ushering in rights-affirming outcomes and weakening conventional doctrines of exceptionalism in immigration and national security. There are two chief reasons for this. First, ever since Mathews required an explicit judicial determination of private interests, courts have used an increasingly particularistic, case-by-case analysis in immigration …

There And Back, Now And Then: Iirira’S Retroactivity And The Normalization Of Judicial Review In Immigration Law, Austen Ishii

Fordham Law Review

    The U.S. Supreme Court has a long tradition of treating immigration law as “exceptional,” deferring to Congress and executive agencies when determining the scope of various immigration laws. The Court’s refusal to subject immigration statutes to the ordinary level of judicial review has left immigrants even more susceptible to the effects of anti-immigrant legislation.

    When the Court decided Fernandez-Vargas v. Gonzales in 2006 it increased the scope of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) by allowing portions of the statute to be applied to immigrants who had reentered the United States prior to its effective …

Tensions In Rhetoric And Reality At The Intersection Of Work And Immigration, Jennifer Gordon

Faculty Scholarship

No abstract provided.

Reflections On Professor Romero’S Insight On The Decriminalization Of Border Crossings, Won Kidane

Fordham Urban Law Journal

Professor Romero proposes that unauthorized border crossings must be decriminalized. He advances several notable reasons why such a measure is warranted. Kidane offers his own reflections in the following three parts. Part I puts the doctrinal dilemma between criminalization and decriminalization in perspective. Part II evaluates Professor Romero’s argument in favor of decriminalization. And the Conclusion offers final thoughts.

Formalizing Local Citizenship, Peter J. Spiro

Fordham Urban Law Journal

This essay highlights recent state and local policies relating to immigrants and the respects in which they reflect the community membership of those who do not have national citizenship, and makes a case for bundling measures premised on alien membership through the institutional challenge of citizenship. The article also explores the modalities of a formalized local citizenship.

"Sanctuary Cities" And Local Citizenship, Rose Cuison Villazor

Fordham Urban Law Journal

This article explores the ways in which sanctuary laws illustrate the tensions between national and local citizenship, and specifically examines the ways in which "sanctuary cities" have constructed membership for undocumented immigrants located within their jurisdictions.

Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau

Faculty Scholarship

Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Faculty Scholarship

Although the federal government is traditionally understood to enjoy exclusive authority over immigration, states and localities are increasingly asserting a role in this field. This development has sparked vigorous debate on the propriety of such involvement, but the debate is predicated on a misunderstanding of the nature of federal exclusivity. Challenging the conventional wisdom that the Constitution precludes a meaningful role for state and local involvement in immigration.

This Article argues that the Constitution allows immigration authority to be shared among levels of government. After establishing the correctness of this view of immigration authority, this Article argues that the constitutionality …

Rethinking Work And Citizenship, Jennifer Gordon, Robin A. Lenhardt

Faculty Scholarship

This Article advances a new approach to understanding the relationship between work and citizenship that comes out of research on African American and Latino immigrant low-wage workers. Media accounts typically portray African Americans and Latino immigrants as engaged in a pitched battle for jobs. Conventional wisdom suggests that the source of tension between these groups is labor competition or the racial prejudice of employers. While these explanations offer useful insights, they do not fully explain the intensity and longevity of the conflict. Nor has relevant legal scholarship offered a sufficient theoretical lens through which this conflict can be viewed. In …

Transnational Labor Citizenship, Jennifer Gordon

Faculty Scholarship

Over one million new immigrants arrive in the United States each year. This spring, Americans saw several times that number pour into the streets, protesting proposed changes in U.S. immigration and guest work policies. As the signs they carried indicated, most migrants come to work, and it is in the workplace that the impact of large numbers of newcomers is most keenly felt. For those who see both the free movement of people and the preservation of decent working conditions as essential to social justice, this presents a seemingly unresolvable dilemma. In a situation of massive inequality among countries, to …

"Soft Immutability" And "Imputed Gay Identity": Recent Developments In Transgender And Sexual-Orientation-Based Asylum Law, Joseph Landau

Fordham Urban Law Journal

This Article surveys the law of LGBT asylum as it has developed over the past fifteen years, first, with the landmark case of Matter of Toboso-Alfonso, which recognized homosexuality as a "particular social group"; second, with the Ninth Circuit's recent cases adopting a soft immutability standard of identity and expanding asylum protection to transgender individuals; and third, with a discussion of the "particular social group" analysis as it applies to transgender asylum seekers and the emergence of the "imputed gay identity" category as an alternative basis for relief for those litigants who do not identify as gay or lesbian but …

Uncharted Territory: Choosing An Effective Approach In Transgender-Based Asylum Claims, Victoria Neilson

Fordham Urban Law Journal

This Article focuses on individuals who believe that they are born with the wrong anatomical sex and who suffer persecution as a result of their transgender identity. The Article discusses existing precedent in the context of transgender asylum seekers and suggests possible theories for framing successful transgender asylum claims.