Immigration Law Commons^™

The Plea-Bargain Crisis For Noncitizens In Misdemeanor Court, Jason A. Cade

Cardozo Law Review

This Article considers three factors contributing to a plea-bargain crisis for noncitizens charged with misdemeanors: 1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; 2) the integration of federal immigration enforcement programs with the criminal justice system; and 3) the institutional norms in non-federal lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges. The Article contends that these factors increase the likelihood that a noncitizen's low-level conviction will not reliably indicate guilt …

The Powers Of Congress And The President On Matters That Affect U.S. Foreign Affairs, Malvina Halberstam

Articles

No abstract provided.

Accessing Justice Ii: A Model For Providing Counsel To New York Immigrants In Removal Proceedings, Stacy Caplow, Peter L. Markowitz, Claudia Slovinsky, Jojo Annobil, Peter Cobb, Amy L. Kenepaske, Nancy Morawetz, Lindsay Nash, Raluca Oncioiu, Oren Root, Maribel Hernández Rivera, Jane Stern, Isaac Wheeler, Marianne Yang

Online Publications

The New York Immigrant Representation Study (“NYIR Study”) is a two-year project of the Study Group on Immigrant Representation to analyze and ameliorate the immigrant representation crisis—the acute shortage of qualified attorneys willing and able to represent indigent immigrants facing deportation. The crisis has reached epic proportions in New York and shows no signs of abating.

In its year-one report (issued in the fall of 2011), the NYIR Study analyzed the empirical evidence regarding the nature and scope of the immigrant representation crisis. In that report, we documented how many New Yorkers—27 percent of those not detained and 60 percent …

S-Comm: Shattering Communities, Hannah Weinstein

Cardozo Public Law, Policy & Ethics Journal

The note argues that the Secure Communities program, initiated by the Department of Homeland Security (DHS) in 2008, operates unlawfully under the Administrative Procedure Act (APA) and raises significant constitutional concerns. By bypassing notice-and-comment requirements and failing to address public concerns, the program has led to racial profiling, pretextual arrests, and widespread detention of noncriminal individuals, undermining its stated goals and eroding community trust in law enforcement. The analysis calls for immediate cessation of the program and congressional funding due to its legal violations and harmful consequences.

Prescribing Disproportionate Punishment: The Federal Sentencing Guidelines For Illegal Reentry, Zoey T. Jones

Cardozo Law Review

No abstract provided.

"U" Stands For Underutilization: The U Visa's Vulnerability For Underuse In The Sex Trafficking Context, Erin Bistricer

Cardozo Journal of Equal Rights & Social Justice

The U Visa, established in 2000 under the Violence Against Women Act (VAWA) reauthorization, was designed to provide legal status to victims of certain crimes, including sex trafficking, without fear of deportation. However, its implementation has been hindered by significant challenges, including delayed regulations, confusion among applicants, and reliance on law enforcement cooperation, which can be a barrier for traumatized victims. While the U Visa offers more flexibility than the T Visa by covering a broader range of crimes and requiring a lower standard of proof, its effectiveness is limited by factors such as annual caps, inadequate state anti-trafficking laws, …

Revised Remarks To The Symposium On Innovative Approaches To Immigrant Representation At The Benjamin N. Cardozo School Of Law, John Paul Stevens

Cardozo Law Review

No abstract provided.

Representation Of The Immigrant Poor: Upstate New York, Denny Chin

Cardozo Law Review

No abstract provided.

Petty Offenses, Drastic Consequences: Toward A Sixth Amendment Right To Counsel For Noncitizen Defendants Facing Deportation, Alice Clapman

Cardozo Law Review

No abstract provided.

Constitutionalizing Immigration Law On Its Own Path, Anne R. Traum

Cardozo Law Review

Courts should insist on heightened procedural protections in immigration adjudication. They should do so under the Fifth Amendment's Due Process Clause rather than by importing Sixth Amendment protections from the criminal context. Traditional judicial oversight and the Due Process Clause provide a better basis than the Sixth Amendment to interpose heightened procedural protections in immigration proceedings, especially those involving removal for a serious criminal conviction. The Supreme Court's immigration jurisprudence in recent years lends support for this approach. The Court has guarded the availability of judicial review of immigration decisions. It has affirmed that courts are the arbiters of constitutional …

Foreword: The Study Group On Immigrant Representation Symposium Innovative Approaches To Immigrant Representation: Exploring New Partnerships, Robert A. Katzmann

Cardozo Law Review

No abstract provided.

Accessing Justice: The Availability And Adequacy Of Counsel In Removal Proceedings (New York Immigrant Representation Study Report: Part 1), Peter L. Markowitz, Jojo Annobil, Stacy Caplow, Peter V.Z Cobb, Nancy Morawetz, Oren Root, Claudia Slovinsky, Zhifen Cheng, Lindsay Nash

Cardozo Law Review

The article addresses the immigrant representation crisis in U.S. immigration courts, highlighting a severe shortage of competent legal representation for individuals in removal proceedings. This crisis is marked by both a lack of quantity and quality of representation, exacerbated by rising deportation rates, detention practices, and resource constraints faced by removal defense providers (RDPs). The study underscores the critical role of legal representation in achieving successful outcomes, with stark disparities in success rates between represented and unrepresented individuals. It advocates for systemic solutions, including expanded funding, improved coordination among providers, and policy reforms to ensure fair and competent representation for …

Considering The Scope Of Advisal Duties Under Padilla, Lindsay C. Nash

Cardozo Law Review

In Padilla v. Kentucky, the Supreme Court recognized the complexity and severity of immigration penalties triggered by criminal convictions and held that defense attorneys are obligated to advise clients of such consequences. In so doing, the Court explained that specific advice is required when a consequence is clear; at the same time, it acknowledged it is not always possible to ascertain the consequences of a criminal disposition and, when that is the case, counsel's duty is more limited. The Court did not, however, elaborate on the circumstances in which the duty might be limited or explain what advice defense …

Stateless, Jay Milbrandt

Cardozo Journal of International and Comparative Law

The article argues that statelessness, affecting 12 million people globally, is a critical issue that international law inadequately addresses. It highlights the limitations of current legal frameworks and proposes a modern, technology-driven identification system to mitigate this crisis, drawing inspiration from historical solutions like the Nansen Passport.

Hotline For Migrant Workers V. Minister Of Defense, Dorit Beinisch, Eliezer Rivlin, Ayala Procaccia

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

A petition submitted by a number of human rights organizations that seeks to examine Israel’s policy regarding deporting to Egypt groups of foreigners entering Israel unlawfully through the Sinai, and who remain in areas under Israeli jurisdiction or on its international border, and this soon after their entry into Israeli territory (hereinafter: the arranged deportation.) The petition wishes to test the above policy, particularly …

Deportation Is Different, Peter L. Markowitz

Articles

Over one hundred years ago, the Supreme Court emphatically declared that deportation proceedings are civil, not criminal, in nature. As a result, none of the nearly 400,000 individuals who were deported last year enjoyed any of the constitutional protections afforded to criminal defendants under the Sixth or Eighth Amendments. Among those 400,000 were numerous detained juveniles and mentally ill individuals who, as a result of the civil designation, were forced to navigate the labyrinth of immigration law alone, without appointed counsel. Others were lawul permanent residents who had pled guilty to minor offenses upon the correct advice of counsel that …

A New Normative Approach For The Grant Of Asylum In Cases Of Non-State Actor Persecution, Mikhail Izrailev

Cardozo Journal of International and Comparative Law

The note critiques the inconsistent application of the "unable or unwilling" standard in asylum cases, particularly regarding nonstate actor persecution, and advocates for adopting the New Zealand Refugee Status Appeals Authority's standard. This standard focuses on the existence of a real risk of persecution, irrespective of governmental efforts, to align with the Refugee Convention's nonrefoulement principle and better safeguard asylum seekers' rights.

U.S. Immigration Law: A Barrier To Effective Cultural Diplomacy, Alexa K. Fang

Cardozo Journal of International and Comparative Law

The note argues that U.S. visa policies for artists and cultural workers have become overly restrictive, particularly after the 1990 Immigration Act and post-9/11 security measures, creating significant barriers to cross-cultural exchange. These restrictions, such as the stringent requirements for O-1 visas and premium processing delays, disproportionately affect less established artists and those from certain countries, undermining U.S. cultural diplomacy goals. The note advocates for visa reform, drawing on comparative examples from countries like Austria, Canada, and EU member states, which prioritize artistic freedom and mobility while balancing security concerns.

Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan

Cardozo Law Review

Though unauthorized migration into the United States has diminished substantially since 2007, anti-"illegal alien" state and local laws and furor are flaring again. While one of the biggest worries regarding such "anti-alien" laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive, national unity-rebuilding as well as divisive, inflammatory ways. Anti-alien legislation is a proxy way to vent resurgent racialized …

Is Ze An American Or A Foreigner? Male Or Female? Ze's Trapped!, Annette De La Torre

Cardozo Journal of Equal Rights & Social Justice

The note argues that the legal and medical frameworks governing the treatment of transgender and transsexual immigrant detainees in U.S. Immigration and Customs Enforcement (ICE) facilities are inadequate, leading to violations of their Eighth Amendment rights. It contends that the legal system's reliance on narrow medical definitions and outdated gender roles fails to protect these detainees from unsafe and inhumane conditions. The analysis emphasizes the need for comprehensive reforms to address housing, medical care, and staff training to ensure dignity and safety for transgender detainees.

The Economic Impact Of Local Immigration Regulation: An Empirical Analysis, Huyen Pham, Pham Hoang Van

Cardozo Law Review

A wave of local anti-immigration laws has swept the country, triggering contentious debate and raising significant legal and policy issues. One critical dimension that has been largely ignored, however, is the economic impact of these laws: Are jurisdictions with them better off economically than those without them?

In the first empirical study of this issue, we analyze the economic impact of local anti-immigration laws. The laws take different forms - some authorize local police to enforce federal immigration laws, some restrict benefits like housing and employment to those with legal immigration status, and some require all government transactions to be …

Brief For Amici Curiae National Immigration Project Of The National Lawyers Guild, National Police Accountability Project, And Legal Services For Children In Support Of Petitioner, Betsy Ginsberg

Amicus Briefs

Amici have a substantial interest in the outcome of this case. The Federal Tort Claims Act ("FTCA" or the "Act") provides compensation for victims of government negligence and abuse. All too often, those cases arise in the immigration and law enforcement contexts, like the case at issue here. They arise when American citizens are unlawfully detained or deported. They arise when people in immigration detention are mistreated or denied proper medical care. And they arise when immigration officials engage in unlawful home raids.

A robust and uniform Federal Tort Claims Act is essential both to compensating victims and to preventing …

Judicial Review, A Comparative Perspective: Israel, Canada, And The United States, Malvina Halberstam

Cardozo Law Review

No abstract provided.

Unconstitutional And Unnecessary: A Cost/Benefit Analysis Of "Crimes Involving Moral Turpitude" In The Immigration And Nationality Act, Amy Wolper

Cardozo Law Review

No abstract provided.

"Give Me Your Tired, Your Poor, Your Huddled Masses," But Not Your Homosexual Partners: International Solutions To America's Same-Sex Immigration Dilemma, Matthew J. Hrutkay

Cardozo Journal of International and Comparative Law

The note argues that U.S. immigration law, despite its emphasis on family unification, excludes same-sex couples due to the Defense of Marriage Act (DOMA), creating a conflict between policy goals and legal realities. It proposes that international models, such as those from Australia and Canada, offer viable solutions to reconcile this dilemma while addressing conservative concerns about federal recognition of same-sex marriage.

Citizenship Privilege Or The Right To Religious Freedom: The Blackmailing Of France's Islamic Women, Yael Barbibay

Cardozo Journal of International and Comparative Law

The note examines the tension between France's commitment to laïcité and the rights of Islamic immigrants, particularly women, to religious freedom and cultural identity. It critiques the denial of citizenship to Faiza Mabchour, arguing that such decisions reflect a broader effort to suppress Islamic practices and undermine pluralism. The analysis contends that France's rigid application of laïcité violates international human rights norms, particularly the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). The article advocates for a more inclusive approach to citizenship that balances secularism with religious freedom and cultural diversity.

Culture-Based Crimes Against Women In Societies Absorbing Immigrants - Rejecting The "Mistake Of Law" Defense And Imposing Harsher Sentencing, Gabriel Hallevy

Cardozo Journal of Equal Rights & Social Justice

The article argues that the mistake of law defense is irrelevant in cases of culture-based crimes against women, particularly honor killings, committed by immigrants in Western societies. It asserts that such crimes, often justified by cultural preservation, warrant harsher sentencing rather than leniency due to cultural ignorance. The analysis distinguishes between first-generation immigrants and refugees, emphasizing that refugees should not receive special treatment in legal accountability. The article advocates for stricter legal measures to address these crimes and minimize their occurrence.

Barriers To Representation For Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, Peter L. Markowitz

Articles

There is an evolving crisis in the immigration courts and federal courts of appeals caused by the lack of quality representation for immigrants facing deportation. The problem is particularly acute for immigrants who are detained during their removal proceedings. As part of the Study Group on Immigrant Representation (Katzmann study group), the Subcommittee on Enhancing Mechanisms for Service Delivery undertook a case study of the institutional and legal barriers to quality legal representation for immigrants held at the Varick Street Detention Facility in New York City. Through this lens we hope to offer some useful insights into the core factors …

Veiling And Women's Intelligibility, John Borneman

Cardozo Law Review

No abstract provided.

International Advocate For Peace Award Acceptance Speech, Amira Dotan

Cardozo Journal of Conflict Resolution

The Ninth International Peace Award Recipient