Rebecca Sharpless | University of Miami School of Law (original) (raw)

Papers by Rebecca Sharpless

Ethnic and Racial Studies, Apr 3, 2023

Social Science Research Network, Aug 20, 2019

The categorical approach, a once obscure doctrine, now dominates the U.S. Supreme Court’s immigra... more The categorical approach, a once obscure doctrine, now dominates the U.S. Supreme Court’s immigration and federal recidivist sentencing docket. While the primary questions about how to apply the approach have been resolved, many adjudicators and practitioners still find the categorical approach vexing and difficult to apply. A major source of confusion arises from the “modified categorial” approach and what the Supreme Court in Mathis v. United States has called “alternatively phrased statutes,” which use disjunctive language or list alternatives. It is often unclear whether these statutes describe different means of committing a single crime, elements of distinct offenses, or, in the case of statutes with more than two alternatives, some combination of both means and elements. This Article begins by explaining the Mathis Court’s ruling that state law is the primary source to consider in the means versus elements analysis of alternately phrased statutes in the modified categorial approach. This Article then highlights common mistakes made in the post-Mathis federal court jurisprudence when applying the means versus elements test. Each section analyzes a specific error, illustrates it in judicial opinions, and includes examples of the correct analysis. The errors analyzed include (1) relying on state law that provides no definitive answer; (2) “peeking” at the record of conviction; (3) mistaking the prosecutor’s charge of one alternative for divisibility; (4) relying on only the disjunctive wording or structure of the statute; (5) mistaking partial divisibility for complete divisibility; and (6) citing to overruled pre-Mathis-precedent. Correct application of the post-Mathis categorical approach is critical for protecting the rights of defendants and immigrants, as well as ensuring the fair adjudication of their cases.

Progressive legal scholars and practitioners have created a hierarchy within social justice lawye... more 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 others than men. Like other forms of women's work, direct service work often goes unrecognized even though more visible progressive work depends on it. Negative portrayals of direct service attorneys employ a strategy of oppositional definition that is representative of binary male thinking and deny a positive view of direct service work as life-sustaining service to others. This article discusses the harms perpetuated by hierarchies of helping and sketches a more inclusive vision of progressive lawyering.

University of Miami Law Review, 2008

The U.S. Supreme Court has cautioned against "shoehorning" criminal convictions into grounds of d... more The U.S. Supreme Court has cautioned against "shoehorning" criminal convictions into grounds of deportation where they do "not fit." 1 When deportation depends on the existence of a conviction, the Board of Immigration Appeals ("BIA") and federal courts broadly agree that the role of the judge or other adjudicator is limited to determining the legal effect of the conviction under immigration law. 2 Adjudicators cannot decide questions of fact regarding the underlying circumstances of the offense. This limitation is commonly expressed in the maxim that adjudicators may not redetermine, or determine in the first instance, the guilt or innocence of the noncitizen. 3 Without exception, appellate courts and * Visiting Assistant Clinical Professor of Law at Florida International University College of Law. I am grateful for the insightful comments of Dan Kesselbrenner, Stacy Caplow, and Lenni Benson on a previous version of this article. This article is dedicated to my husband, Andrew Stanton, and to my parents, Clair and Tom Sharpless, whose tireless efforts and unfailing support made it possible for me to research and write this article. 1. Leocal v. Ashcroft, 543 U.S. 1, 13 (2004). 2. The issue whether a conviction has a legal effect under immigration law appears not only when a judge or other adjudicator is determining whether a noncitizen is subject to deportation under 8 U.S.C. § 1227 (2000). It also appears in the context of determining whether a noncitizen is eligible to be admitted to the United States under 8 U.S.C. § 1182 (2000), has good moral character for naturalization or other purposes as defined in 8 U.S.C. § 1101(f) (2000), and is eligible for forms of relief from removal like cancellation of removal under 8 U.S.C. § 1229b(a) (2000). The Immigration and Nationality Act also expressly conditions removal on certain criminal conduct, as opposed to a conviction for that conduct. See, e.g., § 1182(a)(1)(A)(iv) (drug abuser or addict); § 1182(a)(2)(C) (reason to believe illicit trafficker in controlled substance); § 1182(a)(2)(D) (prostitution); § 1182(a)(2)(H) (reason to believe trafficker in persons); § 1182(a)(2)(I) (reason to believe money launderer); § 1182(a)(3) (national security and terrorism); § 1182(a)(3)(E) (Nazi persecution and genocide); § 1182(a)(6)(C) (misrepresentation); § 1182(a)(6)(E) (smuggling); § 1182 (a)(10)(C) (international child abductors); § 1182(a)(10)(D) (unlawful voters); see also § 1227(a)(1)(E) (smuggling); § 1227(a)(1)(G) (marriage fraud); § 1227(a)(2)(B)(ii) (drug abuser or addict); § 1227(a)(3) (failure to register and falsification of documents); § 1227(a)(4) (national security); § 1227(a)(6) (unlawful voting). These grounds will not be discussed in this article. 3. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) ("A deportation hearing is held before an immigration judge. The judge's sole power is to order deportation; the judge cannot 979 \\server05\productn\M\MIA\62-4\MIA405.txt unknown Seq: 2 17-JUL-08 11:00

Immigration law fails to align with the contemporary understanding of substance addiction as a me... more 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 contemporize the law extends beyond the harms of unwarranted family separation due to the deportation or exclusion of people who suffer from substance use disorder. Holding noncitizens to an archaic standard threatens our civic and political identity as a diverse and democratic country. The bigger the gap between conte...

Brooklyn law review, 2017

In 1965, President Lyndon B. Johnson called for a "War on Crime," a pronouncement that ushered in... more In 1965, President Lyndon B. Johnson called for a "War on Crime," a pronouncement that ushered in a new era of law enforcement.

In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment... more In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizen clients 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 facilitate the implementation of Padilla, enhance the legitimacy of immigration law, and conserve judicial and administrative resources. However, pro-immigrant reformers hesitate to push for simple deportation rules because legislative reform in the area of immigration and crimes would likely widen the deportation net. Assumi...

New Mexico law review, 2016

The United States has engaged in shifting decisions about the mass detention of immigrant familie... more The United States has engaged in shifting decisions about the mass detention of immigrant families from Central America. Faced with a “surge” of women and their children crossing the border without authorization, the United States dramatically increased its capacity to detain immigrant families from about a hundred to over three thousand. Immigration officials vowed to hold the family members, most of whom were seeking asylum, until their cases were complete. Yet six months after opening a mammoth family detention center, the Secretary of Homeland Security announced that the U.S. government was making “substantial changes” to its family detention policy and would discontinue long-term detention of women traveling with their children who had made a threshold showing for asylum. Lawyers, law students, and other advocates mobilized to represent the families and played a pivotal role in reversing the decision to detain the families for the long term. Today, families continue to cross th...

ERN: Immigration (Topic), 2017

The U.S. Supreme Court lacks a jurisprudence for when courts should defer to immigration agency i... more 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, Inc. as well as the rationales behind both the ban on deference to criminal prosecutors and the criminal and immigration rules of lenity all support the conclusion that courts should not defer to agency interpretations of crime-based removal grounds.

Social Science Research Network, Feb 19, 2021

Nativist sentiments against classes of immigrants have existed since colonial times. But views ab... more Nativist sentiments against classes of immigrants have existed since colonial times. But views about immigration and immigrants drive U.S. electoral politics now more than ever, accounting for a significant number of voters who crossed party lines in the 2016 presidential election. The COVID-19 pandemic has the potential to harden deeply-held beliefs about outsider threats and further entrench the polarization of public views on immigration. During his campaigns and term in office, President Trump popularized nativism, breaking from the received wisdom of the Republican party. Casting the virus as a foreign invader, he built on fears of the contagion to alter immigration policy in fundamental ways, including shutting down the border and eviscerating asylum protections. Nativism has allowed President Trump and his supporters to harmonize their contradictory beliefs that, on the one hand, anti-virus public health measures do not require strong collective action within the country, but, on the other, they justify extreme restrictions against immigrants. Over the long term, changing demographics and an increasingly positive view of immigrants and immigration signal that the country is on a trajectory to a more open society. In the short term, however, the Biden administration must contend with the surge of nativism stoked by President Trump and exacerbated by the COVID-19 pandemic

SSRN Electronic Journal

Mainstream pro-immigrant law reformers advocate for better treatment of immigrants by invoking a ... more Mainstream pro-immigrant 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 for immigration reform that draws its *

SSRN Electronic Journal, 2000

... and the Categorical Analysis of Crimes in Immigration Law Rebecca Sharpless Assistant Profess... more ... and the Categorical Analysis of Crimes in Immigration Law Rebecca Sharpless Assistant Professor of Law #2009-25 ... ARTICLES Toward a True Elements Test: Taylor and the Categorical Analysis of Crimes in Immigration Law REBECCA SHARPLESS* ...

SSRN Electronic Journal, 2000

SSRN Electronic Journal, 2000

SSRN Electronic Journal, 2000

papers.ssrn.com

See 8 U.S.C. § 1252(a)(2)(D) (2006) (ensuring jurisdiction over "constitutional claims or questio... more See 8 U.S.C. § 1252(a)(2)(D) (2006) (ensuring jurisdiction over "constitutional claims or questions of law raised upon a petition for review," even if otherwise barred). For a list of jurisdictional bars, see infra notes 18 and 20. 2 See infra note 16. 3 As discussed infra note 44, appellate courts except the Ninth Circuit have held that applicants for relief under Article 3 of the Convention Against Torture typically fall within the jurisdictional bar at 8 U.S.C. § 1252(a)(2)(C) (2005), which states that "[n]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" an offense listed in 8 U.S.C. § 1 182(a)(2) or 8 U.S.C. § 1227(a)(2)(A)(iii), (B), (C), or (D) or any offense covered by 8 U.S.C. § 1227(a)(2)(A)(ii) "for which both predicate offenses are. .. otherwise covered by" 8 U.S.C. § 1227(a)(2)(A)(i).

Ethnic and Racial Studies, Apr 3, 2023

Social Science Research Network, Aug 20, 2019

The categorical approach, a once obscure doctrine, now dominates the U.S. Supreme Court’s immigra... more The categorical approach, a once obscure doctrine, now dominates the U.S. Supreme Court’s immigration and federal recidivist sentencing docket. While the primary questions about how to apply the approach have been resolved, many adjudicators and practitioners still find the categorical approach vexing and difficult to apply. A major source of confusion arises from the “modified categorial” approach and what the Supreme Court in Mathis v. United States has called “alternatively phrased statutes,” which use disjunctive language or list alternatives. It is often unclear whether these statutes describe different means of committing a single crime, elements of distinct offenses, or, in the case of statutes with more than two alternatives, some combination of both means and elements. This Article begins by explaining the Mathis Court’s ruling that state law is the primary source to consider in the means versus elements analysis of alternately phrased statutes in the modified categorial approach. This Article then highlights common mistakes made in the post-Mathis federal court jurisprudence when applying the means versus elements test. Each section analyzes a specific error, illustrates it in judicial opinions, and includes examples of the correct analysis. The errors analyzed include (1) relying on state law that provides no definitive answer; (2) “peeking” at the record of conviction; (3) mistaking the prosecutor’s charge of one alternative for divisibility; (4) relying on only the disjunctive wording or structure of the statute; (5) mistaking partial divisibility for complete divisibility; and (6) citing to overruled pre-Mathis-precedent. Correct application of the post-Mathis categorical approach is critical for protecting the rights of defendants and immigrants, as well as ensuring the fair adjudication of their cases.

Progressive legal scholars and practitioners have created a hierarchy within social justice lawye... more 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 others than men. Like other forms of women's work, direct service work often goes unrecognized even though more visible progressive work depends on it. Negative portrayals of direct service attorneys employ a strategy of oppositional definition that is representative of binary male thinking and deny a positive view of direct service work as life-sustaining service to others. This article discusses the harms perpetuated by hierarchies of helping and sketches a more inclusive vision of progressive lawyering.

University of Miami Law Review, 2008

The U.S. Supreme Court has cautioned against "shoehorning" criminal convictions into grounds of d... more The U.S. Supreme Court has cautioned against "shoehorning" criminal convictions into grounds of deportation where they do "not fit." 1 When deportation depends on the existence of a conviction, the Board of Immigration Appeals ("BIA") and federal courts broadly agree that the role of the judge or other adjudicator is limited to determining the legal effect of the conviction under immigration law. 2 Adjudicators cannot decide questions of fact regarding the underlying circumstances of the offense. This limitation is commonly expressed in the maxim that adjudicators may not redetermine, or determine in the first instance, the guilt or innocence of the noncitizen. 3 Without exception, appellate courts and * Visiting Assistant Clinical Professor of Law at Florida International University College of Law. I am grateful for the insightful comments of Dan Kesselbrenner, Stacy Caplow, and Lenni Benson on a previous version of this article. This article is dedicated to my husband, Andrew Stanton, and to my parents, Clair and Tom Sharpless, whose tireless efforts and unfailing support made it possible for me to research and write this article. 1. Leocal v. Ashcroft, 543 U.S. 1, 13 (2004). 2. The issue whether a conviction has a legal effect under immigration law appears not only when a judge or other adjudicator is determining whether a noncitizen is subject to deportation under 8 U.S.C. § 1227 (2000). It also appears in the context of determining whether a noncitizen is eligible to be admitted to the United States under 8 U.S.C. § 1182 (2000), has good moral character for naturalization or other purposes as defined in 8 U.S.C. § 1101(f) (2000), and is eligible for forms of relief from removal like cancellation of removal under 8 U.S.C. § 1229b(a) (2000). The Immigration and Nationality Act also expressly conditions removal on certain criminal conduct, as opposed to a conviction for that conduct. See, e.g., § 1182(a)(1)(A)(iv) (drug abuser or addict); § 1182(a)(2)(C) (reason to believe illicit trafficker in controlled substance); § 1182(a)(2)(D) (prostitution); § 1182(a)(2)(H) (reason to believe trafficker in persons); § 1182(a)(2)(I) (reason to believe money launderer); § 1182(a)(3) (national security and terrorism); § 1182(a)(3)(E) (Nazi persecution and genocide); § 1182(a)(6)(C) (misrepresentation); § 1182(a)(6)(E) (smuggling); § 1182 (a)(10)(C) (international child abductors); § 1182(a)(10)(D) (unlawful voters); see also § 1227(a)(1)(E) (smuggling); § 1227(a)(1)(G) (marriage fraud); § 1227(a)(2)(B)(ii) (drug abuser or addict); § 1227(a)(3) (failure to register and falsification of documents); § 1227(a)(4) (national security); § 1227(a)(6) (unlawful voting). These grounds will not be discussed in this article. 3. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) ("A deportation hearing is held before an immigration judge. The judge's sole power is to order deportation; the judge cannot 979 \\server05\productn\M\MIA\62-4\MIA405.txt unknown Seq: 2 17-JUL-08 11:00

Immigration law fails to align with the contemporary understanding of substance addiction as a me... more 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 contemporize the law extends beyond the harms of unwarranted family separation due to the deportation or exclusion of people who suffer from substance use disorder. Holding noncitizens to an archaic standard threatens our civic and political identity as a diverse and democratic country. The bigger the gap between conte...

Brooklyn law review, 2017

In 1965, President Lyndon B. Johnson called for a "War on Crime," a pronouncement that ushered in... more In 1965, President Lyndon B. Johnson called for a "War on Crime," a pronouncement that ushered in a new era of law enforcement.

In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment... more In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizen clients 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 facilitate the implementation of Padilla, enhance the legitimacy of immigration law, and conserve judicial and administrative resources. However, pro-immigrant reformers hesitate to push for simple deportation rules because legislative reform in the area of immigration and crimes would likely widen the deportation net. Assumi...

New Mexico law review, 2016

The United States has engaged in shifting decisions about the mass detention of immigrant familie... more The United States has engaged in shifting decisions about the mass detention of immigrant families from Central America. Faced with a “surge” of women and their children crossing the border without authorization, the United States dramatically increased its capacity to detain immigrant families from about a hundred to over three thousand. Immigration officials vowed to hold the family members, most of whom were seeking asylum, until their cases were complete. Yet six months after opening a mammoth family detention center, the Secretary of Homeland Security announced that the U.S. government was making “substantial changes” to its family detention policy and would discontinue long-term detention of women traveling with their children who had made a threshold showing for asylum. Lawyers, law students, and other advocates mobilized to represent the families and played a pivotal role in reversing the decision to detain the families for the long term. Today, families continue to cross th...

ERN: Immigration (Topic), 2017

The U.S. Supreme Court lacks a jurisprudence for when courts should defer to immigration agency i... more 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, Inc. as well as the rationales behind both the ban on deference to criminal prosecutors and the criminal and immigration rules of lenity all support the conclusion that courts should not defer to agency interpretations of crime-based removal grounds.

Social Science Research Network, Feb 19, 2021

Nativist sentiments against classes of immigrants have existed since colonial times. But views ab... more Nativist sentiments against classes of immigrants have existed since colonial times. But views about immigration and immigrants drive U.S. electoral politics now more than ever, accounting for a significant number of voters who crossed party lines in the 2016 presidential election. The COVID-19 pandemic has the potential to harden deeply-held beliefs about outsider threats and further entrench the polarization of public views on immigration. During his campaigns and term in office, President Trump popularized nativism, breaking from the received wisdom of the Republican party. Casting the virus as a foreign invader, he built on fears of the contagion to alter immigration policy in fundamental ways, including shutting down the border and eviscerating asylum protections. Nativism has allowed President Trump and his supporters to harmonize their contradictory beliefs that, on the one hand, anti-virus public health measures do not require strong collective action within the country, but, on the other, they justify extreme restrictions against immigrants. Over the long term, changing demographics and an increasingly positive view of immigrants and immigration signal that the country is on a trajectory to a more open society. In the short term, however, the Biden administration must contend with the surge of nativism stoked by President Trump and exacerbated by the COVID-19 pandemic

SSRN Electronic Journal

Mainstream pro-immigrant law reformers advocate for better treatment of immigrants by invoking a ... more Mainstream pro-immigrant 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 for immigration reform that draws its *

SSRN Electronic Journal, 2000

... and the Categorical Analysis of Crimes in Immigration Law Rebecca Sharpless Assistant Profess... more ... and the Categorical Analysis of Crimes in Immigration Law Rebecca Sharpless Assistant Professor of Law #2009-25 ... ARTICLES Toward a True Elements Test: Taylor and the Categorical Analysis of Crimes in Immigration Law REBECCA SHARPLESS* ...

SSRN Electronic Journal, 2000

SSRN Electronic Journal, 2000

SSRN Electronic Journal, 2000

papers.ssrn.com

See 8 U.S.C. § 1252(a)(2)(D) (2006) (ensuring jurisdiction over "constitutional claims or questio... more See 8 U.S.C. § 1252(a)(2)(D) (2006) (ensuring jurisdiction over "constitutional claims or questions of law raised upon a petition for review," even if otherwise barred). For a list of jurisdictional bars, see infra notes 18 and 20. 2 See infra note 16. 3 As discussed infra note 44, appellate courts except the Ninth Circuit have held that applicants for relief under Article 3 of the Convention Against Torture typically fall within the jurisdictional bar at 8 U.S.C. § 1252(a)(2)(C) (2005), which states that "[n]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" an offense listed in 8 U.S.C. § 1 182(a)(2) or 8 U.S.C. § 1227(a)(2)(A)(iii), (B), (C), or (D) or any offense covered by 8 U.S.C. § 1227(a)(2)(A)(ii) "for which both predicate offenses are. .. otherwise covered by" 8 U.S.C. § 1227(a)(2)(A)(i).