Justice on the Fly: The Danger of Errant Deportations (original) (raw)
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Does the Legal Standard Matter? Empirical Answers to Justice Kennedy's Questions in Nken v. Holder
Ohio State Law Journal Furthermore, 2014
In Justice on the Fly: The Danger of Errant Deportations, Professors Fatma Marouf, Michael Kagan, and Rebecca Gill take on the ambitious task of answering the empirical questions posed by Justice Kennedy and others in Nken v. Holder with respect to the proper legal standard for judicial stays of removal in the immigration adjudication context. To answer these questions, the authors review, code, and analyze 1,646 cases in all circuits that hear immigration appeals and reveal stark differences in stay-of-removal practices and outcomes among the federal courts of appeals. This Response reflects on three of those findings: the disparity in stay grant rates among circuits, the variation by circuit in government opposition and immigration attorneys’ stay request practices, and the differences in Type I and Type II errors among circuits that apply the distinct legal standards. In addition to agreeing with Justice on the Fly that courts should adopt a uniform legal standard, the Response proposes a judicial solution that enhances court-agency dialogue to help courts handle the Federal Government’s misstatement in Nken about the ability of petitioners to return to the United States if they prevail on appeal.
2006
Today, jurisdiction over immigration law is by no means well defined by clear limits. Limitations on jurisdiction have bred a multitude of litigation. The number of federal court cases reviewing removal orders has increased 970% in the past ten years. As of September 2005, the immigration cases represented 18% of the appellate civil docket.Congress and the courts are not alone in augmenting the number of immigration cases in the federal courts. Congress has also urged the agencies enforcing the immigration laws to increase enforcement, to reduce backlogs and to make removal more swift and certain. At the same time that Congress was shearing away at the forms of judicial review, the Department of Justice and its Executive Office for Immigration Review (“EOIR”) together with the Department of Homeland Security (“DHS”) were increasing the number, rate and speed of adjudication of removal cases.For these men, women and children in removal proceedings, the incentives to litigate beyond t...
Dubious Deference: Reassessing Appellate Standards of Review in Immigration Appeals
2013
The long-standing doctrine of deferential review by appellate courts of findings of fact by administrative agencies is seriously flawed for two main reasons. First, the most prominent justification for deference relies on the empirical assumption that first-instance adjudicators are best able to determine the truth because they can directly view witness demeanor. Decades of social science research has proven this assumption about the value of demeanor false. Second, in principle, the deference rule applies to all types of administrative adjudication, with no attention to the relative gravity of interests at stake in different types of cases or to the varying levels of actual expertise that different executive agencies bring to bear. These weaknesses are particularly acute in immigration appeals and help explain why the 2002 streamlining of the Board of Immigration Appeals has proven problematic for the ftderal courts. Appellate courts often take advantage of the inherent ambiguities of the deference doctrine to prevent unacceptable results, but this approach does little to repair the essential flaws in the doctrine and exposes courts to criticism that they are acting arbitrarily. A more coherent way to understand how appellate courts use deference in practice would be to apply a balancing analysis similar to the procedural due process doctrine.
2011
Though widely heralded by immigration and human rights lawyers as a “landmark,” possible “watershed,” and even “Gideon decision” for immigrants, Padilla v. Kentucky is perhaps better understood as a Rorschach test, than as a clear constitutional precedent. It is surely a very interesting and important U.S. Supreme Court case in the (rapidly converging) fields of immigration and criminal law in which the Court struggles with the functional relationship between ostensibly “civil” deportation proceedings and criminal convictions. This is a gratifying development, for reasons not only of justice, fairness, proportionality, and basic human decency, but also (perhaps) of doctrinal consistency. The Court’s choice to rely upon the Sixth Amendment is understandable and in many respects salutary. However, this choice is also in tension with the civil/criminal distinction, and it raises complex questions about the process that might be due deportees both in criminal courts and immigration proc...
Journal of Criminal Justice and Law, 2020
This paper analyzes the legitimacy of two U.S. Supreme Court decisions, Nielsen v. Preap and Barton v. Barr, against the principles expressed in Max Weber's theories regarding rational legal order and judicial legitimacy. The legitimacy of our judiciary depends on the public perception that it is a politically neutral, non-partisan arbiter of the rule of law in our society. When the Court is perceived as serving partisan interests, or promoting arbitrary action by the executive branch, its legitimacy is threatened. After careful exploration of the value of an impartial and politically neutral judiciary as seen through the lens of Weber's theories, the inescapable conclusion is that both the Nielsen v. Preap and Barton v. Barr rulings are neither just nor fair, and are harmful to the legitimacy of the judiciary. _______________________________________________________________________________ During the 2018 term of the United States Supreme Court, the Justices waded into the politically sensitive issue of immigration and deportation of permanent legal residents in the case of Nielsen v. Preap (2019). In the following 2019 term, the high court analyzed another challenge to the deportation of a permanent legal resident in Barton v. Barr (2020). The Department of Homeland Security under the mandated policies of the Trump Administration sought to remove resident aliens from the interior of the United States if they committed removable offenses. In 2019, 86% of persons arrested by ICE had criminal convictions or pending charges, and 85% of persons removed from the United States to their home nations had served time while in ICE custody (U.S. Immigration and Customs Enforcement, 2019). The immigrants in Nielson (2019) had been convicted of crimes, served their criminal sentences, and had been released. However, in subsequent years, the government claimed a right under federal statutory law to incarcerate the immigrants and denied them a bond hearing
After the Flood: The Legacy of the" Surge" of Federal Immigration Appeals
Northwestern Journal of Law & Social Policy, 2011
For many years, the big news in the United States courts of appeal was the skyrocketing immigration caseload. For courts that traditionally had busy immigration dockets, the effect was tsunamic. One of those circuits, the Second, instituted a nonargument calendar that, over the past five years, has enabled the court to regain some control over its swollen docket. While this administrative strategy has rescued the court from drowning, the flow of cases continues, somewhat abated, but with enduring force. This so-called surge had unanticipated consequences extending far beyond court management changes. As a result of their increased exposure to immigration cases at the hearing stage-reading transcripts and immigration judge decisions-federal judges increasingly found fault with immigration adjudication, criticizing the quality of both the judging and the lawyering. The glaring attention generated public reaction, forcing some reforms from the inside and continuing pressure from the outside. This Article examines the legacy of this exposure and its positive impact on the quest for better access to justice for immigrants facing removal.
Immigration Adjudication: The Missing “Rule of Law”
Journal on Migration and Human Security, 2017
The United States spends more than $19 billion each year on border and immigration enforcement. 1 The Obama administration removed more people in eight years than the last four administrations combined. 2 Yet, to the Trump administration, enforcement is not yet robust enough. Among other measures, the administration favors more expedited and summary removals. More than 80 percent 3 of all removal orders are already issued outside the court process: When the Department of Homeland Security (DHS) uses summary removal processes, both access to counsel and an immigration judge can be nearly impossible. Advocates and policy analysts are equally concerned that a backlog of over 545,000 immigration court cases creates delay that harm people seeking asylum and other humanitarian protection. Recent use of priority or "rocket" dockets in immigration court and lack of appointed counsel also interfere with the fair adjudication of claims. Thus the administrative removal system is criticized both for being inefficient and moving too slowly, on the one hand, and for moving too quickly without adequate procedural safeguards, on the other. Both critiques have merit. The challenge is to design, implement, and most critically, maintain an appropriately balanced adjudication system. While it is clear that US removal procedures need reform, process alone will not be able to address some of the systematic flaws within the system. Ultimately, the DHS will need to refine and prioritize the cases that are placed into the system and the government needs new tools, widely used in other adjudication systems, that can reduce backlogs, incentivize cooperation, and facilitate resolution. Congress should similarly reexamine the barriers to status and avenues for regularization or preservation of status. The paucity of equitable forms or relief and the lack of statutes of limitation place stress on the immigration court system. The lack
Deportation in the Shadows of Due Process: The Dangerous Implications of DHS v. Thuraissigiam
Southwestern Law Review, 2021
2 (2019). (or any other) judicial review of a summary government denial of an asylum claim brought by a noncitizen on U.S. soil. As Justice Sotomayor poignantly noted in her dissent, the Court held "that the Constitution's due process protections do not extend to noncitizens. .. , who challenge the procedures used to determine whether they may seek shelter in this country or whether they may be cast to an unknown fate." 7 This precludes any means to ensure the "integrity" of an expedited removal order and "upends settled constitutional law."" Moreover, it "paves the way toward transforming already summary expedited removal proceedings into arbitrary administrative adjudications." 9 As bleak as this is, Justice Sotomayor may actually have understated the dangers of Thuraissigiam as its ramifications for the future of habeas corpus are also worrisome. 0 To see why this is so, let us first review certain basics of U.S. exclusion and deportation law, which are still largely governed by a relatively fewand quite venerable-doctrinal decisions of the U.S. Supreme Court. All scholars and practitioners in the field can easily recite the cases and their basic constitutional holdings quickly and colloquially. The so-called "Chinese Exclusion Case"" located the government's power to exclude as an "incident of sovereignty" and defined it as essentially immune from meaningful constitutional scrutiny.1 2 Fong Yue Ting v. United States then accepted this power internally, holding that the power to deport is "as absolute and unqualified, as the right to prohibit and prevent. .. entrance into 6. The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
Immigration Judges and U.S. Asylum Policy is about the asylum decision-making process situated in the US context. This scholarship could not be timelier as I came to read it when Europe is experiencing a significant influx of migrants who seek to claim political asylum. The question of whether the migrants are genuinely fleeing persecution or just want to pursue economic opportunities has become a thorny issue and has stirred much debate across European countries. Banks Miller, Linda Camp Keith and Jennifer Holmes painstakingly examine a range of determinants that influence a particular decision-making stage: whether to grant an applicant asylum. I am convinced that the readership will appreciate how interestingly the book delineates asylum as a highly charged political issue that is driven by various policy concerns rather than human rights commitments. Asylum policy is a component of a broader immigration control policy not only within the United States, but also in many other countries. Nonetheless, the United States accommodates the highest percentage of asylum claims of any receiving country and, for the past three decades, the country has granted asylum to over half a million applicants. Under the circumstances, the authors seek to enhance understandings of why immigration judges (IJs) in the United States do what they do and why there is such variation in the outcome of their decision-making. In so doing, they look into the cognitive approaches to decision-making of IJs in asylum cases to explain this disparity. Although one of the core arguments is that IJs use their policy proclivities (conservative or liberal) to inform their decision-making, the intention of the authors was to go far beyond this claim: We conceptualized IJs as filtering the 'facts' of a case through a perceptual filter, that is, in essence their policy proclivities. Therefore, rather that asserting that IJs use their policy preferences in decision making, we made a more nuanced and theoretically interesting argument: IJs perceive certain facts differently than other facts (189).