Immigration Law
Uniformity and Integrity in Immigration Law: Lessons from the Decisions of Justice (and Judge) Sotomayor
Though courts and scholars emphasize the importance of uniformity in the interpretation and application of federal immigration law, systemic complexity makes its achievement elusive. In the immigration opinions she has drafted to date on the Supreme Court, as well as in her extensive work reviewing asylum adjudications on the Second Circuit, Justice Sotomayor has invoked uniformity as a means of promoting fairness and accountability. But she also has demonstrated how these values can be advanced even in uniformity’s absence, when the system produces conflict and divergent enforcement outcomes. Her opinions highlight how courts can meaningfully, albeit imperfectly, constrain administrative actors through consistent legal interpretation, while still accepting the diversity and discretion built into immigration law itself.
An Immigration Gideon for Lawful Permanent Residents
122 Yale L.J. 2394 (2013). In evaluating the legacy of Gideon v. Wainwright, it is critical to remember that the Supreme Court’s decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. American law sharply demarcates between the many rights available to criminal defendants and the significantly more limited bundle of protections for civil litigants. This Essay studies the right to counsel in a particular category of civil cases—immigration removal cases, which implicate life and liberty interests similar in important respects to those at stake in criminal prosecutions. It contends that classic due process analysis, including the constitutional protections previously extended by the Supreme Court to lawful permanent residents, requires guaranteed counsel for lawful permanent residents, the group of noncitizens most likely to have the strongest legal entitlement to remain in and the deepest community ties to the United States. Temporary visitors and undocumented immigrants generally lack such a weighty legal interest and community ties. Modern developments in U.S. immigration law and enforcement, including the dramatic increase in removal proceedings instituted by the U.S. government over the last ten years, limits imposed by Congress on judicial review of agency removal decisions, and the racially disparate impacts of immigration enforcement, make guaranteed representation for lawful permanent residents more necessary now than ever.
Picking Winners: Olympic Citizenship and the Global Race for Talent
120 Yale L.J. 2088 (2011). Across the globe, countries are promoting strategic or expedited passport grants, whereby membership is invested in exceptionally talented individuals with the expectation of receiving a return: for Olympic recruits, this means medals. The spread of the talent-for-citizenship exchange, with “Olympic citizenship” as its apex, is one of the most significant innovations in citizenship practice in the past few decades. In this emerging competitive environment, countries have come to realize that their exclusive control over the assignment of membership goods is a major draw. This realization has turned citizenship itself into an important recruiting tool. The Olympic citizenship dynamic highlights the growing influence of the economic language of human capital accretion in shaping targeted recruitment policies that are designed to attract top performers, whether in the sciences, arts, or athletics. In the process, it is our very understanding of citizenship that is undergoing a radical alteration. This Feature explores the analytical, normative, and comparative dimensions of Olympic citizenship, identifying the major players and interests at stake, assessing the national and international implications of such profound transformations, and highlighting the dark underbelly to the rise in Olympic citizenship grants. It concludes by developing possible new ways to address the challenges that Olympic citizenship creates, including proposed transnational responses to ameliorate concerns about exploitation and the unearned advantages that attach to the unregulated practice of cross-border talent poaching in pursuit of national glory.
Defining Family in Immigration Law: Accounting for Nontraditional Families in Citizenship by Descent
120 Yale L.J. 862 (2011). Most immigrants who gain permanent residence or citizenship in the United States do so through familial relations. As a result, immigration authorities must constantly decide what constitutes a family. Unfortunately, the Immigration and Nationality Act (INA) provides little guidance. While the INA provides some definitions of what constitutes a family, the definitions generally assume a traditional view of the family in which all parental roles lie with only two individuals. This assumption creates substantial problems when applying the INA’s provisions to nontraditional families in which parental roles may be split between three or more people. Because the INA does not account for such families, it is often unclear whether the families are entitled to the plethora of immigration and citizenship benefits available to those with familial relations in the United States. In response to the lack of clarity, this Note proposes the adoption of a unified definition of family that is based on interpersonal, rather than biological, relationships. The proposed solution is consistent with existing provisions of the INA, finds support in state family law, and provides an effective way of dealing with nontraditional families.
Indefinite Detention of Immigrant Information: Federal and State Overreaching in the Interpretation of 8 C.F.R. § 236.6
120 Yale L.J. 667 (2010).
The Significance of Domicile in Lyman Trumbull's Conception of Citizenship
119 Yale L.J. 1351 (2010).
Constructing America: Mythmaking in U.S. Immigration Courts
119 Yale L.J. 1012 (2010). This Note argues that immigration courts have served and continue to serve as important sites for the perpetuation of national identity myths. By focusing on a subset of cases called “cancellation of removal,” I examine the functional criteria by which immigrants are granted exemption from deportation. Despite ostensibly neutral statutory standards, immigration courts give legal sanction and shape to nostalgic, idealized, and exclusionary images of American identity. I connect this modern trend to the historical role of immigration law in constructing and amplifying narratives of identity and subordination—a pattern which has been obscured in scholarship by an overemphasis on the civil rights achievements of mid-twentieth-century immigration reforms.
INA Section 242(g): Immigration Agents, Immunity, and Damages Suits
119 Yale L.J. 625 (2009).
The President and Immigration Law
119 Yale L.J. 458 (2009). The plenary power doctrine sharply limits the judiciary’s power to police immigration regulation—a fact that has preoccupied immigration law scholars for decades. But scholars’ persistent focus on the distribution of power between the courts and the political branches has obscured a second important separation-of-powers question: how is immigration authority distributed between the political branches themselves? The Court’s jurisprudence has shed little light on this question. In this Article, we explore how the allocation of regulatory power between the President and Congress has evolved as a matter of political and constitutional practice. A long-overlooked history hints that the Executive has at times asserted inherent authority to regulate immigration. At the same time, the expansion of the administrative state has assimilated most executive policymaking into a model of delegated authority. The intricate immigration code associated with this delegation framework may appear at first glance to limit the President’s policymaking discretion. In practice, however, the modern structure of immigration law actually has enabled the President to exert considerable control over immigration law’s core question: which types of noncitizens, and how many, should be permitted to enter and reside in the United States? Whether Congress intended for the President to have such freedom is less important than understanding that the Executive’s power is asymmetric. The President has considerable authority to screen immigrants at the back end of the system through enforcement decisions, but minimal control over screening at the front end, before immigrants enter the United States. We argue that this asymmetry, in certain circumstances, has pathological consequences that Congress could address by formally delegating power to the President to adjust the quotas and admissions criteria at the heart of immigration law.
Making Up for Lost Time: A Bright Line Rule for Equitable Tolling in Immigration Cases
118 Yale L.J. 1245 (2009).
Enforcing the Treaty Rights of Aliens
117 Yale L.J. 680 (2008). Despite the Supremacy Clause’s declaration that treaties are the “Law of the Land,” efforts to incorporate treaties that guarantee individual rights into domestic law have been stymied by a wave of political opposition. Critics argue that giving these treaties the force of domestic law would be inconsistent with constitutional values like sovereignty, democracy, federalism, and separation of powers. This Note analyzes these four critiques and demonstrates that the values critics seek to protect are not jeopardized by the extraterritorial application of treaty-based rights or the domestic enforcement of treaties that guarantee rights specific to aliens. With that discovery in mind, this Note proposes to incorporate such treaties into U.S. law in a way that both affirms constitutional values and promotes the rule of law in foreign affairs.
Suspending Employers' Immigration-Related Duties During Labor Disputes: A Statutory Proposal
115 Yale L.J. 2193 (2006)
Non-Self-Executing Treaties and the Suspension Clause After St. Cyr
113 Yale L.J. 2007 (2004) Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003). In INS v. St. Cyr, the Supreme Court rejected Congress's attempt to foreclose judicial review in various provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. The St. Cyr Court held that Congress must be extraordinarily explicit whenever it intends for legislation to strip courts of the jurisdiction to hear any class of habeas petitions, including the deportation-related claims that AEDPA and IIRIRA sought to restrict. Such a "superclear" statement, the Court concluded, was needed to avoid the potential constitutional problem posed by the Suspension Clause, which bars foreclosure of habeas "unless when in Cases of Rebellion or Invasion the public Safety may require it."
Security with Transparency: Judicial Review in "Special Interest" Immigration Proceedings
113 Yale L.J. 1333 (2004) Much of the debate regarding post-September 11 counterterrorism initiatives has centered on the potentially damaging effects of these policies on constitutionally protected rights. Many observers have weighed the balance that the government has struck between national security and civil liberties by determining the extent to which new law enforcement initiatives preserve or encroach upon these rights. While scholars debate the legality of the government's new tools, it is often more difficult to assess whether such initiatives enhance or undermine security. The war on terrorism relies largely on sensitive intelligence and covert operations, so "victories" often remain undisclosed. Yet such assessments will be crucial in defining the future direction of U.S. policy. If another terrorist attack takes place on American soil, lawmakers will be called upon to determine whether the attack occurred because law enforcement personnel were not given adequate tools to prevent it, or because those tools were used ineffectively. This assessment may determine whether policymakers rush to provide law enforcement with additional powers similar to those they already possess, or instead decide to refocus the nation's overall counterterrorism strategy. In choosing between these options, it is critical to scrutinize whether limiting the checks on executive branch authority actually translates into enhanced security. This Comment takes one step in this direction by arguing that decreasing transparency through the blanket closure of "special interest" immigration hearings is unnecessary to preserve security and may undermine overall counterterrorism efforts. Part I argues that the closure policy casts an overly broad net by failing to require judicial determinations that individual aliens pose security threats. Part II evaluates an already-existing alternative that avoids this problem: the open hearings of the Alien Terrorist Removal Court (ATRC). Part III proposes a compromise scheme based on the ATRC model that allows closed hearings after case-by-case adjudications of whether particular aliens have terrorist ties. This compromise model provides a viable alternative that allows the government to conceal the identities of truly high-risk detainees while ensuring the valuable safeguard of judicial review. It also reduces the risk that categorical closure may undermine counterterrorism efforts by alienating immigrant communities that can serve as allies in intelligence gathering. Part IV concludes.
Reorganization as a Substitute for Reform: The Abolition of the INS
112 Yale L.J. 145 (2002) September 11th and the events that followed highlighted the shortcomings of our nation's immigration policies and their enforcement. Gaffes, such as the issuance of student visas to two of the hijackers on the six-month anniversary of 9/11, reinforced public perceptions that the Immigration and Naturalization Service (INS) is an agency beyond repair. Critics from both ends of the political spectrum have condemned the INS for its failures. As House Minority Leader Richard A. Gephardt stated, "We saw in the 9/11 incident some of the problems in the INS that many of us had seen before. . . . It became clear, I think, to everybody in the country and in the Congress that we needed reform." Consensus on the need for reform may be clear, but the question remains of what shape reform should take. Unfortunately, politicians have taken the path of least resistance by focusing on reorganization plans, rather than tackling the substantive issues that plague the INS. The Bush Administration and both houses of Congress have differed about what form a reorganization should assume. Their proposals share a misguided faith, however, in the efficacy of agency restructurings as a vehicle for reform. These proposals are the latest variation on an old theme. Reorganizations have long served as politicians' tool of choice for reforming the American administrative state. Such plans do have the potential to effect widespread change by shaking up agency culture and reallocating management responsibilities and personnel. At the same time, the literature on reorganizations casts doubt on their efficacy as a vehicle for reform. As Paul Light has highlighted, the pursuit of too many competing goals through agency reorganizations has often served as a formula for failure. Donald Kettl and John DiIulio have documented how the "overwhelming result" of agency restructurings has been "an intransigent gap between the effort invested and the results produced." In practice, the main virtue of reorganizations may be their role as politicians' symbolic substitute for tackling the underlying problems that agencies face. This Comment raises doubts about whether any of the reorganization proposals have the potential to accomplish their intended goals. It assesses the potential and limits of the five main proposals to reorganize the INS. This Comment concludes that the Senate proposal sponsored by Senators Ted Kennedy and Sam Brownback is the strongest in a set of weak options because it seeks to accomplish the least through restructuring and would leave agency leaders with the most flexibility to make future changes. Regardless of which proposal is enacted, the hope for reform lies in politicians' recognition that "restructuring alone is not going to solve all the problems, [but rather] just begins the effort" of reexamining the assumptions, goals, and approaches of immigration policy.