Judicial Review in Expedited Removal Proceedings: Applying Sims v. Apfel to Assess the Role of Issue Exhaustion

For noncitizens in expedited removal proceedings, obtainingjudicial review of removal orders is an uphill battle. Somebarriers to judicial review are statutory: noncitizens must firstexhaust their administrative remedies, and they may seekreview only in a federal circuit court of appeals. Other barriersare judicial—i.e., imposed by courts, not statutes.A circuit split has emerged over one of these judiciallyimposed barriers to judicial review. Some courts have held thatexpedited removal proceedings do not accommodate legalchallenges to removal. In those circuits, noncitizens preserve theopportunity for judicial review even when they do not raise alegal challenge during those proceedings. Other courts haveheld that noncitizens must contest the legal grounds for theirremoval during expedited removal proceedings. This circuitsplit has fragmented the judicial review process for expeditedremoval orders, with detrimental effect.In Sims v. Apfel, the U.S. Supreme Court provided aframework for assessing the propriety of a judicially imposedissue-exhaustion requirement. Central to the Court’s analysiswas the degree to which administrative proceedings areinquisitorial rather than adversarial. But expedited removalproceedings are neither inquisitorial nor adversarial, and theyoffer far fewer procedural protections than full removalproceedings. This Note argues that, under Sims, requiring issueexhaustion is inappropriate in appeals from expedited removalproceedings. In the absence of a statutory mandate, circuitcourts should not construct an additional barrier to judicialreview by imposing an issue-exhaustion requirement

Important Updates to Submission Types in Topics in Exercise Science and Kinesiology

Topics in Exercise Science and Kinesiology Volume 2: Issue 1, Article 1, 2021. While Topics in Exercise Science and Kinesiology (TESK) was originally designed to fill a void in publishing applied information for practitioners in physical activity and sport, the TESK editors have determined a need to update the submission categories. The categories of Process of Science and Implementation Strategies have been retained, and three new types of submissions now will be accepted: Expedited Articles, Review Articles, and Case Studies. Process of Science submissions should seek to answer the question, “What was learned from the experience of performing the investigation?”, while Implementation Strategies should address, “How can what was carried out be explained?” Required elements for both submission types are outlined along with guidelines for conducting peer-reviews. Expedited Articles can be submitted to TESK and undergo an accelerated review by the editors. Required elements and the peer review processes are also outlined for Review Articles and Case Studies

Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy

Legislation to reauthorize Trade Promotion Authority (TPA), formerly called fast track, was introduced as the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (TPA-2015) (H.R. 1890/S. 995) in the Senate and the House on April 16, 2015. The legislation was reported by the Senate Finance Committee on April 22, 2015, and by the House Ways and Means Committee on April 23, 2015. The legislation, as reported by the Senate Finance Committee, was joined with legislation extending Trade Adjustment Assistance into a substitute amendment to H.R. 1314 (an unrelated revenue measure), and the legislation passed on May 22 by a vote of 62-37. In the House of Representatives, the measure was voted on under a procedure known as “division of the question,” which requires separate votes on each component, but approval of both to pass. Voting on June 12, TPA (Title I) passed by a vote of 219-211, but TAA (Title II) was defeated 126-302. A motion to reconsider that vote was laid by Speaker Boehner shortly after that vote. TPA is the process Congress has made available to the President to enable legislation to approve and implement certain international trade agreements to be considered under expedited legislative procedures for limited periods, provided the President observes certain statutory obligations. Although the President has the authority under the Constitution to negotiate international agreements, typically a reciprocal trade agreement requires an implementing bill and, therefore, congressional action to bring it into force. Many Members of Congress have advocated for renewal of TPA. On July 30, 2013, President Obama first publicly requested that Congress reauthorize TPA. He restated his request for TPA during his January 20, 2015, State of the Union address. Legislation to renew TPA was introduced in the 113th Congress (H.R. 3830) (S. 1900), but it was not acted upon. The previous grant of TPA authority expired on July 1, 2007. The details of the legislation are likely to be subject to considerable debate, including the specific treatment of any related TAA program reauthorization. This report presents background and analysis on the development of TPA, a summary of the major provisions under the expired authority, and a discussion of the issues that have arisen in the debate over TPA renewal. It also explores some of the policy options available to Congress

Protecting the Watchdog: Using the Freedom of Information Act to Preference the Press

The fourth estate is undergoing dramatic changes. Many newspaper reporters, already surrounded by a growing number of empty desks, are shifting their focus away from costly investigative reporting and towards amassing Twitter followers and writing the perfect “share line.” Newspapers’ budgets can no longer robustly support accountability journalism and pitching fights against the government. And so, while this busier and noisier media environment may have a desirable democratizing effect—more of us are able to participate in analyzing, debating, and perhaps even making the news—it has not succeeded in filling a role that print journalists have traditionally played well—keeping watch on the government. In order to perpetuate its historical role as watchdog, the fourth estate needs fortification. This fortification should come in the form of legal preferences for the press. Providing such preferences is not new, but it arguably has not been done in a significant way since postal subsidies were granted to newspapers in the colonial era. Today, with few exceptions, the law generally treats journalists just like any other citizens and news organizations like any other business. This article proposes a new way to preference the press—one that would not involve direct subsidies or discriminating between old media and new. Instead, it would give journalists a commodity that is fundamental to their work: information. To preference the press, this article looks to the Freedom of Information Act, the law governing when and how the executive branch discloses information to the public. While in theory the law facilitates the press’s access to vast amounts of information in the hands of the executive branch, implementation of FOIA has, since it was passed in 1966, been fraught with problems. Agencies routinely take months and even years to respond to journalists’ requests, making the process incompatible with a news cycle that is spinning ever faster. This article proposes focusing on FOIA’s expedited processing provisions to prioritize journalists’ requests over those of other requesters, expedite agency fulfillment of them, and ease the press’s ability to challenge late, incomplete, or otherwise unsatisfactory disclosures. It argues that any journalist filing a FOIA request seeking expedited processing should presumptively go to the front of the queue. At that point, there would be firm deadlines (where none exist now) for providing the journalist with the information requested. These small but significant changes to an already established provision of FOIA could help the media better serve as a watchdog at a time when that role needs protecting

A Constitutional Case for Extending the Due Process Clause to Asylum Seekers: Revisiting the Entry Fiction After \u3ci\u3eBoumediene\u3c/i\u3e

In the last two decades, the U.S. Supreme Court has actively grappled with balancing the interests of immigrant detainees and the federal government in the context of prolonged immigration detention by reconciling the statutory framework with constitutional guarantees of due process. The Court has focused on how prolonged detention without an opportunity for an individualized custody determination poses a serious constitutional threat to an alien’s liberty interest. The Court’s jurisprudence has focused, however, on aliens who have effected an entry into the United States. The constitutional entitlements of nonresidents who are detained upon presenting themselves at the border have so far been excluded from this new immigration narrative and continue to be governed by a more than halfcentury-old precedent establishing the “entry fiction” and acceding to the plenary power of the Executive. This Note focuses on a discrete category of aliens, namely nonresident arriving aliens seeking asylum who are detained pursuant to section 235 of the Immigration and Nationality Act (INA). These aliens stand on a different legal footing than other categories of aliens detained under the INA because they are subject to the entry fiction doctrine, which has manifest ramifications for not only their legal status but also the degree of constitutional protections they are entitled to. This Note discusses how developments in the extraterritorial application of the Constitution inform the entry fiction doctrine in the context of extending procedural protections to asylum seekers detained upon entry into the United States. This Note shows how the functional approach to extraterritoriality articulated in Boumediene v. Bush alters the legal landscape and affords an opportunity to extend due process protections to nonresident arriving aliens. Cognizant of the limitations imposed by the plenary power doctrine, this Note does not argue for extending the complete panoply of procedural protections to section 1225(b) detainees; instead it focuses on how a discrete remedy— bond hearings—would help alleviate the procedural deficiencies in the statutorily prescribed procedure. In so doing, this Note departs from the approach that has currently been adopted by lower courts by positing that recent Supreme Court precedent provides a very strong constitutional basis for extending procedural protections to section 1225(b) detainees, and it would be remiss to rely solely on Clark v. Martinez-inspired constitutional avoidance arguments

Immigration-Related Detention: Current Legislative Issues

[Excerpt] As Congress considers reforming the nation’s immigration system, the detention of noncitizens in the United States will likely be an issue. Under the law, there is broad authority to detain aliens while awaiting a determination of whether the noncitizen should be removed from the United States. The law also mandates that certain categories of aliens are subject to mandatory detention (i.e., the aliens must be detained). Aliens subject to mandatory detention include those arriving without documentation or with fraudulent documentation, those who are inadmissable or deportable on criminal grounds, those who are inadmissable or deportable on national security grounds, those certified as terrorist suspects, and those who have final orders of deportation. Aliens not subject to mandatory detention may be detained, paroled, or released on bond. The priorities for detention of these aliens are specified in statute and regulations. In FY2008, on an average day, 31,244 noncitizens were in Department of Homeland Security (DHS) custody. There are many policy issues surrounding detention of aliens. The Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA) increased the number of aliens subject to mandatory detention, and raised concerns about the justness of mandatory detention, especially as it is applied to asylum seekers arriving without proper documentation. Additionally, the increase in the number of mandatory detainees has raised concerns about the amount of detention space available to house DHS detainees. Some contend that decisions on which aliens to release from detention and when to release aliens from detention may be based on the amount of detention space, not on the merits of individual cases. Another issue is the Attorney General’s role in the detention of noncitizens. The creation of DHS moved the administration of detention of noncitizens from the Department of Justice’s Immigration and Naturalization Service (INS) to DHS’s Bureau of Immigration and Customs Enforcement (ICE). Nonetheless, it can be argued that the language in the Homeland Security Act of 2002 (P.L. 107-296; HSA) has left the Attorney General with concurrent authority over immigration law, including the authority to arrest, detain, and release aliens. The 108th Congress passed P.L. 108-458, the Intelligence Reform and Terrorism Prevention Act of 2004, directing the Secretary of DHS to increase the amount of detention bed space by not less than 8,000 beds for each year, FY2006 through FY2010. Although Congress increased the bed space between FY2006 and FY2010, the number of beds has only increased by approximately 12,000. In the 111th Congress, bills have been introduced covering a range of provisions and perspectives concerning the detention of noncitizens. Several bills—including S. 1505, H.R. 994, H.R. 2406, and H.R. 3308—would mandate that DHS increase the amount of detention space. In addition, other bills (e.g., H.R. 1215 and S. 1594) would codify certain policies at detention facilities, such as access to telephones and medical care, and expand the alternatives to detention program. Other bills, such as H.R. 264, would eliminate the mandatory detention of asylum seekers in expedited removal. This report will be updated as legislative action occurs