Sanctuaries as Equitable Delegation in an Era of Mass Immigration Enforcement

Opponents of—and sometimes advocates for—sanctuary policies describe them as obstructions to the operation of federal immigration law. This premise is flawed. On the better view, the sanctuary movement comports with, rather than fights against, dominant new themes in federal immigration law. A key theme—emerging both in judicial doctrine and on-the-ground practice—focuses on maintaining legitimacy by fostering adherence to equitable norms in enforcement decision-making processes. Against this backdrop, the sanctuary efforts of cities, churches, and campuses are best seen as measures necessary to inject normative (and sometimes legal) accuracy into real-world immigration enforcement decision-making. Sanctuaries can erect front-line equitable screens, promote procedural fairness, and act as last-resort circuit breakers in the administration of federal deportation law. The dynamics are messy and contested, but these efforts in the long run help ensure the vindication of equity-based legitimacy norms in immigration enforcement

Athletic Participation and Gender on ACT Achievement for Private School Students in the Southeast

The purpose of this dissertation was to add to the limited available research concerning the effect that athletic participation has on academic achievement in private schools. For each hypothesis, the independent variables were athletic participation and gender. For the first hypothesis, the dependent variable was academic achievement as measured by the ACT Composite score. For Hypotheses 2-5, the dependent variables were academic achievement as measured by the ACT Reading, Mathematics, English, and Science Reasoning subtests, respectively. Through a review of the literature, the history of interscholastic athletics was examined and the positive and negative effects of athletic participation on academic achievement as well as the impact of both gender and private education on ACT scores were identified. This causal comparative study was conducted in three states from the Southern region of the United States in seven different private Christian schools, each accredited by the same agency. The researcher randomly chose students by gender and athletic participation. A 2 x 2 factorial ANOVA was used to analyze the data collected for each of the five hypotheses. The results of this study showed no significant interaction effects between gender and athletic participation for the five hypotheses. Additionally, the main effects for gender and athletics were not significant in any of the five hypotheses, although athletes showed a higher mean score in each hypothesis. The majority of the studies reviewed revealed different findings compared to this study’s results. Each of these studies revealed a significant difference in academic achievement between athletes and non-athletes. In addition, all of the studies reviewed involved students from public schools. This study provides valuable information to the limited research available on the effects of athletic participation on academic achievement in private schools

Enforcing Immigration Equity

Congressional amendments to the immigration code in the 1990s significantly broadened grounds for removal while nearly eradicating opportunities for discretionary relief. The result has been a radical transformation of immigration law. In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement officials to implement rigid immigration rules in a normatively defensible way, primarily through the use of prosecutorial discretion. This Article contextualizes recent executive enforcement actions within this scheme and argues that the Obama Administration’s targeted use of limited enforcement resources and implementation of initiatives such as Deferred Action for Childhood Arrivals reflect defensible efforts to systematize equitable decision making principles within the new world of American immigration law.Having laid bare the practical realities of the modern immigration system, this Article then argues that reliance on executive discretion alone has thus far failed to ensure that individuals are deported only when justified. Of particular importance, the Department of Homeland Security under the current administration has all but abandoned any consideration of the normative merits of removal when it comes to noncitizens with any kind of criminal history. Indeed, the agency has used criminal history as an indiscriminate marker of undesirability, regardless of the seriousness of the underlying offense, the passage of time, the permanent resident status of the noncitizen, the severity of hardship that deportation would cause for the noncitizen’s family, and any other mitigating factors. A deportation system that allocates all responsibility for fairness and proportionality to enforcement actors raises other problems as well, including lack of finality and heightened risk of conflict with other branches and levels of government. These difficulties in turn can stymie the use of enforcement discretion as an effective equitable tool.The situation cries out for legal redress. The reinvigoration of adjudicative discretion and rollback of overly broad removal grounds through statutory reform are goals well worth pursuing, and this Article describes important measures that lawmakers might take toward those ends. In the absence of congressional intervention, there remain important steps the Executive could take to help ensure the proportionality and fairness of the deportation system, despite the drawbacks of enforcement-based equity. This Article concludes by suggesting that if neither of the political branches takes adequate steps to address this new set of problems, it will be left to the federal judiciary to increase structural opportunities for equitable consideration through closer regulation of the modern deportation system

Narrative Preferences and Administrative Due Process

This Article illustrates, through sociolinguistic analysis, how an adjudicator’s biases against certain narrative styles can influence his or her assessments of credibility, treatment of parties, and decision-making in the administrative law setting. Poverty lawyers have long observed that many claimants in the administrative state continue to face procedural and discursive obstacles. Applying insights from a growing field of inter-disciplinary research, including conversation analysis, linguistics, and cognitive studies, this Article builds upon those observations by more precisely exploring through a case study of an unemployment insurance benefits hearing how structural and narrative biases can work to deny an applicant due process and exacerbate unequal power dynamics

The Challenge of Seeing Justice Done in Removal Proceedings

Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, case law, and administrative guidance to seek legitimate objectives, take steps to ensure procedural justice, and exercise equitable discretion in appropriate cases. Second, I argue that the removal system lacks serious structural features to ensure these obligations are met, and as a result, prosecutorial discretion and prosecutorial conduct vary significantly across and within jurisdictions. Little prevents ICE attorneys from indiscriminately pursuing enforcement objectives at the expense of seeing justice done. This matters today, more than ever, because of the categorical and categorically unforgiving nature of the modern statutory removal scheme and the risk of erroneous detentions and removals. Third, the Article develops important parallels between ICE attorneys and criminal prosecutors, suggesting that the immigration system might borrow some of the administrative features employed in criminal systems to encourage earlier prosecutorial screening of cases for positive discretion and equalize some of the power asymmetries that can result in unjust outcomes. I sketch the contours of four such reforms that could be readily implemented without the need for congressional action

Teaching Tomorrow’s Lawyers Through A (Semi-) Generalist, (Mostly-) Individual Client Poverty Law Clinic: Reflections on Five Years of the Community Health Law Partnership

Design options when starting a live-client clinic from scratch can be somewhat overwhelming. Should the clinic focus on systemic impact or individual representation? Appellate work or hearings? Should the clinic specialize or cover multiple legal issues? Another set of issues concerns how the clinic should find and accept its clients, and whether students should have a role in the intake process. The list of choices goes on. In this Essay, written for the Georgia Law Review’s Online Issue celebrating 50 years of clinics at the University of Georgia School of Law, I describe how I have navigated these and other choices in designing the Community Health Law Partnership Clinic (Community HeLP), which just completed its fifth year of operation. My experience suggests that there may be significant pedagogical benefits to forging a middle-path through some of the central divides in clinic design. Specifically, there are deep service and learning opportunities for students who engage in a combination of individual representation and larger advocacy projects concerning multiple — but not unlimited — areas of poverty law. This Essay unfolds as follows. Part I describes the origin and development of Community HeLP in its first five years. Part II outlines the trade-offs between specialization and generalization, and evaluates the middle path thus far taken by Community HeLP. Part III then explores the value of a clinic that primarily engages in individual representation, but in which students also take on larger advocacy projects that flow from the clinic’s case work

Return of the JRAD

Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors. And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar, he recommended that the government not deport him, even though no legal rules provided him with a route to that result. This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime. Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability. Even longtime lawful permanent residents with only minor convictions often cannot escape removal or make a case for discretionary relief. As a result, the immigration system is in tension with the principle that under a humane system of justice the penalty should fit the crime.Judge Weinstein’s sentencing order in Aguilar points the way to an administrative reform that would decrease the likelihood of disproportionate removals in cases that involve noncitizens with a criminal history. This essay argues that a sentencing judge’s recommendation against deportation could serve as a disproportionality rule of thumb, tempering and refining the role that criminal history plays in deportation decisions. Immigration authorities could rely on such recommendations -- as well as other forms of relief from all-out criminal punishment (e.g., pardons, expungements, and deferred adjudications) -- as signals that a noncitizen’s encounter with the criminal system presumptively should not lead to deportation. While this presumption can and should be overcome in some situations, deportation should be the exception in cases where the end result of the criminal process involves elimination or mitigation of the underlying criminal conviction. So long as Congress fails to restore adjudicative discretion to immigration judges or to rollback over-inclusive deportation grounds through legislative means, the system must rely on second-best solutions to achieve proportionality

The Plea Bargain Crisis for Noncitizens in Misdemeanor Court

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 or will be the product of unchecked constitutional rights violations. Unwarranted convictions, many of which trigger deportation and other negative immigration consequences, undermine the integrity of both criminal justice and deportation systems. The Article also argues that, contrary to the Supreme Court’s assumption in Padilla v. Kentucky, lawful permanent resident defendants are often unable to effectively negotiate for immigration-safe dispositions in the low-level cases where the rift between the underlying criminal conduct and the deportation outcome is largest. The Article’s analysis suggests that reforms at both federal and state levels remain critical to address the disproportional immigration consequences of minor convictions and the plea-bargain crisis for noncitizens in misdemeanor court

Deporting the Pardoned

Federal immigration laws make noncitizens deportable on the basis of state criminal convictions. Historically, Congress implemented this scheme in ways that respected the states’ sovereignty over their criminal laws. As more recent federal laws have been interpreted, however, a state’s decision to pardon, expunge, or otherwise set-aside a conviction under state law will often have no effect on the federal government’s determination to use that conviction as a basis for deportation. While scholars have shown significant interest in state and local laws regulating immigrants, few have considered the federalism implications of federal rules that ignore a state’s authority to determine the continuing validity of its own convictions. This Article contends that limitations on the preclusive effect of pardons, expungements, appeals, and similar post-conviction processes undermine sovereign interests in maintaining the integrity of the criminal justice system, calibrating justice, fostering rehabilitation, and deciding where to allocate resources. In light of the interests at stake, Congress should be required to clearly express its intent to override pardons and related state post-conviction procedures. A federalism-based clear statement rule for statutory provisions that restrict generally applicable criminal processes would not constrain Congress’s power to set immigration policy, because Congress remains free to make its intent clear in the statute. But the rule would ensure that Congress, rather than an administrative agency, has made the deliberative choice to upset the usual constitutional balance of federal and state power

Proportionality Lost? The Rise of Enforcement-Based Equity in the Deportation System and Its Limitations

This article briefly explains and critiques the legal framework that has made enforcement discretion the primary means of injecting proportionality and fairness into the modern deportation system. The article provides an overview of shifting approaches to this enforcement discretion under the Obama and Trump administrations, and describes some of the key Supreme Court jurisprudence interpreting this framework