Immigration E-Carceration: A Faustian Bargain

A new wave of federal court litigation has required immigration judges to consider alternatives to immigration detention in bond hearings. Although alternatives to detention can take many forms, the most common is electronic monitoring. Immigration detainees and their advocates now find themselves asking to trade the physical walls of jail for virtual walls, begging for a different type of punishment and control. Electronic monitoring imposes pain, shame, arbitrary rules, and limitation of freedom on persons, causing many to experience it as punitive. Its use also facilitates replacing a regime of over-detention with one of over-supervision and becomes the means by which immigration enforcement authorities surveil immigrant communities. It has become a Faustian bargain—should a detainee remain in jail or request these virtual walls? The Supreme Court’s immigration detention doctrine has set up this tradeoff by succumbing to the plenary power’s defenders who believe that noncitizens in removal proceedings have no right to freedom. Instead of outright freedom, the Court has offered release under restrictive supervision policies utilized by the immigration authorities. Supervision through electronic monitoring has come to reside doctrinally in the middle ground between absolute freedom and incarceration. Yet as we have learned from electronic monitoring’s use in the criminal legal system, this “middle ground” ceded too much ground. This Article explains, for the first time, how the Court’s immigration detention doctrine and perverse pull of the plenary power has carved out a doctrinal space where electronic monitoring now resides. The Article is also the first to expose a trend in the immigration context, in which the diminished rights that come with the status of a final order of removal have negatively impacted the rights of those who are pretrial. These trends indicate that electronic monitoring will likely continue, unchecked by the judiciary, in the immigration context. It is thus necessary for the executive branch to not repeat the mistakes of the criminal legal system by substituting virtual walls for real ones

Conditional power of antidepressant network meta-analysis

Background Conditional power of network meta-analysis (NMA) can support the planning of randomized controlled trials (RCTs) assessing medical interventions. Conditional power is the probability that updating existing inconclusive evidence in NMA with additional trial(s) will result in conclusive evidence, given assumptions regarding trial design, anticipated effect sizes, or event probabilities. Methods The present work aimed to estimate conditional power for potential future trials on antidepressant treatments. Existing evidence was based on a published network of 502 RCTs conducted between 1979-2018 assessing acute antidepressant treatment in major depressive disorder (MDD). Primary outcomes were efficacy in terms of the symptom change on the Hamilton Depression Scale (HAMD) and tolerability in terms of the dropout rate due to adverse events. The network compares 21 antidepressants consisting of 231 relative treatment comparisons, 164 (efficacy) and 127 (tolerability) of which are currently assumed to have inconclusive evidence. Results Required sample sizes to achieve new conclusive evidence with at least 80% conditional power were estimated to range between N = 894 - 4190 (efficacy) and N = 521 - 1246 (tolerability). Otherwise, sample sizes ranging between N = 49 - 485 (efficacy) and N = 40 - 320 (tolerability) may require stopping for futility based on a boundary at 20% conditional power. Optimizing trial designs by considering multiple trials that contribute both direct and indirect evidence, anticipating alternative effect sizes or alternative event probabilities, may increase conditional power but required sample sizes remain high. Antidepressants having the greatest conditional power associated with smallest required sample sizes were identified as those on which current evidence is low, i.e., clomipramine, levomilnacipran, milnacipran, nefazodone, and vilazodone, with respect to both outcomes. Conclusions The present results suggest that conditional power to achieve new conclusive evidence in ongoing or future trials on antidepressant treatments is low. Limiting the use of the presented conditional power analysis are primarily due to the estimated large sample sizes which would be required in future trials as well as due to the well-known small effect sizes in antidepressant treatments. These findings may inform researchers and decision-makers regarding the clinical relevance and justification of research in ongoing or future antidepressant RCTs in MDD

Redefining “Particularly Serious Crimes” in Refugee Law

Refugees are not protected from deportation if they have been convicted of a “particularly serious crime” (PSC) which renders them a danger to the community. This raises questions about the meaning of “particularly serious” and “danger to the community.” The Board of Immigration Appeals, Attorney General, and Congress have interpreted PSC quite broadly, leaving many refugees vulnerable to deportation without any consideration of the risk of persecution in their cases. This trend is disturbing as a matter of refugee law, but it is even more disturbing because it demonstrates how certain criminal law trends have played out in immigration law. This Article offers an explanation for the PSC expansion, the “mistrusting criminal judges effect:” Attorney General Ashcroft and the Board of Immigration Appeals (Board) eliminated the criminal sentence as a relevant factor from the test set forth in the 1982 seminal case on PSC, Matter of Frentescu, which is part of an increasing mistrust of criminal court judges in immigration law. This PSC trend mirrors a trend occurring within the criminal justice system; namely, the “severity revolution” of the 1980’s and 90’s, where attention shifted away from rehabilitating the individual offender and toward minimizing the risks presented by certain classes of offenders. The severity revolution, which was reflected in immigration law during the 1990’s and 2000’s, allowed “tough on crime” mentality to outweigh the humanitarian aspects of the 1980 Refugee Act, where the term PSC first was introduced into U.S. immigration law. This Article seeks to expose this troubling trend in PSC law and proposes that the term include only violent crimes against persons where the offender has served a significant sentence

Gang Accusations: The Beast That Burdens Noncitizens

This article examines evidence that the government presents in deportation proceedings against young men of color to prove that they are gang members. The gang evidence results in detention, deportation, adverse credibility decisions, and denial of discretionary relief. This article examines the gang evidence through the lens of the law’s use of presumptions and the corresponding burdens of proof at play in immigration proceedings. The immigration burden allocations allow adjudicators to readily accept the harmful presumption contained in the gang evidence—that urban youth of color are criminals and likely to engage in violent crime associated with gangs. The article seeks to explain how this racist assumption led to the creation of a gang database and proposes an evidentiary presumption that the gang evidence is not reliable, in order to specifically instruct the immigration adjudicator to reject the presumption society has put in place about urban youth of color and criminality. In this way, the article tracks common interests of critical race theory, by explaining how US society has subordinated people of color in the creation of gang databases, and seeking not only to understand, but to change this bond between law and racial power

The Expansion of “Particularly Serious Crimes” in Refugee Law: Mirroring the Severity Revolution

Refugees are not protected from deportation if they have been convicted of a “particularly serious crime” (“PSC”) which renders them a danger to the community. This raises questions about the meaning of “particularly serious” and “danger to the community.” The Board of Immigration Appeals, Attorney General, and Congress have interpreted PSC quite broadly, leaving many refugees vulnerable to deportation without any consideration of the risk of persecution in their cases. This trend is disturbing as a matter of refugee law, but it is even more disturbing because it demonstrates how certain criminal law trends have played out in immigration law. This article offers an explanation for the PSC expansion and proposes a definition that includes only violent crimes, i.e., those involving actual or threatened physical injury to a person, where the noncitizen served a significant sentence. While there has been much scholarship on the convergence of criminal and immigration law (dubbed “crimmigration”) and on refugee protection, there has been surprisingly little written about the PSC bar to refugee protection, where crimmigration law meets refugee law. This article seeks to fill that gap in the literature. This article proposes two theories for the ever-broadening PSC definition. First is what this article terms the “mistrusting criminal judges effect:” Attorney General Ashcroft and the Board of Immigration Appeals (“Board”) eliminated the criminal sentence as a relevant factor from the test set forth in the 1982 seminal case on PSC, Matter of Frentescu; this is part of an increasing mistrust of criminal court judges in immigration law. Second is what this article terms “the sweeping effect:” the expansive reading of the PSC bar is part of a larger trend by the Board and Congress to sweep many offenses into a “crimmigration” term of art in order to render more noncitizens deportable and fewer eligible for relief from removal. These PSC trends mirror a trend occurring within the criminal justice system; namely, the “severity revolution” of the 1980’s and 90’s, where attention shifted away from rehabilitating the individual offender and toward minimizing the risks presented by certain classes of offenders. The severity revolution, which was reflected in immigration law during the 1990’s and 2000’s, allowed “tough on crime” mentality to outweigh the humanitarian aspects of the 1980 Refugee Act, where the term PSC first was introduced into U.S. immigration law. This article seeks to expose these troubling trends in PSC law and proposes that the term include only violent crimes against persons where the offender has served a significant sentence

Navigating Covert Exploitation: Treatment Considerations for Counseling Human Trafficking Survivors

Human trafficking is a pervasive form of modern-day slavery. Despite increased resources being devoted to fighting these atrocities, human trafficking numbers are rising (United Nations Office on Drugs and Crime, 2018). Unfortunately, due to the covert, criminal nature of exploitation, research regarding human trafficking and its impact on survivors has been limited. This literature review seeks to aid mental health counselors in their treatment of human trafficking survivors by garnering an understanding of the complex mental health needs of trafficking survivors by exploring biological, genetic, and psychosocial influences that increase their susceptibility to the development of mental health concerns. This review also aims to identify the most prevalent mental health concerns of survivors. A discussion regarding the relevancy of findings, how they may guide treatment in the field of mental health counseling, research limitations, and advocacy needs follows. Keywords: human trafficking, exploitation, counseling, treatment considerations, psychological implication

Is Immigration Law Family-Friendly?

At first glance, the U.S. immigration system seems very family-friendly. The majority of lawful immigration occurs through family petitions, reflecting family reunification as one of the core principles of immigration policy. However, a closer look at the immigration system calls into question the idea that immigration law is family-friendly. Immigration law\u27s definition of who fits within family relationships and thus deserves sponsorship to join a relative in the U.S. does not include relationships that, in many other parts of the world, are valued (such as grandparents, cousins, and, in some cases, siblings). More importantly, the immigration system\u27s heavy-handed enforcement mechanisms only serve to separate well-functioning families by detaining and deporting thousands of people each year. This article seeks to answer the question of whether immigration law is family-friendly by pointing to certain policies that seem family-friendly but that, once examined further, reveal that they serve to keep families apart. The same can be said for the immigration policies of the Obama administration, which has made strides towards implementing more family-friendly immigration laws, but also has maintained a system that tears families apart

Taking Liberty Decisions Away from Imitation Judges

Justice Black warned in 1952 about the dangers of giving immigration police and prosecutors the authority to jail human beings with very little involvement by the judiciary. Today’s immigration detention machine illustrates Justice Black’s fears: U.S. Department of Homeland Security (“DHS”) agents have both arrested 182,869 people in a single year and decided whether those individuals will be released or remain incarcerated for the remainder of their removal proceedings. For those entitled to immigration judge review, the judge works for the Department of Justice (“DOJ”) under the supervision of the Attorney General, the nation’s top prosecutor. Immigration judges’ lack of independence has long been a subject of critique, leading some to refer to themselves as “‘U.S. imitation judges.’” In sum, when the DHS police arrest a person, only a prosecutor reviews that decision. Most of these crucial decisions about a person’s liberty occur without any review by an Article III judge. In this Article, I propose that Congress, in recognition that immigration detention is punishment, strip imitation judges of their authority to review decisions about physical liberty. Such decisions should only be entrusted to a federal magistrate judge, with review by an Article III judge. The procedures are already in place elsewhere; Congress need look no further than the Bail Reform Act, which applies when a person is held while awaiting a criminal trial. Federal courts have borrowed heavily from criminal pretrial detention procedures, engaging in piecemeal oversight of the immigration detention system through habeas corpus review. I argue that these decisions reflect lower federal courts’ persistence in monitoring the rights of immigration detainees, even in the face of legislation that has aimed to limit the judiciary’s role. Yet such review has happened for only a subset of detainees—those who are savvy enough to file a habeas corpus petition and lucky enough (or rich enough) to have habeas counsel, and those for whom the federal court reaches the merits of the custody challenge before the deportation case concludes (which moots the petition). The work of these lower federal courts has been laudable, but a better solution that reaches every immigration detainee is necessary. This Article merges two themes from the existing scholarship: (1) immigration judges’ lack of independence and (2) lack of procedural rights for immigration detainees. Scholars, lawyers, judges, and congressional committees have been recommending a more independent immigration adjudication system for decades. My proposal advocates for a change to a subset of immigration decisions, those involving physical custody. Detention is different from other immigration decisions—scholars have argued that it is punishment. Thus, imitation judges should have no role in these decisions. Nor does the immigration judge have any particular expertise in determining danger and flight risk; rather, magistrate judges make these decisions for criminal defendants on a daily basis. I go further than others by proposing that the adjudicator not be an administrative law judge or even an Article I court, but a magistrate judge, whose decisions are subject to review by an Article III judge. I and others have advocated for stronger procedural protections in immigration detention decisions, such as a government-borne burden of proof, a prompt probable cause hearing, court-appointed counsel, and the requirement that judges determine alternatives to detention and a detainee’s ability to pay; with these procedures, immigration bond hearings can more closely track criminal pretrial detention hearings. My proposal here differs in that it physically moves the procedures to an entirely different court. Rather than importing procedural protections piecemeal into immigration court, with oversight by federal judges through habeas corpus, I propose a system where all decisions regarding physical custody are removed from immigration court and placed in federal district court