10 Reasons Why Congress Should Defund ICE’s Deportation Force

Calls to abolish ICE, the Immigration and Customs Enforcement agency tasked with deportations, are growing. ICE consists of two agencies – Homeland Security Investigations (HSI), which investigates transnational criminal matters, and Enforcement and Removal Operations (ERO), which deports non-citizens. The calls to abolish ICE focus on the latter, the ERO deportation force. Defenders proffer that the idea is silly, that abolition could harm public safety, or that advocates of abolition must first explain what, if anything, would replace the agency. Those reasons are not persuasive. The first ignores that federal agencies are not eternal and have been created and eliminated as our country’s priorities change. The second reason is refuted by numerous studies establishing that immigrants are less—not more—likely to be involved in criminal activity than citizens. And of great import, the third reason has not stopped Congress from similarly defunding the federal enforcement of marijuana laws in states that have legalized medical marijuana. This example shows that Congress does not need “an actual proposal for what should replace [enforcement], or even if it should be replaced at all” before defunding enforcement that is no longer a policy priority. This essay enters the debate by proposing a middle ground to the calls to abolish ICE. While Congress is likely to continue funding HSI agency functions, as they are understood as matters of actual public safety, Congress should defund the arrests, detentions, and deportations of millions of people just for being without status. This call, then, is to defund all functions of the ERO deportation force. By stopping short of ICE abolition, the agency could be funded when, and if, Congress creates a legitimate mandate for the agency to follow; a purpose that the agency now lacks

The Absurdity of Crime-Based Deportation

The belief that immigrants are crossing the border, in the stealth of night, with nefarious desires to bring violence, crime, and drugs to the United States has long been part of the public imagination. Studies and statistics overwhelmingly establish the falsehood of this rhetoric. The facts are that non-citizens commit fewer crimes and reoffend less often than citizens. But facts do not stop the myth. Even supporters of immigration reform often will point out that they will help deserving immigrants but will deport the undeserving ones, particularly those with criminal convictions, and especially those who committed violent crimes. Despite the new administration’s call to deport up to three million criminals, my Article counters that there will be — and should be — an end to crime-based deportation. It is already happening quickly and quietly in federal courts. Beginning in 2013, the Supreme Court decided United States v. Descamps, and in 2016, Mathis v. United States. These cases are highly technical decisions relating to the federal Armed Career Criminal Act (“ACCA”) and immigration law’s Illegal Immigration and Immigrant Responsibility Act (“IIRIRA”). This Article draws upon empirical data to show that, as predicted by the Justices, a faithful adherence to Descamps and Mathis will eliminate numerous offenses from having ACCA and IIRIRA consequences on a case-by-case, statute-by-statute basis. As a normative matter, I contend that this result is the proper one. Prosecutors, judges, and policy makers are embracing this reality in the ACCA context. The same result should be embraced in the immigration context. IIRIRA’s reliance on convictions to serve as immigration violations is too arbitrary, too expensive, and simply out of proportion to how the criminal courts considered the seriousness (or lack thereof) of the crime. Instead, Congress must repeal IIRIRA and return to a system whereby criminal offenders were subjected to individualized assessments. Those who made more contributions to the country stayed, and those who did not, left. The experiment of presuming that a conviction is a marker of character has failed. Immigration law must return to grading crimes by their actual seriousness instead of assuming that categories of crimes adequately sort out who should or should not remain

Obergefell\u27s Sword: The Liberal State Interest in Marriage

Up until Obergefell v. Hodges, pro-marriage ideology was used to justify homophobic laws and the entrenched sexism of traditional marriages. Now that marriage equality is the law of the land, there is room for a new conversation over the meaning of marriage. Specifically, this essay argues that the proponents of traditional marriage were correct in asserting that the institution of marriage has benefits—intangible and tangible—that no other relationship currently provides to its members. Put another way, although those who defended traditional marriage were wrong with respect to their agenda, what if they in fact were absolutely right in that the marital relationship can provide something quite distinct and of great societal value? After analyzing this proposition, this essay proposes a rethinking of the privacy doctrine. What if the right to be let alone—the prior means by which the citizen is best protected by the State—is in fact more harmful than helpful? This essay explores specific situations where the new state interest in the dignity of marriage paves the way for state intervention as a welcomed and needed benefit of marriage

\u3cem\u3eGideon\u3c/em\u3e: Public Law Safeguard, Not A Criminal Procedural Right

What is accepted as a near-truism, people will parrot that appointed counsel is for criminal matters but not civil ones. But the language in the Sixth Amendment does not explicitly draw the line between who does and does not get an appointed counsel. If there is a right of counsel to prevent wrongful incarceration for those charged with felonies, it is difficult to parse out criminal trials from all other forums that result in the same, if not greater, risk of innocent people wrongfully convicted and confined. How is it possible to provide appointed counsel for criminal felony trials, and not criminal appeals, misdemeanors, parole and probation hearings, or habeas petitions? This question is particularly pressing given that we know that, in furtherance of the mass incarceration policy, misdemeanors and violations of parole and probation were the front door and back door to ensure most people got caught up in and stayed in the criminal justice system. Moreover, habeas petitions are the best means to present evidence of actual innocence underlying any and all conviction. If courts continue to condition the right to appointed counsel on only the threat of mandatory incarceration, why are the most effective tools to prevent incarceration—either through the entry point of misdemeanor or the offered exit of parole— excluded from this right? In Gideon, the gravamen of the right to counsel is not predicated in criminal trials but is a remedy to level the playing field for all of us who are facing the well-oiled machine of the federal government. This asymmetry is not abstract. For any person who is in immigration court, that person is facing off against a professional government attorney, trained in an exceedingly complex area of law that the said trained government attorneys are experts in. For many, the person is representing themselves, and often, did not even begin with English as their first language. Although scholars have been calling for legal representation for lawful permanent residents (their home is here), asylum seekers (death is different), immigrants with criminal convictions (Padilla v. Kentucky practically created the “Fifth and a half Amendment” right for non-citizens in criminal court), detained immigrants (it is fundamentally unfair for someone to present their defense while locked up), or uniquely vulnerable immigrants (children or the mentally disabled), it becomes pretty clear that the divides between these groups pale in the common theme that there is no fair fight—for anyone in immigration court. Immigration court is set up to the full and complete advantage of one party—the same party that is the prosecutor, judge, and executioner. What this article seeks then ask is, if Gideon can be intellectually expanded to provide for a right to counsel in immigration courts does that right end there? On the one hand, the analogy between incarceration and deportation is apt. The simple answer is no. It is a mistake to condition the right of counsel only on the severity on the outcome of a process. For starters, those who experience the specific adverse outcome arising from civil law are not particularly assuaged by someone else who may be worse off. For instance, for someone who loses custody of their child or loses income from a disability check, the result is life altering to them. But more import, the safeguard must be available to offset an unfair process, regardless of whatever the outcome is, so that the process does not lose its legitimacy. Whenever there is a courtroom, with procedures and rules created by the government, applying laws passed by the government, and populated by professional lawyers hired to advance the interests of the government, there is simply no fair fight without a lawyer representing the private David on the other side. Indeed, the lawyer might be the metaphorical slingshot, for which there is no chance of success without one. Stated more clearly, the right to appointed counsel should not be available just for criminal trials. The more intellectually honest and constitutionally-sound dividing line between which forums receive appointed attorneys from those who do not is between public law and private law. Every court proceeding that involves the state or federal government—misdemeanors, habeas, immigration, family law, public housing, disability, public education—must expand their understanding of Gideon and provide appointed counsel to face off against the government. This remedy is the only means to both offset the baked-in asymmetry and ensure reliable outcomes is the appointment of counsel

Removing Citizens: Parenthood, Immigration Courts, and Derivative Citizenship

As a creature of administrative law, Congress has set forth clear, statutory definitions of “parent,” “child,” “son,” “daughter,” and “step-parent.” As a practical matter, these terms create a uniform system by which family relationships are recognized and immigration benefits are conferred. In one notable exception, Congress directs adjudicators to look to state law when determining which children are citizens at birth. Derivative citizenship, the legal process whereby birthright citizenship is passed from a citizen to his or her child who is born outside of the United States, is a technical maze. There are at least nine different statutes in effect that may apply to a person, depending on the child’s birth date and the parents’ citizenship and marital status. Derivative citizenship may be conferred both at the time of birth, and, when specific conditions met, retroactively. Congress made the express policy choice to defer to state definitions of legitimation (also known as parentage) when conferring citizenship. This requires immigration adjudicators to then know, understand, and properly apply the laws of 50 different states when conferring citizenship status. This Article’s focus is on a troubling, contemporary application of derivative citizenship that is occurring in removal proceedings. Often times, a child with one citizen parent will grow up, assuming that he or she is a citizen. It is only after committing a crime in their 20s or 30s do they first learn that their parents never filed the paperwork to declare their status. Although they are still eligible to have their derivative citizenship status conferred retroactively, government attorneys are contesting that the parents who raised them are in fact their legal parents. In extreme cases, the government attorneys are first disclosing to some of these people that the men and women who raised them are not in fact their genetic parents. This Article highlights numerous problems with this practice. Of most import, the immigration judges and government attorneys are misapplying state law when determining who is and is not a parent of a child. Whereas state laws have made clear that love, support, and care is proof of parentage, (and that collateral challenges to parentage may neither be raised after a set number of years nor by strangers to the family unit) immigration courts are ignoring state law to declare that blood alone is the sine qua non of parentage. This Article presents the derivative citizenship scheme, summarizes state law legitimation and parentage statutes, and argues that the immigration courts and government attorneys are grossly distorting family law. Of note, immigration courts are the least desirable forum to adjudicate these claims due to their systematic (and perhaps deliberate) overburdened workload, lack of representation to the alleged (and usually detained) citizen, and the incentive by the government attorney to remove individuals with criminal records, even when those individuals are in fact citizens. The Article ends with proposals to remove these claims from a contested removal proceeding and into either administrative or district court proceedings whereby the adjudicator can faithfully apply the complexities of family law without the distraction of knowing someone’s criminal history

After \u3cem\u3eObergefell\u3c/em\u3e: Finding a Contemporary State Interest in Marriage

In June 2015, in Obergefell v. Hodges, the Supreme Court established that same-sex couples have a fundamental right to marry. The decision articulated a sweeping defense of marriage, specifically the dignity that the institution provides to its participants and the society as a whole. Many liberal critics have assailed this decision, citing concerns that the reification of marriage---and the tangible benefits of marriage---comes at the cost of disadvantaging non-marital families, a population equal to the number of those who marry. This essay is a counterintuitive attempt to realize that marriage can offer protections for vulnerable populations. Specifically, in the immigration context, when a citizen marries a non-citizen, marriage has the unique means to extend protections otherwise not available under immigration law alone. In this respect, Obergefell is not simply a marriage case but a potential to understand that State intervention may be a welcomed protection for many

How To End “Illegal Immigration”

Since President Trump has taken office, it is clearer than ever that there are two ways to end “illegal immigration.” The first route — started by President Obama and ratcheted up by President Trump with relentless cruelty — is an actual effort to deport millions and exclude millions more. The second is to legalize those without status who have been, are, and will continue to contribute to America’s families, communities, and future. This essay argues that the latter choice, restoring the paths to legalization that once were part of our nation’s laws, is the only realistic way forward to restore common sense to immigration law. This choice will stop excessive, wasteful, and expensive enforcement measures and invest in people who are making current and future contributions to families, work places, and communities. Developing legal solutions, however, will not come until it is recognized how the term “illegal immigration” originated in popular culture and influenced immigration law with distortions over who merits protection and who does not. Part I then examines the operation of existing immigration law, surveys the origins and misuse of the term “illegal immigrant,” and offers that the term “pre-legal immigrant” is the more accurate descriptor of how people are given legal status. Once the false presumption of criminality in the term “illegal immigrant” is exposed, Part II ends with a call to restore needed paths to legalization, which benefit immigrant communities, the citizen family members and employers who rely on their contributions, and the U.S. economy as a whole. Once presumptions are replaced with facts, paths to common sense reform are found for both the short- and long-term

The Costs of Trumped-Up Immigration Enforcement Measures

Currently, our country spends $18 billion each year on immigration enforcement, which is nearly$4 billion more than the combined budgets of the FBI, DEA, Secret Service, and ATF. President Trump hopes to substantially increase that annual number with his proposed heightened enforcement measures that result in more arrests, more ICE officers roaming our streets, airports, and courtrooms, more detentions, more deportations, and more wall. This essay begins by examining each of these measures that were outlined in the new executive orders and concludes that all are expensive, ineffective, unnecessary, and inhumane. Just as being “Tough on Crime” was proven a waste of financial resources and human capital, so too are “Tough on Immigration” policies. In reforming the misguided immigration enforcement measures, there are three notable issues. The first issue is that the new enforcement measures are a break from the past practices in that they implement enforcement practices without compassion and, result in unprecedented fear in immigrant communities. Although the level of cruelty is new, the objectives to pursue enforcement-only measures did not originate with President Trump. For the past 20 years, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) fundamentally changed immigration law by expanding who could be deported and cutting off numerous ways people used to earn status. The second point is that even if President Trump were to leave office tomorrow, an enforcement-only immigration policy would not end. The legal framework has been pursued because of an underlying narrative that immigrants are harming the country and draining resources; however, this narrative is contrary to reality. Not only do immigrants contribute talents, pay taxes, and provide labor and skills otherwise unavailable, but immigrants uniquely contribute to our character as Americans. The continued pursuit of enforcement-only immigration policies will measure losses not only in the dollars spent but also by what collective and national values are lost. The third is a more pragmatic intervention. The choice is not between the status quo and open borders. To the contrary, by repealing IIRIRA and updating enforcement with new technologies, we can return to a system that lets immigrants earn legal status through families, work, conduct, and contributions