Executive Discretion and First Amendment Constraints on the Deportation State

Given the federal courts’ reluctance to provide clarity on the degree to which the First Amendment safeguards the free speech and association rights of immigrants, the immigration policy agenda of the President now appears to determine whether noncitizens engaging in speech, activism, and advocacy are protected from retaliation by federal immigration authorities. This Essay examines two themes: first, the discretion exercised by the Executive Branch in the immigration context; and second, the courts’ ambivalence when it comes to enforcing immigrants’ rights to be free from retaliation. To do so, this Essay explores the Supreme Court’s influential 1999 decision in Reno v. American- Arab Anti-Discrimination Committee, which held that statutory restrictions on judicial review prevent noncitizens from bringing First Amendment-based selective deportation claims as a defense to deportation. In particular, it draws attention to the Court’s implicit suggestion that foreclosing judicial review of such claims was necessary to preserve the legitimacy of positive exercises of prosecutorial discretion to the benefit of immigrants. The Essay then turns to the relationship between executive discretion in the immigration context and the possibility of robust, judicially enforceable First Amendment protections for immigrants, especially individuals facing immigration enforcement action. It highlights how a different dimension of executive discretion—the operation of low- and mid-level discretion in the deportation state—provides agency officials with extensive opportunities to retaliate against noncitizens for their political speech and activity. The Essay concludes with the suggestion that judicially enforceable First Amendment constraints on this low- and midlevel discretion are both possible and necessary, while expressing concern over the Supreme Court’s endorsement of broader restrictions on noncitizens’ access to the federal courts

Rethinking Removability

Removability, in the context of immigration law, refers to the government’s legal authority to seek deportation for violations of the federal immigration statute. Removability matters now more than ever before, both for individuals facing possible deportation as well as for the many governmental institutions charged with assessing removability. Using four areas of emerging law—claims to U.S. citizenship, the categorical approach to determining the immigration consequences of crime, the application of the exclusionary rule in removal proceedings, and the exercise of administrative discretion—this Article places removability at the center of its analysis and presents a framework for better understanding removability. Under what this Article calls a narrative of “complex removability,” removability is both legally and factually complex, as well as subject to change, notwithstanding the temptation in legal and popular discourse to treat removability as simple and settled. This Article identifies several common themes that characterize complex removability today. First, obstacles to obtaining substantive, discretionary relief have caused removability to become more complex. Second, challenges to removability tend to be limited across the legal system due to barriers associated with immigration detention, such as the absence of counsel and the pressures of time. Third, complex removability leads to a deeper appreciation of the fluidity and uncertainty associated with immigration status. Fourth, complex removability is not static, but is produced through dynamic interactions between the government and the individual. Fifth, this Article explores the relationship between tensions in the horizontal separation of powers and complex removability. This Article concludes by suggesting several areas in which taking complex removability seriously might bear upon immigration policy, practice, and discourse

When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement

Immigration scholarship has begun to explore the prominence of shadow removals—deportations that are executed by front-line agency officials acting outside the presence of an immigration judge—which now constitute the majority of all reported removals. This Article explores two of the most common forms of shadow removals, expedited removal and reinstatement of removal, and the collision of the two. Expedited removal has typically been perceived as a border enforcement tool, used against persons with limited ties to the United States. Reinstatement of removal exists for persons who enter the U.S. without authorization following a prior removal. The rising use of each streamlined procedure is, on its own, troubling from a fairness, accuracy, and rule of law perspective. But like chemical compounds mixing and creating new substances, expedited removal and reinstatement interact to produce unique situations in which the law renders people forever subject to immediate deportation based primarily on the existence of a brief encounter at some point in the past with a border official. These situations are akin to legal black holes in immigration law, and have not been examined in any of the scholarly literature to date. This Article is the first to consider the interplay of expedited removal and reinstatement. It traces the operation of the two removal processes, both independently and in combination with each other. It emphasizes the harsh statutory bars on judicial and habeas review, and the resulting inability of the federal judiciary to ameliorate the harshness of removal in this context. The Article then suggests that the use of reinstatement based on prior expedited removal orders fails the basic administrative law requirement that federal agencies demonstrate reasoned decision-making and avoid arbitrary or capricious action. Relying on the Supreme Court’s decision in Judulang v. Holder, which applied arbitrary and capricious review in the deportation context, the Article encourages courts to more closely scrutinize the use of reinstatement based on expedited removal

Rethinking Removability

Removability, in the context of immigration law, refers to the government’s legal authority to seek deportation for violations of the federal immigration statute. Removability matters now more than ever before, both for individuals facing possible deportation as well as for the many governmental institutions charged with assessing removability. Using four areas of emerging law—claims to U.S. citizenship, the categorical approach to determining the immigration consequences of crime, the application of the exclusionary rule in removal proceedings, and the exercise of administrative discretion—this Article places removability at the center of its analysis and presents a framework for better understanding removability. Under what this Article calls a narrative of “complex removability,” removability is both legally and factually complex, as well as subject to change, notwithstanding the temptation in legal and popular discourse to treat removability as simple and settled. This Article identifies several common themes that characterize complex removability today. First, obstacles to obtaining substantive, discretionary relief have caused removability to become more complex. Second, challenges to removability tend to be limited across the legal system due to barriers associated with immigration detention, such as the absence of counsel and the pressures of time. Third, complex removability leads to a deeper appreciation of the fluidity and uncertainty associated with immigration status. Fourth, complex removability is not static, but is produced through dynamic interactions between the government and the individual. Fifth, this Article explores the relationship between tensions in the horizontal separation of powers and complex removability. This Article concludes by suggesting several areas in which taking complex removability seriously might bear upon immigration policy, practice, and discourse