Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study

There is an evolving crisis in the immigration courts and federal courts of appeals caused by the lack of quality representation for immigrants facing deportation. The problem is particularly acute for immigrants who are detained during their removal proceedings. As part of the Study Group on Immigrant Representation (Katzmann study group), the Subcommittee on Enhancing Mechanisms for Service Delivery undertook a case study of the institutional and legal barriers to quality legal representation for immigrants held at the Varick Street Detention Facility in New York City. Through this lens we hope to offer some useful insights into the core factors contributing to the immigration representation crisis, the institutional barriers that aggravate the crisis, and, finally, to propose a series of reforms to address the crisis

Prosecutorial Discretion Power at its Zenith: The Power to Protect Liberty

On November 20, 2014, President Obama, frustrated by congressional inaction on immigration, announced an ambitious and potentially transformative prosecutorial discretion policy to forego the deportations of millions of low priority undocumented immigrants. That announcement immediately sparked legal challenges, which quickly wound their way to the Supreme Court, and a nationwide debate about the limits of the President’s prosecutorial discretion authority. President Obama’s actions are part of a larger trend whereby modern presidents have increasingly used robust assertions of prosecutorial discretion powers to achieve policy goals that they could not realize through legislation. There are clear dangers in allowing a president to wield excessive prosecutorial discretion power. Taken to an extreme, in the context of the vast modern administrative state, a president could significantly undermine the will of Congress across a wide array of subject areas and, thereby, upset the separation of powers enshrined in the Constitution. This legitimate concern has led some to argue that a president should not be permitted to exercise prosecutorial discretion categorically or based on her own normative view of the public interest. Categorical normative prosecutorial discretion policies pose the greatest risk of infringing on Congress’ primary policy making role; however, excising normative judgments and agency wide policies is entirely unworkable. The core purposes of prosecutorial discretion — justice, mercy and societal utility — all necessarily require the President to make independent judgments about the wisdom of prosecution. Limiting prosecutorial discretion to case-by-case determinations would be at odds with historic and modern practice and would significantly undermine the institutional design goals of transparency, uniformity and accountability. This Article suggests a new way to think about the boundaries of the President’s prosecutorial discretion authority. Specifically, I propose that the nature of prosecutorial discretion power is dependent on the context of enforcement and that the power is at its zenith when a president exercises her discretion to protect physical liberty. It is in the liberty deprivation context where historical precedent, the Constitution’s structural bias against liberty deprivation and the textual sources of prosecutorial discretion powers all militate in favor of robust presidential powers as a necessary check against excessively punitive statutory schemes

Abolish ICE . . . and Then What?

In recent years, activists and then politicians began calling for the abolition of the United States’s interior immigration-enforcement agency: U.S. Immigration and Customs Enforcement (ICE). Many people have misinterpreted the call to “Abolish ICE” as merely a spontaneous rhetorical device used to express outrage at the current Administration’s brutal immigration policies. In fact, abolishing ICE is the natural extension of years of thoughtful organizing by a loose coalition of grassroots immigrant-rights groups. These organizations are serious, not only about their literal goal to eliminate the agency, but also about not replacing it with another dedicated agency of immigration police. Accordingly, the proposal to eliminate ICE necessarily raises the question of how, in a post-ICE world, the United States would enforce its immigration laws. Missing from the public discourse, however, is an affirmative vision for the mechanics of a just and humane immigration-enforcement system that could follow the abolition of ICE. Drawing on lessons from our own and other nations’ past immigration-enforcement schemes, enforcement mechanisms employed by other federal agencies, and interviews with leaders of the “Abolish ICE” movement, I seek to begin to fill this void. This Essay suggests a paradigm shift in immigration enforcement toward the creation of an enforcement scheme that does not rely on detention, mass deportation, or any dedicated agency of immigration police but is nevertheless realistic and effective at increasing compliance with immigration law. The new immigration enforcement principles set forth herein are intended as a starting point for the immigrant-rights movement and for policymakers to use, critique, and improve upon

Constitutional Venue

A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be tested in the first half of the twentieth century, as the rise of interstate commerce, transportation, and communication technologies prompted states to reach beyond their borders by expanding the jurisdictional limits of their courts through now familiar long-arm statutes. In International Shoe Co. v.Washington, the Court situated the due process inquiry related to a fair location for trial in the personal jurisdiction doctrine—and thus relegated venue to its current subconstitutional status. Forcing the square peg of venue interests into the round hole of personal jurisdiction was, on a theoretical level, an odd choice from the outset. This theoretical foible has plagued the Court’s personal jurisdiction jurisprudence ever since. As a result, the Court’s personal jurisdiction cases are marked by fractured decisions with dueling opinions that articulate conflicting visions of the nature of the due process inquiry in personal jurisdiction analysis. Some Justices minimize the fairness inquiry because they are unable to reconcile the dissonance of individual rights considerations with the origins and core of personal jurisdiction. Other Justices elevate the fairness inquiry to the fore, as they see individual rights protection as critical to the due process analysis. Reconceptualizing the due process fair location inquiry as venue acknowledges the validity of both positions. Fairness in location has little to do with jurisdiction and everything to do with due process and venue. Recognition of the constitutional aspects of venue brings clarity to the Supreme Court’s muddled personal jurisdiction case law. In addition, constitutional venue would provide a basic measure of due process in a small but significant category of cases—most notably detained deportation proceedings—where defendants are prejudiced when they must defend themselves in gravely unfair locations because of the firmly established but deeply flawed conception of venue as lacking constitutional content

Pardoning Immigrants

In the waning days of the Obama Administration, with Trump’s promised immigration crackdown looming, over one hundred advocacy organizations joined forces to urge President Obama to permanently protect hundreds of thousands of immigrants from deportation by pardoning their breaches of civil immigration law. That pardon never materialized and, as expected, the Trump enforcement regime is sowing terror and devastation in immigrant communities nationwide. While it seems unfathomable that the current president would use his pardon power to mitigate even the most extreme applications of our nation’s immigration laws, there is unfortunately no indication that the harshest aspects of the immigration laws are likely to be revised by the current political branches. Accordingly, future presidents will likely once again face the questions of how they may use prosecutorial discretion generally, and the pardon power specifically, to address the human toll of such laws. Since the founding, the pardon power has been used primarily to forgive individual criminal convictions. Thus the broad civil immigration pardon, which Obama declined to issue, would have raised novel questions regarding the appropriate boundaries the presidential pardon power. Resolution of those previously unexplored questions is necessary to help future presidents determine whether their pardon power can serve as a safety valve to alleviating the disproportionate penalties that our immigration laws have imposed on longtime members of our communities.This article explores the novel concept of a civil immigration pardon. Specifically, it closely examines the language and drafting history of the Pardon Clause, exhaustively reviews early and modern pardon practice and jurisprudence, and considers whether a president could, consistent with the Constitution, use that power to protect some of the largest categories of noncitizens currently at risk of deportation. Ultimately, it argues that that the president possesses the constitutional authority to categorically pardon broad classes of immigrants for civil violations of the immigration laws and to thereby provide durable and permanent protections against deportation. As millions of noncitizens and their families face a historically unprecedented wave of deportations and as traditional mechanisms for policymaking continue to fail, the immigration pardon offers an important tool for future presidents to forgive the civil offenses that result in some of the most unforgiving penalties in our nation’s justice system

Pop-Up Class: Defending Immigrants\u27 Rights in the Aftermath of President Trump\u27s Executive Order

https://larc.cardozo.yu.edu/event-invitations-2017/1004/thumbnail.jp

Deportation is Different

Over one hundred years ago, the Supreme Court emphatically declared that deportation proceedings are civil, not criminal, in nature. As a result, none of the nearly 400,000 individuals who were deported last year enjoyed any of the constitutional protections afforded to criminal defendants under the Sixth or Eighth Amendments. Among those 400,000 were numerous detained juveniles and mentally ill individuals who, as a result of the civil designation, had no right to appointed counsel. These individuals were thus forced to navigate the labyrinth of immigration law alone. Others were lawful permanent residents who had pled guilty to minor offenses upon the correct advice of counsel that they could not be deported. These individuals later became subject to deportation when Congress retroactively changed the law, unbound by the criminal prohibition against ex post facto laws. The dichotomy between the gravity of the liberty interest at stake in these proceedings––a lifetime of exile from homes and families in the United States––and the relative dearth of procedural protections afforded respondents, has always been intuitively unjust to some. However, over the past twenty years, as immigration and criminal law have become intertwined as never before, the intuitive sense of many has matured into a scholarly movement exploring the criminalization of immigration law. This movement has taken aim at the incoherence of deportation’s civil designation. Until recently, however, there was little reason to think the Supreme Court would wade into the waters of the resurgent debate over the nature of deportation proceedings. In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), however, the Court surprised almost everyone as it went to great length to chronicle the criminalization of immigration law and ultimately concluded that deportation is - uniquely difficult to classify. The immediate impact of the Padilla decision is the critical recognition that criminal defendants have a right to be advised by their attorneys if a plea they are contemplating will result in deportation. However, I argue, that in time Padilla may come to stand for something much more significant in immigration jurisprudence. When we read Padilla in the context of the Supreme Court’s evolving immigration jurisprudence, there is good reason to believe that Padilla is a critical pivot point for the Court. Padilla marks the beginning of a significant reconceptualization of the nature of deportation toward the realization that it is neither truly civil nor criminal. Rather, deportation is different. It is a unique legal animal that lives in the crease between the civil and criminal labels. This article explores the evolving arch of Supreme Court jurisprudence regarding the quasi-criminal nature of deportation proceedings and articulates a principled mechanism by which the scope of respondents’ rights can be defined under this new framework

Spatial and seasonal relationships between Pacific harbor seals (Phoca vitulina richardii) and their prey, at multiple scales

Knowing where pinnipeds forage is vital to managing and protecting their populations, and for assessing potential interactions with fisheries. We assessed the spatial relationship between the seasonal distribution of Pacific harbor seals (Phoca vitulina richardii) outfitted with satellite transmitters and the seasonal distributions of potential harbor seal prey species in San Francisco Bay, California. Pearson’s correlation coefficients were calculated between the number of harbor seal locations in an area of the San Francisco Bay and the abundance of specific prey species in the same area. The influence of scale on the analyses was assessed by varying the scale of analysis from 1 to 10 km. There was consistency in the prey species targeted by harbor seals year-round, although there were seasonal differences between the most important prey species. The highest correlations between harbor seals and their prey were found for seasonally abundant benthic species, located within about 10 km of the primary haul-out site. Probable foraging habitat for harbor seals was identified, based on areas with high abundances of prey species that were strongly correlated with harbor seal distribution. With comparable local data inputs, this approach has potential application to pinniped management in other areas, and to decisions about the location of marine reserves designed to protect these species