34 research outputs found
Redefining âParticularly Serious Crimesâ in Refugee Law
Refugees are not protected from deportation if they have been convicted of a âparticularly serious crimeâ (PSC) which renders them a danger to the community. This raises questions about the meaning of âparticularly seriousâ and âdanger to the community.â 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 âmistrusting criminal judges effect:â 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 âseverity revolutionâ of the 1980âs and 90âs, 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 1990âs and 2000âs, allowed âtough on crimeâ 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
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 bargainâshould a detainee remain in jail or request these virtual walls?
The Supreme Courtâs immigration detention doctrine has set up this tradeoff by succumbing to the plenary powerâs 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 monitoringâs use in the criminal legal system, this âmiddle groundâ ceded too much ground. This Article explains, for the first time, how the Courtâs 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
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 lawâs 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 evidenceâthat 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 âParticularly Serious Crimesâ in Refugee Law: Mirroring the Severity Revolution
Refugees are not protected from deportation if they have been convicted of a âparticularly serious crimeâ (âPSCâ) which renders them a danger to the community. This raises questions about the meaning of âparticularly seriousâ and âdanger to the community.â 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 âcrimmigrationâ) 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 âmistrusting criminal judges effect:â Attorney General Ashcroft and the Board of Immigration Appeals (âBoardâ) 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 âthe sweeping effect:â the expansive reading of the PSC bar is part of a larger trend by the Board and Congress to sweep many offenses into a âcrimmigrationâ 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 âseverity revolutionâ of the 1980âs and 90âs, 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 1990âs and 2000âs, allowed âtough on crimeâ 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
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. Todayâs immigration detention machine illustrates Justice Blackâs fears: U.S. Department of Homeland Security (âDHSâ) 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 (âDOJâ) under the supervision of the Attorney General, the nationâs top prosecutor. Immigration judgesâ lack of independence has long been a subject of critique, leading some to refer to themselves as ââU.S. imitation judges.ââ In sum, when the DHS police arrest a person, only a prosecutor reviews that decision. Most of these crucial decisions about a personâs 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 courtsâ persistence in monitoring the rights of immigration detainees, even in the face of legislation that has aimed to limit the judiciaryâs role. Yet such review has happened for only a subset of detaineesâthose 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 judgesâ 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 decisionsâscholars 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 detaineeâs 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