Rethinking Drug Inadmissibility

Changes in federal statutory policy, state criminal justice laws, and federal enforcement initiatives have led to an inflexible and zero tolerance immigration policy with respect to minor drug use. This Article traces the evolution of the statutory scheme and how various provisions in state and federal law interact to create the current policy. It proceeds to investigate the broad reach of these rules if they are fully enforced, in light of the widespread lifetime experience with minor drug use both in the United States and abroad. Drawing on the experience of law enforcement agencies that have abandoned similarly rigid rules, the Article proposes changes to the immigration law that would better reflect societal standards with respect to the appropriate lifetime consequences of past drug use. Finally, the Article argues that more systemic reform depends on developing mechanisms that will better insulate the specific criteria for denying admission from the one-way political ratchet of episodic congressional oversight

Representing Noncitizens in the Context of Legal Instability and Adverse Detention Precedent

This Essay addresses three structural aspects of immigration law that have shifted in recent years and present important challenges for delivering adequate representation. Although the Katzmann study group’s many initiatives have shored up access to counsel in immigration courts and for immigration applications, the ground has been shifting under our feet. This Essay discusses three (of many) phenomena that make it harder than ever to lawyer on behalf of noncitizens. The first is the rise of red-state lawsuits that lead to enormous unpredictability about the agency rules under which lawyers can expect to operate. The second is the individuation and constitutionalization of detention law, which is particularly challenging due to the increased transfer of detainees to remote locations. The third is the changing dynamic around choice of law for immigration courts and a disconnect between circuit court and U.S. Supreme Court decisions. This dynamic has created uncertainty about what circuit court rules apply and instability about what substantive rules will apply both in immigration court and on appeal. Each of these phenomena mean that lawyering for noncitizens facing removal is more complex than ever. Although there are opportunities embedded in some of these changes, there are also enormous hurdles that make the task of lawyering extremely complex. This Essay explores the nature of these challenges and suggests ways for legal organizations to prepare themselves for the new landscape. The issues discussed in this Essay affect (1) the kinds of claims lawyers need to be prepared to make, (2) the kinds of courts in which they must appear to pursue those claims, and (3) the importance of legal developments in other parts of the country to those practicing in a given jurisdiction. Lawyers representing those facing removal need to be nimble, well-resourced, and able to think creatively about where the law might be as a case winds its way through the system. These changes are not just reasons for robust continuing legal education, but also aspects of the practice that require different ways of lawyering and different types of capacity in organizations serving noncitizens. As we seek to build a quality bar, we must pay attention to those challenges to provide effective representation

Accessing Justice II: A Model for Providing Counsel to New York Immigrants in Removal Proceedings

The New York Immigrant Representation Study (“NYIR Study”) is a two-year project of the Study Group on Immigrant Representation to analyze and ameliorate the immigrant representation crisis—the acute shortage of qualified attorneys willing and able to represent indigent immigrants facing deportation. The crisis has reached epic proportions in New York and shows no signs of abating. In its year-one report (issued in the fall of 2011), the NYIR Study analyzed the empirical evidence regarding the nature and scope of the immigrant representation crisis. In that report, we documented how many New Yorkers—27 percent of those not detained and 60 percent of those who were detained—face deportation, and the prospect of permanent exile from families, homes and livelihoods, without any legal representation whatsoever. These unrepresented individuals are often held in detention and include many lawful permanent residents (green card holders), asylees and refugees, victims of domestic violence, and other classes of vulnerable immigrants with deep ties to New York. The study confirmed that the impact of having counsel cannot be overstated: people facing deportation in New York immigration courts with a lawyer are 500 percent as likely to win their cases as those without representation. While, at one end, nondetained immigrants with lawyers have successful outcomes 74 percent of the time, those on the other end, without counsel and who were detained, prevailed a mere 3 percent of the time. In its second year, the NYIR Study convened a panel of experts to use the data from the year-one report to develop ambitious, yet realistic, near- to medium-term ways to mitigate the worst aspects of the immigrant representation crisis here in New York. The year-two analysis and proposals are set forth in detail here, in the NYIR Study Report: Part II. A comprehensive solution to the nationwide immigrant representation crisis will require federal action. However, such federal action does not appear on the horizon. Meanwhile, the costs of needless deportations are felt most acutely in places like New York, with vibrant and vital immigrant communities. In addition to the injustice of seeing New Yorkers deported simply because they lack access to counsel, the impact of these deportations on the shattered New York families left behind is devastating. Moreover, the local community then bears the cost of these deportations in very tangible ways: when splintered families lose wage-earning members, they become dependent on a variety of City and State safety net programs to survive; the foster care system must step in when deportations cause the breakdown of families; and support networks to families and children must accommodate the myriad difficulties that result when federal policies are enforced without regard for local concerns. Put simply, the City and State of New York bear a heavy cost as a result of the immigrant representation crisis

Detention Decisions and Access to Habeas Corpus for Immigrants Facing Deportation

In the wake of the recent Supreme Court decisions on the legal rights of “enemy combatants,” this Article highlights the continuing problems of immigration detainees and their lack of access to adequate judicial process. Based on the author’s extensive research into habeas corpus actions filed by inmates in the Oakdale Federal Detention Facility, this Article explores the consequences of limiting habeas actions to courts in the territorial site of the prison. Because the Federal District Court for the Western District of Louisiana refuses to issue stays of removal, detainees are deported before their habeas actions can be judged on the merits, and consequently are denied an adequate remedy for illegal government action