The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms

Starting approximately twenty years ago, and accelerating today, a clear trend has come to define modern immigration law. Sometimes dubbed criminalization, the trend has been to import criminal justice norms into a domain built upon a theory of civil regulation. An embryonic literature chronicles this process well but fails to showcase its consciously asymmetric form. This Article argues that immigration law has been absorbing the theories, methods, perceptions, and priorities associated with criminal enforcement while explicitly rejecting the procedural ingredients of criminal adjudication. The normative thesis is that this asymmetry has skewed both discourse and outcomes by excluding the careful consideration of the many, often competing goals of a national immigration policy. At the macro level, asymmetric incorporation has deterred policymakers from balancing law enforcement against the equally vital mission of facilitating lawful immigration. At the micro level, it has produced a deportation regime so substantively harsh and inflexible that too often the penalties are cruelly disproportionate to the transgressions. Procedurally, the preoccupation with enforcement has left noncitizens in deportation proceedings exposed to large risks of error when the personal stakes are high. In short, asymmetric incorporation has virtually invited policymakers to abandon any sense of proportion. To permit the fullest and most productive use of our national immigration resources, this Article urges return to an immigration regime that accepts the civil regulatory model as its foundatio

Deportation and the War on Independence

Judicial independence, despite its long history and cherished place in American jurisprudence, has periodically been attacked by those who disagree with particular outcomes. In recent years, Congress and the executive branch have mounted a sustained assault on decisional independence in the adjudication of deportation (now called “removal”) cases. Various actions taken by Attorney General Ashcroft in 2002 and 2003 and still in place today have left both immigration judges and the members of the Board of Immigration Appeals without any meaningful decisional independence. Meanwhile, in 1996 and again in 2005, Congress imposed severe limitations on judicial review of administrative orders of removal. Each of these developments has been the subject of a separate scholarly literature. This article argues that the whole is even worse than the sum of its parts. The combination means that, for the affected categories of cases, there is no point anywhere in the process at which a deportation decision will be either made or reviewed by a body that enjoys decisional independence. That conclusion generates a more fundamental question: What is so great about decisional independence? To answer that question, this article examines the history and theories of judicial independence in England and early America. Here too, a vast literature has accumulated largely in segregated clumps; in the United States there are separate bodies of writing on the independence of United States federal article III judges, the judges of article I courts, federal administrative law judges (ALJ’s), and state court judges. Writings have also proliferated on the degrees of independence possessed by judges of foreign domestic courts and the judges of international courts and tribunals. Surprisingly, there has been almost no scholarly examination of how these strands of judicial independence theory interrelate. This article propounds ten theories that either have been or could be asserted on behalf of decisional independence generally. It suggests that, ultimately, the most convincing theories are united by the principle of the rule of law. The article also argues that, at a minimum, the law should require decisional independence at some stage of every adjudication process unless a particular case presents a compelling need for political accountability or the individual interests are trivial. The article concludes by sketching the possible forms that solutions might take in the particular arena of deportation. It recommends that the resulting structure embody meaningful decisional independence in the administrative phase of the deportation process, followed by the reinstatement of the right of judicial review in all deportation cases. That discussion also identifies the relevant sub-variables and considers the general pros and cons of different adjudication models

Introduction: The UN and the Protection of Human Rights

The essential premise of modern international human rights law is that there is still hope. Human rights activists today ask practical questions, not just philosophical ones. What specific, concrete actions can the world community, states, NGOs, and individuals take, and what mechanisms can they establish, to put an end to the madness? In various ways, the contributors to the present colloquium address themselves to these fundamental questions. They come from different regions of the world, different professional experiences, and different personal backgrounds, but they have in common an unmistakable longing to solidify respect for human rights and the rule of law. The first two papers take us, respectively, through the history and the decisionmaking structure of the United Nations. These two papers lay the foundation for the next eight, which focus more specifically on the human rights mission of the United Nations

The Making of United States Refugee Policy: Separation of Powers in the Post-Cold War Era

Thus, there are three features of immigration policy to consider in combination: First, its repercussions are powerful and widespread. Second, with so many conflicting priorities to juggle, the decisions depend heavily on personal values and ideologies. Third, with so many different interest groups in the mix, decisions on immigration policy tend to be shamelessly vulnerable to constituent pressures. What all three factors have in common is that they accentuate the importance of choosing the right decisionmaker. The high impact means that much is at stake, and the last two features mean that the results will often turn on who the decisionmakers are