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Immigration Law

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Isolated and Unreachable: Contesting Unconstitutional Restrictions on Communication in Immigration Detention

Zachary Manfredi, Joseph Meyers

As of January 1, 2019, the federal government held more than 51,000 noncitizens in immigration detention. Over the course of a year, nearly half a million noncitizens will pass through Department of Homeland Security custody within the interior of the United States while the government initiates proceedings to remove them from the country. Many of those detainees pursue immigration relief and contest both their detention and removal. However, numerous reports from the Office of the Inspector General and immigration practitioners consistently observe substantial barriers to effective communication from detention: Detainees are frequently held in or transferred to isolated locations, detention facilities often do not provide adequate telephone access or even alternative forms of communication, and facilities often deny or substantially delay in-person meetings with attorneys or other visitors. These barriers significantly affect the ability of unrepresented detainees to gather and present relevant evidence critical to litigating their removal claims. They also undermine essential communication between legal counsel and the detainees they represent in those proceedings. 

This Article argues that due process imposes affirmative obligations on the government to facilitate evidence gathering and communication with legal counsel for those noncitizens that it detains. While previous scholarship has advanced arguments for “immigration Gideon”—i.e., suggesting noncitizens should have a right to appointed counsel at state expense—our intervention instead focuses on how conditions of confinement that impair communication with counsel and evidence gathering may themselves run afoul of noncitizens’ Fifth Amendment due process rights. 

We offer a novel interpretation of recent Supreme Court and circuit court precedents on civil detention in order to ground noncitizens’ right to communicative access in the Fifth Amendment and propose a new framework for evaluating noncitizens’ rights to effective communication. Importantly, we also argue that the scope of noncitizen detainees’ rights to communicate with counsel should not be determined by the stark division between criminal and civil detention precedents. Rather, noncitizens’ access to counsel rights should encompass the procedural protections due process requires whenever the government acts as both initiator of adverse legal proceedings and jailor, including those protections traditionally associated with the Sixth Amendment. Our analysis finds that the scope of governmental obligation to provide communicative access derives from the noncitizens’ liberty interest in avoiding both detention and deportation and, in particular, follows from the government’s dual role in immigration proceedings as both initiator of adverse proceedings and jailor. The obligation to ensure a “full and fair” hearing requires that the government not impose barriers to communication that provide it with an unfair advantage in the litigation of noncitizens’ removal claims. 

We conclude that the Fifth Amendment’s Due Process Clause imposes affirmative obligations for the government to facilitate evidence gathering and communication between noncitizen detainees and their counsel. While the scope of the state’s affirmative obligations may vary in accordance with the immigration status of the detainee, we argue that in all cases the Fifth Amendment requires the federal government to provide detained noncitizens adequate means to solicit legal representation, meet privately with retained counsel, communicate with potential witnesses, access necessary records, and prepare evidence and testimony. Conditions of confinement that frustrate these basic guarantees offend the Fifth Amendment’s protection of a full and fair hearing and should be held unconstitutional. 

Chevron and the Attorney General’s Certification Power

Jonathan P. Riedel

Congress has delegated power to the Attorney General to execute the nation’s immigration laws, adjudicate individual noncitizens’ cases, and fill interpretive gaps in the statute. The Attorney General has in turn delegated this authority, by regulation, to the Board of Immigration Appeals (BIA). Most BIA decisions are administratively final, and noncitizens appeal unfavorable decisions directly to federal courts of appeals. In a small but growing number of cases, however, the Attorney General will step in to decide a case himself de novo after the BIA has ruled. This power of intervention and decision, sometimes known as the “referral and review” power or “certification” power, has drawn some praise for being an efficient use of the broad power afforded to the executive branch in the immigration context, but more often has sustained criticism for potential abuse. In this Note, I analyze this certification power through the lens of Chevron. In particular, I argue that Chevron deference to the BIA is appropriate because it serves the values of the Chevron doctrine—expertise, procedural regularity, and public accountability— but that Chevron deference to the Attorney General’s certified opinions is inappropriate. Courts have a responsibility under Step Zero not to defer to an interpretation of law unless its issuance adheres sufficiently to fundamental tenets of administrative law. Certified opinions are insufficient on all counts: Deference to the Attorney General’s interpretations of law issued in this manner serves none of the values of the Chevron doctrine. 

Closing the Border

Jonathan P. Riedel

Terrorists. Narcotrafficking. Coronavirus. Refugees. There are many reasons—real or imaginary, compelling or contrived—for governments to want to restrict people’s movement. In March 2019, President Trump hinted that he was considering closing the border with Mexico. He cited the vast numbers of migrants approaching the southern border as a justification for closure, then pivoted to concerns about drug trafficking. Possibly emboldened by a victory in the 2018 “travel ban” case of Trump v. Hawaii, the President asserted a unilateral power to close the border. The general consensus among political leaders and economists was that closing the border would be an economic and political catastrophe, disrupting billions of dollars’ worth of goods while doing little to combat the asylum backlog or illegal narcotics trafficking. He soon backed off, with a one-year warning to Mexico that is fast approaching as of the publication of this Note. But the question remains: Can he do it? This Note considers the question and concludes that while very brief or geographically limited closures are authorized as a matter of statute and constitutional doctrine, any indefinite, long-term, and expansive border closure would be statutorily unauthorized and give rise to meritorious due process claims by some categories of noncitizens. In between these two extremes, the permissibility of a closure would depend on the temporal and geographical scope of it, tracking general separation-of-powers principles.

As-Applied Suspension Clause Challenges to the Immigration and Nationality Act’s Jurisdictional Bars: A Pathway into District Court for Deportation Habeas Petitions

Sarah Taitz

In 2005, Congress amended the Immigration and Nationality Act to strip jurisdiction over petitions for habeas corpus challenging an order of removal or the decision to execute an order of removal. A first generation of legal challenges argued that this provision was a facial violation of the Suspension Clause of the U.S. Constitution, which guarantees the right to bring writs of habeas corpus, or an adequate and effective alternative to habeas. These challenges were unsuccessful, and for years, the conventional wisdom has been that noncitizens cannot bring habeas petitions to challenge or delay their removal. However, recent district court cases demonstrate the viability of a new generation of as-applied Suspension Clause challenges to the denial of habeas jurisdiction. This Note identifies and describes a category of cases where the denial of habeas jurisdiction is a Suspension Clause violation: noncitizens with orders of removal who are at risk for persecution in their countries of origin because of changed country conditions that arose while they were living in the United States. Recognizing habeas jurisdiction in these circumstances is essential to protect noncitizens’ rights and to check executive power. 

Humberto in the Field: The Racialization of H-2A Migrant Farmworkers and a Dual Solution to Its Resulting Abuses

Camil A. Sanchez-Palumbo

“That Mexican’s probably off right now in some bar, laughing at us.” Humberto Casarrubias-Sanchez, thirty-six, was a husband, father of three, and first-time beneficiary of the United States’ H-2A temporary agricultural worker visa. Hailing from Morelos, Mexico, he had just begun his first day of detasseling corn in Illinois when, by day’s end, Humberto was nowhere to be found. Presuming he had fled, crew leaders shrugged their shoulders, ending the search for him early. His body was found fifty days later in the middle of that same cornfield. Using Humberto’s story and the crew leader’s words as evidence, this Note argues that historic racialization of Latina/o immigrants has transcended into the H-2A agricultural workers visa program, and that burgeoning migrant farmworker coalitions are rewriting these racialized narratives through political action that may create the cultural groundswell for government change. Racialization, or the way in which society places nonwhites within a racial hierarchy, has resulted in a system of abuses of H-2A workers, including wage theft, sexual harassment, and human trafficking. Through direct appeals to top food purchasers, coalitions of migrant farmworkers have subverted their racialized identities via political empowerment, perhaps ultimately attaining a “dual solution” to this racialization that would include necessary government support.

Subfederal Immigration Regulation and the Trump Effect

Huyen Pham, Pham Hoang Van

The restrictive changes made by the Trump presidency on U.S. immigration policy have been widely reported: the significant increases in both interior and border enforcement, the travel ban prohibiting immigration from majority-Muslim countries, and the decision to terminate the Deferred Action for Childhood Arrivals (DACA) program. Beyond the traditional levers of federal immigration control, this administration has also moved aggressively to harness the enforcement power of local and state police to increase interior immigration enforcement. To that end, the administration has employed both voluntary measures (like signing 287(g) agreements deputizing local police to enforce immigration laws) and involuntary measures (threatening to defund jurisdictions with so-called “sanctuary” laws).

What has been the “Trump Effect” on subfederal governments’ immigration policies? We define the Trump Effect as the influence that Trump’s immigration policies have had on the immigration policies of states, cities, and counties. Have they fallen in line with the federal push for restrictive policies and increased enforcement, or have they resisted? Using our unique Immigrant Climate Index (ICI), we track the response of cities, counties, and states by analyzing the immigration-related laws they enacted in 2017—the first year of the Trump administration—and comparing it to previous years’ activity. Based on our data, we make several observations. First, subfederal governments have responded with surprising speed and in unprecedented numbers to enact laws that are almost uniformly pro-immigrant. In response to increased federal enforcement, these subfederal governments have enacted “sanctuary” laws limiting their cooperation with federal immigration enforcement. Most of these laws were enacted by cities and counties, which enacted more immigration regulations in this one year than they enacted during the previous twelve years combined (2005–16).

Second, in the context of historical ICI scores, these immigrant-protective laws helped to pull the national ICI score sharply upward. By assigning scores (positive or negative) to each subfederal immigration law, our ICI has tracked the climate for immigrants on a state-by-state basis and identified distinct phases in subfederal immigration regulation since 2005. Though the national ICI score (where individual state scores are added together, through time) remains highly negative, we observe a distinct Trump effect in 2017: Immigrant-protective laws enacted by certain jurisdictions are creating more positive climates for immigrants in those jurisdictions.

Finally, the nature of governmental sanctuary in 2017 was distinctly more diverse than the sanctuary we have seen in decades past. In 2017, big urban cities were not the most active sanctuary cities, as was the case in past years; rather, medium-sized cities and suburbs with populations under 100,000 prevailed. Though most of these smaller jurisdictions voted for Hillary Clinton in the 2016 presidential election, a surprising number voted for Trump. Moreover, new sanctuary entities have emerged—including public school districts, public universities, and even mass transit authorities—which have limited their own cooperation with federal immigration enforcement. This diversity in government sanctuary reflects another aspect of the Trump Effect: how harsh immigration enforcement policies under this administration have made immigration issues much more important to a wider range of communities and to a larger range of policy areas.

In the Shadow of Article I: Applying a Dormant Commerce Clause Analysis to State Laws Regulating Aliens

Erin F. Delaney

State laws regulating aliens are increasing in number and scope. Yet the current doctrinal approaches to assessing the constitutionality of these laws fail to provide a predictable or desirable framework for distinguishing between permissible and impermissible state regulation of aliens. This Note, by analogizing to the Dormant Commerce Clause doctrine, aims to offer another approach to reviewing state laws regulating aliens—one that takes into consideration the state-to-state dimension of the national interests at stake in immigration law and policy, and that may provide a better means of addressing animus-based state laws.

Coded Codes: Discriminatory Intent, Modern Political Mobilization, and Local Immigration Ordinances

Sofía D. Martos

The extent to which some local immigration ordinances are motivated by national-origin or racial discrimination is difficult to discern because our current application of the Equal Protection Clause involves a narrow understanding of the evidence of discriminatory intent. In the last decade, cities and towns have become immigration policy laboratories as a result of sharp increases in local immigrant populations, fiscal constraints, lack of comprehensive federal immigration reform, and, in some instances, a new wave of discrimination against recent immigrants. Many local governments have pursued quality of life ordinances—such as maximum occupancy, parking, and nuisance regulations—as a means to regulate immigration. Quality of life ordinances are “coded codes”—ordinances that are facially neutral but that may target particular communities. They also evade judicial review because modern courts tend to examine discriminatory intent only through official documents such as city council minutes and give short shrift to extracameral evidence that reveals the motivations of decisionmakers. Quality of life ordinances therefore expose the failure of our current equal protection doctrine to recognize the evidentiary significance of political statements and mobilization outside official city chambers. This Note argues that a more rigorous application of the Arlington Heights six-factor discriminatory intent test, as well as the inclusion of extracameral evidence illuminating political mobilization and statutory diffusion, would revive the equal protection doctrine’s ability to identify discriminatory intent.

Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions

Laura S. Trice

The Attorney General enjoys broad authority to certify to himself and review de novo decisions of the Board of Immigration Appeals (BIA). Though sparingly used, the certification power is controversial, in part because it permits the Attorney General to announce new rules and overturn longstanding precedent without meaningful process. Under current regulations, the Attorney General is not required to provide even basic procedural protections in certified cases, and he has issued decisions without giving the parties notice of the issues under review or an opportunity for briefing. This Note argues that review of BIA decisions without meaningful procedural safeguards implicates serious due process concerns, raises questions about the quality and accuracy of Attorney General decisions, and undermines the legitimacy and acceptability of immigration adjudication. To address these concerns, this Note proposes that the Attorney General promulgate regulations that require meaningful, adversarial participation by the parties and provide a transparent means of soliciting input from interested amici on issues of broad significance.

The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law

Alina Das

For over a century, noncitizens in the United States have faced adverse immigration
consequences if convicted of certain types of offenses in criminal court. Many criminal
convictions carry severe immigration penalties, including deportation, detention,
and the denial of statuses like asylum and U.S. citizenship. The Supreme
Court recently recognized that these penalties are so intimately tied to criminal
court adjudications that criminal defense attorneys have a duty to advise noncitizen
defendants of the immigration consequences of a conviction before the entry of a
guilty plea in criminal court. Yet there is little clarity about how to determine
whether a particular conviction triggers an immigration penalty. Historically, courts
and immigration officials have applied a categorical analysis to assess the immigration
consequences of a criminal conviction. Under a categorical analysis, a court or
immigration official determines the penalties based on an examination of the statutory
definition of the offense, not the factual circumstances of the crime. However,
several recent Supreme Court, federal court, and agency decisions have ignored this
longstanding analysis and have instead examined these issues through the lens of
Taylor v. United States, a criminal sentencing case that adopts a categorical analysis
in a different context. Distinguishing Taylor and its criminal sentencing rationales,
these decisions have invented a new approach to assessing past criminal
convictions in the immigration context. That approach now permits a circumstance-specific inquiry into facts beyond the criminal court’s findings in some immigration
cases. Under these recent decisions, the immigration consequences of a criminal
conviction no longer turn on the criminal court adjudication alone, but may also be
determined by facts that were not proven or pleaded in the criminal court proceeding.
This Article argues that this shift in approach is based on a fundamental
misunderstanding of the origins of categorical analysis in immigration law and its
independent rationales, including its promotion of notice and an opportunity to be
heard, uniformity, predictability, efficiency, and judicial review in the administrative
agency context. This Article further argues that, because of this flaw in the
current debate, courts have failed to consider the negative impact of the erosion of
categorical analysis on the functioning of the current immigration and criminal justice
systems. The rationales for categorical analysis apply with even greater force
today than they did when categorical analysis was first articulated nearly a century
ago. Rather than erode categorical analysis, courts and the agency should require
its robust application in light of its longstanding rationales and modern-day
implications.