Faculty Bibliography

Why has the Supreme Court recently granted more writs of certiorari in cases concerning the complex legal test known as the categorical analysis than it has in the last ten years? As background for the uninitiated, the categorical analysis is a tool used by adjudicators to determine when immigration consequences or federal sentencing enhancements are triggered by prior convictions. It is an often misunderstood—and consequently misapplied—analysis that has befuddled adjudicators for decades. The Supreme Court has decided to reaffirm and refine the legal test in several cases over the last few terms. The Court will have the opportunity to do so again this term in two cases, Pereida v. Barr and Shular v. United States. This Article examines several factors that may elucidate why the Court has recently taken a growing interest in the categorical analysis.

Many are surprised to learn that crime-based deportations do not necessarily make intuitive sense. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a misdemeanor drug offense for which probation was imposed 20 years ago can be an “aggravated felony,” a category reserved for the presumably most serious offenses that result in detention, deportation, and denial of most forms of immigration relief. But a felony conviction for kidnapping may have no consequences at all. The crime of “child abuse, child neglect, or child abandonment” removal ground created by IIRIRA similarly leads to illogical results. This deportability ground, first created in 1996 by IIRIRA, is causing federal circuit courts (and arguably the Board of Immigration Appeals itself) to split over whether this deportability ground is narrow or broad. We contend that the narrow interpretation, best defended by the Tenth Circuit, is the proper one. Not only does the legislative history support a narrow reading, but the ground’s broad interpretation adopted by the Second Circuit improperly includes civil actions (not just crimes) and does not even require acts that cause injury to a child. As a result, the broad interpretation sweeps too far. It includes parents with civil violations for leaving their child unattended, either out of circumstances arising from the lack of child care for the working poor or from deliberate parenting choices known as “free-range” parenting in which children are encouraged to function independently and with limited parental supervision. The deportability ground should be interpreted narrowly—as intended by Congress—to trigger deportation only for those who are harming and preying on children. We contend that Congress meant to attach immigration consequences to the narrow definition and limit its reach to crimes involving harm to a child when enacting IIRIRA. It may at first seem counterintuitive to defend those who have committed crimes from deportation. After all, isn’t the threat of immigration, at least as explained by President Trump, the fact that “rapists” and “murderers” are crossing the border to harm U.S. citizens? But just as the fear of rape was wrongfully used to justify slavery and segregation, so too is the fear of rape being used to wrongfully defend the deportation of immigrants, even those who have committed crimes. This is true, as we will explain, even for those accused of child abuse crimes.

The “conviction” definition is one of the most misunderstood and odious provisions in our country’s immigration statute. The “conviction” term is a misnomer because it includes criminal dispositions that are often not considered convictions at all. Despite its perplexing definition, “convictions” are frequently used as markers for removal. For example, in FY2017, Immigration and Customs Enforcement (“ICE”) apprehended 143,470 individuals within the interior of the United States and ninety-two percent of those individuals had a criminal conviction, arrest, or an outstanding removal order. In FY2016, ICE’s apprehension totals likewise showed that ninety-two percent of individuals arrested by ICE had a criminal conviction. The purpose of this short article is to explain immigration law’s enigmatic “conviction” definition, its nefarious history, and current efforts to challenge the definition’s interpretation. In so doing, the article draws on my prior scholarship, which — along with a seminal article by immigration scholar Jason Cade — became the blueprint for challenging the “conviction” definition in federal court.

This short online essay analyzes the recent use of propaganda and manufactured facts by the Trump Administration to stigmatize immigrants as dangerous.

Immigration detention will likely play a central role in the Trump administration’s efforts to increase deportations. Despite the President’s broad authority to detain, the U.S. Supreme Court will have an opportunity to limit that authority via a case that will be heard for a second time before the Court this year. In Jennings v. Rodriguez, the Court will consider both statutory and constitutional challenges to the government’s ability to detain certain individuals without providing them the opportunity to be released on bond. Not only does the Court’s decision in Jennings have the potential to restrict the government’s use of immigration detention, but it could simultaneously chip away at the plenary power doctrine, which traditionally accords Congress and the President broad authority to enact, administer, and enforce immigration law without judicial oversight.

This article (1) reviews the history of the immigration bed mandate (or bed quota) from 2009 to present, (2) discusses its inconsistent interpretation by the U.S. Department of Homeland Security, and (3) offers reasons why the bed mandate is both constitutionally questionable and bad policy.

In this article, I argue that while Congress possesses broad plenary authority to pass legislation concerning immigration, recent U.S. Supreme Court precedent — most notably the Court’s 2013 decision in United States v. Windsor — signals a rare moment when the judiciary may be receptive to a constitutional challenge to the Immigration and Nationality Act's federal conviction definition.

Immigration detention in the United States is a crisis that needs immediate attention. U.S. immigration detention facilities hold a staggering number of persons. Widely believed to have the largest immigration detention population in the world, the United States detained approximately 478,000 foreign nationals in Fiscal Year 2012. U.S. Immigration and Customs Enforcement (ICE), the agency responsible for immigration enforcement, boasts that the figure is “an all-time high.” In some ways, these numbers are unsurprising, considering that the United States incarcerates approximately one in every one hundred adults within its borders—a rate five to ten times higher than any other Westernized country. An immigration law, known as the mandatory detention statute, is partially to blame for this recordbreaking immigration detention population. Under this law, facilities may hold noncitizens without providing them an opportunity to ask for release.

This article discusses how Congress has eliminated, or at least severely curtailed, judicial discretion in the context of crime-based removal proceedings. By way of illustration, this article focuses on the legislative and judicial histories of two discretionary forms of relief: (1) the Judicial Recommendation Against Deportation (JRAD); and (2) the waiver of deportation pursuant to section 212(c) of the INA.