Introduction: The Social Responsibility of Lawyers

Seattle University Law Review, 2011

Professor Won Kidane has done me a great honor by reviewing Everyday Law for Immigrants. 1 Authors pray their work is not ignored; they can only dream that colleagues will take it seriously. From that viewpoint, Professor Kidane has blessed me twice. The Seattle University Law Review has also graciously allowed me an opportunity to respond to his thoughtful critique. That Professor Kidane found seeds for scholarly discourse within a book intended primarily for nonacademics is a testament to his comprehensive understanding of U.S. immigration law and how it functions on the ground. This brief response will focus on two interrelated themes that arise out of the "immigration as contract" motif. First, I examine Professor Kidane's claim that current U.S. immigration policy operates more like a unilateral or adhesion contract than a bilateral one. Second, I explore the notion that due process is at risk when one views immigration policy through a contract prism. While acknowledging its usefulness as an explanatory frame for lay readers, Professor Kidane correctly recognizes that my "immigration as contract" analogy lacks nuance. Indeed, Professor Hiroshi Motomura has identified at least two other ways of thinking about U.S. immigration † Maureen B.

2011

Though widely heralded by immigration and human rights lawyers as a “landmark,” possible “watershed,” and even “Gideon decision” for immigrants, Padilla v. Kentucky is perhaps better understood as a Rorschach test, than as a clear constitutional precedent. It is surely a very interesting and important U.S. Supreme Court case in the (rapidly converging) fields of immigration and criminal law in which the Court struggles with the functional relationship between ostensibly “civil” deportation proceedings and criminal convictions. This is a gratifying development, for reasons not only of justice, fairness, proportionality, and basic human decency, but also (perhaps) of doctrinal consistency. The Court’s choice to rely upon the Sixth Amendment is understandable and in many respects salutary. However, this choice is also in tension with the civil/criminal distinction, and it raises complex questions about the process that might be due deportees both in criminal courts and immigration proc...

SSRN Electronic Journal, 2003

and Nettie Dennis for inviting me to participate. I would also like to thank Raquel Aldana-Pindell, Sameer Ashar, and Kevin Johnson for useful advice on an early draft of this piece; Barbara Brunner for her invaluable research assistance; and most especially, my wife, Corie, my children, Ryan and Julia, and my family in the Philippines for their constant love and support. All errors that remain are mine alone.

International Journal of Discrimination and the Law, 2013

States across the United States are increasingly enacting harsh and punitive immigration laws to encourage what proponents refer to as self-deportation. This paper examines the ideological forces that are nurturing and legitimizing this movement. It specifically focuses on the notion of the good citizen as an ideological construct that inherently makes the undocumented immigrant a threat that must be neutralized for the sake of maintaining law and order. In this way, the good citizen emerges as a natural threat to the undocumented immigrant, as the good citizen is presumably first and foremost obligated to be law-abiding, including upholding laws that aim to push undocumented immigrants to self-deport. This paper looks at how these new immigration laws reify and expand this threat through the notion of good citizenship.

Migration Studies

Immigrant legalization policies pose an ethical dilemma between justice and the rule of law. On the one hand, liberal democracies aspire to the principles of individual liberty and equality. Building on liberal ideals of justice, compelling arguments have been made for granting legal status and a path to citizenship to unauthorized migrants by virtue of the social ties they have developed, their contributions to the host society, and their vulnerability to exploitation. On the other hand, legalization poses a challenge to another important value, the rule of law, which requires government to operate within a framework of law in accordance with well-established public norms. Immigrant legalization programmes are said to undermine the rule of law because they reward lawbreaking, allow queue-jumping, and incentivize further unauthorized migration. This article clarifies each horn of the dilemma, focusing on rule of law arguments. We offer a critical reappraisal of immigrant legalizatio...

In the absence of comprehensive immigration reform at the federal level, many American states and localities are undertaking their own legal reforms. The new state and local laws have been challenged by immigrant-rights organizations and individuals on the grounds that the federal government has already pre-empted the field. The lawsuits bring a new narrative voice—that of judges—into the boiling U.S. immigration debate. Judges engage the controversy over local enforcement of immigration enforcement, as they have other contentious disputes, both as pragmatic decision-makers and as spokespersons for justice. The tensions this dual role entails are explored here in the context of a single, controversial case. Close-up analysis of the judge’s narrative strategy reveals a range of specific techniques to create moral distance from a decision, combined, ironically, with the enlistment of moral themes to justify the ruling. The inter-twining of rule-of-law and justice rhetoric mirrors and ...

I also thank Michael Olivas for his warm hospitality and his persistence in having Latino issues addressed. The students of the Houston Law Review, especially Symposium Editor Jamie Miller and Chief Articles Editor Stephany LeGrand, have been spectacular. Thank you so much for everything, down to the smallest details, which did not escape notice.

Journal of Criminal Justice and Law, 2020

This paper analyzes the legitimacy of two U.S. Supreme Court decisions, Nielsen v. Preap and Barton v. Barr, against the principles expressed in Max Weber's theories regarding rational legal order and judicial legitimacy. The legitimacy of our judiciary depends on the public perception that it is a politically neutral, non-partisan arbiter of the rule of law in our society. When the Court is perceived as serving partisan interests, or promoting arbitrary action by the executive branch, its legitimacy is threatened. After careful exploration of the value of an impartial and politically neutral judiciary as seen through the lens of Weber's theories, the inescapable conclusion is that both the Nielsen v. Preap and Barton v. Barr rulings are neither just nor fair, and are harmful to the legitimacy of the judiciary. _______________________________________________________________________________ During the 2018 term of the United States Supreme Court, the Justices waded into the politically sensitive issue of immigration and deportation of permanent legal residents in the case of Nielsen v. Preap (2019). In the following 2019 term, the high court analyzed another challenge to the deportation of a permanent legal resident in Barton v. Barr (2020). The Department of Homeland Security under the mandated policies of the Trump Administration sought to remove resident aliens from the interior of the United States if they committed removable offenses. In 2019, 86% of persons arrested by ICE had criminal convictions or pending charges, and 85% of persons removed from the United States to their home nations had served time while in ICE custody (U.S. Immigration and Customs Enforcement, 2019). The immigrants in Nielson (2019) had been convicted of crimes, served their criminal sentences, and had been released. However, in subsequent years, the government claimed a right under federal statutory law to incarcerate the immigrants and denied them a bond hearing

Policy paper on American Immigration Policy, 2022

Department of Homeland Security of the United States is a federal agency of the American Government established after the September 11, 2001, terrorist bombing of the twin towers in New York, United States of America(Homeland Security Act, 2002). In addition to the terrorist prevention function of the Department of Homeland Security, the department is also responsible for coordinating with heads of the components, including United States Customs and Borders Protection and the United States Immigration and Customs Enforcement (Homeland Security Act, Section 210A (c) 2(D) &(E)). The Department of Homeland Security is responsible for preventing terrorist attacks in the United States of America through the collection of intelligence and coordination with federal, state, and local law enforcement agencies and other agencies through information sharing on persons or institutions believed to be terrorists or organizations, respectively that are planning or carrying out attacks on the soil of the United States( Department of Homeland Security Act, 2002). The practice and power delegated to the Department of Homeland Security on information sharing do not require consent from a suspected person before the agency gain access to the private information of a United States citizen or any person within the borders of the United States (Department of Homeland Security Act, 2002). Once the agency believes that a particular person of interest should be investigated based on information available to the agency that the person of interest is a suspected terrorist and or member of a terrorist cell operating in and out of America against the national security interest of the United States, the agency will be granted the right by court’s order without the person’s consent for the private information of the suspect to be turned over to the agency (Department of Homeland Security Act, 2002). This also extends to immigrants coming into the United States.

U.S. immigration control is typically understood in terms of enforcement practices undertaken by federal officers guided by legislation and court decisions. While legislation and court opinions are important components of the immigration control apparatus, they do not adequately account for immigration control 'on the ground.' To explore this problem, we advance the concept of paralegality, the practices and operations that constitute a dynamic system of actions and relationships that are not simply linear applications of legislation or judicial decisions but may in fact extend or counter these texts. We illustrate the importance of paralegality by reconstructing the evolution of the §287(g) and Secure Communities programs, both of which have shape-shifted dramatically since their inception. Our account of immigration control highlights the problem practice poses for law, proposes a theoretical alternative to textual-law-centric research on immigration and law enforcement, and contributes to scholarship on everyday citizenship.

ILSA Journal of International and Comparative Law, 2012

National-Security-5-21-09/ (last visited Mar. 30, 2012). 110. Id. ("First, whenever feasible, we will try those who have violated American criminal laws in federal courtscourts provided for by the United States Constitution"). 111. Id. ("Military commissions are an appropriate venue for trying detainees for violations of the laws of war").

2012

Eighty-four percent of immigrants appearing before immigration judges are unrepresented. Immigration judges are overwhelmed with the dual role of adjudicating cases and serving as counsel to pro se individuals appearing before them. In addition, due to the rising costs of retaining a lawyer, immigrants are turning to immigrant consultants. These incompetent and unscrupulous individuals are preying on vulnerable immigrants and engaging in the unauthorized practice of law.In addressing unmet legal needs for immigrants, most advocacy efforts for immigrants regarding the acquisition of competent representation focus on persuading the courts that immigrants appearing before an immigration judge have a constitutional right to government-paid counsel. This tactic has repeatedly failed.This Article, however, explores an alternative strategy -- expanding immigrants’ access to qualified and trained nonlawyer representatives. Increasing access to these accredited representatives would provide ...

Harvard Civil Rights-Civil Liberties Law …, 2007

In the last years of Chief Justice Rehnquist's tenure, the Supreme Court held that due process bars criminal prosecution of same-sex intimacy and that it is cruel and unusual to execute mentally retarded persons or juveniles. Each of the later decisions not only overruled precedents set earlier in Rehnquist's tenure, but also consulted international law as an aid to construing the U.S. Constitution. Analyzing that phenomenon, the article first discusses the underlying cases, then traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines backlash to consultation, and demonstrates that critics tended to overlook the Court's longstanding tradition of consulting external norms. The article gives the interpretive practice qualified approval. Thus it calls upon Justices both to articulate when it is appropriate to look to external sources and to set forth a framework for consultation. At a minimum, foreign jurisprudence ought to shed the light of experience on issues like those in the case before the Court; it must arise out of a legal culture that shares with the United States a commitment to fundamental rights; and the way in which the jurisprudence influenced the Court must be set forth in a reasoned explanation. Whether the Court would pursue such a path remained uncertain, however, as the era of the new Chief Justice began.

New England Law Review, 2011

Though widely heralded by immigration and human rights lawyers as a "landmark," possible "watershed," and even "Gideon decision" for immigrants, Padilla v. Kentucky is perhaps better understood as a Rorschach test, than as a clear constitutional precedent. It is surely a very interesting and important U.S. Supreme Court case in the (rapidly converging) fields of immigration and criminal law in which the Court struggles with the functional relationship between ostensibly "civil" deportation proceedings and criminal convictions. This is a gratifying development, for reasons not only of justice, fairness, proportionality, and basic human decency, but also (perhaps) of doctrinal consistency. The Court's choice to rely upon the Sixth Amendment is understandable and in many respects salutary. However, this choice is also in tension with the civil/criminal distinction, and it raises complex questions about the process that might be due deportees both in criminal courts and immigration proceedings.