Jan 8, 2014 Jill FamilyImmigration
In De Facto Immigration Courts, Stephen Lee untangles part of the thicket that is immigration law. Immigration law is a dense and unique fusion of administrative law, constitutional law, criminal law, and more. It is these intersections, in the context of the very human story of migration, which give immigration law its essence. Professor Lee’s article identifies and explores an underexposed phenomenon arising from immigration law’s dependence on criminal law and criminal procedure.
Professor Lee’s article focuses on how events in state and local criminal law proceedings affect eventual federal civil law agency removal (deportation) proceedings in immigration courts. Specifically, he looks at the impact of state and local prosecutors’ charging and plea choices in criminal cases in eventual agency immigration law proceedings. He argues that criminal court systems are functioning as de facto immigration courts.
Because immigration law has grown to depend on criminal convictions to determine who may legally enter and remain in the United States, what happens during a criminal case often will determine whether an individual is removable under the immigration statutes. The federal immigration statutes contain intricate formulations for determining whether a particular conviction falls into a category that makes a person removable. Because those formulations are known, the immigration consequences of any conviction are (or should be) a major factor in determining the outcome of a criminal case with a non-citizen defendant. Prosecutors may choose to charge tough or leniently, or to agree or disagree to certain plea deals with immigration consequences in mind. The Supreme Court recently recognized this power in Padilla v. Kentucky, but Professor Lee goes further by assessing the phenomenon. He evaluates a system where local law enforcement officials hold the power to “control the pool of removable immigrants.” Professor Lee shines a needed spotlight on this power, gives the phenomenon a name, and insightfully evaluates the trend.
The immigration statutes are harsh and complex when it comes to the consequences of criminal convictions. Shoplifting, for example, can qualify as an “aggravated felony.” Let me explain how. The immigration law definition of “aggravated felony” includes a theft offense where the “term of imprisonment” is at least one year. The phrase “term of imprisonment,” it so happens, ignores any suspensions and looks only at the term ordered. Also, in immigration law, a “conviction” includes a guilty plea. So, if an individual accepts a plea of shoplifting with a one-year suspended sentence, voilá, we have an aggravated felony. Therefore, a guilty plea to shoplifting, which may seem like an acceptable deal from a criminal law perspective, renders an individual deportable and ineligible for almost all forms of relief from removal as an aggravated felon. If the deal had been structured differently (for example, one day less than one year), the conviction would not qualify as an aggravated felony.
State and local prosecutors, of course, are essential players in structuring plea deals. By agreeing to one year or one day less than one year, they also determine removability. One of Professor Lee’s major contributions is that he recognizes that state and local prosecutors control the pool without federal executive branch oversight. This is not a delegation of executive power, as state and local prosecutors are carrying out their traditional criminal law function. State and local prosecutors do not need federal executive branch permission to charge in a certain way or to accept certain plea deals. In this way, however, they affect federal immigration enforcement. The choices of state and local prosecutors may not be in sync with federal enforcement policy, and Professor Lee has advanced immigration law scholarship by acknowledging and confronting this disconnect.
The power of state and local prosecutors over federal immigration law enforcement is not absolute. As Professor Lee explains, a prosecutor cannot force the federal government to initiate removal proceedings (although certain convictions may make removal proceedings almost guaranteed). The federal government regularly exercises prosecutorial discretion in deciding whether to initiate agency removal proceedings. The impact of state and local prosecutors may also be limited if a foreign national is removable for some other, non-criminal reason. Also, prosecutors may be influenced by a variety of constraining factors, such as a desire to maintain a good relationship with immigrant communities, the visibility and seriousness of the criminal activity, and resource limitations.
Beyond acknowledging and confronting the phenomenon of de facto immigration courts, Professor Lee explores how this reality might be improved. He recommends that Congress consider formalizing the role of criminal courts by reinstituting the JRAD (Judicial Recommendation Against Deportation). Under the JRAD regime, sentencing judges had the discretion to recommend against deportation. While Congress eliminated the power to make such recommendations in 1990, Professor Lee asserts that a revitalized JRAD power would provide some oversight over the gatekeeping power of prosecutors. Additionally, Professor Lee emphasizes a need to consider how state and local prosecutors engage in plea bargaining in cases with immigration consequences, including whether there should be more standardized practices.
Professor Lee’s work reveals that when Congress set up the immigration laws to rely on criminal convictions to determine who may join or who must leave our society, Congress in effect gave state and local prosecutors a major role in the selection process. This is an important discovery, for it calls into question the true nature of a conviction-based removal—is it based on an exercise of federal or state power? Administrative adjudication is also implicated. This is an area not fully explored by Professor Lee. If prosecutors hold the power to dictate whether someone is removable, that effectively neuters the administrative immigration courts. If immigration judges are powerless in the face of a conviction, then the role of immigration judges is simply to give effect to the result in state court. The immigration court system is effectively avoided if a prosecutor has achieved a result in the criminal court system that leaves nothing for an immigration judge to do.
Jan 5, 2014 A. Michael FroomkinLex
The Lex section provides a home to a group of legal topics tending to have less frequent publications than those covered in Jotwell’s many subject sections. Like other Jotwell sections, you can expect an annual contribution from each of the leading scholars listed in the right margin, with the introduction appearing at Jotwell.com and the full text here. we welcome unsolicited contributions that follow our author guidelines–but here they can review works covering any subject relevant to the law.
Jan 5, 2014 A. Michael Froomkin
Lex Editors
The Lex Editors each write at least one contribution (”jot”) per year in their field of expertise.
Arbitration
Professor Jan Paulsson
Michael Klein Distinguished Chair
University of Miami School of Law
Art & Cultural Property
Professor Stephen Urice
University of Miami School of Law
Education Law
Professor Osamudia James
University of Miami School of Law
Election Law
Professor Bertrall Ross
Executive Committee, Thelton E. Henderson Center for Social Justice
University of California Berkeley School of Law, Boalt Hall
Energy Law
Professor Felix Mormann
University of Miami School of Law
Environmental Law
Professor Eric Biber
University of California Berkeley School of Law, Boalt Hall
Professor Steve C. Gold
Rutgers University School of Law
Immigration
Professor Angela M. Banks
Cabell Research Professor of Law
William & Mary Law School
Professor Jill E. Family
Director, Law & Government Institute
Widener University School of Law
Professor Jaya Ramji-Nogales
Temple University Beasley School of Law
Professor Juliet Stumpf
Lewis & Clark Law School
Librarianship & Legal Technology
Dean Elizabeth Adelman
Director & Vice Dean for Legal Information Services
University at Buffalo
Dean Kristina Niedringhaus
Associate Dean of Library and Information Services
Georgia State University College of Law
Jan 5, 2014 A. Michael Froomkin
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
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Jan 5, 2014 A. Michael Froomkin
The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics can go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.
We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.
Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.
A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.
The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.
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