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Thread: Article: Immigration Adjudication in an Era of Mass Deportation By Kevin R. Johnson

  1. #1

    Article: Immigration Adjudication in an Era of Mass Deportation By Kevin R. Johnson

    Immigration Adjudication in an Era of Mass Deportation


    Here is an
    outline of my presentation at the Section on Immigration Law Program on
    Immigration Adjudication in an Era of Mass Deportation, Association of
    American Law Schools 2018 Annual Meeting

    The program focused on immigration adjudication and its transformation
    during President Trump’s first year in office. The Trump administration has
    sought to influence immigration adjudication through

    1. Increasing cases coming into the removal system through aggressive
      enforcement; and

    1. Facilitating the disposition of cases. For example, Attorney General Jeff Sessions'
      December 2017

      memorandum encourages the “prompt resolution of meritless cases.”

    These steps are consistent with President Trump’s immigration policy
    preferences of (1) increasing removals; and (2) decreasing legal
    immigration through tightening the visa process and other steps.

    During his first year in office, the three “travel” or “Muslim” ban
    executive orders were perhaps the Trump administration’s most high profile
    immigration enforcement initiatives. The travel bans are part of a series
    of immigration enforcement actions that have created considerable fear in
    immigrant communities.

    My focus here is on two other immigration enforcement executive orders
    issued in January 2017:

    1. href=""
      Border Security and Immigration Enforcement Improvements Executive

      [Border Security Order]; and

    2. href=""
      Enhancing Public Safety in the Interior of the United States
      Executive Order

      [Interior Enforcement Order].

    A number of provisions in those orders will directly and indirectly affect
    immigration adjudication. Here are a few:

    1. Limits on Prosecutorial Discretion

    Section 1 of the Interior Enforcement Order
    provides that there shall be no exemption of “classes or categories of
    removable aliens from potential enforcement.” Immigration agencies must
    “employ all lawful means to enforce the immigration laws.” Section 1
    foreshadowed the end of the Deferred Action for Childhood Arrivals (DACA)
    program. It is aimed toward expanding the numbers of noncitizens subject to
    removal, similar to the end of DACA and the end of temporary protected
    status for Salvadorans did.

    1. Revival of
      rel="wikipedia noopener noreferrer"
      title="Secure Communities and administrative immigration policies"
      Secure Communities

      and the Elimination of
      rel="wikipedia noopener noreferrer"
      title="Priority Enforcement Program"
      Priority Enforcement Program

    Section 10 of the Interior Enforcement Order
    reinstated Secure Communities, which President Trump discontinued in
    November 2014. Little attention has been paid to this development, which
    will likely increase the cases in the removal pipeline. Secure Communities
    had been severely criticized as overbroad. The program fed large numbers of
    petty criminals into the removal system. State and local resistance to
    Secure Communities led to its dismantling.

    1. Bringing Back 287(g) Agreements

    Interior Enforcement Order § 8
    brings back cooperative agreements between state, local, and federal
    government to enforce the immigration laws under Immigration and
    Nationality Act §287(g), which the
    Obama administration had largely abandoned. Civil rights concerns with
    state and local enforcement contributed to the abandonment of 287(g)
    agreement. The Trump administration hopes to enhance state and local
    cooperation and to increase number of removable noncitizens.


    . Expansion of
    rel="wikipedia noopener noreferrer"
    title="Expedited removal"
    Expedited Removal

    Expedited removal -- with limited rights for the noncitizens -- has been
    limited to noncitizens (1) apprehended within 100 miles of the U.S. border;
    and (2) in the country for less than two weeks. The rationale was that
    noncitizens in these categories had limited rights, given their short time
    in the United States, and necessarily few ties to the country.

    Border Security Order § 11
    eliminates the geographic limits to expedited removal and would make
    noncitizens in the country for up to two years subject to expedited
    removal. The order calls for the issuance of regulation to expand expedited
    removal along these lines. This would raise serious due process problems
    because it would bring immigrants with greater ties to the United States
    within the purview of expedited removal. See

    Landon v. Plasencia


    1. Immigrant Detention

    Detention long has been a tool of immigration enforcement, but noncitizens
    have been generally permitted to post a bond and be released from custody
    before a removal hearing. Border Security Order § 6 ends
    “catch and release” of immigrants and bonding out of custody after
    apprehension. It makes mandatory detention official federal policy.
    Detention has been challenged in many lawsuits, including in one before the
    Supreme Court. See

    Jennings v. Rodriguez.

    Detention is a way of streamlining the docket. If detained, a noncitizen is
    more likely to agree to “voluntary departure” and forego a full hearing on
    removal and possible relief from removal.


    Some of the Trump immigration measures are ill-conceived and weakly
    implemented. The first version of the travel ban arguably is an example.
    However, the two January 2017 immigration enforcement orders are more
    focused and directed when it comes to using the law and policy to (1)
    increase noncitizens in the removal system; and (2) facilitate removals.

    It is important to note that the
    rel="homepage noopener noreferrer"
    title="Executive Office for Immigration Review"
    Executive Office for Immigration Review

    is housed in the Justice Department. Attorney General Sessions has
    expressed strong views on immigration and is taking steps to facilitate
    removals through immigration court system. He is increasing pressures to
    dispose of cases and may limit the discretion of immigration judges to not
    enter removal orders though such devices as administrative closure.


    These issues are discussed in detail in an article to be published in a
    forthcoming immigration symposium of the
    rel="homepage noopener noreferrer"
    title="Santa Clara University School of Law"
    Santa Clara Law Review

    . Kevin R. Johnson,

    Immigration and Civil Rights in the Trump Administration: Law and
    Policy Making by Executive Order

    , 57 Santa Clara Law Review (forthcoming 2018).


    This post originally appeared on Law Professor Blogs © 2014-2017 by Law Professor Blogs, LLC. All rights reserved. Reprinted with permission.

    About The Author

    Kevin Johnson
    Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.Dean Johnson has published extensively on immigration law and civil rights. Published in 1999, his book How Did You Get to Be Mexican? A White/Brown Man's Search for Identity was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration Law and the US-Mexico Border (2011), received the Latino Literacy Now’s International Latino Book Awards – Best Reference Book. Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog. A regular participant in national and international conferences, Dean Johnson has also held leadership positions in the Association of American Law Schools and is the recipient of an array of honors and awards. He is quoted regularly by the New York Times, Los Angeles Times, and other national and international news outlets.

    The opinions expressed in this article do not necessarily reflect the opinion of

  2. #2
    Trump also made clear, on January 11, that he does not welcome legal immigration by brown-skinned citizens of "shithole countries" such as Haiti and those of the African continent. Is it just barely possible that there might just happen to be a slight connection between Trump's eagerness to kick millions immigrants of color out of the US and his adamant stand against letting non-white immigrants come to this country legally?

    Roger Algase
    Attorney at Law

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