New Immigration Articles

Here are some new immigration articles from the Social Science Research Network (www.sssrn.com):

“Reforming Criminal Indigent Defense in Louisiana – An Introduction to the Symposium and a Brief Exploration of Criminal Indigent Defense and its Relationship to Immigrant Indigent Defense” M. ISABEL MEDINA (Loyola-New Orleans)

This essay introduces the Loyola Journal of Public Interest Law symposium on criminal indigent defense in Louisiana held on April 4, 2008 to explore Louisiana legislative changes aimed at improving the system of providing indigent defendants facing criminal proceedings with counsel. The symposium featured local leaders in the criminal indigent defense system, including D. Majeeda Snead, Clinical Professor, Loyola University New Orleans College of Law and member of the newly created Louisiana Public Defender Board and G. Paul Marx, Executive Director for the Louisiana Public Defenders Association; and national experts, including Norman Lefstein, Professor of Law and Dean Emeritus at Indiana University School of Law-Indianapolis; National Legal Aid and Defender Association Director of Research and Evaluation David Carroll and Director of Defender Legal Services Richard Goemann; and Jonathan Rapping, Professor of Law and John Marshall Law School. Loyola’s symposium focused exclusively on systematic reform of public indigent criminal defense systems, in particular, as those reforms have developed in Louisiana. Given the increasing intermingling of immigration enforcement and criminal law enforcement, it is appropriate to explore the increasing need for legal assistance to immigrant populations in Louisiana who may be entitled to counsel at government defense to the extent they are prosecuted under a criminal statute, but who will lack any entitlement to counsel to assist them in defending their rights in the immigration context, and, thus, whose needs are not addressed by existing public defender systems. This essay briefly explores the increasing need for pro bono counsel to assist non-citizens facing removal from the United States in the Louisiana area; explains why the current system results in the majority of immigrants facing the removal process without legal assistance; and suggests that local and state bars should more aggressively encourage their members to undertake pro bono assistance of removal cases.

“A Clinical Model for Bringing International Human Rights Home: Human Rights Reporting on Conditions of Immigrant Detention” Seattle Journal for Social Justice, 2009 GWYNNE SKINNER (Willamette)  This article describes the model an international human rights clinic designed and implemented in preparing an international human rights report regarding the conditions immigrant detention at the Northwest Detention Center in Tacoma, Washington. This article describes the project’s design, why the project was chosen, and how it was developed. It also measures the project’s pedagogical outcomes against accepted legal clinical pedagogical principles.

“‘The Ring of Truth’: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations” International Journal of Refugee Law, Vol. 21, No. 1, 2009 JENNI MILLBANK (University of Technology, Sydney) Credibility assessment has always been a major issue in refugee determinations and its importance increases in the context of widespread introduction of ‘fast-track’ processes and the manifest trans-national trend to truncate (or indeed remove) avenues for review. This article explores the practice of credibility assessment in lower level tribunals using a case study of over 1000 particular social group ground (PSG) decisions made on the basis of sexual orientation over the past 15 years. Credibility played an increasingly major role in claim refusals, and negative credibility assessments were not always based on well-reasoned or defensible grounds. The article uses this specific case study in order to ground recommendations for structural and institutional change aimed at improving the credibility assessment process in refugee determinations more broadly. “Butchering Statutes: The Postville Raid and the Misinterpretation of Federal Law” Seattle University Law Review, Vol. 32, No. 3, 2008 PETER R. MOYERS, affiliation not provided to SSRN Email: peter.moyers@gmail.com On Monday, May 12, 2008, the Bureau of Immigration and Customs Enforcement led an immigration raid at the Agriprocessors, Inc. meatpacking plant in Postville, Iowa. The local U.S. Attorney’s Office pursued criminal complaints against approximately 300 migrant workers. The raid at Postville remains the nation’s largest criminal immigration raid. I aim to provide a detailed and accurate account of the investigation of Agriprocessors, the raid, the criminal prosecutions, the sentencings and the aftermath. In so doing, I argue that a confluence of factors explain the number of individuals arrested and the accelerated criminal proceedings. I describe how the investigation of Agriprocessors led to the raid and criminal prosecutions. I show that the defendants, though not technically coerced, were the victims of systemic coercion. Such systemic coercion produced prompt resolutions of their cases, which propelled the guilty pleas and sentencings. I then argue that the accelerated process was premised upon two flawed interpretations of federal law, without which the guilty pleas and removal orders could not have been achieved. First, the USAO employed section1028A(a)(1) of Title 18, aggravated identity theft, which imposes a two-year mandatory, consecutive sentence to any defendant convicted under it, to leverage expedited plea agreements. The interpretation is erroneous, because the statute was intended to cover only true identity thieves, not those who did not know whether the means of identification they used belonged to another actual person. Second, I address section 1228(c)(5) of Title 8, judicial removal, which permits a federal district court to enter an order of removal against a criminal defendant as part of a plea agreement with the government. I argue that the district court improperly applied the statute, because the statute only applies to defendants who are lawfully admitted to the United States. The Agriprocessors employees were never lawfully admitted to the United States. Such orders of removal were invalid on their own terms. I argue that these mistaken applications of federal law are prone to repetition, because the relevant players cannot be relied upon to insist on the proper application of the operative statutes. Finally, I argue rectifications of these misinterpretations are likely to diminish the feasibility of future raids followed by imprisonment.

KJ