Immigration Courts as a
Veneer of Due Process: Adjudicating Unsubstantiated Gang Allegations
Saba Ahmed, University of the District of Columbia, David A. Clarke School
of Law
The
Department of Homeland Security accompanied this past year’s immigration
enforcement increase with stringent rhetoric and actions against immigrant
gangs, notably MS-13. As ICE officers cast a wide net to detain immigrant
youth, its attorneys allege gang membership in removal proceedings in
immigration court, often with little to no substantiation. Detained immigrants
in removal proceedings are severely disadvantaged by these allegations as many
forms of legal relief are discretionary. Additionally, because of the accepted
processes in immigration court, they are usually denied a meaningful
opportunity to address and rebut these allegations.
While
practitioners have sounded the alarm on DHS’ overuse of gang allegations –
decrying it as racial profiling, sharing information and advice, and training
colleagues to address unsubstantiated allegations – they operate within the
confines of immigration court practices. The article identifies that immigration
courts, by their very structure, are not set up to vindicate immigrants’
rights. The increasingly frequent use of unsubstantiated gang allegations
highlights the problems of pro se
appearances, lax evidentiary standards, and unchallenged deference to law
enforcement. The article notes that the more appropriate and, indeed,
successful venue has been federal court, where due process protections provide
a fair trial for immigrants.
Legitimating the
Immigrant Family
Gillian Chadwick, Washburn University School of Law
The concept
of legitimation represents a widening chasm at the intersection of immigration
and family law. The BIA and courts’ persistent reliance on legitimation as a
dispositive factor in determining who counts as a “real” family is increasingly
at odds with family law’s complex, nuanced, and ever-more inclusive vision of
family. The BIA and courts tend to significantly privilege parent-child
relationships linked by biological or pseudo-biological connection, despite the
INA’s reliance on state family law frameworks that have evolved beyond that
narrow idea. In the context of derivative citizenship, the exclusionary forces
at the heart of immigration law override family law’s inherent drive to include
children and protect families. Whether it is the intent or merely a biproduct
of a pretext driven by the exclusionary imperative of immigration law, the
result is the same: the BIA and courts cling to the otherwise obsolete notion
of legitimation, which has its roots in an archaic social norm designed to
control reproduction and with it, the female body. This paper argues that
immigration law should cede to family law’s inclusionary concept of the family,
pushing back against the inherent exclusionary interests at the heart of modern
immigration law.