Works in Progress Group 14: Immigration and Organizing

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Session Type: Works-in-Progress

Session Capacity: N/A

Hotel: N/A

Room: Union Square 11

Floor: 4th Floor

Group #14: Immigration and Organizing

Tenant Union Law
Greg Baltz, Rutgers Law School

For the first time in forty years, new legislation requires landlords to collectively bargain with a tenant union as tenants’ chosen representative. But tenant unionism is not new. Without relying on any extensive statutory framework, tenant unions have gone on rent strike, employed eviction blockades, and lobbied in order to collectively bargain with landlords, keep members in their homes, and even take ownership of buildings for nearly a century. Yet, in contrast with labor law, which studies the legal relationships between employees, labor unions, and employers, scholars have not systematically studied the legal frameworks governing the relationships between tenants, tenant unions, and landlords since the early 1970s. There is no modern tenant union law. Instead, based on the similarity between tenant unions and labor unions, modern legal scholars have looked to labor law for beneficial and cautionary lessons for tenant unions. This Article inverts the typical framing, looking at tenant union law as its own expansive system. Through three case studies, it extrapolates two axes across which we can chart the maximal and minimal points of tenant union power as derived through law. It proceeds to demonstrate how these axes raise legal questions left unanswered by an analogy to labor law. The limits of the analogy illustrate how legal structures borrowed from labor law would be ineffective or unconstitutional, and hold the potential to undermine tenant unionism.

No Way to Plead the Fifth: The Denial of Competency Protections in Immigration Court
Diana Blank, University of Connecticut School of Law

The tension between the Supreme Court’s longstanding mandate that the Fifth Amendment’s Due Process Clause protects noncitizens in removal proceedings and its even longer-standing decree that respondents in removal proceedings are entitled to less process than criminal defendants is nowhere more glaring than in the paucity of competency protections accorded respondents in immigration court. Board of Immigration Appeals (BIA) precedent instructs immigration judges to conduct a two-pronged analysis consisting of a competency assessment, followed by an assessment of the “safeguards” adequate to enable an incompetent respondent to proceed to trial. No published BIA decision finds safeguards inadequate, and no circuit court decision questions the BIA’s holding that safeguards can rectify incompetence.

This paper examines this denial of process through the case of a congenitally deaf clinic client who never learned formal sign language during the critical developmental window. That deprivation irreparably interfered with his cognition, rendering him both incompetent and unrestorable, but did not assure him protection from proceeding to trial. This paper fills a gap in the existing literature by drawing on neuroscience research and the record in our clinic’s case to explore the incompetency presented by developmentally disabled respondents—as distinct from that of mentally ill respondents. Doing so throws into starker light the denial of the competency protections to all noncitizen respondents and the contrast with protections accorded criminal defendants—a grave denial since the burden of proof is on the respondent in removal proceedings.
Moderator and Discussant: Lori A. Nessel, Seton Hall University School of Law