De Facto Immigration Courts

De Facto Immigration Courts

This article explores one set of criminal law actors who have been quietly accumulating immigration screening power over the last several years-our nation’s inferior criminal courts and the prosecutors who rule them. By centering criminal courts, this article hopes to accomplish three things.  First, it hopes to show that delegation is no monolith.  Unlike other criminal law partners, who must do the Executive’s bidding, a state prosecutor’s virtual autonomy over charging decisions enable her to effectively dictate whether a particular noncitizen defendant will meet or avoid the fate of permanent banishment, even if doing so contradicts the express wishes of immigration officials.  Second, this article assesses criminal courts as institutions of mercy.  Because opportunities for mercy have been nearly written out of the immigration code, criminal courts present a tantalizing prospect for noncitizen defendants.  Such an inquiry is especially timely in light of the fact that state courts are now beginning to grapple with the aftermath of Padilla v. Kentucky.  This article argues that while criminal courts are well-situated to make equitable interventions, the design and practice of criminal law practice constrain the ability of prosecutors and defense lawyers to identify worthy candidates of mercy.  Finally, recognizing that many of the screening challenges facing criminal courts is on account of the de facto nature of their screening power, this article offers some thoughts on the way forward for courts should they begin the process of formally embracing their immigration powers.



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Bodies and Bureaucracy: Legal Sex Classification and Marriage-Based Immigration for Trans* People

In most jurisdictions in the U.S., a birth certificate’s sex marker as decided by the appearance of the infant’s genitals creates a rebuttable presumption of legal sex requiring specified (but widely varying) evidence to overcome. These requirements for recognition are generally illogical, inconsistent, and unattainable for most trans* people. As a result, the majority of […]

Why Treaties Can Abrogate State Sovereign Immunity: Applying Central Virginia Community College v. Katz to the Treaty Power

This Comment considers a fundamental question about the relationship between state and national sovereignty in our federal system: may individuals hold state governments accountable in federal court for violations of treaty-based rights? The answer to this question appeared to be negative until the Supreme Court decided Central Virginia Community College v. Katz, holding that state […]

Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law

This Article shows why criminal law should be regarded as parenting law, as child molestation statutes formally categorized as criminal statutes are increasingly being used to regulate parents’ behavior as they engage in mundane childcare practices. In the hands of legal decision-makers, these laws end up being enforced in ways that reinstantiate traditional gender norms. […]

A Fiduciary Theory of Judging

There are some fundamental questions of jurisprudence that have been with us from time immemorial. Cardozo started the modern conversation about the role of the judge in American democracy, but no one has been able to complete it. We have yet to uncover a satisfactory theory of judging that adequately accounts for the diverse, and […]