Categories

Number 1 January 2017
Number 2 March 2017
Number 3 May 2017
Number 4 July 2017
Number 5 September 2017
Number 6 November 2017

Fatma Marouf
Response to Professor Holper’s Article, Redefining “Particularly Serious Crimes” in Refugee Law
Response to Mary Holper, Redefining “Particularly Serious Crimes” in Refugee Law

An individual who faces a significant risk of persecution in her home country is barred from asylum in the United States if she is convicted of a “particularly serious crime” (“PSC”). Despite the grave consequences of such a conviction, there is relatively little scholarship exploring how a PSC should be defined. Professor Holper’s article, Redefining “Particularly Serious Crimes” in Refugee Law, makes an important contribution to the literature by showing how the historical trajectory of the PSC definition mirrors the “severity revolution” of the 1980s and 1990s in the criminal justice system. She persuasively argues that immigration law has gone astray by following in the footsteps of the severity revolution, which many agree has failed. Because an individual’s life is at stake in cases involving refugee protection, Professor Holper contends that PSC determinations should be narrower than classifications of dangerousness under federal bail law. This response seeks to develop the discussion in two ways. First, it addresses Professor Holper’s argument that the Board of Immigration Appeals (BIA) has expressed “mistrust” of criminal law judges by minimizing the importance of the length of a sentence in the PSC determination. I argue that the relationship between the immigration and criminal systems is complicated and cannot easily be categorized as one of trust or mistrust. I then address Professor Holper’s proposal and compare it to a proposal that I made recently in an article arguing that the PSC analysis should follow the categorical approach to analyzing convictions.
Read more.

Rebecca Sharpless
Balancing Future Harms: The “Particularly Serious Crime” Bar to Refugee Protection
Response to Mary Holper, Redefining “Particularly Serious Crimes” in Refugee Law

The particularly serious crime (PSC) analysis in U.S. immigration law stands as a gatekeeper to protection from persecution abroad. Asylum applicants who meet the definition of a refugee are statutorily disqualified from protection and deported if they have been convicted of a crime considered “particularly serious.” Because the phrase is nowhere defined in the Immigration and Nationality Act, the Board of Immigration Appeals and federal appellate courts have interpreted it through case law. Despite the immense importance of the topic, the concept of a PSC is rarely examined in the immigration scholarly world, perhaps reflecting the prevalent view that refugee protection and crime-based deportation are sharply distinct areas of inquiry. But as Professor Mary Holper points out in Redefining “Particularly Serious Crimes” in Refugee Law, the PSC inquiry is a critical “corner of” immigration law that implicates both refugee and “crimmigration” law. The question Professor Holper poses is when, if ever, we should send a person back to a country where it is likely that she will be harmed or killed, solely because she has been convicted of a crime in the United States. In other words, when does the moral, legal, and international law prohibition against deporting someone to persecution or death give way to a concern about the safety of our own community?
Read more.

Timothy Sandefur
Due Process and Agency: Compliments, Not Substitutes
Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care

In 1816, in answer to an inquiry from a lawyer, former president Thomas Jefferson wrote that the political writings of Aristotle, valuable as they may be in general, were “almost useless” for understanding practical political life under the U.S. Constitution. That was because while the ancient Greeks “had just ideas of the value of personal liberty,” they had not devised the mechanism of representation. Jefferson’s words are a useful reminder that our Constitution comprises elements devised over time through a process of abstract theory and historical experience. The Constitution itself establishes a multilayered system of protections in which federal branches not only check each other, but are also balanced against state-level institutions. In other words, the constitutional system has multiple layers, each of which involve legal protections for the citizenry. This is an important point to keep in mind when considering the duties and legal constraints on public officials such as discussed by Professors Gary Lawson and Guy Seidman in their article, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care. They are obviously correct that executive, legislative, and judicial officials are agents exercising powers delegated to them by the people in the Constitution. The founders took this for granted; they understood that the people are sovereign, and that government officials exercise power only as their agents.
Read more.

Sotirios A. Barber
Are Professors Lawson and Seidman Serious About A “Fiduciary Constitution”?
Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care

In By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care, Professors Gary Lawson and Guy I. Seidman elaborate part of their argument for a “fiduciary Constitution” that they put forward in their recent book for the University Press of Kansas. In this book, Professors Lawson and Seidman argue that the U.S. Constitution is best seen as a delegation of governmental powers to agents of the American people (i.e., the national government) to serve the interests of the American people. The book argues that power that is delegated by principals and accepted by agents imposes duties on the agents, duties that include loyalty to the principals and care for their well-being. To support this general theory of the Constitution, Professors Lawson and Seidman need have looked no further than the Declaration of Independence (second paragraph), the Constitution’s preamble, and Federalist No. 1. Though they cite the Constitution’s preamble and other agency tracts, like Locke’s Second Treatise, Professors Lawson and Seidman rely mostly on the 18th Century common law of agency. They cite numerous cases in this body of law and presume both its knowledge by, and its influence on, the general public of the founding era and the Committee of Detail of the Federal Convention of 1787. All of this raises a question: why the arcana of 18th Century private law for a proposition easily affirmed by the foundational documents of the American system?
Read more.

Allison Crennen-Dunlap & César Cuauhtémoc García Hernández
Pragmatics and Problems
Response to Mary Holper, Redefining “Particularly Serious Crimes” in Refugee Law

Born of an international commitment to avoid sending migrants to countries where they face persecution on a small set of protected bases, asylum law is one aspect of U.S. immigration law that purports to serve humanitarian purposes. Its humanitarianism is thwarted, however, when migrants who otherwise qualify for asylum or withholding of removal are deported because they have been convicted of a “particularly serious crime” (PSC), a sweeping term of art which bars an asylum claim. For some migrants, deportation results in death. As such, to serve asylum’s humanitarian aims, the PSC bar should be reserved for “extreme cases.” However, as Professor Mary Holper describes in her recent article, Redefining “Particularly Serious Crimes” in Refugee Law, as part of a ruthless trend in U.S. criminal justice and immigration policy some call “the severity revolution,” the PSC bar has become overly expansive, encompassing nonviolent offenses even where no incarceration results. Further, the approach immigration judges (IJs) use to determine whether an offense is a PSC produces inconsistent, unpredictable results, raising serious concerns for migrant criminal defendants deciding whether to accept a plea deal.
Read more.