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Abstract:
Are too many individuals diverted from civil immigration adjudication? Each year, the government completes millions of diversions from civil immigration adjudication through explicit and implicit waivers, the expedited removal program and the increasing criminalization of immigration law.

By uncovering and analyzing this diversion phenomenon, this article exposes an important piece of the immigration adjudication problem that has been largely undiagnosed. While judges, scholars, government officials and practitioners have acknowledged serious problems within the civil immigration adjudication system, this article widens the view to incorporate the issue of whether too many are being sidetracked from the system altogether.

This article concludes that too many are being rerouted from the civil immigration adjudication system because some of the identified diversions are not true to the administrative process design criteria of efficiency, accuracy and acceptability. The government should reevaluate its efforts to steer foreign nationals away from civil immigration adjudication under the four guiding principles proposed here: (1) not all diversions are bad; (2) government coercion, misinformation or a lack of information should play no role in the diversion process; (3) no-option waivers should not be implemented and (4) open-ended, prospective waivers also should not be used.

immigration, judicial review, administrative adjudication, executive power, administrative law, administrative process design, separation of powers

Abstract:
The immigration class action, a form of action that litigants have used to achieve systematic reform, is under threat. This paper examines three threats to the immigration class action: (1) a general congressional willingness to restrict immigration judicial review; (2) the application of waivers of judicial review to immigration law and (3) legislative jurisdiction-stripping attacks more specific to the immigration class action. The general congressional willingness to strip immigration judicial review sets the atmosphere for proposals to require judicial review waivers as a condition of obtaining an immigration benefit and for jurisdiction-stripping legislation aimed more specifically at the class action.

The identification and analysis of these threats links the immigration class action to efforts to limit other types of class actions. It initiates a discussion about the threat presented by judicial review waivers, including the collective action waiver, to immigration class actions. The government has argued that the relationship between itself and a foreign national sounds in contract and that a judicial review waiver is simply a term of the contract. This paper argues that using the contract analogy to justify immigration judicial review waivers simply stretches the analogy too far while raising serious constitutional questions about congressional power.

Immigration, Class Actions, Judicial Review, Federal Courts, Jurisdiction, collective action waivers, judicial review waivers

Abstract:
Congress contemplated a drastic change during the 2005-2006 immigration reform debate that sought to narrow access to the federal courts: a proposed certificate of reviewability requirement. The requirement would compel foreign nationals subject to an administrative removal order to obtain permission from a single federal court of appeals judge to access the federal courts. The U.S. House of Representatives endorsed the requirement but the U.S. Senate dropped it from its slate of immigration reform priorities. Why did the requirement disappear from the Senate's agenda during an era of increased congressional restrictions on judicial review of immigration cases?

A definitive answer to such a question may be elusive, but this article sheds some light by examining the fate of the certificate of reviewability from a public policy perspective. This public policy perspective leads to two observations about the legislative history. First, the proponents of the requirement advanced a characterization of the underlying policy problem that conflicted with one advanced by federal court of appeals judges who testified before the Senate Judiciary Committee. There is evidence the judges' definition of the policy problem influenced the committee to turn its back on the requirement. Second, the Senate's attention to other immigration reform policy problems may have distracted the Senate from the requirement. This focus on other policy conflicts meant that the Senate was not attending to the certificate of reviewability.

What can the legislative history of a failed immigration jurisdiction-stripping provision reveal? By examining the legislative history through a public policy lens, this article enhances understanding of the legislative dynamic underlying an effort to strip immigration judicial review.

Immigration, Jurisdiction, Courts, Legislation

Abstract:
This article examines a statute that may embody another limit on the power of federal courts, 8 U.S.C. Section 1252(f)(1). Ultimately, resolution of the effect of this provision will implicate the ongoing scholarly debate over the constitutionality and propriety of congressional restriction of federal court review. Congress enacted this provision as a part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), an act that implemented sweeping changes that substantially restrict federal court review of administrative immigration decisions. Section 1252(f)(1) appears, at least at first glance, to prohibit courts from issuing class-wide injunctive relief in immigration cases. Such a restriction would be significant because federal courts have used Federal Rule of Civil Procedure 23 to issue class-wide injunctions to stop unconstitutional immigration practices and policies of the federal government. The Supreme Court has not yet directly interpreted this section. Taking a closer look at the text of this provision in the context of relevant Supreme Court precedent, this article suggests that the provision may not impose a broad bar against the use of class-wide injunctive relief in the immigration context and that interpreting the provision to impose such a broad bar may create a serious constitutional problem.