Threats to the Future of the Immigration Class Action
52 Pages Posted: 28 Oct 2007 Last revised: 23 Jul 2015
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.
Keywords: Immigration, Class Actions, Judicial Review, Federal Courts, Jurisdiction, collective action waivers, judicial review waivers
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