Representing Noncitizens in the Context of Legal Instability and Adverse Detention Precedent
20 Pages Posted: 5 Apr 2024
Date Written: April 4, 2024
Abstract
Over the past fifteen years, the initiatives of the Katzmann Study Group on Immigrant Representation have worked to transform the landscape of immigrant representation, expanding access to qualified counsel first in New York and, over time, throughout the country. As we look for initiatives to yield better access to quality counsel in the years ahead, we must once again seek to understand the nature of the challenges to adequate immigrant representation. This Essay addresses three structural aspects of immigration law that have shifted in recent years and present important challenges for delivering adequate representation. The first is the rise of red-state lawsuits that lead to enormous unpredictability about the agency rules under which lawyers can expect to operate. The second is the individuation and constitutionalization of detention law, which is particularly challenging due to the increased transfer of detainees to remote locations. The third is the changing dynamic around choice of law for immigration courts and a disconnect between circuit court and U.S. Supreme Court decisions. This dynamic has created uncertainty about what circuit court rules apply and instability about what substantive rules will apply both in immigration court and on appeal. Each of these phenomena mean that lawyering for noncitizens facing removal is more complex than ever. Although there are opportunities embedded in some of these changes, there are also enormous hurdles that make the task of lawyering extremely complex. This Essay explores the nature of these challenges and suggests ways for legal organizations to prepare themselves for the new landscape.
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