Fall 2010

Crossing the Border: The Future of Immigration Law and Its Impact on Lawyers

On November 12, 2010, the New England Law Review held its annual symposium entitled, “Crossing the Border: The Future of Immigration Law and Its Impact on Lawyers.”  The symposium addressed timely issues in immigration reform, and proposed practical approaches to the U.S. Supreme Court’s 2010 Padilla v. Kentucky decision.

The first panel discussed immigration reform. Professor Fatma Marouf highlighted the pervasiveness of implicit bias in immigration courts and the toll that disparate resources and high caseloads take on the quality of judicial decision-making. Mr. Geoffrey Heeren discussed the development of legal aid in the United States, as well as the congressional bar that prevents legal aid organizations from representing illegal aliens. He suggested that reformers might find a foundation for their efforts within the due process and equal protection clauses of the U.S. Constitution.

Professor Jan C. Ting argued that despite U.S. efforts to appear tough on immigration, the United States “has the most generous immigration system in the world. Bar none.” He proposed that we either make the choice to completely open the borders, or—if an open immigration system cannot be established—implement a congressionally authorized numerical cap on immigrants. Ms. Alice Clapman concluded the first panel by discussing the significant challenges that mentally ill immigrants face in deportation proceedings, and highlighting the inconsistent approaches taken by immigration judges. She argued that in order to address this problem courts need a clear standard for competence; a protocol for dealing with mental issues once they arise; and duties to develop a record that documents evidence of mental incapacity.

The second panel discussed several of the questions the Padilla Court left unanswered. Professor Daniel Kanstroom focused on the future convergence of criminal and immigration law, the current state of professional norms, and the idea that legal status and territory might affect one’s right to counsel. He thought that Boumediene and the Guantanamo decisions will provide guidance in this area. Professor Maureen Sweeney discussed the disproportionality and lack of judicial discretion in immigration sentencing, and proposed congressional reform of deportation procedures. She emphasized the role that cooperation between, and education of, the criminal and immigration bars will play moving forward.

Professor Rachel Rosenbloom argued that Padilla brought less uniformity than its advocates believe. She stated that, though Padilla made some progress, without retroactivity that allows previously deported individuals to challenge their convictions, it may simply be an “empty promise.” Professor Tigren Eldred concluded the symposium by examining the decision’s impact on ineffective assistance of counsel claims. Because professional norms are ambiguous, he argued, a standard akin to that used in medical malpractice cases may have utility.

The Symposium was cosponsored by the Center for Law and Social Responsibility and the Immigration Law Section of the Boston Bar Association. This symposium was associated with the second issue of the Law Review’s current volume 45, which will include contributions from six of the panelists.

Panelists include:

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