Foreword

CrossingtheBorder:TheFutureof
ImmigrationLawandItsImpacton
Lawyers

DINAFRANCESCAHAYNES

T
he American Dream is both a stereotype and a clich, but it also
holds truth. The United States is a nation of immigrants, a melting
pot,alandinwhicheveryoneissaidtobecapableofmanifestinghis
owndestiny.Whoamongusdoesnothaveatleastonegrandparentwhose
relatives immigrated? Today, the immigrants who work around us
highly skilled scientists, unskilled day laborers, nurses, teachers,
studentsare all drawn by the possibility of improving their own
circumstancesaswellasthoseoftheirprogenyinthelandofopportunity.
Thoseopportunitiesmaybelimited,however.Largelytrackingcurrent
public perception, the United States has employed various degrees of
receptivityandnonreceptivitytoimmigration.Atdifferentpointsintime,
fear has centered on: the floodgates opening to allow hordes of (insert
race, gender, or particular nationality here) migrants to overrun the
country and its resources; concern that migrants have nefarious motives
(communism, consorting with the enemy, and secretly aligning with
terrorists); and the taking of jobs from Americans who would otherwise
hold them. Accordingly, the United States has developed an incredibly
complex, utterly detailed, and sometimes inconsistent set of laws,
regulations, and procedures that are enacted by Congress and
implemented by no less than five federal executive agencies (the
Department of Homeland Security, the Department of State, the
Department of Justice, the Department of Labor, and Health and Human
Services). To make matters more complex, the judicial branch has

AssociateProfessorofLaw,NewEnglandSchoolofLaw;LL.M.GeorgetownUniversity
LawCenter;J.D.UniversityofCincinnatiCollegeofLaw;B.A.UniversityofDenver.

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interpretedtheConstitutionanditsvariousprotectionstoapplydifferently
topersonsbasedontheirimmigrationstatus.
Toregulatethiscomplexandinterconnectedwebofresponsibility,the
United States has also become a land of border fences, identity checkers,
and workplace and home raiders. We strive to keep out those who are
repugnant to our political ideals (people affiliating with communists),1
notions of security (people providing support to terrorist organizations),2
people we fear might deplete our benefits programs (poor people),3 and
peoplewhomightinfectus(thosewithcertaincommunicablediseases).4If
theymakeittotheUnitedStates,wethenstrivetodeportthosewhobreak
thelaw,5whoenteredwithoutpermission,6whobecameimpoverished,7or
who overstayed their welcome.8 Despite the words of Emma Lazarus,
inscribedatthefootoftheStatueofLiberty,wehaveneverwelcomedall
andcertainlynotallofthepoor.Sincewefirstbeganregulatingmigration,
wehavealwaysdeterminedthatsomepeopleshouldbeexcludedfromthe
privilegessharedbyothers.
Thus, regular discussion and debate emerges about who should be
admittedandhowmany?Whoshouldbepermittedtowork?Whoshould
beawardedtherighttoevenapplyforpermanentresidenceorcitizenship?
What level of legal advice are any of these noncitizens entitled to? This
latter question has seen some recent traction with the Supreme Courts
decisioninPadillav.Kentucky,9andseveralauthorsinthisissuelookatthe
extent to which the decision might actually impact immigration law and
proceedings. Daniel Kanstroom argues that although the case has been
widely touted as a landmark, possible watershed, and even Gideon
decision for immigrants, it is perhaps better understood as a Rorschach
testthanasaclearconstitutionalprecedent.RachelRosenbloomcautions
readerstobeclearaboutthelimitedreachofPadillav.Kentucky,reminding
us that for those already deported on constitutionally defective sentences
andpleas,thepracticallimitationsofpursuingaPadillaclaimfromoutside
ofthecountryrenderthedecisionoflittlepracticalconsequence.Maureen
Sweeney addresses the challenges of implementing the Courts decision,
includingthecomplexityoftheadviceandrepresentationitmandates,the
realities of limited financial resources, and the lack of existing legal

18U.S.C.1282(a)(3)(D)(i)(2006).

2Id.1282(a)(3)(B).

3Id.1282(a)(4).

4Id.1282(a)(1).

58U.S.C.1227(a)(2)(2006).

6Id.1227(a)(1)(A).

7Id.1227(a)(5).

8Id.1227(a)(1)(B).

9130S.Ct.1473(2010).
2011 Foreword 303

expertise. Specifically, she recommends crosstraining and collaboration

betweencriminallawandimmigrationlawpractitioners.
Manyimmigrationdebatesappeartobecenteredinpolicy,ratherthan
law,whichmakessensegiventhefactthatitisunclearwhetherthepower
to generally regulate immigration was even contemplated by the drafters
of the Constitution. Because of this, and because immigration removal
proceedings and applications for immigration benefits are matters of
administrative law, Congress and the administrative agencies have
tremendous discretion in determining how to respond to virtually every
matter related to immigration and noncitizens. On this issue, several
authors in this volume offer general recommendations for immigration
reform.AliceClapmanfocusesontheunmetneedsofdisabledormentally
incapacitated immigrants in immigration proceedings. Fatma Marouf
explorestheenormousandoftenunderreportedimpactofbias,prejudice,
andstereotypesinimmigrationproceedings.JanTingaskstheprovocative,
thousandpoundelephantintheroomquestion:Howmanyimmigrants
do we want to come to America each year? He addresses the value of
competing solutions: opening our borders to all comers and relying on
market forces to make rational decisions that elude legislators or
alternatively, instituting and enforcing a numerical limitation on
immigration.
Becauseoflegalambiguities,multiplelayersofdiscretion,andregular
policydebates,itcomesaslittlesurprisethatstateshavebeguntopressthe
federal government with the implicit threat: if you do not assist us in
providing services to the noncitizens within our state, we will pass our
own laws and take matters into our own hands. With the controversy
surroundingArizonas2010immigrationstatuteSB107010formingatimely
backdrop,theauthorshavejumpedintothefray,offeringtheirownvision
of what immigration reform should look like, even while expressing
skepticism that such a system will ever successfully overcome partisan
politics and be reformed. The authors in this issue also address a
watershedmomentforlawyers,bornoutoftheU.S.SupremeCourts2010
Padilla v. Kentucky decision. The contributors acknowledge what
immigrationpractitionershaveknownforsometimethatimmigrationis
incredibly complex and difficult to master, but the failure to do so spells
disasterfornoncitizenclients.

10S.B.1070,49thLeg.,2dReg.Sess.(Ariz.2010).