Professor Jennifer Koh has published, When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement, 96 Wash. U. L. Rev. 337 (2018). The Article explores two of the most common forms of shadow removals (i.e., removals that bypass the immigration courts), expedited removal and reinstatement of removal, and the collision of the two. The Article traces the operation of the two removal processes, both independently and in combination with each other. It emphasizes the harsh statutory bars on judicial and habeas review, and the resulting inability of the federal judiciary to ameliorate the harshness of removal in this context. The Article then suggests that the use of reinstatement based on prior expedited removal orders fails the basic administrative law requirement that federal agencies demonstrate reasoned decision-making and avoid arbitrary or capricious action. Relying on the Supreme Court’s decision in Judulang v. Holder, which applied arbitrary and capricious review in the deportation context, the Article encourages courts to more closely scrutinize the use of reinstatement based on expedited removal.
On October 20, Professors Jennifer Koh and Sabrina Rivera spoke on a panel entitled, “Immigration Enforcement and the Rule of Law” at the Western Law Professors of Color/Conference of Asian Pacific American Law Faculty Conference at the UNLV Boyd School of Law. Professor Rivera shared her insights on immigration enforcement gained as a result of visiting immigrant detainees as the Theo Lacy Jail in Orange, California as well as her experience representing an individual with a viable claim to U.S. citizenship who had been detained by federal immigration authorities at that facility. Professor Koh shared her recent law review article, When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement, 96 Wash. U. L. Rev. 337 (2018), which examines the legal regimes governing expedited removal and reinstatement, and argues for the federal courts to use arbitrary and capricious review to invalidate the use of reinstatement based on prior expedited removal orders.
On October 11, Professor Jennifer Koh spoke on a panel entitled, “Bias in and Outside the Courtroom,” which explored implicit bias in the legal profession. The panel was organized by the Orange County Hispanic Bar Association, and was attended by a number of Western State Law students. The other panelists were Judge Elizabeth Macias, Judge Andrew de la Cruz, and attorney Daniel Alexander.
On October 9, Professor Jennifer Koh was featured on the radio show, “Ask A Leader,” aired on KUCI FM and hosted by Claudia Shambaugh. She spoke about Irvine Mayor Don Wagner’s attempt to place discussion of the California Values Act (SB 54), a law that limits local and state law enforcement’s involvement in federal immigration enforcement, on the agenda of the Irvine City Council. The show is available at: http://askaleader.com/?p=1443. Although the Irvine City Council meeting later that day was subsequently cancelled due to lack of a quorum, SB 54 was listed on its agenda for discussion at the time the show was aired.
On September 7, Professor Jennifer Koh filed an amicus brief to the Ninth Circuit Court of Appeals in support of rehearing en banc in Martinez-de Ryan v. Sessions, 895 F.3d 1191 (9th Cir. 2018), in which the court found in a published opinion that the immigration law definition of “crimes involving moral turpitude” did not violate the void for vagueness doctrine. The amicus brief, filed on behalf of national and regional organizations the American Immigration Lawyers Association, Florence Immigrant and Refugee Rights Project, Immigrant Legal Resource Center, National Immigration Project of the National Lawyers Guild and U.C. Davis Immigration Law Clinic, argued that the crime involving moral turpitude definition fails to provide the notice and fair enforcement required by the vagueness doctrine. Professor Koh co-authored the brief with Professor Evangeline Abriel, Clinical Professor at Santa Clara Law School. Western State student Juan Villanueva, who is currently enrolled in the Immigration Clinic, worked on the brief as well.
Professor Jennifer Koh has published an op-ed in the Los Angeles Times, which discusses the rise of deportations without court hearings. She co-authored with Professor Shoba Sivaprasad Wadhia, law professor at Penn State Dickinson School of Law. As they write, “Many Americans were outraged by President Trump’s recent tweet saying that people seeking to enter the United States should be deported ‘with no Judges or Court Cases.’ But the practice of deporting immigrants without seeing a courtroom is already the rule, not an exception. In the last eight years, more than half of people removed from the United States had no day in court; in 2015 and 2016, that number reached 85% of all removals….We hope the rest of the country can see that the right path forward is greater due process, not less.”