Immigration

The Trump administration removes noncitizens to third countries—places they may never have visited—based solely on diplomatic assurances, with no notice, no individualized assessment, and no judicial review. This Comment argues that 8 U.S.C. § 1231(b)(3)’s mandatory prohibition on removal to danger and the Fifth Amendment’s due process guarantee both require process-based judicial review of these determinations. Drawing on the CAT extradition framework and Mathews v. Eldridge, it proposes a four-factor test courts can apply without second-guessing executive foreign policy judgments. D.V.D. v. Department of Homeland Security, before the First Circuit at the time of writing, provides the vehicle.

Welcome to the Supreme Court’s emergency docket. Like the Twilight Zone, the emergency docket is “the middle ground between light and shadow,” and hence is the core of the so-called “shadow docket.” Commentators have criticized the Court’s shadow-docket interventions: Summary orders shirk the Court’s responsibility to resolve important legal issues in reasoned opinions informed by complete briefing and oral argument, are unwise because they risk premature decisionmaking before issues percolate in the lower courts, provide insufficient or confusing direction for lower courts, and undermine the Court’s legitimacy because of their “shadowy” deliberation. My big problem is that shadow-docket stays deeply (not just technically) undermine the rule of law and violently affect the lives of people like O.C.G. without sufficient legal justification.

Imagine you go to Toronto for a weekend trip with your family. While driving home to Detroit, a border agent pulls you aside, brings you into an isolated room, and asks you, seemingly out of nowhere, “How many times a day do you pray?”