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- Shoba Sivaprasad Wadhia (7)
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Articles 1 - 30 of 42
Full-Text Articles in Law
Climate Change, Natural Disasters And Non-Refoulement: What Scope For Resisting Expulsion Under Articles 3 & 8 Echr?, Matthew Scott
Climate Change, Natural Disasters And Non-Refoulement: What Scope For Resisting Expulsion Under Articles 3 & 8 Echr?, Matthew Scott
Matthew Scott
This presentation sets out in brief the concepts of environmentally-related harm and climate change-related harm, and considers the extent to which individuals fearing such harm can resist expulsion by relying on Articles 3 and 8 of the European Convention on Human Rights. Recognising the limited scope of protection, the presentation summarises some potential arguments for extending the scope of protection by incorporating consideration of the role of anthropogenic climate change in the harm feared.
Umd Law Students Travel To Haiti On Fact-Finding Trip, Irene Scharf, Justin Steele
Umd Law Students Travel To Haiti On Fact-Finding Trip, Irene Scharf, Justin Steele
Irene Scharf
During spring break Professor Irene Scharf, director of the Immigration Law Clinic at the UMass School of Law in Dartmouth accompanied a group of UMass law students to the Dominican Republic to engage in fact-finding about the conditions of Haitians in the country. This piece was written by Scharf and Justin Steele, executive articles editor of the UMass Law Review.
The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf
The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf
Irene Scharf
The case alerted me to the continuing issue concerning the treatment of alleged violations of Fourth Amendment rights in immigration court, with this article the result of research conducted relating thereto. Beyond reviewing the relevant views of the federal courts of appeals; the administrative tribunal that handles appeals of immigration court cases, the Board of Immigration Appeals (BIA); and even local immigration courts; I consider whether the jurisprudence has remained static since the Supreme Court's watershed opinion on the issue about twenty-five years ago. I also offer suggestions as to how to effectively, fairly, and efficiently resolve the issues raised …
Ending Slavery: A Papal Mission, Anne T. Gallagher Ao
Ending Slavery: A Papal Mission, Anne T. Gallagher Ao
Anne T Gallagher
My weekend with Pope Francis
Border Searches In The Age Of Terrorism, Robert M. Bloom
Border Searches In The Age Of Terrorism, Robert M. Bloom
Robert Bloom
This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns will likely have …
Taking Responsibility For Climate Change-Related Displacement: Article 8 Of The European Convention On Human Rights And The Proportionality Of Expelling ‘Climate Refugees’, Matthew Scott
Matthew Scott
Climate change is already contributing to the displacement of millions of people worldwide by increasing the frequency and intensity of adverse weather events. Faced with a ‘protection gap’ in the international legal framework, proposals for responding to the phenomenon overwhelmingly rely on the State to act, with limited discussion of the potential to develop the scope of protection through litigation. Recognising the potential for litigation to address immediate protection needs whilst also developing the scope of protection more broadly, this discussion paper advances an interpretation of Article 8 of the European Convention on Human Rights that would require a ‘fair …
Enhancing Human Rights Through European Integration: How Recent Litigation Before The European Court Of Human Rights And The Court Of Justice Of The European Union Has Advanced European Aslyum Law, Clara Presler
Clara Presler
Recent case law from the two European courts charged with protecting human rights -- the European Court of Human Rights and the Court of Justice for the European Union -- reveals mutual influence that has enhanced protection of asylum seekers. The two courts’ willingness to engage in the other’s legal reasoning has resulted in rapid development in the areas of eligibility for asylum protection, detention of asylum seekers, and the Dublin II Regulation. This interplay has occurred despite the fact that the courts are not formally bound to each other, and each employs different procedures, mandates, and substantive law. In …
“Branded To Drive: Obstacle Preemption Of North Carolina Driver’S Licenses For Daca Grantees”, Tung Sing Wong Mr.
“Branded To Drive: Obstacle Preemption Of North Carolina Driver’S Licenses For Daca Grantees”, Tung Sing Wong Mr.
Tung Sing Wong Mr.
The article focuses on whether driver’s licenses that North Carolina recently issued to Deferred Action for Childhood Arrivals (DACA) grantees are obstacle preempted. DACA grantees do not have legal status, but are protected from removal. North Carolina issued new driver’s licenses that publicize the immigration status of DACA grantees. The issue is whether a state can publish the immigration status of individuals who do not have legal status in the U.S., but are nonetheless protected from removal. Additionally, the article explores how the interaction of the North Carolina licenses with 287(g), Secured Communities, and recent state law such as Arizona's …
Reverse-Commandeering, Margaret Hu
Reverse-Commandeering, Margaret Hu
Margaret Hu
Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anti-commandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration …
Report On The Free Movement Of Workers In Cyprus In 2012-2013, National Expert Report For The European Network On Free Movement Of Workers Within The European Union, Nicos Trimikliniotis
Report On The Free Movement Of Workers In Cyprus In 2012-2013, National Expert Report For The European Network On Free Movement Of Workers Within The European Union, Nicos Trimikliniotis
Nicos Trimikliniotis
The current economic crisis, particularly with the financial/banking crisis in March 2013, has produced a serious deterioration of the terms of the public debate: xenophobic and racist discourses are regular in the immigration and employment debates, directed against migrants, including Union citizens. As unemployment rises, anti-immigrant sentiments are being hyped by the media and certain politicians. As the economy has contracted . Moreover, public sector austerity measures to reduce the public debt and deficit have further deepened the slump. Also the crisis has brought more precarity, insecurity, use and abuse of undeclared work, particularly affecting EU workers. Since taking office …
The Crisis Of A Legal Framework: Protection Of Victims Of Human Trafficking In The Bulgarian Legislation, Vladislava Stoyanova
The Crisis Of A Legal Framework: Protection Of Victims Of Human Trafficking In The Bulgarian Legislation, Vladislava Stoyanova
Vladislava Stoyanova
The Council of Europe Group of Experts on Action against Trafficking in Human Beings reported that in Bulgaria no adult victim of human trafficking received any assistance and that no adult victim was granted a reflection period. A close examination of the Bulgarian legislative framework could explain this unpromising picture. In this article, I develop three arguments in relation to the Bulgarian legislation on protection of trafficked persons. First, in some respects, Bulgaria has failed to fulfil its international obligations. Second, the national legal framework regulating the conditions under which trafficked person are assisted and protected is surrounded by legal …
The Legitimacy Of Crimmigration Law, Juliet P. Stumpf
The Legitimacy Of Crimmigration Law, Juliet P. Stumpf
Juliet P Stumpf
Crimmigration law—the intersection of immigration and criminal law—with its emphasis on immigration enforcement, has been hailed as the lynchpin for successful political compromise on immigration reform. Yet crimmigration law’s unprecedented approach to interior immigration and criminal law enforcement threatens to undermine public belief in the fairness of immigration law. This Article uses pioneering social science research to explore people’s perceptions of the legitimacy of crimmigration law. According to Tom Tyler and other compliance scholars, perceptions about procedural justice—whether people perceive authorities as acting fairly—are often more important than a favorable outcome such as winning the case or avoiding arrest. Legal …
Specific Intent And The Purposeful Narrowing Of Victim Protection Under The Convention Against Torture, Mary Holper
Specific Intent And The Purposeful Narrowing Of Victim Protection Under The Convention Against Torture, Mary Holper
Mary Holper
Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (“CAT”) prevents removal of a person to a country where there is a substantial likelihood of torture. The U.S. ratified the CAT in 1994, yet modified the treaty’s definition of “torture” by inserting an understanding that “torture” includes only pain or suffering that is “specifically intended.” Specific intent, an antiquated criminal law term, has several different meanings in criminal law jurisprudence. In Matter of J-E-, the Board of Immigration Appeals in 2002 chose the most narrow definition of specific intent, “purposeful,” and …
The New Moral Turpitude Test: Failing Chevron Step Zero, Mary Holper
The New Moral Turpitude Test: Failing Chevron Step Zero, Mary Holper
Mary Holper
In the waning days of the Bush administration, Attorney General Michael Mukasey decided In re Silva-Trevino, in which he reversed over a century of immigration law precedent by creating a new moral turpitude test. He abandoned the well-entrenched "categorical approach," the mechanism by which immigration judges decide whether a noncitizen is removable for a criminal conviction, and allowed judges to engage in a factual inquiry of whether an offense involves moral turpitude. The Attorney General made such a broad, sweeping change through a process that allowed no input from affected parties, including the individual whose case became the new precedent. …
Deportation For A Sin: Why Moral Turpitude Is Void For Vagueness, Mary Holper
Deportation For A Sin: Why Moral Turpitude Is Void For Vagueness, Mary Holper
Mary Holper
A major problem facing noncitizen criminal defendants today is the vagueness of the term “crime involving moral turpitude” (CIMT) in deportation law. The Supreme Court in the 1951 case Jordan v. DeGeorge decided that a statute authorizing deportation for a CIMT was not void for vagueness because courts had long held the noncitizen’s offense, fraud, to be a CIMT, so he was on notice of his likely deportation. I argue that when noncitizens are charged with an offense that case law has not clearly delineated as a CIMT, the term is vague, since the definition used by the agency and …
Habeas Corpus Reform In El Salvador, Mary Holper
Habeas Corpus Reform In El Salvador, Mary Holper
Mary Holper
In this paper I compare the habeas corpus systems of El Salvador, the United States and Argentina. My purpose is to develop a general understanding of the procedure for bringing the writ in each country and analyze the substantive law governing the rights of habeas corpus petitioners in each country. I evaluate the systems against the backdrop of each country’s political and legal history with respect to the writ of habeas corpus. The ultimate aim of this paper is to reform the habeas corpus law of El Salvador by analyzing the Salvadoran system as compared to the Argentine and U.S. …
Overruling Precedent: "A Derelict In The Stream Of The Law", Michael Leroy
Overruling Precedent: "A Derelict In The Stream Of The Law", Michael Leroy
Michael H LeRoy
Will the Supreme Court overrule Hoffman Plastic Compounds v. N.L.R.B., 535 U.S. 137 (2002), its precedent that treats unlawful alien workers as criminals and denies them backpay for a violation of a labor law? More generally, what are the statistical indicators of a precedent that the Supreme Court overrules— and how well does Hoffman Plastic fit that profile? To answer these research questions, I analyze two unique databases— 128 federal and state rulings from 2002-2012 that involved Hoffman Plastic’s remedy issue, and a sample of 154 Supreme Court pairings of an overruled precedent, and the decision that explicitly …
Right To Asylum Under International Human Rights Law And Edward Snowden Case, Dr Nafees Ahmad
Right To Asylum Under International Human Rights Law And Edward Snowden Case, Dr Nafees Ahmad
Dr Nafees Ahmad
No abstract provided.
Will Padilla Reach Across The Border?, Rachel E. Rosenbloom
Will Padilla Reach Across The Border?, Rachel E. Rosenbloom
Rachel E. Rosenbloom
In Padilla v. Kentucky, the Supreme Court recognized a noncitizen criminal defendant’s Sixth Amendment right to receive accurate advice regarding the immigration consequences of a guilty plea. This Article argues that although Padilla represents a major step forward, its reach will be uneven. Looking at what Padilla will mean for those who have been deported on the basis of constitutionally defective guilty pleas, the author identifies two factors that may limit the decision’s impact. First, restrictions on state and federal postconviction relief, combined with the logistical and evidentiary complexities inherent in litigating a claim from abroad, will present significant obstacles …
Foreign Investment-Induced Migration In Colombia: Rethinking The Legal Schemes Of Protection And Accountability, Marco A. Velásquez-Ruiz
Foreign Investment-Induced Migration In Colombia: Rethinking The Legal Schemes Of Protection And Accountability, Marco A. Velásquez-Ruiz
Marco A. Velásquez-Ruiz
This paper intends to explore the relation between foreign investment and forced Migration in the context of Colombian armed conflict. Through the illustration of recent cases, it shows the various forms in which the operation of multinational corporations has generated adverse effects to the vulnerable communities located at their area of influence, thus generating processes of involuntary human mobility. In that way, it is established that there is a symbiotic relation between conflict and development, affecting the structure and scope of the norms for both the protection of forced migrants and accountability for human rights violations. This is so because …
The Role Of Prosecutorial Discretion In Immigration Law, Shoba S. Wadhia
The Role Of Prosecutorial Discretion In Immigration Law, Shoba S. Wadhia
Shoba Sivaprasad Wadhia
The concept of "prosecutorial discretion" appears in the immigration statute, agency memoranda and court decisions about select immigration enforcement decisions. Prosecutorial discretion extends to decisions about which offenses or populations to target; whom to stop, interrogate, and arrest; whether to detain or release a noncitizen; whether to initiate removal proceedings; and whether to execute a removal order; among other decisions. Similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving cost-effective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances. Yet there is a dearth of literature on the …
Social Protection Afforded To Irregular Migrant Workers: Thoughts On International Norms, The Southern African Development Community, Botswana And South Africa, Bruno Ps Van Eck, Felicia Snyman
Social Protection Afforded To Irregular Migrant Workers: Thoughts On International Norms, The Southern African Development Community, Botswana And South Africa, Bruno Ps Van Eck, Felicia Snyman
Bruno PS Van Eck
The majority of migrant workers target those countries in southern Africa that have stronger economies. Irregular migrants are in a particularly vulnerable position, and this article discusses the protection that this category of persons may expect to experience in the southern African region. The authors recommend that the broad notion of “social protection”, rather than the narrower concept “social security” should be emphasized. International, continental and regional instruments providing protection to irregular migrants are traversed and the constitutional and legislative frameworks in relation to social protection in Botswana and South Africa are compared. The article concludes that there are significant …
U.S. Asylum Law As A Path To Religious Persecution, Jack C. Dolance Ii
U.S. Asylum Law As A Path To Religious Persecution, Jack C. Dolance Ii
Jack C Dolance II
U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark however — at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion” — in whatever form that religion may take. In the asylum context, then, “religion” must be …
"Alien" Litigation As Polity-Participation: The Positive Power Of A "Voteless Class Of Litigants", Daniel Kanstroom
"Alien" Litigation As Polity-Participation: The Positive Power Of A "Voteless Class Of Litigants", Daniel Kanstroom
Daniel Kanstroom
No abstract provided.
Reclassifying "Terrorists" As Victims: Integrating Terrorism Analysis Into The Particular Social Group Framework Of Asylum, Emily Naser-Hall
Reclassifying "Terrorists" As Victims: Integrating Terrorism Analysis Into The Particular Social Group Framework Of Asylum, Emily Naser-Hall
Emily Naser-Hall
After the September 11th terrorist attacks at the hands of al-Qaeda operatives who slipped through the cracks of the US immigration system, immigration and asylum law became increasingly focused on ensuring that potential terrorists are not allowed into the United States. The USA PATRIOT Act and its subsequent legislation created what has become an unyielding bar to admission for any individual who is a member of a terrorist organization or who has committed terrorist activities. While the terrorism bar developed in response to real or perceived threats to US national security and has recently regained public light with the trial …
Are You A Terrorist Or An American?:An Analysis Of Immigration Lawpost 9/11: Introduction, Mark A. Drumbl
Are You A Terrorist Or An American?:An Analysis Of Immigration Lawpost 9/11: Introduction, Mark A. Drumbl
Mark A. Drumbl
No abstract provided.
Foia Request To Uscis On Deferred Action Records, Shoba Wadhia
Foia Request To Uscis On Deferred Action Records, Shoba Wadhia
Shoba Sivaprasad Wadhia
No abstract provided.
The Immigration Prosecutor And The Judge: Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia
The Immigration Prosecutor And The Judge: Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia
Shoba Sivaprasad Wadhia
Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these …
Wrongs Against Immigrants' Rights: Why Terminating The Parental Rights Of Deported Immigrants Raises Constitutional And Human Rights Concerns, Rachel C. Zoghlin
Wrongs Against Immigrants' Rights: Why Terminating The Parental Rights Of Deported Immigrants Raises Constitutional And Human Rights Concerns, Rachel C. Zoghlin
Rachel Claire Zoghlin
Since President Barack Obama first took office in January 2009, his administration has made immigration enforcement a top priority. In 2012, the U.S. government spent more money to deport immigrants – $18 billion – than on the FBI, Secret Service, DEA, U.S. Marshal Service and the Bureau of Alcohol, Tobacco, and Firearms combined. Since January 2009, the Obama administration has removed over 2.2 million immigrants. Of the over 211,000 individuals deported between January and June of 2011, nearly 22% (over 46,000) are parents of U.S.-citizen children. One collateral consequence of these deportations is that over 5,100 children have been placed …
Holodomor: Implications On A Neo-Soviet Ukraine, Laura Umetsu
Holodomor: Implications On A Neo-Soviet Ukraine, Laura Umetsu
Laura Umetsu
This paper delves behind the Holodomor as genocide, its ties to the lingering tensions between the Ukrainian and Jewish communities, and proposed introduction of its history into modern classrooms.