Law Commons^™

Congress's Untapped Authority To Certify U Visas, Elora Mukherjee, Fatma Marouf, Sabrineh Ardalan

Faculty Scholarship

A crucial path to legal status for immigrant victims of crimes is the U visa, which Congress established with strong bipartisan support to protect victims of particular crimes who are helpful to law enforcement. Because the U visa was intended to encourage reporting of crimes, the application requires a certification form to be completed by a federal, state, or local authority that is investigating or prosecuting the alleged offense. Arbitrary and inconsistent certification decisions by state and local authorities make it especially important to identify relevant federal authorities that can serve as certifying authorities for U visas. This Piece argues …

The End Of Asylum Redux And The Role Of Law School Clinics, Elora Mukherjee

Faculty Scholarship

The Biden Administration has perpetuated many of the prior administration’s hostile policies undermining access to asylum at the southern border. This Essay first examines these policies and then identifies emerging opportunities for law school clinics to address these new challenges, including by serving asylum seekers south of the U.S.-Mexico border.

The Classic Arguments For Free Speech 1644-1927, Vincent A. Blasi

Faculty Scholarship

This chapter examines the classic arguments for freedom of speech. It traces the first comprehensive argument for freedom of speech as a limiting principle of government to John Milton’s Areopagitica, a polemic against censorship by a requirement of prior licensing in which Milton develops an argument for the pursuit of truth through exposure to false and heretical ideas rather than the passive reception of orthodoxy. Despite Milton’s belief in the advancement of understanding through free inquiry, he was far from liberal in the modern sense of that term and he did not, for instance, extend the tolerance he advocated to …

Major Federal Court Victory For Religious Liberty Rights Of Immigrants' Rights Activists, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

On Monday afternoon, February 3, 2020, U.S. District Court judge Rosemary Márquez issued a sweeping opinion in which she granted the religious liberty defenses raised by four activists working with the Southern Arizona group No More Deaths/No Más Muertes. The opinion reversed an earlier ruling in the case by Magistrate Judge Bernardo Velasco in which he had found the activists guilty of violating federal law for leaving water and food in the desert for migrants in the Cabrieza Prieta National Wildlife Area, a federally controlled refuge in the Southern Arizona desert where human remains of migrants are frequently found. The …

Covid-19 And Prisoners’ Rights, Gregory Bernstein, Stephanie Guzman, Maggie Hadley, Rosalyn M. Huff, Alison Hung, Anita N.H. Yandle, Alexis Hoag, Bernard E. Harcourt

Faculty Scholarship

As COVID-19 continues to spread rapidly across the country, the crowded and unsanitary conditions in prisons, jails, juvenile detention, and immigration detention centers leave incarcerated individuals especially vulnerable. This chapter will discuss potential avenues for detained persons and their lawyers seeking to use the legal system to obtain relief, including potential release, during this extraordinary, unprecedented crisis.

Coordinating Injunctions, Bert I. Huang

Faculty Scholarship

Consider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice – “Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do.

This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then …

Is Korematsu Good Law?, Jamal Greene

Faculty Scholarship

In Trump v. Hawaii, the Supreme Court claimed to overrule its infamous Korematsu decision. This Essay argues that this claim is both empty and grotesque. It is empty because a decision to overrule a prior case is not meaningful unless it specifies which propositions the Court is disavowing. Korematsu stands for many propositions, not all of which are agreed upon, but the Hawaii Court underspecifies what it meant to overrule. The Court’s claim of overruling Korematsu is grotesque because its emptiness means to conceal its disturbing affinity with that case.

Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, Henry P. Monaghan

Faculty Scholarship

Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020.

The Model International Mobility Convention, Michael W. Doyle

Faculty Scholarship

People are as mobile as they ever were in our globalized world. Yet the movement of people across borders lacks global regulation, leaving many people unprotected in irregular and dire situations and some States concerned that their borders have become irrelevant. And international mobility – the movement of individuals across borders for any length of time as visitors, students, tourists, labor migrants, entrepreneurs, long-term residents, family members, asylum seekers, or refugees – has no common definition or legal framework.

“You Will See My Family Became So American”: Immigration, Racial Visibility, And Specular Citizenship, Sherally Munshi

Studio for Law and Culture

This paper explores the vexed relationship between legal form and personhood that arises in the context of Indian immigration and naturalization in the early twentieth century. In 1932, Dinshah P. Ghadiali received notice that the government was seeking to cancel his citizenship on grounds of “racial ineligibility.” In his self-published writing about the trial, Ghadiali wondered whether he been singled out for persecution by professional rivals. In fact, he had been caught in a larger campaign to denaturalize citizens of Indian origin after the Supreme Court, in United States v. Bhagat Singh Thind (1923), determined that “Hindus” were racially ineligible …

Sharing The Risks And Rewards Of Economic Migration, Anu Bradford

Faculty Scholarship

International cooperation on economic migration has been difficult to achieve. The interests of emigration countries ("source countries") and immigration countries ("destination countries') seem impossible to align. These countries disagree on who should migrate: source countries resist migration that leads to a brain drain, while destination countries welcome these very migrants given that they are likely to be the most productive citizens and the least likely to become fiscal burdens on the destination country. In addition, destination countries resist migration that leads to domestic unemployment through labor replacement. As a result, international economic migration remains restricted at a substantial cost to …

Crime And Enforcement In Immigrant Neighborhoods: Evidence From New York City, Garth Davies, Jeffrey Fagan

Faculty Scholarship

Immigration and crime have received much popular and political attention in the past decade, and have been a focus of episodic social attention for much of the history of the U.S. Recent policy and legal discourse suggests that the stigmatic link between immigrants and crime has endured, even in the face of evidence to the contrary. This study addresses the relationship between immigration and crime in urban settings, focusing on areal units where immigrants tend to cluster spatially as well as socially. We ask whether immigration creates risks or benefits for neighborhoods in terms of lower crime rates. The question …

Love And War, Christina D. Ponsa-Kraus

Faculty Scholarship

Legal historians: Find a window to read Rose Cuison Villazor’s “The Other Loving,” published in the NYU Law Review last fall. Although Villazor, Associate Professor of Law at Hofstra, does not identify primarily as a legal historian, she has written more than one historical work well worth a read. An earlier article examined alien land laws in the United States, telling the story of Oyama v. California (1948), which held unconstitutional a provision of California’s Alien Land Law that discriminated against owners of property bought by parents who were ineligible to become U.S. citizens. This more recent article, in …

The Paradox Of Law Enforcement In Immigrant Communities: Does Tough Immigration Enforcement Undermine Public Safety?, David Kirk, Andrew V. Papachristos, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Frustrated by federal inaction on immigration reform, several U.S. states in recent years have proposed or enacted laws designed to stem the flow of illegal immigrants into the U.S. and to facilitate their removal. An underappreciated implication of these laws is the potential alienation of immigrant communities – even law abiding, cooperative individuals – from the criminal justice system. The ability of the criminal justice system to detect and sanction criminal behavior is dependent upon the cooperation of the general public, including acts such as the reporting of crime and identifying suspects. Cooperation is enhanced when local residents believe that …

"They Say I Am Not An American…": The Noncitizen National And The Law Of American Empire, Christina Duffy Ponsa-Kraus

Faculty Scholarship

The American papers sometimes contain tales about persons who have forgotten who they are, what are their names, and where they live. The Porto [sic] Ricans find themselves in the same predicament as those absent-minded people. To what nationality do they belong? What is the character of their citizenship? ... [l]f since they ceased to be Spanish citizens they have not been Americans [sic] citizens, what in the name ·of heaven have they been?

A House Still Divided, Clare Huntington

Faculty Scholarship

In response to Adam B. Cox, Immigration Law's Organizing Principles, 157 U. PA. L. REv. 341 (2008).

Adam Cox's Immigration Law's Organizing Principles contests the traditional view that immigration law and alienage law – in his terms, "selection rules" and "regulation rules" – are distinct categories with legal and moral salience. Building upon prior scholarship that also called the distinction into question, Cox offers important insights into why this dividing line does not have the sharp conceptual edges that the jurisprudence would suggest exist. Despite the analytical persuasiveness of Cox's argument, I am not convinced that it will destabilize the …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Faculty Scholarship

In Farmers Branch, Texas, the city council enacted a measure to fine landlords who rent their premises to unauthorized migrants, and in Arizona, the state legislature passed a law imposing stiff penalties on employers who intentionally or knowingly hire unauthorized migrants. In San Francisco, the board of supervisors passed a measure that bars law enforcement officers from inquiring into the immigration status of an individual in the course of a criminal investigation. In Alabama and Florida, state officials have entered into agreements with the federal government permitting state law enforcement officers to arrest and detain non-citizens on immigration charges. Other …

Untied States: American Expansion And Territorial Deannexation, Christina Duffy Ponsa-Kraus

Faculty Scholarship

At the beginning of the twentieth century the United States laid claim to an overseas empire, consolidating its victory in the Spanish-American War by adopting novel structures of colonial rule over a brace of newly acquired island territories. A set of Supreme Court decisions known collectively as the Insular Cases established the legal authorization for this undertaking. As the traditional story goes, they did so by holding that the U.S. Constitution did not "follow the flag" to the recently annexed possessions in the Pacific Ocean and the Caribbean Sea: thus unfettered, an ambitiously imperial nation could attend to the business …

Inter-American Court Of Human Rights Amicus Curiae Brief: The United States Violates International Law When Labor Law Remedies Are Restricted Based On Workers' Migrant Status, Sarah H. Cleveland, Beth Lyon, Rebecca Smith

Faculty Scholarship

Immigrant workers in the United States of America are among the most poorly paid and poorly treated in the workforce. Amici’s attempts to protect the rights of immigrants, including unauthorized workers, have been severely hampered by domestic U.S. laws that discriminate on the basis of alienage and immigration status, and especially by a recent decision of the United States Supreme Court in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002).

Immigrant workers in particular employment-related visa categories are explicitly excluded from the protections of certain U.S. labor and employment laws. So, too, immigrant workers …

Powers Inherent In Sovereignty: Indians, Aliens, Territories, And The Nineteenth Century Origins Of Plenary Power Over Foreign Affairs, Sarah H. Cleveland

Faculty Scholarship

Does the United States have powers inherent in sovereignty? At least since the 1819 decision in McCulloch v. Maryland, conventional wisdom has held that national government is one of limited, enumerated powers and exercises “only the powers granted to it” by the Constitution and those implied powers “necessary and proper” to the exercise of the delegated powers. All powers not delegated to the federal government are reserved to the states and to the people. In the 1936 decision in United States v. Curtiss-Wright Export Corp., however, the Supreme Court asserted that federal authority over foreign relations operated independently …

Give Me Liberty Or Give Me Death: Political Asylum And The Global Persecution Of Lesbians And Gay Men, Suzanne B. Goldberg

Faculty Scholarship

In a time marked by dramatic global change, women and men persecuted because they are lesbian or gay form part of the growing pool of international refugees. Their persecution takes the form of police harassment an assault, involuntary institutionalization and electroshock and drug "treatments," punishment under laws that impose extreme penalties including death for consensual lesbian or gay sexual relations, murder by paramilitary death squads, and government inaction in response to criminal assaults against lesbians and gay men. The survival of these women and men, like the survival of all refugees, depends on obtaining asylum outside the home country. Yet, …

Immigration Reform And Control Of The Undocumented Family, Carol Sanger

Faculty Scholarship

The Immigration Reform and Control Act of 1986 (IRCA), Congress' attempt to clean up the problem of illegal immigration in the United States, puts a great number of undocumented alien families, mostly Mexican, to a hard test. Under IRCA's amnesty provisions, every alien must individually meet the eligibility requirements, such as having lived in the United States since before January 1, 1982. But many aliens who satisfy these requirements have spouses or children who do not. Thus, while eligible aliens may adjust to a legal immigration status, their ineligible family members must either leave the United States or remain illegally, …