Law Commons^™

Critiquing Matter Of A-B-: An Uncertain Future In Asylum Proceedings For Women Fleeing Intimate Partner Violence, Theresa A. Vogel

University of Michigan Journal of Law Reform

The #MeToo movement has brought renewed attention to the impact of gender inequality on our society’s ability to provide protection to women from physical and sexual violence, including intimate partner violence. Despite advances in legal protections and increased resources to prevent, prosecute, and bring an end to intimate partner violence, in the absence of true efforts to combat gender inequality as a whole, intimate partner violence will continue to pervade our society. The discussion of gender inequality’s impact on the treatment of intimate partner violence must expand beyond the violence that occurs in the United States to gender inequality’s impact …

Between The Margins And The Mainstream: The Case Of Women's Rights, Hilary Charlesworth, Christine M. Chinkin

Book Chapters

This chapter investigates the conceptual limits of the field of women’s rights. It identifies two main currents of activity in the field: the elaboration of human rights standards, particularly through the UN Convention on the Elimination of All Forms of Discrimination against Women of 1979; and the development of the ‘Women, Peace and Security’ agenda by the UN Security Council since 2000. Both areas are limited in their understandings of the diverse lives of women. The chapter argues that campaigns for the recognition of women’s rights shuttle between the mainstream and the margins of international law and that the structural …

Treading On Sacred Land: First Amendment Implications Of Ice's Targeting Of Churches, Gabriella M. D'Agostini

Michigan Law Review

In the last few years, Immigration and Customs Enforcement (ICE) has begun to target religious institutions—specifically churches—as a means to find and arrest undocumented immigrants. This technique is in legal tension with the First Amendment rights of free exercise of religion and free association. It is unclear, however, how these legal rights protect those most affected by this targeting tactic: undocumented immigrants. Undocumented immigrants may lack standing to challenge ICE’s tactics on their own and may require the help of related parties to protect their interests.

This Note explores a potential solution to the ambiguity surrounding undocumented immigrants’ protection under …

Family Separation And The Triumph Of Cruelty, Richard A. Primus

Other Publications

Sometime in 1940, an 11-year-old refugee named Yudita Nisse reached the United States on a boat from Japan. Her Latvian-Jewish family had fled Nazi Germany east across the Soviet Union; the trip to North America was to have completed their escape. But the family had no legal authorization to enter the United States, so on arrival in Seattle they were locked up as illegal immigrants. They were eventually released, and Yudita later Anglicized her first name, becoming Judith. A second name change when she married made her Judith Shklar, and by that name she became the first woman ever to …

Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel

Michigan Journal of Race and Law

Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the Supreme Court determined …

Personal Jurisdiction And Aliens, William S. Dodge, Scott Dodson

Michigan Law Review

The increasing prevalence of noncitizens in U.S. civil litigation raises a funda-mental question for the doctrine of personal jurisdiction: How should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal juris-diction, in cases like Bristol–Myers Squibb Co. v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of personal jurisdiction over aliens. Under this theory, alienage status broadens the geographic range for mini-mum contacts from a single state to the whole nation. …

The Michigan Guidelines On Refugee Freedom Of Movement

Michigan Journal of International Law

Despite the clear legal foundation of refugee freedom of movement at international law, states are also committed to the deterrence of human smuggling and trafficking, to the maintenance of effective general border controls, to safeguarding the critical interests of receiving communities, and to effectuating safe and dignified repatriation when refugee status comes to an end. Legal obligations to respect refugee freedom of movement therefore co-exist with, and must be reconciled to, other important commitments.

Why Guidance From The Supreme Court Is Required In Redefining The Particular Social Group Definition In Refugee Law, Liliya Paraketsova

University of Michigan Journal of Law Reform

One of the most debated topics in refugee law has been the meaning of particular social group (PSG)—one of the five categories used to claim refugee status. In 2006, the Board of Immigration Appeals (BIA) adopted a narrower PSG definition. Since that adoption, a circuit split has persisted over the meaning of PSG. Two circuits in particular have continually refused to adopt this definition—even when the BIA attempted to revise the definition in response to their criticism. This Note proposes a reform that would include a compromise between the two current definitions of PSG by rejecting the BIA’s particularity requirement …

Restoring A Willingness To Act: Identifying And Remedying The Harm To Authorized Employees Ignored Under Hoffman Plastics, Rita Trivedi

University of Michigan Journal of Law Reform

Part I of this Article provides a background for both the NLRA and the IRCA. It examines the goals and remedies of both statutes as well as the impact of the Supreme Court’s Hoffman decision on available remedies.

Part II addresses the currently-skewed remedial incentives. It considers why employers are tempted to hire unauthorized workers and commit unfair labor practices that are then inadequately remedied, which creates a situation that adversely effects the rights of authorized employees.

Part III more closely analyzes this consequential harm. This Part identifies the erosions on the NLRA’s collective nature and the impact on authorized …

Special Feature: Eighth Colloquium On Challenges In International Refugee Law, James C. Hathaway

Michigan Journal of International Law

It is our hope that, as in the case of earlier Michigan Guidelines on the International Protection of Refugees, these unanimously agreed standards will inspire a thoughtful and principled debate among scholars, officials, and judicial and other refugee law decision-makers committed to the legally accurate and contextually sound application of international refugee law norms.

Refugees And The Right To Freedom Of Movement: From Flight To Return, Marjoleine Zieck

Michigan Journal of International Law

This background study focuses on the right to freedom of movement of refugees. It reviews the law pertaining to this freedom from the perspective of the spatial journey of refugees. This focus on the law means that extralegal considerations will not be taken into consideration. The analysis will not proceed from any perceived need for limits that should be accepted as “a product of realism about the strains that migration, especially high-volume migration or sudden influxes, can bring to a society.”

A Modest Memo, Yxta Maya Murray

Michigan Journal of Race and Law

A Modest Memo is a satire in the form of a legal memo written for President-Elect Donald Trump circa November 2016. It counsels Mr. Trump to obtain Mexican funding for a United States-Mexico “Wall” via United Nations Security Council sanctions. These sanctions would freeze remittances (that is, “hold them hostage”) until Mexican President Enrique Peña Nieto wired the United States sufficient monies for construction. The memo, which is entirely the product of my imagination and legal study, contemplates one of the many possible worst case scenarios threatened by the Trump presidency. Through the arts of law and literature, I aim …

Executive Disorder: The Muslim Ban, Emergency Advocacy, And The Fires Next Time, Abed Ayoub, Khaled Beydoun

Michigan Journal of Race and Law

On January 27, 2017, one week into his presidency, Donald Trump enacted Executive Order No. 13769, popularly known as the “Muslim Ban.” The Order named seven Muslim-majority nations and restricted, effective immediately, the reentry into the United States of visa and green card holders from these states. With the Muslim Ban, President Trump delivered on a central campaign promise, and as a result, injected Islamophobia into American immigration law and policy.

The Muslim Ban had an immediate impact on tens of thousands of Muslims, directly affecting U.S. visa and green card holders currently outside of the country, while exacerbating fear …

Ms-13 As A Terrorist Organization: Risks For Central American Asylum Seekers, Jillian Blake

Michigan Law Review Online

In its first year, the Trump Administration has used aggressive rhetoric in a crusade against the transnational gang MS‑13. In April, Attorney General Jeff Sessions called MS‑13 “one of the most violent gangs in the history of our country” and said that the gang “could qualify” as a terrorist organization. Since then, the administration has put its fight against MS‑13 at the front and center of its agenda. In a speech this summer, President Donald Trump called MS‑13 gang members “animals” and vowed to “dismantle, decimate and eradicate” their operations. The president has also used the threat posed by MS‑13 …

War/Crimes And The Limits Of The Doctrine Of Sources, Steven R. Ratner

Book Chapters

International humanitarian law (IHL) and international criminal law (ICL) are the product of lawmaking processes that are not captured in the black-letter doctrine of sources under which Article 38 of the ICJ Statute is the rule of recognition for international law. Despite efforts by certain institutional players and scholars to place these two regimes squarely within Article 38, both remain distinct in terms of how actors determine whether a purported rule is a legal rule. These distinctions constitute a challenge to the idea of a unified rule of recognition and argue instead for looking for indicators (not rules) about a …

Proposing A One-Year Time Bar For 8 U.S.C. § 1226(C), Jenna Neumann

Michigan Law Review

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires federal detention of certain deportable noncitizens when those noncitizens leave criminal custody. This section applies only to noncitizens with a criminal record (“criminal noncitizens”). Under section 1226(c), the Attorney General must detain for the entire course of his or her removal proceedings any noncitizen who has committed a qualifying offense “when the alien is released” from criminal custody. Courts construe this phrase in vastly different ways when determining whether a criminal noncitizen will be detained. The Board of Immigration Appeals (BIA) and the Fourth Circuit read “when …

Reconciling Expectations With Reality: The Real Id Act's Corroboration Exception For Otherwise Credible Asylum Applicants, Alexandra Lane Reed

Michigan Law Review

The international community finds itself today in the throes of the largest refugee crisis since World War II. As millions of refugees continue to flee violence and persecution at home, the immediate concern is humanitarian, but in the long-term, the important question becomes: What are our obligations to those who cannot return home? U.S. asylum law is designed not only to offer shelter to legitimate refugees, but also to protect the country from those who seek asylum under false pretenses. Lawmakers and policymakers have struggled to calibrate corroboration requirements for asylum claims with the reality that many legitimate asylum seekers …

Should We Presume State Protection?, James C. Hathaway, Audrey Macklin

Articles

Professors Hathaway and Macklin debate the legality of the “presumption of state protection” that the Supreme Court of Canada established as a matter of Canadian refugee law in the Ward decision. Professor Hathaway argues that this presumption should be rejected because it lacks a sound empirical basis and because it conflicts with the relatively low evidentiary threshold set by the Refugee Convention’s “well-founded fear” standard. Professor Macklin contends that the Ward presumption does not in and of itself impose an unduly onerous burden on claimants, and that much of the damage wrought by the presumption comes instead from misinterpretation and …

Pushing An End To Sanctuary Cities: Will It Happen?, Raina Bhatt

Michigan Journal of Race and Law

Sanctuary jurisdictions refer to city, town, and state governments (collectively, localities or local governments) that have passed provisions to limit their enforcement of federal immigration laws. Such local governments execute limiting provisions in order to bolster community cooperation, prevent racial discrimination, focus on local priorities for enforcement, or even to a show a local policy that differs from federal policy. The provisions are in the forms of executive orders, municipal ordinances, and state resolutions. Additionally, the scope of the provisions vary by locality: some prohibit law enforcement from asking about immigration status, while others prohibit the use of state resources …

A Global Solution To A Global Refugee Crisis, James C. Hathaway

Articles

The author argues that the time is right to change the way that refugee law is implemented. Specifically, Hathaway advocates a shift towards a managed and collectivized approach to the implementation of refugee protection obligations. He contends that while the obligations under the Convention remain sound, the mechanisms for implementing those obligations are flawed in ways that too often lead States to act against their own values and interests, and which produce needless suffering amongst refugees. The author concludes with a five-point plan to revitalize the Refugee Convention.

Productivity And Affinity In The Age Of Dignity, Stephen Lee

Michigan Law Review

This Review proceeds as follows. Part I summarizes The Age of Dignity. Part II explains how this segment of immigrant workers challenges the productivity/affinity binary that dominates immigration law’s formal migration rules. Part III shows how this binary sets up dual migration streams, both of which could account for future flows of care workers. As Part III shows, the example of the eldercare industry nicely illustrates how the employment based and family-based migration systems simply represent two different ways of filling labor needs. I then conclude.

Finality And Judicial Review Under The Immigration And Nationality Act: A Jurisprudential Review And Proposal For Reform, Jesi J. Carlson, Patrick J. Glen, Kohsei Ugumori

University of Michigan Journal of Law Reform

Under the Immigration and Nationality Act (INA), aliens may petition for judicial review of an adverse decision of the Board of Immigration Appeals (Board) as long as that decision constitutes a “final order of removal.” Usually it is not difficult to ascertain when an alien should file her petition: the thirty-day statutory filing deadline begins to run when the Board issues a decision that affirms the immigration judge’s removal order in its entirety. In some cases, however, an alien seeks multiple forms of relief from removal in a single proceeding. When that occurs, some forms of relief might be granted, …

Left Behind: The Dying Principle Of Family Reunification Under Immigration Law, Anita Ortiz Maddali

University of Michigan Journal of Law Reform

A key underpinning of modern U.S. immigration law is family reunification, but in practice it can privilege certain families and certain members within families. Drawing on legislative history, this Article examines the origins and objectives of the principle of family reunification in immigration law and relies on legal scholarship and sociological and anthropological research to reveal how contemporary immigration law and policy has diluted the principle for many families—particularly those who do not fit the dominant nuclear family model, those classified as unskilled, and families from oversubscribed countries—and members within families. It explores the ways in which women and children, …

Special Feature Seventh Colloquium On Challenges In International Refugee Law, James C. Hathaway

Michigan Journal of International Law

Refugee status at international law requires more than demonstration of a risk of being persecuted. Unless the risk faced by an applicant is causally connected to one of five specified attributes – his or her race, religion, nationality, membership of a particular social group, or political opinion – the claim to be a refugee must fail. Because the drafters of the Refugee Convention believed that the world’s asylum capacity was insufficient to accommodate all those at risk of being persecuted, they opted to confine the class of refugees to persons whose predicament stems from who they are, or what they …

Refugees Without Borders: Legal Implications Of The Refugee Crisis In The Schengen Zone, Bridget Carr

Michigan Journal of International Law

This Note will first examine current practices utilized by Member States and their strategic partners outside the Zone to manage flows of third-country nationals from the Middle East and North Africa. It will then explore how these practices are not compatible with principles of protection from degrading and inhuman treatment, non-refoulement, and non-discrimination as codified in the Schengen Borders Code, European Convention on Human Rights, and the Refugee Convention, among others. Finally, this Note will propose targeted reforms for the Schengen Zone’s internal and external border management aimed at protecting the human rights of displaced persons and modifying incentive structures …

The Michigan Guidelines On Risk For Reasons Of Political Opinion

Michigan Journal of International Law

The Convention relating to the Status of Refugees (“Convention”) recognizes as refugees those who, owing to a well-founded fear of being persecuted on the basis of inter alia “political opinion,” are unable or unwilling to avail themselves of the protection of their home country

Toward A New Framework For Understanding Political Opinion, Catherine Dauvergne

Michigan Journal of International Law

This paper was written to frame the work of the Seventh Colloquium on Challenges in International Refugee Law, held at the University of Michigan Faculty of Law, on March 27–29, 2015. To some extent, therefore, it has already served its purpose. It is somewhat tempting in the wake of the Colloquium to completely reconstruct the paper in light of the conversations and conclusions of that event. Such reconstruction, however, would be misleading. Instead, I have chosen to publish the paper in a form that is very similar to its earlier iteration, with a few corrections, clarifications, and explanatory notes about …

Black-Box Immigration Federalism, David S. Rubenstein

Michigan Law Review

In Immigration Outside the Law, Hiroshi Motomura confronts the three hardest questions in immigration today: what to do about our undocumented population, who should decide, and by what legal process. Motomura’s treatment is characteristically visionary, analytically rich, and eminently fair to competing views. The book’s intellectual arc begins with its title: “Immigration Outside the Law.” As the narrative unfolds, however, Motomura explains that undocumented immigrants are “Americans in waiting,” with moral and legal claims to societal integration.

An Administrative Stopgap For Migrants From The Northern Triangle, Collin Schueler

University of Michigan Journal of Law Reform

From 2011–2014, the United States Department of Homeland Security recorded an extraordinary increase in the number of unaccompanied children arriving at the southern border from Central America’s “Northern Triangle”—the area made up of El Salvador, Guatemala, and Honduras. In fact, in fiscal year 2014, United States Customs and Border Protection apprehended over 50,000 unaccompanied children from the Northern Triangle. That is thirteen times more than just three years earlier. This Article examines the intersecting humanitarian and legal crises facing these children and offers an administrative solution to the problem. The children are fleeing a genuine humanitarian crisis—a region overrun by …

Plenary Power Is Dead! Long Live Plenary Power, Michael Kagan

Michigan Law Review First Impressions

For decades, scholars of immigration law have anticipated the demise of the plenary power doctrine. The Supreme Court could have accomplished this in its recent decision in Kerry v. Din, or it could have reaffirmed plenary power. Instead, the Court produced a splintered decision that did neither. This Essay examines the long process of attrition that has significantly gutted the traditional plenary power doctrine with regard to procedural due process, while leaving it largely intact with regard to substantive constitutional rights.