Law Commons^™

Lethal Immigration Enforcement, Abel Rodríguez

Faculty Publications

Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853 border crossers died last year, and the deadliest known transporting incident took place in June 2022, with fifty-one lives lost. In addition, widespread neglect continues to cause loss of life in immigration detention, immigration enforcement agents kill migrants with virtual impunity, and immigration law ensures …

Legal Order At The Border, Evan J. Criddle

Faculty Publications

For generations, the United States has grappled with high levels of illegal immigration across the U.S.-Mexico border. This Article offers a novel theoretical framework to explain why legal order remains elusive at the border. Drawing inspiration from Lon Fuller’s “interactional view of law,” I argue that immigration law cannot attract compliance unless it is general, public, prospective, clear, consistent, and stable; obedience with its rules is feasible; and the law’s enforcement is congruent with the rules as enacted. The flagrant violation of any one of these principles could frustrate the development of a functional legal order. Remarkably, U.S. immigration law …

Non-State Actors "Under Color Of Law": Closing A Gap In Protection Under The Convention Against Torture, Anna R. Welch, Sangyeob Kim

Faculty Publications

The world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-state actors such as gangs, drug cartels, militias, and terrorist organizations is challenging states’ authority to control and govern torture committed within their territory.

In the United States, those seeking protection against deportation under the Convention Against Torture (“CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. However, what is …

Decitizenizing Asian Pacific American Women, Shoba Sivaprasad Wadhia, Margaret Hu

Faculty Publications

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws …

Preventing Predatory Alienation By High-Control Groups: The Application Of Human Trafficking Laws To Groups Popularly Known As Cults, And Proposed Changes To Laws Regarding Federal Immigration, State Child Marriage, And Undue Influence, Robin Boyle Laisure

Faculty Publications

In this article, I summarize some of the significant legal developments in the United States that have taken place within the past year. First, United States v. Raniere was a criminal case launched against the founder of a purported self-help organization, NXIVM, and several of his associates. The Raniere case established precedent for using the human-trafficking statutes, among other grounds, to pursue justice for victims of high-demand groups. Second, the number of asylum seekers is increasing annually, and some of these undocumented immigrants are escaping from their countries-of-origin cults, gangs, and other extremist groups. However, once they arrive in the …

The Case Against Prosecuting Refugees, Evan J. Criddle

Faculty Publications

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Build The Wall And Wreck The System: Immigration Policy In The Trump Administration, Ediberto Román, Ernesto Sagás

Faculty Publications

No abstract provided.

Enabling The Best Interests Factors, Adrián E. Alvarez

Faculty Publications

(Excerpt)

For over a century, state courts and other child welfare agencies in the United States have been applying the “best interests of the child standard” to all decision-making concerning children. The standard is also enshrined within the UN Convention on the Rights of the Child (CRC)—a treaty that every nation in the world has ratified except the United States. Notwithstanding its widespread adoption in family law, the standard is, with only a few exceptions, noticeably missing from American laws and policies pertaining to children in the immigration system.

There is a rich literature arguing that children should enjoy special …

Digital Internment, Margaret Hu

Faculty Publications

In Korematsu, Hirabayashi, and the Second Monster, Eric L. Muller explores whether Korematsu v. United States is dead post-Trump v. Hawaii, and whether by failing to strike down Hirabayashi v. United States, the “mother” of Korematsu and a “second monster” lives on. This brief response Essay contends that answering these questions first demands grasping how Trump v. Hawaiifailed to fully address the program implemented by the Muslim Ban–Travel Ban: Extreme Vetting. Extreme Vetting can be characterized as a form of “digital internment” through a complex web of cybersurveillance, administrative-imposed restraints, and “identity-management” rationales that are …

Legislating Morality: Moral Theory And Turpitudinous Crimes In Immigration Jurisprudence, Abel Rodríguez, Jennifer A. Bulcock

Faculty Publications

Congress could have framed the country’s immigration policies in any number of ways. In significant part, it opted to frame them in moral terms. The crime involving moral turpitude is among the most pervasive and pernicious classifications in immigration law. In the Immigration and Nationality Act, it is virtually ubiquitous, appearing everywhere from the deportability and mandatory detention grounds to the inadmissibility and naturalization grounds. In effect, it acts as a gatekeeper for those who wish to enter and remain in the country, obtain lawful permanent residence, travel abroad after admission, or become United States citizens. With limited exceptions, noncitizens …

(Un)Civil Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.

Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends …

Due Process And Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Policies restricting immigration and citizenship play a significant role in the current political environment. The implementation of the travel ban, litigation over DACA, and a narrowing of citizenship opportunities for members of the armed forces have all made headlines in the last two years. Along with those policies, the Trump administration has also significantly increased efforts to strip citizenship from individuals alleged to have gained it improperly.

Revocation of citizenship used to focus primarily on former Nazis and other war criminals hiding from justice in the United States. Now, through programs called Operation Janus and Operation Second Look, the Trump …

My Grandfather Was An Illegal Immigrant: Guest Opinion, Daniel Pollack-Pelzner

Faculty Publications

In this opinion piece originally published in the Oregonian, Daniel Pollack-Pelzner reflects on his grandfather's immigration status in light of the Trump administration's decision to end temporary protection for 200,000 Salvadoran immigrants who came to the United States without documentation.

Tips For Safety Planning For Children Of Undocumented Parents, Jennifer Baum

Faculty Publications

(Excerpt)

In 2013, more than 5 million children in the United States (over 7 percent of the total U.S. child population) were living with at least one undocumented parent, according to the Migration Policy Institute. The overwhelming majority of these children (80 percent) were U.S. citizens. The Washington Post reported that more than half a million of these children's parents have in fact been deported since 2009. That's a lot of U.S. children living day to day with the sudden loss, or risk of sudden loss, of a parent through deportation.

Can International Law Trump Trump's Immigration Agenda: Protecting Individual Rights Through Procedural Jus Cogens, S. I. Strong

Faculty Publications

Donald Trump's approach to immigration has been revolutionary, to say the least. In his short tenure in office, his policies banning travel of individuals from certain Muslim countries have been taken to the United States Supreme Court on two separate occasions, and his most recent technique of separating children from their parents at the border has already spawned litigation. His boldest proposal yet, however, involves the widespread denial of procedural rights to immigrants.In his words, "[w]hen somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came [sic]."

This Essay considers the …

Crimmigration-Counterterrorism, Margaret Hu

Faculty Publications

The discriminatory effects that may stem from biometric ID cybersurveillance and other algorithmically-driven screening technologies can be better understood through the analytical prism of “crimmigrationcounterterrorism”: the conflation of crime, immigration, and counterterrorism policy. The historical genesis for this phenomenon can be traced back to multiple migration law developments, including the Chinese Exclusion Act of 1882. To implement stricter immigration controls at the border and interior, both the federal and state governments developed immigration enforcement schemes that depended upon both biometric identification documents and immigration screening protocols. This Article uses contemporary attempts to implement an expanded regime of “extreme vetting” to …

Algorithmic Jim Crow, Margaret Hu

Faculty Publications

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …

The Tax-Immigration Nexus, Tessa R. Davis

Faculty Publications

Tax and immigration law have a shared interest in defining community. In order to implement a tax, we must know who belongs to the taxable community. At the same time, immigration law must define and administer the requirements for membership in the national community. Despite the differing objectives of tax and immigration law—raising revenue and deciding who may enter, remain, and become a citizen in the United States, respectively—both of these regimes uses a concept of citizenship to define their respective communities. Starting from this common thread of the relevance of citizenship to both immigration and tax law, this Article …

Birthright Citizenship Under Attack: How Dominican Nationality Laws May Be The Future Of U.S. Exclusion, Ediberto Román, Ernesto Sagas

Faculty Publications

Attacks on birthright citizenship periodically emerge in the United States, particularly during presidential election cycles. Indeed, blaming immigrants for the country’s woes is a common strategy for conservative politicians, and the campaign leading up to the 2016 presidential election was not an exception. Several of the Republican presidential candidates raised the issue, with President Donald Trump making it the hallmark of his immigration reform platform. Trump promised that, if elected, his administration would “end birthright citizenship.” In the Dominican Republic, ending birthright citizenship and curbing immigration are now enshrined into law, resulting from a significant constitutional redefinition of Dominican citizenship …

Book Review: Human Smuggling And Border Crossings, Rachel J. Wechsler

Faculty Publications

This is a review of Gabriella Sanchez's monograph, which challenges dominant narratives of human smugglers as violent members of organized criminal networks with qualitative research conducted with smuggling facilitators, their families, and those who utilized their services.

The Fifa World Cup, Human Rights Goals And The Gulf Between, Richard J. Peltz-Steele

Faculty Publications

With Russia 2018 and Qatar 2022 on the horizon, the process for selecting hosts for the World Cup of men’s football has been plagued by charges of corruption and human rights abuses. FIFA celebrated key developing economies with South Africa 2010 and Brazil 2014. But amid the aftermath of the global financial crisis, those sittings surfaced grave and persistent criticism of the social and economic efficacy of sporting mega-events. Meanwhile new norms emerged in global governance, embodied in instruments such as the U.N. Guiding Principles on Business and Human Rights (UNGP) and the Sustainable Development Goals. These norms posit that …

The Mirage Of Immigration Reform, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

Intergrating Skills And Collaborating Across Law Schools: An Example From Immigration Law, Anna R. Welch

Faculty Publications

This Essay discusses the design and implementation of introductory Immigration Law courses taught at two different law schools, Western State College of Law in Orange County, California and the University of Maine Law School in Portland, Maine. Although the courses took place on opposite coasts and did not engage in a formal partnership that was visible to students, the authors deliberately planned the courses in close collaboration with one another behind the scenes. In doing so, the courses shared the explicit goal of increasing students’ exposure to practical lawyering skills while reinforcing students’ understanding of the substantive immigration laws. This …

Members Only: Undocumented Students & In-State Tuition, Angela M. Banks

Faculty Publications

No abstract provided.

The Normative & Historical Cases For Proportional Deportation, Angela M. Banks

Faculty Publications

Is citizenship status a legitimate basis for allocating rights in the United States?

In immigration law the right to remain in the United States is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in the United States regardless of their actions. Noncitizens’ right to remain is less secure because they can be deported if convicted of specific criminal offenses. This Article contends that citizenship is not a legitimate basis for allocating the right to remain. This Article offers normative and historical arguments for a right to remain for noncitizens. This right should be granted to …

Umd Law Students Travel To Haiti On Fact-Finding Trip, Irene Scharf, Justin Steele

Faculty Publications

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.

Your View: The Stateless State Of Caribbean Residents, Irene Scharf

Faculty Publications

On the Caribbean island of Hispanola, shared by Haiti and the Dominican Republic, grave human rights concerns affecting those of Haitian descent living in the Dominican Republic have recently erupted. Over the years, thousands of Haitians have come to the Dominican Republic to work the farms there and provide cheap construction and other manual labor. Recently, with the economic and natural disasters that have befallen Haiti, more Haitians have been arriving in the Dominican Republic. Many have put down roots and are raising families. Today, an estimated 200,000 people born in the Dominican Republic have parents who were born in …

Un-Torturing The Definition Of Torture And Employing The Rule Of Immigration Lenity, Irene Scharf

Faculty Publications

In the first three sections, I examine the background of the Convention in the context of international human rights instruments (Section I); the context for a critique of the CAT’s definition of torture, given the legislative history of the Convention and an existing statute that could aid in correcting the misinterpretation adversely affecting CAT enforcement (Section II); and the adverse international implication of the United States’ restrictive meaning of torture (Section III). In a concluding section (IV), I offer possible solutions to the problem, invoking a robust principle of Immigration Lenity to prevent the return of potential torture victims to …

Closing The Schoolhouse Doors: State Efforts To Limit K-12 Education For Unauthorized Migrant School Children, Angela M. Banks

Faculty Publications

No abstract provided.

Reverse-Commandeering, Margaret Hu

Faculty Publications

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 anticommandeering 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 …