Law Commons^™

Challenging The Criminalization Of Undocumented Drivers Through A Health-Justice Framework, Jason A. Cade

Scholarly Works

States increasingly use driver’s license laws to further policy objectives unrelated to road safety. This symposium contribution employs a health justice lens to focus on one manifestation of this trend—state schemes that prohibit noncitizen residents from accessing driver’s licenses and then impose criminal sanctions for driving without authorization. Status-based no-license laws not only facilitate legally questionable enforcement of local immigration priorities but also impose structural inequities with long-term health consequences for immigrants and their family members, including US citizen children. Safe, reliable transportation is a significant social determinant of health for individuals, families, and communities. Applying a health justice lens …

Crimmigrant Nations: Resurgent Nationalism And The Closing Of Borders [Table Of Contents], Robert Koulish, Martje Van Der Woude

Law

As the distinction between domestic and international is increasingly blurred along with the line between internal and external borders, migrants—particularly people of color—have become emblematic of the hybrid threat both to national security and sovereignty and to safety and order inside the state. From building walls and fences, overcrowding detention facilities, and beefing up border policing and border controls, a new narrative has arrived that has migrants assume the risk for government sponsored degradation, misery, and death. Crimmigrant Nationsexamines the parallel rise of anti-immigrant sentiment and right-wing populism in both the United States and Europe to offer an unprecedented …

'Water Is Life!' (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade

Scholarly Works

Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy “dissent,” including blacklists, …

Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade

Scholarly Works

This Article focuses attention on two recent and notable federal court opinions considering challenges to Trump administration deportation decisions. While finding no statutory bar to the noncitizens’ detention and deportation in these cases, the court in each instance paused to highlight the injustice of the removal decisions. This Article places the opinions in the context of emerging immigration enforcement trends, which reflect a growing indifference to disproportionate treatment as well as enforcement actions founded on retaliation for the exercise of constitutional rights. Judicial decisions like the ones considered here serve vital functions in the cause of immigration law reform even …

Sanctuaries As Equitable Delegation In An Era Of Mass Immigration Enforcement, Jason A. Cade

Scholarly Works

Opponents of—and sometimes advocates for—sanctuary policies describe them as obstructions to the operation of federal immigration law. This premise is flawed. On the better view, the sanctuary movement comports with, rather than fights against, dominant new themes in federal immigration law. A key theme—emerging both in judicial doctrine and on-the-ground practice—focuses on maintaining legitimacy by fostering adherence to equitable norms in enforcement decision-making processes. Against this backdrop, the sanctuary efforts of cities, churches, and campuses are best seen as measures necessary to inject normative (and sometimes legal) accuracy into real-world immigration enforcement decision-making. Sanctuaries can erect front-line equitable screens, promote …

Deporting Undesirable Women, Pooja R. Dadhania

Faculty Scholarship

Immigration law has long labeled certain categories of immigrants "undesirable." One of the longest-standing of these categories is women who sell sex. Current immigration laws subject sellers of sex to an inconsistent array of harsh immigration penalties, including bars to entry to the United States as well as mandatory detention and removal. A historical review of prostitution-related immigration laws reveals troubling origins. Grounded in turn-of-the-twentieth-century morality, these laws singled out female sellers of sex as immoral and as threats to American marriages and families. Indeed, the first such law specifically targeted Asian women as threats to the moral fabric of …

Crimmigration: The Missing Piece Of Criminal Justice Reform, Yolanda Vazquez

Faculty Articles and Other Publications

Over the last decade, a new push for criminal justice reform has taken hold. While the moral and fiscal costs have been exorbitant over the last forty years, failing state budgets and bipartisan recognition of the “broken” system have finally caused legislatures, politicians, and advocates to reassess the costs and benefits of the criminal justice system. Breaking the “tough on crime/soft on crime” binary, the “smart on crime” motto has become a helpful tool in reform efforts aimed at reducing the number of individuals incarcerated and ensuring its fairness, regardless of race and socioeconomic status. Little attention, however, has been …

Challenging The "Criminal Alien" Paradigm, Angélica Cházaro

Articles

Deportation of so-called “criminal aliens” has become the driving force in U.S. immigration enforcement. The Immigration Accountability Executive Actions of late 2014 provide the most recent example of this trend. Even for immigrants’ rights advocates, conventional wisdom holds that if deportations must occur, “criminal aliens” should be the first to go. A voluminous “crimmigration” scholarship notes the ever-growing entwinement of criminal and immigration enforcement, but does not challenge this fundamental premise.

This Article calls for a rejection of the formulation of the “criminal alien”—the figure used to increasingly justify the preservation and expansion of a harmful immigration regime. It thus …

Crimmigration Creep: Reframing Executive Action On Immigration, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

In this Essay, I seek to build upon existing scholarship relating to DACA and DAPA, by offering an alternate lens through which to examine the programs. Specifically, I argue that DACA and DAPA, by naming and entrenching the “significant misdemeanor” bar to eligibility, contribute to a concerning expansion of “crimmigration law.” To be sure, neither program exists in codified law; nevertheless, the eligibility bars under DACA and DAPA are poised to wreak doctrinal havoc by upending the way particular criminal conduct is treated in the U.S. immigration system. In some respects, the DACA and DAPA bars are more stringent than …

Return Of The Jrad, Jason A. Cade

Scholarly Works

Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors. And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar, he recommended that the government not deport him, even though no legal rules provided him with a route to that result. This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime. Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability. …

The Life Of Crimmigration Law, César Cuauhtémoc García Hernández

Sturm College of Law: Faculty Scholarship

This short essay introduces a collection of articles that arose from the Denver University Law Review’s symposium Crimmigration: Crossing the Border Between Criminal Law and Immigration Law, held in February 2015 at the University ofDenver Sturm College of Law. The essay borrows heavily from the Epilogue to my book Crimmigration Law.

Substantive Due Process For Noncitizens: Lessons From Obergefell, Anthony O'Rourke

Journal Articles

The state of Texas denies birth certificates to children born in the United States — and thus citizens under the Fourteenth Amendment — if their parents are undocumented immigrants with identification provided by their home countries’ consulates. What does this have to do with same-sex marriage? In a previous article, I demonstrated that the Court’s due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This short essay builds upon my earlier analysis by examining Obergefell v. Hodge’s applications outside the context of same-sex marriage. Obergefell’s due process holding, I …

Slavery By Another Name: 'Voluntary' Immigrant Detainee Labor And The Thirteenth Amendment, Anita Sinha

Articles in Law Reviews & Other Academic Journals

During the McCarthy era, Congress passed an obscure law authorizing detained immigrants to work for a payment of one dollar a day. The government justified the provision, which was modeled after the 1949 Geneva Convention’s protections for prisoners of war, in the context of the period’s relative heightened detentions of noncitizens. Soon afterwards, the enactment of the Immigration and Nationality Act of 1952 diminished the use of detention drastically, and the practice of detainee labor lay dormant for decades. Modern changes to immigration law and its systems have rendered immigration detention today the largest mass incarceration movement in U.S. history. …

Constructing Crimmigration: Latino Subordination In A “Post-Racial” World, Yolanda Vazquez

Faculty Articles and Other Publications

Over the last forty years, the concern over the relationship between noncitizens and criminality has reached epic proportions. Laws, policies, procedures, and rules have been developed, the immigration and criminal justice system have been employed, and billions of dollars have been spent towards detecting, detaining, prosecuting, and removing those who are targeted as posing “the greatest threat to the nation.” As a result, a “new” phenomenon emerged, crimmigration, that not only redesigned the criminal and immigration systems, but also brought about a cultural transformation in the United State —restructuring social categories, diminishing economic and political power, and perpetuating the marginalization …

Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke

Journal Articles

The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This short Article offers a more rehabilitative reading of Windsor, and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.

From Windsor’s holding, the Article distills …

A Meditation On Moncrieffe: On Marijuana, Misdemeanants, And Migration, Victor C. Romero

Journal Articles

This essay is a brief meditation on the immigration schizophrenia in our law and legal culture through the lens of the Supreme Court’s latest statement on immigration and crime, Moncrieffe v. Holder. While hailed as a “common sense” decision, Moncrieffe is a rather narrow ruling that does little to change the law regarding aggravated felonies or the ways in which class and citizenship play into the enforcement of minor drug crimes and their deportation consequences. Despite broad agreement on the Court, the Moncrieffe opinion still leaves the discretion to deport minor state drug offenders in the hands of the federal …

Panel Discussion Iii: Recognizing And Addressing Immigration Concerns In The Criminal Process, Violeta Chapin, Dan Kesselbrenner, Christina Kleiser

Publications

No abstract provided.

Rebellious State Crimmigration Enforcement And The Foreign Affairs Power, Mary Fan

Articles

The propriety of a new breed of state laws interfering in immigration enforcement is pending before the Supreme Court and the lower courts. These laws typically incorporate federal standards related to the criminalization of immigration ("crimmigration'), but diverge aggressively from federal enforcement policy. Enacting states argue that the legislation is merely a species of "cooperative federalism" that does not trespass upon the federal power over foreign affairs, foreign commerce, and nationality rules since the laws mirror federal standards. This Article challenges the formalist mirror theory assumptions behind the new laws and argues that inconsistent state crimmigration enforcement policy and resulting …

Rolling Back The Tide: Challenging The Criminalization Of Immigrants In Washington State, Angélica Cházaro

Articles

No abstract provided.

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

All Faculty Scholarship

Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

Faculty Articles and Other Publications

Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

The Categorical Approach For Crimes Involving Moral Turpitude After Silva-Trevino, Pooja R. Dadhania

Faculty Scholarship

A conviction for a crime involving moral turpitude (CIMT) can result in harsh immigration penalties such as removal from the United States for noncitizens. The designation of a crime as a CIMT depends on whether moral turpitude inheres in its elements. Administrative adjudicators and federal courts have thus been using a categorical approach that focuses on the elements of a crime to determine whether it is a CIMT. Although variations in the categorical approach have developed among the circuits, the categorical approach has customarily employed two steps, both focusing on the elements of the conviction rather than the actions of …

Lessons Learned, Lessons Lost: Immigration Enforcement's Failed Experiment With Penal Severity, Teresa A. Miller

Journal Articles

This article traces the evolution of “get tough” sentencing and corrections policies that were touted as the solution to a criminal justice system widely viewed as “broken” in the mid-1970s. It draws parallels to the adoption some twenty years later of harsh, punitive policies in the immigration enforcement system to address perceptions that it is similarly “broken,” policies that have embraced the theories, objectives and tools of criminal punishment, and caused the two systems to converge. In discussing the myriad of harms that have resulted from the convergence of these two systems, and the criminal justice system’s recent shift away …