Law and Race Commons^™

Heeding The Voices Of Migrant Youth: The Need For Action, Randi Mandelbaum

Michigan Law Review

A Review of Unaccompanied: The Plight of Immigrant Youth at the Border. By Emily Ruehs-Navarro.

Status Manipulation In Chae Chan Ping V. United States, Sam Erman

Michigan Law Review

A Review of Chae Chan Ping v. United States. By Rose Cuison-Villazor in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 74, 84. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

Keeping Counsel: Challenging Immigration Detention Transfers As A Violation Of The Right To Retained Counsel, Natasha Phillips

Michigan Journal of Race and Law

In 2019 U.S. Immigration and Customs Enforcement (“ICE”) incarcerated nearly 500,000 individuals. More than half of the individuals detained by ICE were transferred between detention facilities, and roughly thirty percent of those transferred were moved between federal circuit court jurisdictions. Detention transfers are isolating, bewildering, and scary for the detained noncitizen and their family. They can devastate the noncitizen’s legal defense by destroying an existing attorney-client relationship or the noncitizen’s ability to obtain representation. Transfers also obstruct the noncitizen’s ability to gather evidence and may prejudicially change governing case law. This Note describes the legal framework for transfers and their …

“We Are Asking Why You Treat Us This Way. Is It Because We Are Negroes?” A Reparations-Based Approach To Remedying The Trump Administration’S Cancellation Of Tps Protections For Haitians, Sarah E. Baranik De Alarcón, David H. Secor, Norma Fuentes-Mayorga

Michigan Journal of Race and Law

This Article places the Trump Administration’s decision to cancel TPS for Haitians within the longer history of U.S. racism and exclusion against Haiti and Haitians, observes the legal challenges against this decision and their limitations, and imagines a future that repairs the harms caused by past and current racist policies. First, this Article briefly outlines the history of exclusionary, race-based immigration laws in the United States, and specifically how this legal framework, coupled with existing anti-Black ideologies in the United States, directly impacted Haitians and Haitian immigrants arriving in the United States. Next, the Article provides an overview of the …

In Fear Of Black Revolutionary Contagion And Insurrection: Foucault, Galtung, And The Genesis Of Racialized Structural Violence In American Foreign Policy And Immigration Law, Ciji Dodds

Michigan Journal of Race and Law

This article investigates the power relation between the political anatomy of the Black soul and non-somatic expressions of white supremacy-based violence. Utilizing Michel Foucault’s theories of discipline and punishment in conjunction with Johan Galtung’s theory of structural violence, I posit that the exercise of state-sanctioned discipline and punishment in furtherance of white supremacy constitutes racialized structural violence. Thus, this article contributes to the current public discourse concerning the role white supremacy plays in America by establishing a new construct that can be used to dissect the nature of racial oppression.

Furthermore, this article analyzes the genesis and construction of racialized …

Toward A Race-Conscious Critique Of Mental Health-Related Exclusionary Immigration Laws, Monika Batra Kashyap

Michigan Journal of Race and Law

This Article employs the emergent analytical framework of Dis/ability Critical Race Theory (DisCrit) to offer a race-conscious critique of a set of immigration laws that have been left out of the story of race-based immigrant exclusion in the United States—namely, the laws that exclude immigrants based on mental health-related grounds. By centering the influence of the white supremacist, racist,and ableist ideologies of the eugenics movement in shaping mental health-related exclusionary immigration laws, this Article locates the roots of these restrictive laws in the desire to protect the purity and homogeneity of the white Anglo- Saxon race against the threat of …

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 …

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 …

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 …

Racial Profiling In The War On Drugs Meets The Immigration Removal Process: The Case Of Moncrieffe V. Holder, Kevin R. Johnson

University of Michigan Journal of Law Reform

In Moncrieffe v. Holder, the Supreme Court held that the Board of Immigration Appeals could not remove a long-term lawful permanent resident from the United States based on a single misdemeanor conviction for possession of a small amount of marijuana. The decision clarified the meaning of an “aggravated felony” for purposes of removal, an important question under the U.S. immigration laws. In the removal proceedings, Adrian Moncrieffe, a black immigrant from Jamaica, did not challenge his arrest and drug conviction. Consequently, the Supreme Court did not review the facts surrounding, or the lawfulness of, the criminal prosecution. Nonetheless, the traffic …

States Taking Charge: Examining The Role Of Race, Party Affliation, And Preemption In The Development Of In-State Tuition Laws For Undocumented Immigrant Students , Stephen L. Nelson, Jennifer L. Robinson, Kara Hetrick Glaubitz

Michigan Journal of Race and Law

Part I of this Article details both the legislative and legal history of undocumented immigrants’ access to education in the United States. Part II then describes the current U.S. state laws in effect regarding in-state tuition for undocumented immigrant students at state-funded colleges and universities. Part III further explores the development of laws and policies with a keen focus on potential correlations between (1) the racial composition of state legislatures and the passage of in-state tuition policies; (2) the race of governors and the passage of in-state tuition policies; (3) partisan composition of state legislatures and the passage of in-state …

Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres

Michigan Journal of Race and Law

At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and state …

Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators, Kate Aschenbrenner

Michigan Journal of Race and Law

Immigration is currently a hot topic; discussion of immigration reform and the problems in our current system appear in the news virtually every day. There is widespread consensus that our current immigration system is “broken,” but there is little agreement on why and even less on what should be done to fix it. These are difficult and important questions, involving many complex interrelated factors. While I do not hope and cannot aim to answer them completely in this Article, I will argue that in doing so we must consider an often overlooked and generally understudied issue: the effects of trauma …

An Insurmountable Obstacle: Denying Deference To The Bia’S Social Visibility Requirement, Kathleen Kersh

Michigan Journal of Race and Law

In the last fifteen years, the Board of Immigration Appeals has imposed a requirement that persons seeking asylum based on membership in a particular social group must establish that the social group is “socially visible” throughout society. This Comment argues that the social visibility requirement should be denied administrative deference on several grounds. The requirement should be denied Chevron deference because Congress’s intent behind the Refugee Act of 1980 is clear and unambiguous and, alternatively, the requirement is an impermissible interpretation of the statute. The requirement is also arbitrary and capricious under the Administrative Procedures Act. This Comment argues that …

Federal Constraints On States’ Ability To License An Undocumented Immigrant To Practice Law , Adam Wright

Michigan Journal of Race and Law

No court has decided whether an undocumented immigrant can be admitted to a state bar in a manner consistent with federal law. At the time of this writing, the issue is pending before the California Supreme Court. Federal law prohibits states from providing public benefits to undocumented immigrants. In its definition of a “public benefit,” 8 U.S.C. § 1621 includes any professional license “provided by an agency of a State . . . or by appropriated funds of a State . . . .” The law’s prohibitions, however, are not unqualified. The statute’s “savings clause” allows states to provide public …

Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, Mark Noferi

Michigan Journal of Race and Law

Today, an immigrant green card holder mandatorily detained pending his removal proceedings, without bail and without counsel, due to a minor crime committed perhaps long ago, faces a dire fate. If he contests his case, he may remain incarcerated in substandard conditions for months or years. While incarcerated, he will likely be unable to acquire a lawyer, access family who might assist him, obtain key evidence, or contact witnesses. In these circumstances, he will nearly inevitably lose his deportation case and be banished abroad from work, family, and friends. The immigrant's one chance to escape these cascading events is the …

To Plea Or Not To Plea: Retroactive Availability Of Padilla V. Kentucky To Noncitizen Defendants On State Postconviction Review, Jaclyn Kelley

Michigan Journal of Race and Law

The United States incarcerates hundreds of thousands of noncitizen criminal defendants each year. In 2010, there were about 55,000 "criminal aliens" in federal prisons, accounting for approximately 25 percent of all federal prisoners. In 2009, there were about 296,000 noncitizens in state and local jails. Like Jose, these defendants usually do not know that their convictions may make them automatically deportable under the INA. Under the Supreme Court's recent ruling in Padilla v. Kentucky, criminal defense attorneys have an affirmative duty to give specific, accurate advice to noncitizen clients regarding the deportation risk of potential pleas. This rule helps assure …

¡Silencio! Undocumented Immigrant Witnesses And The Right To Silence, Violeta R. Chapin

Michigan Journal of Race and Law

At a time referred to as "an unprecedented era of immigration enforcement," undocumented immigrants who have the misfortune to witness a crime in this country face a terrible decision. Calling the police to report that crime will likely lead to questions that reveal a witness's inmigration status, resulting in detention and deportation for the undocumented immigrant witness. Programs like Secure Communities and 287(g) partnerships evidence an increase in local immigration enforcement, and this Article argues that undocumented witnesses' only logical response to these programs is silence. Silence, in the form of a complete refusal to call the police to report …

Federal Employer Sanctions As Immigration Federalism, Darcy M. Pottle

Michigan Journal of Race and Law

For low-skilled workers in much of the world, U.S. admission policies make illegal immigration the most viable means of entering the country. Low average schooling, which disqualifies many potential immigrants from employment-based visas, and long queues affecting family preference immigration from high-traffic countries, make the admission criteria outlined in the U.S. Immigration and Nationality Act (INA) prohibitive for most would-be immigrants to the United States. Perhaps due to this failure of immediate legal avenues, many immigrants enter the country illegally. Though many eventually gain legal status, in the meantime they live and work in the United States without documentation. "Illegal …

Dislocated And Deprived: A Normative Evaluation Of Southeast Asian Criminal Responsibility And The Implications Of Societal Fault, Jason H. Lee

Michigan Journal of Race and Law

This Note argues that certain Southeast Asian defendants should be able to use their families' refugee experience as well as their own economic and social marginalization in the U.S. as a partial excuse for their criminal acts. This argument draws its strength from both the socioeconomic deprivation of much of the Southeast Asian community and the linking of this reality to a careful analysis of the moral foundations of the criminal law. In essence, the American criminal justice system, which draws much of its moral force to punish from the theory of retributivism, cannot morally justify the full punishment of …

National Identity In A Multicultural Nation: The Challenge Of Immigration Law And Immigrants, Kevin R. Johnson, Bill Ong Hing

Michigan Law Review

Samuel Huntington's provocative new book Who Are We?: The Challenges to National Identity is rich with insights about the negative impacts of globalization and the burgeoning estrangement of people and businesses in the United States from a truly American identity. The daunting question posed by the title of the book is well worth asking. After commencing the new millennium with wars in Afghanistan and Iraq, U.S. military torture of Iraqi prisoners, indefinite detentions of U.S. citizens declared by the President to be "enemy combatants," and a massive domestic "war on terror" that has punished and frightened Arab, Muslim, and other …

Whose Alien Nation?: Two Models Of Constitutional Immigration Law, Hiroshi Motomura

Michigan Law Review

A Review of Peter Brimelow, Alien Nation: Common Sense About America's Immigration Disaster

Race Discourse And Proposition 187, John Sw Park

Michigan Journal of Race and Law

Proposition 187 inspired a visceral public discourse. Proponents and opponents of the measure discussed several themes important to contemporary political theory, particularly themes related to sovereignty and civil rights. This Note shows how participants in that debate-including people of color-spoke of "rights" in a way that denied the possibility for undocumented aliens to have rights. When citizens spoke, they did so in a way that implicitly linked rights to citizenship; in other words, they assumed that without citizenship, persons were not entitled to rights or rights-based claims. Ironically, the debate about Proposition 187 pointed to the achievements of a "civil …

Whom We Shall Welcome: Report Of The President's Commission On Immigration And Naturalization., Richard D. Rohr S.Ed.

Michigan Law Review

A Review of WHOM WE SHALL WELCOME: REPORT OF THE PRESIDENT'S COMMISSION ON IMMIGRATION AND NATURALIZATION. Washington, D.C.: Superintendent of Documents, U.S. Government Printing Office.

International Law-Effect Of Philippine Independence On Filipino Citizens Resident In The United States, Donald S. Leeper S.Ed.

Michigan Law Review

Appellant was born in the Philippine Islands in 1910 and lawfully entered the Territory of Hawaii in 1930, where he has resided ever since. In 1949 appellant applied for the issuance of a United States passport. Application was denied on the ground that the appellant became an alien under the Presidential Proclamation of Philippine Independence of July 4, 1946, and hence was not entitled to a passport. Appellant petitioned to have his status declared to be that of a national of the United States. This was resisted on the ground that the intention of the United States Government was to …

Report On Crime And The Foreign Born, Joseph Cohen

Michigan Law Review

That the foreign born, more than the native born, tend to run afoul of the law, especially with respect to the more serious offenses, is a popular doctrine which critical opinion in the field of criminology has long been inclined either to qualify as to essential details or to contradict in toto. Twenty years back the Federal Immigration Commission reported that all the evidence then available indicated a lesser criminality on the part of the immigrant group as a whole. Succeeding studies have supported this conclusion. That an adverse view of the foreign born should persist in the face of …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Adjoining Landowners--Excavations--"Contiguous" Structures; Aliens--Naturalization--Persons of Japanese Race--"White Persons"; Bankruptcy--Suit by Trustee--Recovery of Property Transferred by Bankrupt; Carriers--Duty to Person Riding on Engine; Carriers--Through Contract--Liability of Connecting Carriers; Color of Title as Extending Possession of Adverse Claimant--Deed to Claimant's Vendor; Constitutional Law--Due Process of Law--White and Negro Pupils; Constitutional Law--Interstate Commerce--Power of Congress to Regulate; Constitutional Law--Secret Societies--Unauthorized Wearing of Badges; Conversion--Time of Conversion--Pledges--Assertion of Title; Corporations--Stockholder's Liability--Enforcement in Other States; Damages--For Interference with Employment--Mental Suffering an Element; Dedication--Acceptance--Ordinance Fixing Grade; Deed--Acknowledgement Taken by Officer and Stockholder of Corporation Grantor; Deeds--Building Restriction--"Front Property Line" of Corner Lot; Deeds--Restrictive Covenant--Electric Light Station …