Law Commons^™

Legal Obstacles Of Detainees In For-Profit Immigration Detention Facilities, Catalina Miller-Booth

Undergraduate Honors Theses

In an effort to reshape the US correctional system, one of President Joe Biden’s first executive orders ended future contracts between the Department of Justice (DOJ) and private prison corporations. Symbolic at best, this left in place the biggest money-maker of the private prison system, private immigration detention facilities. The contracts that guide US Immigration and Customs Enforcement (ICE) facilities favor profit over detainee well-being. This research showcases the poor quality of private immigration detention facilities with a focus on access to legal representation. With financial and physical barriers preventing detainees from receiving legal help, the US detention system works …

An Inferentially Robust Look At Two Competing Explanations For The Surge In Unauthorized Migration From Central America, Nick Santos

Dissertations

The last 8 years have seen a dramatic increase in the flow of Central American apprehensions by the U.S. Border Patrol. Explanations for this surge in apprehensions have been split between two leading hypotheses. Most academic scholars, immigrant advocates, progressive media outlets, and human rights organizations identify poverty and violence (the Poverty and Violence Hypothesis) in Central America as the primary triggers responsible. In contrast, while most government officials, conservative think tanks, and the agencies that work in the immigration and border enforcement realm admit poverty and violence may underlie some decisions to migrate, they instead blame lax U.S. immigration …

Humanity For Asylum Seekers: How Migrant Protection Protocols And The March 20th Cdc Order Violate The Constitutional Rights Of Asylum Seekers During The Covid-19 Pandemic, Madison Beck

Center for Health Law Policy and Bioethics

In late 2018, the Trump Administration introduced Migrant Protection Protocols (MPP), also known as the Remain in Mexico Policy, to curb illegal immigration. The protocols allow the U.S. to remove immigrants, including asylum seekers, to Mexico while their claims are processed. This is problematic on its own, but even more so during the COVID-19 pandemic; makeshift asylum tent-camps are home to thousands of vulnerable individuals where viral spread would be devastating. Additionally, in March 2020, the Centers for Disease Control and Prevention (CDC) issued an “order suspending introduction of certain persons from countries where a communicable disease exists” further worsening …

U.S. Border Expulsions Further Jeopardize Asylum Seekers And Unaccompanied Minors In The Time Of Covid-19, Evan Harris

Center for Health Law Policy and Bioethics

The Centers for Disease Control and Prevention (CDC) issued a public health order on March 20, 2020, restricting people seeking asylum in the United States, as well as unaccompanied non-citizen children attempting to cross into the United States, from accessing legal protections guaranteed to them under U.S. and international law.1 Under the order, such individuals are instead immediately expelled from the country in an effort to protect border facilities and the citizenry of the United States from COVID-19.

2 As the order reasons, these immediate expulsions minimize the introduction of persons into “congregate settings” at border facilities and thereby reduce …

Modern Application Of The Islamic Principle Of Brotherhood: An Assessment Of The Syrian Refugees’ Relocation Solution In Egypt, Shams Al Din Al Hajjaji

San Diego International Law Journal

This Article argues that the Islamic principle of Brotherhood provides a feasible basis to solve the Arab refugee crisis. The Islamic solution is based on relocating Syrian refugees to Egypt. The solution has many positive factors that make it the most promising solution among the various other proposed solutions. The Syrian refugee crisis has been one of the major challenges for many Western countries, who have found themselves between a rock and a hard place, faced with two options. The first option involves agreeing to host the massive waves of refugees, to honor their principles of human dignity and morality. …

The Uncertain Future Of Australia’S Pacific Solution, Chandra Roam

San Diego International Law Journal

The plight of a refugee is one that many of us will never understand. However, the ugly truth is that there is a global rise in the number of displaced persons seeking asylum. By the end of 2015, the number of displaced persons surpassed post World War II numbers, prompting developed nations around the world to enforce, amend, or implement policies targeted at controlling the flood of refugees at their borders. This Comment examines the policies of Australia, a nation that has had strict immigration policies in place for decades. Specifically, it discusses the Australian stance on refugee migration and …

Legal Responses To The European Union’S Migration Crisis, Graham Butler

San Diego International Law Journal

The European Union (“EU”) imposes on itself its own constraints in which it performs as an external actor, and yet, there is little acknowledgment of this imposed constraint. It is the post-2015 migration crisis, an unexpected occurrence, which has brought the fields of EU external relation law and EU migration law together. Europe’s external border, on both land and sea, has tightened through legal acts of non-traditional nature, namely, the resort to securitisation and militarisation. Challenges, such as mass irregular migration, require more than just individual responses from a few selected Member States that are directly affected by the issue. …

Catholic Social Teaching, The Right To Immigrate, And The Right To Regulate Borders: A Proposed Solution For Comprehensive Immigration Reform Based Upon Catholic Social Principles, Chad G. Marzen, William Woodyard Ii

San Diego Law Review

A number of scholars have commented on the significance of religious traditions to the debate concerning immigration policy in the United States.[1] In this Article, we contend that the Catholic legal tradition is relevant to the contemporary debate among policymakers, as it balances policy considerationsof the right to immigrate as well as the right of a nation to regulate its borders advocated on both ends of the policy debate. Section I of this Article discusses the current policy debate concerning comprehensive immigration reform and recent major legislative proposals for comprehensive immigration reform, including the plan of the “Gang of Eight” …

Deliberate Destitution As Deterrent: Withholding The Right To Work And Undermining Asylum Protection, Lori A. Nessel

San Diego Law Review

This Article critiques the United States’ bar on employment for asylum seekers on a number of fronts. Beginning with a historical perspective, I explore the more humane regime that existed in the United States until 1995. Under this prior system, asylum seekers with bona fide claims were permitted to work while their claims proceeded. This Article examine the underlying fears and policy goals that led Congress to dramatically curtail protection and the right to work for asylum seekers. By situating the prohibition on work for asylum seekers within the larger context of overall punitive immigration reforms and the increasing criminalization …

Achieving The Dream: Extending Immigration Reform To Administrative Case Closure, Tory E. Smith

San Diego Law Review

This Comment compares DACA to administrative case closure and argues that Congress or the President should grant employment authorization to individuals whose cases have been administratively closed. Part I describes the current interpretation of the employment authorization regulation and provides the background of administrative case closure. Part I highlights the disparate treatment that the regulation affords to undocumented immigrants facing deferred action and administrative closure—offering employment authorization to only deferred action recipients. Part II examines the history of deferred action in immigration cases and uses DACA as a framework to show how the scope of the employment authorization regulation should …

Naked Dishonesty: Misuse Of A Social Security Number For An Otherwise Legal Purpose May Not Be A Crime Involving Moral Turpitude After All, Nathanael C. Crowley

San Diego International Law Journal

This Comment questions whether the misuse of a Social Security number for an otherwise legal purpose is a crime involving moral turpitude. It begins with a history of moral turpitude and its initial connection to immigration law in the United States. Through a close analysis of misuse of a Social Security number for an otherwise legal purpose as a crime involving moral turpitude in modern cases, this Comment will examine the role of fraud and dishonesty in the question. The analysis reveals a critical distinction between crimes involving dishonesty and crimes involving fraud. This distinction shows that crimes involving naked …

Improper Deportation Of Legal Permanent Residents: The U.S. Government’S Mischaracterization Of The Supreme Court’S Decision In Nijhawan V. Holder, Michael R. Devitt

San Diego International Law Journal

The purpose of this Article is to draw attention to the government’s misinterpretation of the central holding in Nijhawan v. Holder and how it has led to the improper dilution of evidentiary standards in removal proceedings when determining the $10,000 threshold loss requirement under section 101(a)(43)(M)(i) of the INA [hereinafter “M(i)”]. Section II of this article provides a brief doctrinal overview and summary of my proposed procedural methodology; sections III and IV provide essential background information regarding the Supreme Court’s important pre-Nijhawan opinions and the inconsistent methods circuit courts have applied when calculating the monetary threshold under the fraud or …

"There's No Place Like Home" Doma Deportation: The Forced Expatriation Of Bi-National Same-Sex Couples From The United States To Canada, Anh "Annie" Nguyen

San Diego International Law Journal

This comment will focus on bi-national same-sex couples who are forced to expatriate from the united states to canada because of DOMA’s detrimental effects on their relationship. more specifically, part I focuses on DOMA’s constitutionality, effects on bi-national same-sex couples, and current legal challenges. Part II provides a historical analysis of the united states’ attitude towards same-sex unions before describing current legislation regarding same-sex couples. Part III describes canada’s recognition of same-sex marriage and support of immigration equality, comparing and contrasting the canadian approach with the united states’ approach. Part IV explains the current legal and financial issues that bi-national …

One Time Too Many: In Re Briones And The Bia's Rigid Interpretation Of The Life Act And Its Dire Consequences For Undocumented Reentry, Lauren Gonzalez

San Diego International Law Journal

This Casenote will discuss both the origins of the LIFE Act and its early potential, and then focus attention on the BIA decision itself in Briones and its impact on immigration courts and U.S. courts of appeals. In Part II, this Casenote will give a brief overview of the LIFE Act and its creation. Parts III and IV will discuss the issues presented in Briones, the facts of the case, and the BIA?s decision. In Part V, the Casenote will then analyze the decision in Briones as it conflicts with previous case law from multiple circuit courts of appeal and …

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

U.S. Asylum Law Out Of Sync With International Obligations: Real Id Act, Victor P. White

San Diego International Law Journal

Focusing on defensive asylum applications, this Comment examines whether certain provisions of REAL ID violate due process and international obligations to asylum seekers. Part I situates REAL ID within the historical context of nearly a decade of restrictive U.S. immigration law and over two decades of Executive Orders aimed at deterring a mass exodus of asylum seekers from reaching U.S. shores. Part II provides an overview of the U.S. asylum system and argues that the system produces inconsistent and sometimes arbitrary results, indicating that segments of the system do not satisfy international obligations. Part III outlines three provisions of REAL …

Mara Salvatrucha (Ms-13) And Ley Anti Mara: El Salvador's Struggle To Reclaim Social Order, Juan J. Fogelbach

San Diego International Law Journal

MS-13 poses a threat to both Salvadorians and Americans. It is a gang that must be cooperatively contained; it will not be controlled by a simplistic burden-shifting policy that leaves El Salvador, a developing country, to unilaterally deal with the problem. This paper will argue that: (1) the deportation of gang members, which results in the arbitrary deaths of thousands of innocent Salvadorians who have no legal recourse amounts to a grave violation of human rights; (2) deportation of gang members to a society where they are likely to be killed by vigilante death squads, or in prison fires and …

Profitable Proposals: Explaining And Addressing The Mail-Order Bride Industry Through International Human Rights Law, Vanessa Brocato

San Diego International Law Journal

This Article looks at the MOBI in the United States through the lens of international human rights. Part II will describe the MOBI. Part III will evaluate the MOBI within an international human rights framework. Part IV will examine current U.S. legislation relating to the MOBI. Part V suggests strategies for addressing the MOBI. Nations will not be able to solve the problem independently because the MOBI is a transnational phenomenon. Conducting a critique of marriage brokers in a human rights context can help place problems caused by the MOBI at the forefront of international debate. Applying current human rights …

Hong Kong Right Of Abode: Ng Siu Tung & (And) Others V. Director Of Immigration - Constitutional And Human Rights At The Mercy Of China, Teresa Martin

San Diego International Law Journal

This Comment argues that the Court's refusal to sidestep the Standing Committee's reinterpretation using either the Doctrine of Legitimate Expectation, or the judgments previously rendered clause in the Basic Law, signifies its capitulation to the Standing Committee, and its inability to protect constitutional rights and/or human rights in Hong Kong. This Comment will first give a brief background on the concept of one country, two systems and the drafting of the basic law. Second, it will introduce the Right of Abode cases, and explain the constitutional crisis of 1999. Third, it analyzes Ng Siu Tung & Others v. Director of …

The Deferred Action Program Of The Bureau Of Citizenship And Immigration Services: A Possible Remedy For Impossible Immigration Cases

San Diego Law Review

This beneficent operations instruction permitted two alternative interpretations, each of which was taken up by the federal courts. In the case of Nicholas v. INS, the petitioner asked the Ninth Circuit Court of Appeals to overrule the district director’s decision to deny his nonpriority status application. The court determined that the operations instruction confers a “substantive benefit upon the alien, rather than setting up an administrative convenience,”and thus is essentially a legislative rule requiring a strict standard of application, and not one allowing the INS a significant amount of discretion. The Fifth Circuit held in Soon Bok Yoon v. INS …

A Proposed Legislative Scheme To Solve The Mexican Immigration Problem, Samuel W. Bettwy

San Diego International Law Journal

This Article proposes a legislative scheme to undo the incentives that Congress has created and perpetuated since the 1960s for Mexicans to live unlawfully in the United States. The main features of the proposed scheme are: (1) the exemption of all family-sponsored immigrant visas from Mexico's per-country quota, (2) a guaranteed percentage of the quota of diversity ("lottery") visas for Mexicans who have no family member or employer who has sponsored their immigration, (3) a waiver of unlawful presence for Mexicans who return to Mexico by a specified deadline, and (4) revocation of the visa petitions of Mexicans who remain …

Richardson V. Reno: What Is The Proper Application Of The Illegal Immigration Reform And Immigrant Responsibility Act To Criminal Aliens?

San Diego Law Review

This Casenote questions the Richardson court's holding. Specifically, this Casenote argues that precluding all judicial review, including habeas corpus review, for criminal aliens held removable by the INS violates the Suspension Clause of the United States Constitution. Further, to interpret IIRIRA as eliminating the availability of habeas corpus relief in these circumstances calls into question the constitutionality of the statute due to constitutional limits on Congress's power to control the jurisdiction of Article III courts.

Lessons From The Trade Arena: A Proposal To Change U.S. Immigration Law For The Benefit Of U.S. Workers, Jonathan Todres

San Diego International Law Journal

This Article examines this conflict between U.S. trade and immigration law and policy and asks whether the United States could apply some of the principles underlying its free trade policy to its immigration law in a way that benefits the U.S. economy and its workers. In Part II, this Article explores how U.S. immigration law protects U.S. labor. Specifically, Part II focuses on the controversy surrounding the H-1B visa program for non-immigrants and U.S. treatment of skilled workers from other countries, as the H1-B program is a good potential starting point for a new approach to immigration law. Part III …

A New Look At Actual Minimum Job Requirements And Experience In Similar Occupations And With The Same Employer: Balca's 20 C.F.R. Section 656.21 (B)(6), Lorna Rogers Burgess

San Diego Law Review

In this Article, Ms. Burgess discusses the Board of Alien Labor Certification Appeals (BALCA) which was created by an amendment to 20 C.F.R. § 656.26 and § 656.27. Ms. Burgess asserts that the creation of BALCA has significantly improved the system of adjudication of Applications for Alien Employment Certification. Though BALCA has exerted viable standards, these standards are far from providing analytically sound and practical guidance to practitioners and Certifying Officers. The author suggests that good lawyering in the future may improve BALCA's jurisprudence.

Towards The Cathedral: Ancient Sanctuary Represented In The American Context, Michael Scott Feeley

San Diego Law Review

In this Article, Mr. Feeley, discusses the historical roots of the power of the Church to provide sanctuary to those in fear of life and limb. Tracing its historical roots, the author identifies three elements of sanctuary - person, place, governmental check. He then demonstrates that the American Sanctuary Movement contains these defining elements of historical sanctuary. An analysis of the Sanctuary Movement concludes that, despite its different features and cultural locus, the Movement embodies the ancient elements of person, place and governmental check transformed, rather than transubstantiated by the American context.

United States Immigration Planning For Cross-Border Mergers And Acquisitions, Charles M. Miller

San Diego Law Review

In the Article, Mr. Miller demonstrates how cross-border direct investment in the U.S. through a foreign company's acquisition of a domestic business necessitates careful immigration planning. He speaks directly to the investor and shows that a main priority is the quick and efficient transfer foreign personnel and the employment of foreign graduates. Recognizing the complexity of federal statutes and regulations governing foreign investment, the author concludes that a foreign investor will need to quickly learn that an effective immigration strategy is necessary to successfully do business in the U.S.

Expatriation In The United States: Precept And Practice Today And Yesterday, Alan G. James

San Diego Law Review

In this Article, Mr. James traces the historical roots of expatriation to its current application in present-day law, regulations and procedures. Using as a reference point both the expatriation of the American novelist Henry James and the United States Supreme Court's 1990 decision in Vance v. Terrazas, the author highlights the major facets of expatriation. Specifically, the author focuses on processing and documentation of loss of nationality cases, development of the role of the Department of State in expatriation, the constituent elements of a determination of loss of nationality, and administrative and judicial review of holdings of loss of citizenship …

Dual Nationality For Mexicans, Jorge A. Vargas

San Diego Law Review

In 1995, the government of Mexico began seriously to consider amending its Constitution to allow for dual nationality, whereby a Mexican could be recognized as holding two nationalities at the same time. Legally, the concept prohibits Mexican nationals from voluntarily abandoning their nationality, even if they opt to become naturalized citizens of another country. Two questions arise as one considers dual nationality in Mexico. First, what has really influenced the philosophical change in Mexico regarding dual nationality? Second, why has Mexico started considering dual nationality now?

An Immigration Policy For A Just Society?, Louis Henkin

San Diego Law Review

If it is a human right for every human being to choose where he or she would live, do not considerations of justice require a society to hold out its hand to such a contract? This Article explores the concept of justice, as it applies to immigration law in the United States. It examines the notion that the United States may have an obligation to accept people into the country based on considerations of justice. The author suggests that justice ought to imbue the immigration policy of the United States, and that policy would be different if justice was recognized …

By Hook Or By Cook: Exploring The Legality Of An Ins Sting Operation, Lenni B. Benson

San Diego Law Review

The Immigration and Naturalization Service (INS) is an agency with responsibility both for enforcing the immigration laws and conferring legal status and other benefits. This author finds that at times these dual roles create conflict, mistrust in the community, and violations of the rights of aliens. This Article critically examines an undercover operation conducted in 1993 by the San Diego District Office, which lured aliens to deportation through INS offers of legal status. The Article discusses the regulatory and statutory provisions governing INS undercover operations and the rights of aliens subject to final orders of deportation. It continues with an …