Law Commons^™

Bringing "Civil"Ity Into Immigration Law: Using The Federal Rules Of Civil Procedure To Fix Immigration Adjudication, Richard Frankel -- Professor Of Law

Vanderbilt Law Review

Government lawyers frequently argue, and courts have frequently held, that noncitizens in removal proceedings do not have the same rights as defendants in criminal proceedings. A common argument made to support this position is that removal proceedings are civil matters. Accordingly, a noncitizen facing deportation has fewer due process protections than a criminal defendant, and deportation proceedings similarly provide fewer protections than criminal proceedings.

In many ways, however, the rules governing immigration proceedings differ markedly from those governing civil actions in court. Immigration proceedings suffer from arcane and hypertechnical procedures that impede immigrants from having their claims reviewed on the …

The Second Amendment's "People" Problem, Pratheepan Gulasekaram -- Professor Of Law

Vanderbilt Law Review

The Second Amendment has a "people" problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Heller's rhetoric limited "the people" of the Second Amendment to "law-abiding citizens." In 2022, New York State Rifle & Pistol Ass'n v. Bruen doubled down on the Amendment's self-defense rationales but, once again, framed the right as one possessed by "citizens." In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right …

How Transnationally Effective Are The Uk Migration Policies In Relation To Missing Migrants? A Transnational Law Perspective, Luke N. Eda

Vanderbilt Journal of Transnational Law

All over the world, several thousands of migrants go missing when they attempt to flee from war, violence, persecution, repressive regimes, systematic human rights violations, etc. Thousands die each year in deadly shipwrecks in a desperate attempt to enter Europe and the United Kingdom. In these instances of deaths and loss, international human rights law imposes duties on states to account for people missing in transnational migration and to respect the rights of members of their families. Despite such provisions, states sometimes deny that they have obligations to deal with cases of migrants reported missing in transnational migration until migrants …

A Regulatory Policy Strategy For Protecting Immigrant Workers, W. Kip Viscusi, N. Marquiss

Vanderbilt Law School Faculty Publications

Immigration has become a focal point of many political campaigns, most notably that of President Trump in 2016 and again in 2020. Populist rhetoric also decries immigrant workers for taking Americans' jobs and depressing wages for U.S.-born workers. Yet immigrants serve a constructive role by working in some of the most dangerous occupations in the country. It is well-known that immigrant workers, particularly those from Mexico with limited English language skills, face a higher workplace fatality rate than native workers. Efforts to reverse this trend have long been the focus of the Occupational Safety and Health Administration (OSHA), which undertook …

Transit States To Destination Nations: Mexican And Moroccan Asylum Policies, Stephanie Evans

Vanderbilt Journal of Transnational Law

Much of the literature surrounding immigration and asylum analyzes the policies adopted by highly developed nations like the United States and countries in the European Union. However, as these nations' policies become increasingly restrictive, more migrants are turning towards neighboring nations that are easier to access but that have less developed immigration and asylum systems. Mexico and Morocco are two such nations. Historically, each has been a transit state--a nation that migrants traveled through in order to reach other states. However, both Mexico and Morocco are becoming destination nations. Social science scholarship has analyzed and compared changes in Mexico's and …

Thirteenth Amendment Litigation In The Immigration Detention Context, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

This Article analyzes how the Thirteenth Amendment has been used to prevent forced labor practices in immigration detention. The Article assesses the effectiveness of Thirteenth Amendment litigation by dissecting cases where detainees have challenged the legality of labor requirements under the Trafficking Victims Protection Act. Given the expansion in immigration detention, the increasing privatization of detention, and the significant human rights implications of this issue, the arguments advanced in this Article are not only currently relevant but have the potential to shape ongoing dialogue on this subject.

Immigration To Blue Cities In Red States: The Battleground Between Sanctuary And Exclusion, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This commentary interrogates the concept of immigration federalism, examining the political and ideological contours of state and local sanctuary laws in the context of both state and the Trump Administration's exclusionary policies. I utilize the intrastate federalism conflicts within the State of Tennessee to highlight the political dynamics that govern the passing of state and local sanctuary laws analyzing new issues that have surfaced under the Trump Administration. In this context, the commentary argues that recent immigration federalism standoffs center around political divisions which fail to engage in principled evaluations of which level of governmentfederal, state, or local--should be the …

Immigration And Blackness, Karla Mckanders

Vanderbilt Law School Faculty Publications

There is a long history of the intersection of immigration, race, and civil rights in America. Immigration laws have operated in a manner to maintain homogeneity to the exclusion of immigrants of color. Immigration laws throughout America’s history have traditionally utilized fear and exclusion to define what America should look like and have privileged some immigrant’s over others.

An Analysis Of Sanctuary Campuses, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

"I am originally from Mexico but have lived in Washington State since I was [nine] months old .... In 2006, as a high school sophomore, I discovered my true immigration status in the United States. I was an undocumented Mexican-American and all of my hopes and dreams seemed to shatter at that point . . . . My parents came to the United States to give their children a better life, and that included an education . . . . When immigration reform does happen, I will then have an opportunity to apply my skills in the workforce without having …

Rethinking Conspiracy Jurisdiction In Light Of Stream Of Commerce And Effects-Based Jurisdictional Principles, Alex Carver

Vanderbilt Law Review

For decades, some courts have been willing to exercise personal jurisdiction over nonresident defendants based solely on the forum contacts of their coconspirators. This practice, termed "conspiracy jurisdiction," has proven controversial among courts and commentators alike. On one hand, the actions of one member of a conspiracy are ordinarily attributable to other members of the conspiracy, and jurisdiction-conferring acts should arguably be no exception. On the other hand, attributing forum contacts from one actor to another based solely on their joint membership in a civil conspiracy seems to stretch due process protections to the breaking point. This Note provides new …

Immigrant Families Behind Bars: Technology Setting Them Free, Jennifer Blasco

Vanderbilt Journal of Entertainment & Technology Law

In July of 2015, Judge Dolly Gee from the US District Court for the Central District of California ordered that all immigrant women and children currently detained in a federal family detention facility be released immediately. She described the conditions of these detention centers as "deplorable" and stated that detention of these women and children directly violated the 1997 Flores Agreement. However, the practice of immigrant family detention remains alive and well in this country. Why? This Note provides an answer to this question and proposes a cost-effective and more efficient solution to the problem: electronic monitoring.

Refugee Reception And Perception: Us Detention Camps And German Welcome Centers, Karla M. Mckanders, Valeria Gomez

Vanderbilt Law School Faculty Publications

The reception of refugees and asylum seekers has emerged as one of the most critical contemporary global issues. In 2015, the world experienced the most forced migrants since World War II. This essay compares the treatment of asylum seekers at reception in United States and Germany through each countries’ freedom and restriction of movement laws. This comparative analysis is based on Professor Karla McKanders’ December 2015 exploratory trip to Germany to learn more about the processing refugees in the midst of Germany accepting unprecedented numbers of refugees; and attorney Valeria Gomez’s December 2015 volunteer experience in the South Texas Family …

Losing The Best And The Brightest: The Disappearing Wage Premium For H-1b Visa Recipients, Danielle M. Drago

Vanderbilt Journal of Entertainment & Technology Law

The pressure for immigration reform in the technology industry revolves heavily around the use of the H-1B visa, which allows companies to temporarily hire highly skilled workers. This Note provides an empirical analysis of the historical wages of H-1B workers and domestic workers in the technology industry to determine whether H-1B workers earn more or less than domestic workers in the same industry. In the technology industry, H-1B workers' wage premium has eroded in recent years relative to domestic workers, leading to stagnant wages that may deter the "best and the brightest" from choosing to enter into the H-1B process. …

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Z. Huq

Vanderbilt Law Review

In April 2010, the Arizona legislature enacted the Support Our Law Enforcement and Safe Neighborhoods Act. Commonly known as SB 1070, the law created a slate of new criminal offenses and arrest powers covering aliens within Arizona's borders. SB 1070 proved divisive. It inspired copycat legislation in several states, provoked sharp criticism from the legal academy, and-most relevant here- catalyzed a lawsuit by the U.S. Department of Justice seeking a preliminary injunction against the state law on the ground that it was preempted by federal law. Initially, the federal government's litigation prospects seemed dim. One term before SB 1070 reached …

The Point Of A Points System: Attracting Highly Skilled Immigrants The United States Needs And Ensuring Their Success, Carla Tabag

Vanderbilt Journal of Transnational Law

In a globalizing world, labor is an increasingly mobile and competitive resource. Responding to this changing labor market, countries like Canada, the United Kingdom, and Australia have adopted points systems with the goal of attracting talented, highly skilled immigrants. In the United States, however, much of the national focus on immigration remains on deterring illegal immigration rather than attracting immigrants that the United States needs to remain competitive in a globalized world. But attracting skilled immigrants is only one ingredient to a successful points system; a country must also ensure those immigrants are successful and use their talents to the …

Stateless In The United States: Current Reality And A Future Prediction, Polly J. Price

Vanderbilt Journal of Transnational Law

Statelessness exists in the United States--a fact that should be of concern to advocates of strict immigration control as well as those who favor a more welcoming policy. The predominant reasons for statelessness include the presence of individuals who are unable to prove their nationality and the failure of their countries of origin to recognize them as citizens. Migrants with unclear nationality, already a problem for the United States, obstruct efforts to control immigration by the deportation of unauthorized aliens. These existing problems of national identity will increase exponentially if birthright citizenship in the United States is amended to exclude …

Expanding The Vienna Convention On Consular Relations, Sarah G. Mccroskey

Vanderbilt Journal of Transnational Law

Article 37 of the Vienna Convention on Consular Relations (VCCR) aims to protect the interests of foreign national children by requiring consular notification whenever these children come into the custody of the state. Consular assistance can be invaluable for foreign national parents and children who may not understand the language or the culture and who may be subject to discrimination based on their nationality. However, the VCCR is currently inadequate in two major ways. First, the protections of Article 37 are only triggered when the child in custody is a foreign national, leaving vulnerable to unfair treatment families in which …

Immigration Enforcement And The Fugitive Slave Acts: Exploring Their Similarities, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

Two seemingly different federal enforcement systems that affect the movement of unskilled workers — the 1793 and 1850 Fugitive Slave Acts and current state immigration enforcement policies — have remarkable similarities. Both systems are political stories that are demonstrative of the failure of federalism. The federal government’s current failure to enforce immigration laws has encouraged state and local governments to pass their own laws. Alabama and Arizona have enacted far-reaching laws, which are similar to the federal Immigration and Nationality Act § 287(g) programs. Both have been challenged on constitutional preemption and equal protection grounds. Recent scholarship has focused mainly …

Visa As Property, Visa As Collateral, Eleanor Marie L. Brown

Vanderbilt Law Review

Three decades ago Guido Calabresi and Philip Bobbit famously wrote about "tragic choices," namely tough policy choices which offend deeply held values, and the accompanying "subterfuges," that is, efforts by policy elites to shield such choices from public view.' Strangely, the "tragic choice" framework has not been applied in the context of U.S. immigration law, although current immigration policy is rife with tragic choices and subterfuges. A case in question is the issue of commodification of visas. It is clear that U.S. policymakers remain deeply committed to maintaining an illusion that U.S. visas are not being "sold."2 For example, in …

Post Padilla: Padilla's Puzzles For Review In State And Federal Courts, Nancy J. King, Gray Proctor

Vanderbilt Law School Faculty Publications

This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment. Issues addressed include: express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; …

Unforgiving Of Those Who Trespass Against U.S.: State Laws Criminalizing Immigration, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

Since around 2005, states and localities have been using criminal trespass laws to target undocumented immigrants for unlawful presence. Specifically, in April 2010, Arizona passed SB 1070: Support Our Law Enforcement and Safe Neighborhoods Act. SB 1070 creates crimes involving trespassing by “illegal aliens” and harboring or concealing unlawful aliens. This paper argues that state trespass laws that criminalize unlawful presence of immigrants are unconstitutional regulations of immigration and are a preempted exercise of state power. In evaluating the constitutionality of state trespass laws that criminalize immigration status, this paper proceeds in three parts. The first part of the paper …

A Chance For Redemption: Revising The "Persecutor Bar" And "Material Support Bar" In The Case Of Child Soldiers, Kathryn White

Vanderbilt Journal of Transnational Law

Armed groups in conflicts around the world frequently exploit child soldiers. Despite the unique experience of child soldiers, who are frequently recruited by means of force and deceit, immigration law as it is currently applied may bar former child soldiers from receiving asylum in the United States. In particular, the prevailing agency interpretation of the "persecutor bar" and the "material support bar" equates child soldiers with adults who have committed serious atrocities. This Note argues that the application of these asylum bars to former child soldiers runs against social values and standards of moral culpability in the United States. Child …

Refugee Credibility Assessment And The "Religious Imposter" Problem, Michael Kagan

Vanderbilt Journal of Transnational Law

Credibility assessment in refugee status determination (RSD) poses unique challenges when the outcome of asylum applications turns on the question of whether an asylum seeker is actually a member of a persecuted religious minority. These cases require secular adjudicators to delve into matters of religious identity and faith that are, by their nature, subjective and beyond the realm of objective analysis. This Article explores practical means of addressing this challenge through a case study of the RSD interviews of Eritrean asylum seekers in Egypt who based their refugee claims on Pentecostal religious associations. Analysis of the interview methods used in …

Sustaining Tiered Personhood: Jim Crow And Anti-Immigrant Laws, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

Latino immigrants are moving to areas of the country that have not seen a major influx of immigrants. As a result of this influx, citizens of these formerly homogenous communities have become increasingly critical of federal immigration law. State and local legislatures are responding by passing their own laws targeting immigrants. While many legislators and city council members state that the purpose of the anti-immigrant laws is to restrict illegal immigration where the federal government has failed to do so, opponents claim that the laws are passed to enable discrimination and exclusion of all Latinos, regardless of their immigration status. …

The Unspoken Voices Of Indigenous Women In Immigration Raids, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

The voices of the most vulnerable populations often point towards social constructs in dire need of systemic change. The treatment of immigrant women in workplace raids exemplifies this concept. Over the last couple of years, Immigration and Customs Enforcement, a division of the Department of Homeland Security, has executed several workplace raids to deport undocumented immigrants who are unauthorized to work in this country. When discussing workplace raids, most news articles focus on the mass deportation of men, this paper will take a different perspective, and examine indigenous immigrant Guatemalan women’s stories in migrating to the United States, seeking employment …

The Hidden Dimension Of Nineteenth-Century Immigration Law, Kerry Abrams

Vanderbilt Law Review

Most histories of immigration law are histories of restriction. This emphasis is hardly surprising: beginning in 1875, Congress passed increasingly draconian acts, mostly targeting Chinese immigrants, which ultimately led to the outright exclusion of nearly all Asian immigrants. Then, in the 1920s, Congress enacted quotas aimed at keeping the U.S. population primarily white, with an emphasis on immigrants from northern and western European stock. And throughout history in general, immigration law has focused not only on excluding but also on deporting those immigrants deemed undesirable.

In addition to focusing on exclusion, immigration law history has also been preoccupied with federal …

The Constitutionality Of State And Local Laws Targeting Immigrants, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This paper addresses current immigration issues across the country, specifically in Arkansas, and how lawyers can seek to achieve social justice for immigrants. There currently has been a lot of activity and discussion surrounding state and local laws targeting immigrants. Central to this discussion has been whether states and localities are constitutionally permitted to enact immigration laws and whether state and local actions upset the current immigration system and how, if at all, their actions affect documented and undocumented immigrants' rights. When states and localities pass immigration related laws, the main concern is whether federal, state or local governments are …

Between A Rock And A Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, And Housing Discrimination, Rigel C. Oliveri

Vanderbilt Law Review

In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("Al") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things.

This Article focuses on All provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants. Faced with penalties for renting to unauthorized immigrants, landlords have the clear incentive to screen their tenants' …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Vanderbilt Law Review

In Farmers Branch, Texas, the city council enacted a measure to fine landlords who rent their premises to unauthorized migrants,' and in Arizona, the state legislature passed a law imposing stiff penalties on employers who intentionally or knowingly hire unauthorized migrants. In San Francisco, the board of supervisors passed a measure that bars law enforcement officers from inquiring into the immigration status of an individual in the course of a criminal investigation. In Alabama and Florida, state officials have entered into agreements with the federal government permitting state law enforcement officers to arrest and detain non-citizens on immigration charges. Other …

Reinventing American Immigration Policy For The 21st Century, Krissy A. Katzenstein

Vanderbilt Journal of Transnational Law

With an estimated eleven to twelve million undocumented workers currently in the United States, the need for immigration reform is critical. As lawmakers grapple with the question of how to best meet the needs of the country, they should keep in mind that the United States is a country of immigration. If the U.S. reverts to a guest worker program like that proposed by the Bush administration, it should expect the results that history suggests--worker exploitation, falling wages, deteriorating working conditions, and discrimination. However, proposals calling for immediate permanent legal status also fail to completely address the needs of the …