Law Commons^™

Illuminating The Shadow Docket: On The Increasing Impacts Of This Evolving Judicial Procedure, Sarah Voehl

Nevada Law Journal

No abstract provided.

Ready To Do The Difficult Work Ahead: The Legal Legacy Of Senator Harry Reid, Robert Lemus, Sarah Voehl

Nevada Law Journal Forum

This White Paper examines the legal legacy of Harry Reid, who served Nevada in the Senate for thirty years and rose to the position of Majority Leader from 2007 to 2015. Senator Reid's work on land and water policy, climate change, immigration, gaming, and labor deeply affected Nevada and the United States as a whole. Through his positions of leadership, he secured funding for critical infrastructure projects, protected public lands, championed renewable energy, passed the Affordable Care Act, fought for immigration reform, and advocated for labor and gaming issues. This paper concludes that Senator Reid's legal legacy is a powerful …

Nevada As An Example: State Immigration Reform In A Swing State, Michael Kagan, Selena Torres, Jorge "Coco" Padilla

Nevada Law Journal

No abstract provided.

Stopping Anti-Asian Hate: Local Solutions To A National Problem, Stewart Chang

Nevada Law Journal

No abstract provided.

Racial Contagion: Anti-Asian Nationalism, The State Of Emergency, And Exclusion, Stewart Chang

Scholarly Works

No abstract provided.

In Defense Of Deportation Defense, Michael Kagan

Scholarly Works

Recent years have seen growing momentum toward expanding public funding for legal defense of immigrants fighting deportation. Yet, some recent scholarship argues that government-funded deportation defense carries the risk of legitimizing and entrenching an unsalvageable immigration enforcement system that should simply be abolished. As a result, immigrant rights advocates might hesitate to support deportation defense. This Essay argues that such hesitation would be a mistake. Legal defense is the most feasible means available right now to stop many deportations, and expanding deportation defense resources will strengthen the immigrant rights movement locally and nationally. Expanding deportation defense should be a high …

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

Scholarly Works

No abstract provided.

Women Of Color In Immigration Enforcement, Kit Johnson

Nevada Law Journal

No abstract provided.

Cruelty Was The Point: Theories Of Recovery For Family Separation Anddetention Abuses, Sarah Rogerson

Nevada Law Journal

No abstract provided.

Chevron’S Asylum: Judicial Deference In Refugee Cases, Michael Kagan

Scholarly Works

Chevron deference is at the height of its powers in refugee and asylum cases, with the highest possible human consequences. Why does the Supreme Court seem so comfortable with Chevron deference in asylum cases when it has been reluctant to defer to the government in other kinds of deportation cases? More to the point, is this deference justified? There are cogent arguments justifying more deference in asylum cases than in other kinds of deportation cases. These arguments rest to a great extent on the premise that greater political accountability is a good thing when interpreting a statute. Yet in a …

Immigration And Naturalization, Stewart Chang, Sabrina Damast, Anju Gupta, Pooja Mehta, Samantha Rumsey

Scholarly Works

Immigration law has always been interesting and controversial. Yet in 2018, it became disproportionately so. Law and policymakers identified issues such as unlawful migration, the border between the United States and Mexico, Muslim immigration, and even high-skilled worker visas as critical election issues in anticipation of the 2018 midterm election. Additionally, the current U.S. Executive Branch has taken a hardline approach to immigration, pursuing opportunities to limit, rather than expand, access by non-citizens to U.S. opportunities. As a prime policy example, the fact that U.S. Citizenship and Immigration Services (USCIS), that is responsible for processing immigration and naturalization applications and …

“Liquidated Damages” In Guest Worker Contracts: Involuntary Servitude, Debt Peonage Or Valid Contract Clause?, Maria L. Ontiveros

Nevada Law Journal

No abstract provided.

Old Lines In New Battles: An Overlooked Yet Useful Statute To Confront Exploitation Of Undocumented Workers By Employers And By Ice, Aviam Soifer

Nevada Law Journal

No abstract provided.

What We Talk About When We Talk About Sanctuary Cities, Michael Kagan

Scholarly Works

In this Essay, Professor Michael Kagan asserts when immigrant rights advocates ask their local, state and university leaders to become "sanctuary cities," "sanctuary states," "sanctuary campuses," and so on, they carelessly hurt immigrants in places like Nevada, Texas, and Arizona. And there are a lot of immigrants in those states. People who mean to help immigrants are hurting them. He first sets out assumptions he makes about the semantics and politics of "sanctuary" debates. These assumptions include setting out the kind of actual policies that are usually under consideration when people invoke the sanctuary label, and a way of understanding …

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

Scholarly Works

Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn …

Chevron's Liberty Exception, Michael Kagan

Scholarly Works

This Article argues that the Supreme Court’s practice in immigration cases reflects an unstated but compelling limitation on Chevron deference. Judicial deference to the executive branch is inappropriate when courts review the legality of a government intrusion on physical liberty. This norm is illustrated by the fact that the Court has not meaningfully applied Chevron deference in cases concerning deportation, and also has seemed reluctant to do so in cases concerning immigration detention. It is a logical extension of the established rule that Chevron deference does not apply to questions of criminal law. By contrast, the Court applies Chevron deference …

Toward Universal Deportation Defense: An Optimistic View, Michael Kagan

Scholarly Works

One of the most positive responses to heightened federal enforcement of immigration laws has been increasing local and philanthropic interest in supporting immigrant legal defense. These measures are tentative and may be fleeting, and for the time being are not a substitute for federal support for an immigration public defender system. Nevertheless, it is now possible to envision many more immigrants in deportation having access to counsel, maybe even a situation in which the majority do. In this paper, Professor Michael Kagan makes no real predictions. Instead, he offers a deliberately-perhaps even blindly optimistic assessment of how concrete steps that …

Families Across Borders: When Immigration And Family Law Collide-Minors Crossing Borders, Stewart Chang

Scholarly Works

No abstract provided.

Is The Chinese Exclusion Case Still Good Law? (The President Is Trying To Find Out), Michael Kagan

Nevada Law Journal Forum

In this Essay, I want to make the argument that the validity of the Chinese Exclusion Case is the central question in the challenges to President Trump’s travel bans. The facts are closely analogous. Moreover, the Chinese Exclusion Case is the seminal, canonical decision establishing vast federal power over immigration control. Resolving the present challenges to the Trump Executive Orders requires us to determine, once and for all, if that 1889 decision was rightly decided. But if that case cannot survive given what we know of constitutional law in the twenty first century, we must be precise about what exactly …

Of Mice And Men: On The Seclusion Of Immigration Detainees And Hospital Patients, Stacey A. Tovino

Scholarly Works

With a special focus on federal provisions strictly regulating Medicare-participating hospitals' use of seclusion, this Article uses developments in health law as a lens through which the uses and abuses of seclusion in immigration detention centers might be assessed and through which the standards governing detention centers might be improved. In particular, this Article argues that the unenforceable standards governing seclusion in immigration detention, including the most recent version of ICE's Performance-Based National Detention Standards, were incorrectly modeled on correctional standards developed for use in jails and prisons with respect to convicted criminals. This Article asserts that correctional standards are …

The Grapes Of Wrath: On The Health Of Immigration Detainees, Stacey A. Tovino

Scholarly Works

This Article challenges the lack of health care provided to individuals in U.S. Immigration and Customs Enforcement (“ICE”) custody. As background, many immigration detainees are physically and emotionally vulnerable at the time of initial confinement due to a history of torture and trauma, which may include human trafficking, sexual violence, political oppression, psychosocial trauma, and acculturative stress. Detention can exacerbate preexisting vulnerabilities and contribute to severe physical and mental illness as well as death. Between October 2003 and October 2015, 153 individuals died while in ICE custody. Although most proposals for detainee health reform borrow heavily from constitutional law, international …

Brief For The Florence Immigrant And Refugee Rights Project And Thomas & Mack Legal Clinic As Amici Curiae Supporting Petitioners, Mondaca-Vega V. Lynch, Hillary G. Walsh

Supreme Court Briefs

No abstract provided.

Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions, Michael Kagan

Scholarly Works

President Obama’s ambitious use of executive discretion in immigration – especially the DACA and DAPA programs – should be understood in context of a struggle within the executive branch between the President and frontline enforcement officers in the Department of Homeland Security who have actively resisted his policy agenda. The so far successful litigation by 26 states to partially halt these programs has focused on this struggle within the executive branch, rather than on the stalemate between the President and Congress over legislative immigration reform. In preliminary rulings, the federal district court and the Court of Appeals have interpreted ambiguous …

Limiting Deterrence: Judicial Resistance To Detention Of Asylum-Seekers In Israel And The United States, Michael Kagan

Scholarly Works

Governments have advanced the argument that asylum-seekers may be detained in order to deter other would-­be asylum­-seekers from coming. But in recent litigation in the United States and Israel, this justification for mass detention met with significant resistance from courts. This Essay looks at the way the American and Israeli courts dealt with the proposed deterrence rationale for asylum-seeker detention. It suggests that general deterrence raises three sequential questions:

1. Is deterrence ever legitimate as a stand alone justification for depriving people of liberty?

2. If deterrence is sometimes legitimate, is it valid as a general matter in migration control, …

Domestic Violence And The Politics Of Self-Help, Elizabeth L. Macdowell

Scholarly Works

Self-help programs are conceptualized as alternatives to attorney representation that can help both courts and unrepresented litigants. The rhetoric of self-help also typically includes empowering unrepresented individuals to help themselves. But how do self-help programs respond to litigants’ efforts at self-advocacy? This Article reports findings from a study of courthouse self-help programs assisting unrepresented litigants applying for protection orders. The central finding is that self-help staff members were not neutral in the provision of services despite a professed ethic of neutrality. Using the sociological concept of demeanor, this Article shows that staff members rewarded protection order applicants who conformed to …

When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan

Scholarly Works

The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have …

Shrinking The Post-Plenary Power Problem, Michael Kagan

Scholarly Works

In this essay, Professor Michael Kagan responds to Professor Matthew J. Lindsay's article, Disaggregating “Immigration Law.” Professor Kagan posits a majority of Supreme Court justices appear to be at least occasionally uneasy with the plenary power doctrine that has shaped immigration law since the Chinese Exclusion Case, but they are not all sure how to live without it either. He argues so long as this remains the case, the Court’s immigration jurisprudence is likely to be incrementally favorable to immigrants on the whole, but tentative, inconsistent, and incoherent in some important ways. He concludes the importance of Professor Lindsay’s intervention …

Integrating Skills And Collaborating Across Law Schools : An Example From Immigration Law, Jennifer Lee Koh, Anna Welch

Nevada Law Journal

No abstract provided.

Assumed Sane, Fatma Marouf

Scholarly Works

In 2014, the Board of Immigration Appeals (BIA) held in Matter of G-G-S- that a noncitizen’s mental health status at the time of an offense is irrelevant to determining whether the offense is a “particularly serious crime” for immigration purposes. Since a “particularly serious crime” is a bar to asylum and withholding of removal, it can result in a noncitizen’s deportation to a country where he or she faces a serious risk of persecution. In deciding that immigration judges “are constrained by how mental health issues were addressed as part of the criminal proceedings,” the BIA failed to recognize the …

Feminism In Yellowface, Stewart Chang

Scholarly Works

This article analyzes the relationship between sexualized stereotypes of Asian women, specifically the Asian prostitute epitomized in the Suzie Wong stereotype, and the tendency of American immigration law, even in pro-women legislation such as the TVPA, to promote conservative norms regarding female sexuality and domesticity. Part I explains the significance of Asian prostitution in the history and evolution of United States immigration policy. In the nineteenth century, the Asian prostitute was constructed as the antithesis to normative American sexuality, as a foreign peril that threatened the integrity of the American domestic unity and therefore required rejection and exclusion. Part II …