Law Commons^™

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 …

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 …

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 …

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 …

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 …

Slings And Arrows Of Outrageous Fortune: The Deportation Of "Aggravated Felons", Valerie Neal

Vanderbilt Journal of Transnational Law

Any foreign national who is convicted of an "aggravated felony," as that term is defined in the Immigration and Nationality Act, is subject to deportation from the United States. Deportation of so-called "aggravated felons" is in no way contingent upon the particular facts and circumstances in a given case. More troublingly, on the judiciary has no authority to review a deportation order based "aggravated felony" grounds. In the past decade, Congress has expanded the definition of "aggravated felony" to encompass many minor crimes that are neither aggravated nor felonious.

The deportation of foreign nationals on "aggravated felony" grounds is effectively …

A Case Of Unconstitutional Immigration: The Importation Of England's National Curriculum To The United States, Jaime S. Boutwell

Vanderbilt Journal of Transnational Law

The decline in the quality of the American educational system continues to spawn debate and criticism across the nation. Despite many suggestions and arguments on how to improve American schools, such as voucher systems, smaller class size, and higher teacher qualifications, the concern, while deeply felt, appears to be empty rhetoric. Teachers' low salaries, the disparity in funding among schools, and the lack of parent and community involvement demonstrate America's apathy towards education reform. To effectuate meaningful changes in education, American communities must reach consensus on education's purpose and importance.

The failure of schools requires America to take action. State …

Non-Immigration Visa Fraud: Proposals To End The Misuse Of The L Visa By Transnational Criminal Organizations As A Method Of Illegal Immigration, Amy Mccallen

Vanderbilt Journal of Transnational Law

This Note examines why the L visa is particularly vulnerable to multinational fraud and proposes both a domestic and an international solution to combat this abuse. Part II of this Note addresses the governmental policies behind the L visa. This section provides an overview of the origins of the transnational company and discusses the reasons why Congress created the L visa to meet the needs of this specialized segment of international business.

Part III analyzes the bifurcated approval process for an L visa. This section surveys the requirements for the L visa and discusses why Congress believed these requirements were …

Removing The Venom From The Snakehead: Japan's Newest Attempt To Control Chinese Human Smuggling, Ian Peck

Vanderbilt Journal of Transnational Law

This Note examines Japan's 1997 Amendment to the Immigration Control and Refugee Recognition Act as a response to illegal Chinese immigration. Part II of the Note identifies and explains the international human smuggling crisis. Part III examines Sino-Japanese human smuggling. Finally, Part IV analyzes the Immigration Control and Refugee Recognition Act in detail and suggests some of the Act's shortcomings.

Proposals To Address Germany's Status As A "Land Of Immigration", Anne M. Seibel

Vanderbilt Journal of Transnational Law

International law permits each individual State to determine who under its laws are citizens of the nation. Germany's decision at the beginning of this century to adhere to the jus sanguinis model of citizenship continues to shape the country's immigration and citizenship laws. This model predicates citizenship on one's parents rather than one's place of birth. Accordingly, "ethnic Germans" who have returned to Germany since the end of the Cold War era are considered to possess a right to German citizenship. In contrast, naturalization procedures are rigorous for foreign residents, including guestworkers and asylum seekers, many of whom are long-time …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

This Case Digest provides brief analyses of cases that represent current aspects of international law. The Digest includes cases that establish legal principles and cases that apply established legal principles to new factual situations. The cases are grouped by topic and include references for further research.

TABLE OF CONTENTS

I. AID TO FOREIGN TRIBUNALS

II. TRADE

III.TREATIES

IV. IMMIGRATION

Aliens' Right To Seek Asylum: The Attorney General's Power To Exclude "Security Threats" And The Role Of The Courts, Mary S. Miller

Vanderbilt Journal of Transnational Law

The United States Court of Appeals for the Second Circuit is the only circuit court to analyze the relationship between section 235(c) and section 243(h), as amended by the Refugee Act. In "Azzouka v. Sava," the court resolved the apparent conflict between the two acts by holding that if the Attorney General determines that an alien is a security threat, that alien may be excluded without a hearing before an immigration judge despite the fact that the alien has requested political asylum."

This Note examines the interrelationship between sections 235(c) and 243(h) by analyzing the legislative, judicial, and administrative interpretations …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Case Digest

Materiality Standard for Concealment or Misrepresentation under Immigration and Nationality Act § 1451(a) is Sufficient to Influence an Immigration and Naturalization Service Decision; The Test of Good Moral Character under § 1101(f)(6) Does Not Require a Finding of Materiality for any False Testimony --Kungys v. United States, 108 S. Ct. 1537 (1988)

The Broad Subpoena Power of the Immigration and Naturalization Service does not Authorize Issuance of a Blanket John Doe Subpoena to Gather Information Regarding Unidentified Aliens--Peters v. United States, 853 F.2d 692 (9th Cir.1988)

Routine Strip Searches of Detained Juvenile Aliens Violate Juveniles' Fourth Amendment Rights--Flores …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE EXTENDS TO FOREIGN CRIMINAL INVESTIGATIONS WHERE UNITED STATES NARCOTICS AUTHORITIES REASONABLY RELIED ON FOREIGN LAW ENFORCEMENT OFFICERS' REPRESENTATIONS THAT SEARCH COMPLIED WITH THE FOREIGN COUNTRY'S LAW--United States v. Peter-son, 812 F.2d 486 (9th Cir. 1987).

ASSETS OF A WHOLLY-OWNED FOREIGN INSTRUMENTALITY ARE NOT SUBJECT TO ATTACHMENT TO SATISFY JUDGMENT AGAINST A FOREIGN STATE UNLESS PLAINTIFF OVERCOMES PRESUMPTION OF INDEPENDENT STATUS--Hercaire Int'l, Inc. v. Argentina, 821 F.2d 559(11th Cir. 1987).

UNITED STATES DISTRICT COURT HAS SUBJECT MATTER JURISDICTION OVER MEXICAN CONSULAR OFFICIALS FOR THEIR ALLEGED ATTEMPTS TO SUPPRESS CRITICAL DEMONSTRATIONS OUTSIDE MEXICAN CONSULATE IN …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Secretary of Transportation's Order Issued Pursuant to Anti-Apartheid Act, which immediately revoked South-African airways right to serve United States Airports, Upheld Notwithstanding possible violation of prior Executive Agreement--South African Airways v. Dole, 817 F.2d 119 (D.C.Cir. 1987).

IN TRANSNATIONAL LITIGATION, HAGUE EVIDENCE CONVENTION IS NOT MANDATORY, EXCLUSIVE, OR PROCEDURE OF FIRST RESORT, BUT UNITED STATES COURT MAY RESORT TO CONVENTION'S DISCOVERY PROCEDURES To SUPPLEMENT FEDERAL DISCOVERY RULES WHEN CIRCUMSTANCES WARRANT --Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 107 S. Ct. 2542 (1987).

Two YEAR PROCESSING DELAY OF APPLICATION FOR ADJUSTMENT OF IMMIGRATION …

The Concept Of Citizenship: Challenging South Africa's Policy, Joe W. (Chip) Pitts Iii

Vanderbilt Journal of Transnational Law

The concept of citizenship has come to represent the full cluster of civil rights held by individuals as members of modern states. Therefore, of all the "reforms" undertaken by South Africa in response to the economic and political instability of the last two years, the most potentially far reaching was State President P. W. Botha's announcement that citizenship would be restored' to South African blacks. In September 1985, Botha affirmed that some form of citizenship would be extended to all South Africans. Finally, on July 2, 1986, the South African government passed The Restoration of South African Citizenship Act."

The Foreign Investor: Current Approaches Toward United States Immigration Law, Austin T. Fragomen, Jr., Gwendolyn M. Robosson

Vanderbilt Journal of Transnational Law

The topic of representing the foreign investor under the Immigration and Nationality Act is one of growing significance. Increases in the inflow of foreign funds have been substantial, with net foreign investment in the United States rising to an annual rate of more than eighty billion dollars in the second quarter of 1984, compared to thirty-four billion dollars in 1983. The foreign investor seeking entry into the United States to oversee an investment enterprise faces, however, a dearth of directly relevant provisions in the Immigration and Nationality Act. This article addresses the salient features of United States immigration law relating …

The Refugee Act Of 1980--What Burden Of Proof: Controversy Lives On After "Stevic", Jeffrey S. Bivins

Vanderbilt Journal of Transnational Law

This Article explores the burden of proof debate. First, it delves into the historical developments leading up to the Refugee Act then focuses on the Refugee Act's legislative history and on case law prior to the Supreme Court's decision in Stevic. Second, the Article discusses the Stevic opinion and the interpretation of Stevic in subsequent circuit court decisions. Third, it analyzes Stevic and the subsequent cases. The Article concludes with a look at what the future holds for the Refugee Act.

Rethinking Exclusion--The Rights Of Cuban Refugees Facing Indefinite Detention In The United States, Richard A. Boswell

Vanderbilt Journal of Transnational Law

This Article will build upon the stable foundation presented in the arguments that challenged, the "Nishimura" maxim, and will discuss major flaws in the practice of indefinitely detaining excludable aliens in the context of the Cubans who have been detained in various parts of the United States since their arrival in 1980. First, the Article focuses on the practical merits of the use of indefinite detention as a means of immigration policy. The Article concludes that the practice, which is extremely expensive, does not appear to limit mass migrations, and offers, at best, only a few benefits. Second, the Article …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

MILITARY ACTIVITIES OF THE PROVISIONAL IRISH REPUBLICAN ARMY FALL WITHIN THE SCOPE OF THE POLITICAL OFFENSE EXCEPTION TO THE TREATY OF EXTRADITION BETWEEN THE UNITED STATES AND THE UNITED KINGDOM--In the Matter of the Requested Extradition of Joseph Patrick Thomas Doherty, Crim. Misc. No. 83-1(S.D.N.Y. Dec. 12, 1984).

THE IMMIGRATION AND NATIONALITY ACT PERMITS THE DEPORTATION OF AN ALIEN WHEN THE IMMIGRATION AND NATURALIZATION SERVICE ESTABLISHES BY CLEAR AND CONVINCING EVIDENCE THAT THE ALIEN, UNDER THE AEGIS OF NAZI GERMANY, PERSONALLY AND ACTIVELY PARTICIPATED IN THE PERSECUTION OF INDIVIDUALS BECAUSE OF THEIR POLITICAL OPINIONS--Laipenieks v. Immigration and Naturalization Service, No. …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Point of Final Loading and Routing is Place of Shipment for Purposes of Valuing Lost Cargo; Private Carrier's Both-to-Blame Clause is Enforceable---Allseas Maritime, S.A. v. M/V Mimosa, 574 F. Supp. 844 (S.D. Tex. 1983).

LAND-BASED NEGLIGENCE CAUSING AN AIRPLANE CRASH IN INTERNATIONAL WATERS FALLS WITHIN ADMIRALTY JURISDICTION--Miller v. United States, 18 Av. CAS. (CCH) 17,912 (11th Cir. 1984).

FREIGHT FORWARDER WHO BREACHES A FIDUCIARY DUTY TO HIS SHIPPER VIOLATES THE WIRE FRAUD STATUTE--United States v. Armand Ventura, 724 F.2d 305 (2d Cir. 1983).

IN PERSONAM JURISDICTION OBTAINED BY ATTACHMENT OF PROPERTY IS DIFFERENT FROM IN REM JURISDICTION--Belcher Co. v. MIV …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

EMPLOYEE WHO SPENDS "SOME PORTION OF WORK TIME IN MARITIME ACTIVITIES" IS AN "EMPLOYEE" COVERED BY THE LONGSHOREMEN'S AND WORKERS' COMPENSATION ACT-Schwabenland v.Sanger Boats, 683 F.2d 309 (9th Cir. 1982)

UNITED STATES CARRIAGE OF GOODS BY SEA ACT EXEMPTS DEFENDANT FROM LIABILITY FOR SHIP DAMAGE INCURRED WHILE DISCHARGING CARGO--Seven Seas Transportation Ltd. v. Pacifico Union Marina Corp. [1982] 2 Lloyd's L.R. 465

IMMIGRATION AND NATURALIZATION SERVICE DISTRICT DIRECTOR IS ENTITLED TO BROAD DISCRETION IN WEIGHING CRITERIA FOR PAROLE DETERMINATION OF UNADMITTED ALIENS--Bertrand v. Sava,684 F.2d 204 (2d Cir. 1982)

THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT DOES NOT APPLY TO …

Back To Square One: Estoppel Against The Government After Immigration And Naturalization Service V. Miranda, Gerald J. Pels

Vanderbilt Journal of Transnational Law

In this nation of immigrants, few matters of public policy arouse more intense or divisive public debate than the subject of change in our immigration and naturalization laws. Presently, our system of immigration laws, which is grounded upon antiquated procedure, is being tested by new problems. For example, the increase in political asylum cases and the influx of aliens from the third world have posed new challenges for these outdated procedures. The 97th Congress considered adopting the Simpson-Mazzoli bill in 1982 to alleviate the problems.

The Senate passed the Simpson-Mazzoli bill on August 17,1982, but the House did not act …

A Comparison Between The Constitutional Protections Against The Imposition Of Involuntary Expatriation And A Taxpayer's Right To Disclaim Citizenship, Terri R. Reicher

Vanderbilt Journal of Transnational Law

This Note examines both sides of the coin: the constitutional protections given the individual fighting to retain his citizenship will be compared with the burdens, particularly the tax consequences, imposed on individuals wanting to relinquish citizenship. Section II examines the classic constitutionally-based expatriation material. It discusses the legislative history of expatriation law, including the 1978 amendments to the INA, reviews the major expatriation case law, and concludes with an analysis of Vance v. Terrazas, the most recent Supreme Court pronouncement on the nature of the "voluntary" conduct required to constitute expatriation. Section III deals with the tax aspects of expatriation. …

Recent Decisions, Robert C. Goodrich, Jr., Christopher Q. King, Jay D. Grushkin

Vanderbilt Journal of Transnational Law

Recent Decisions

Jurisdiction and Procedure - Forum non Conveniens--The Foreign Plaintiff is Entitled to Less Deference in His Choice of Forum than is a Citizen or Resident Plaintiff; A Change of Law Resulting from Dismissal is Not a Substantial Factor in the Forum non Conveniens Analysis.

Robert Charles Goodrich, Jr.

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ALIENS--Exclusion of Aliens from State Probation Officer Position is not Unconstitutional because it Falls Within the Political Function Exception

Christopher Qualley King

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SOVEREIGN IMMUNITY--Ship Owning Corporation's Contacts with United States are Sufficient to Extend Jurisdiction over Action for Damages involving Maritime Collision: Financial Effect on a United States …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

ADMIRALTY JURISDICTION EXISTS IN CASES STEMMING FROM BOAT COLLISIONS ON NAVIGABLE WATERS REGARDLESS OF THE COMMERCIAL OR NONCOMMERCIAL NATURE OF THE VESSELS INVOLVED--Foremost Insurance Co. v. Richardson, 102 S. Ct. 2654 (1982).

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SHIPOWNER MAY ATTACH CHARACTER'S PROPERTY AS SECURITY FOR BREACH OF A CHARTER CONTAINING A FORUM SELECTION CLAUSE--Polar Shipping, Ltd. v. Oriental Shipping Corp., 680 F.2d 627 (9th Cir. 1982).

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WORKER EMPLOYED ABOARD AN OFFSHORE DRILLING PLATFORM MAY BRING A CLAIM UNDER MARITIME TORT LAW FOR WRONGFUL DISCHARGE--Roberie v. Gulf Oil Corp., No. 820013 (W.D. La.Aug. 4, 1982)

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THE IMMIGRATION AND NATURALIZATION ACT DOES NOT APPLY …

Recent Developments, Gali Hagel, John R. Heldman

Vanderbilt Journal of Transnational Law

RECENT DEVELOPMENTS

Aliens' Rights--The Refugee Act of 1980 as Response to the 1967 Protocol Relating to the Status of Refugees: The First Test

Gali Hagel

The Refugee Act of 1980, reflecting United States commitments under the 1951 Convention and the 1967 Protocol, went into effect during a wave of immigration that created a state of emergency in strongly affected southern Florida. Under a severe test of its commitment to the terms of the 1967 Protocol and its implicit sense of moral obligation to grant asylum to individuals fleeing dictatorial rule, the United States responded positively in accepting the Cubans. Although …