Law Commons^™

Brief Of Scholars Of Mormon History & Law As Amici Curiae In Support Of Neither Party, Anna-Rose Mathieson, Ben Feuer, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Amici Curiae Brief Of Scholars Of Mormon History & Law In Support Of Neither Party, Anna-Rose Mathieson, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Amici Curiae Brief Of Scholars Of American Religious History & Law In Support Of Neither Party, Nathan B. Oman, Anna-Rose Mathieson

Nathan B. Oman

No abstract provided.

Notes On The Multiple Facets Of Immigration Federalism, Rick Su

Rick Su

This symposium essay takes as its starting point the contestable position that some degree of immigration federalism is both constitutionally permissible and politically desirable. It suggests, however, that liberating the issue of immigration from the shadows of federal exclusivity does not necessarily tell us much about what a conceptual framework or legal jurisprudence of immigration federalism should or will actually be like. This is not solely a function of the difficulties inherent in incorporating principles of federalism into what is usually understood to be an exclusive federal field of immigration. Rather, it is also a consequence of the rifts and …

A Localist Reading Of Local Immigration Regulations, Rick Su

Rick Su

The conventional account of immigration-related activity at the local level often assumes that the "local" is simply a new battleground in the national immigration debates. This article questions that presumption. Foregrounding the legal rules that define local governments and channels local action, this article argues that the local immigration "crisis" is much less a consequence of federal immigration policy than normally assumed. Rather, it can also be understood as a familiar byproduct of localism: the legal and cultural assumptions that shape how we structure and organize local communities, provide and allocate local services, and define the legal relationship of local, …

Cooperative Enforcement In Immigration Law, Amanda Frost

Amanda Frost

Blackwell-Hill V. Lynch, 614 Fed.Appx. 348, (9th Cir. 2015) With Shannon Johnson ’15 And Alejandra Salinas '15, Kari E. Hong

Kari E. Hong

The Expansion Of “Particularly Serious Crimes” In Refugee Law: Mirroring The Severity Revolution, Mary Holper

Mary Holper

Refugees are not protected from deportation if they have been convicted of a “particularly serious crime” (“PSC”) which renders them a danger to the community. This raises questions about the meaning of “particularly serious” and “danger to the community.” The Board of Immigration Appeals, Attorney General, and Congress have interpreted PSC quite broadly, leaving many refugees vulnerable to deportation without any consideration of the risk of persecution in their cases. This trend is disturbing as a matter of refugee law, but it is even more disturbing because it demonstrates how certain criminal law trends have played out in immigration law. …

Immigration Actors: Federal Agencies And Courts, Enid Trucios-Haynes

Enid F. Trucios-Haynes

Learning From Our Mistakes: Using Immigration Enforcement Errors To Guide Reform, Amanda Frost

Amanda Frost

U.S. Immigration Law And The Traditional Nuclear Conception Of Family: Toward A Functional Definition Of Family That Protects Children's Fundamental Human Rights, Shani M. King

Shani M. King

Although the paramount purpose of United States immigration law is not to protect the integrity of family, U.S.immigration law does explicitly aim to do so in certain circumstances. The Immigration and Nationality Act (INA) includes family reunification provisions, for example, which allow United States citizens and lawful permanent residents to petition for family members who live in other countries to join them in the United States. Even the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), often described as a draconian statute, technically allows otherwise removable "aliens" to remain in the United States if removal would result in …

Traveling The Boundaries Of Statelessness: Global Passports And Citizenship, Berta E. Hernández-Truyol, Matthew Hawk

Berta E. Hernández-Truyol

An independent global citizenship without a local component and in the absence of the much-feared global government creates two concerns. One, an individual may imperil the rights of others, without a structure that can impose sanctions for the heinous conduct. Two, an individual's rights may be imperiled, and there may be no entity to provide protection. This essay proposes a model of a formal global citizenship that will alleviate these concerns and prove both practically and theoretically feasible. The model flows from the concept of dual or multiple nationality and offers global citizenship only as an elective nationality. Such citizenship …

An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston

E. Lea Johnston

In 1996, Congress amended the Immigration and Nationality Act by providing a new sanction for asylum seekers: if an immigration judge makes a finding that a noncitizen has knowingly filed a fraudulent asylum application, then that person is permanently ineligible for immigration benefits. For eleven years, immigration judges, the Board of Immigration Appeals, and federal courts have imposed and reviewed this sanction without specifying a burden of proof. When it did act to fill the statutory gap in April 2007, the Board held that the government must prove the elements of the statute by a preponderance of the evidence. This …

Combating Terrorism With The Alien Terrorist Removal Court, Jonathan Yu

Jonathan Yu

No abstract provided.

The Immigration Detention Risk Assessment, Mark Noferi, Robert Koulish

Mark L Noferi

In early 2013, U.S. Immigration and Customs Enforcement (“ICE”) deployed nationwide a new automated risk assessment tool to help determine whether to detain or release noncitizens pending their deportation proceedings. Adapted from similar evidence-based criminal justice reforms that have reduced pretrial detention, ICE’s initiative now represents the largest pre-hearing risk assessment experiment in U.S. history—potentially impacting over 400,000 individuals per year. However, to date little information has been released regarding the risk assessment algorithm, processes, and outcomes.

This article provides the first comprehensive examination of ICE’s risk assessment initiative, based on public access to ICE methodology and outcomes as a …

Mercy In Immigration Law, Allison B. Tirres

Allison Tirres

Border Searches In The Age Of Terrorism, Robert M. Bloom

Robert Bloom

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns will likely have …

The Legitimacy Of Crimmigration Law, Juliet P. Stumpf

Juliet P Stumpf

Crimmigration law—the intersection of immigration and criminal law—with its emphasis on immigration enforcement, has been hailed as the lynchpin for successful political compromise on immigration reform. Yet crimmigration law’s unprecedented approach to interior immigration and criminal law enforcement threatens to undermine public belief in the fairness of immigration law. This Article uses pioneering social science research to explore people’s perceptions of the legitimacy of crimmigration law. According to Tom Tyler and other compliance scholars, perceptions about procedural justice—whether people perceive authorities as acting fairly—are often more important than a favorable outcome such as winning the case or avoiding arrest. Legal …

Specific Intent And The Purposeful Narrowing Of Victim Protection Under The Convention Against Torture, Mary Holper

Mary Holper

Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (“CAT”) prevents removal of a person to a country where there is a substantial likelihood of torture. The U.S. ratified the CAT in 1994, yet modified the treaty’s definition of “torture” by inserting an understanding that “torture” includes only pain or suffering that is “specifically intended.” Specific intent, an antiquated criminal law term, has several different meanings in criminal law jurisprudence. In Matter of J-E-, the Board of Immigration Appeals in 2002 chose the most narrow definition of specific intent, “purposeful,” and …

"Alien" Litigation As Polity-Participation: The Positive Power Of A "Voteless Class Of Litigants", Daniel Kanstroom

Daniel Kanstroom

No abstract provided.

The Corrupting Influence Of The United States On A Vulnerable Intercountry Adoption System: A Guide For Stakeholders, Hague And Non-Hague Nations, Ngos, And Concerned Parties, David M. Smolin

David M. Smolin

This article provides an extensive analysis of the corrupting influence of the United States on the development and present workings of the intercountry/international adoption system. A context for this corrupting influence is provided through a careful analysis of the theoretical and practical vulnerabilities of the intercountry adoption system. The distinctive approaches of the United States to social work, adoption, human rights, children's rights, constitutional law and humanitarian intervention also provides careful analysis. The article is designed to be practical in providing both a clear guide to those interested in reforming the United States' approach to intercountry adoption and related matters, …

A Paradox In Employment: The Contradiction That Exists Between Immigration Laws And Outsourcing Practices, And Its Impact On The Legal And Illegal Minority Working Classes, Mary O'Sullivan

Mary T O'Sullivan

The drastic distinctions between the United States’ immigration and outsourcing policies have created a system where American companies are able to send unlimited jobs overseas, yet, have very restricted ability to bring workers to domestic offices and factories. Restrictive immigration policies seek to protect American jobs, while liberal outsourcing regulations permit, and encourage, employers to send jobs outside of the United States. As a result, the United States’ outsourcing policy sabotages the purpose of American immigration laws. The uncertainty of the contradiction between immigration and outsourcing policy may be the cause of unusually high unemployment numbers, particularly in the minority …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Katherine L. Vaughns

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs suggest that …

Border Fixation: The Appearance Of Security And Control In Immigration Reform, Katherine L. Vaughns

Katherine L. Vaughns

Immigration reform is the subject of intense discussion among politicians, policy experts, analysts, and advocacy groups alike; America’s never-ending debate which today has been infected with shameless demagoguery, rendering sound policy choices virtually impossible. And in this political cauldron, the appearance of border security and control through symbolism and political rhetoric substitute for the practical realities that are essential to inform policymakers about the appropriate administration and enforcement of U.S. immigration laws. For Congress has had an ongoing, unsound focus on sealing the border it shares with Mexico, its southwestern neighbor, seemingly without regard to costs especially in the post-9/11 …

A Tale Of Two Opinions: The Meaning Of Statutes And The Nature Of Judicial Decision-Making In The Administrative Context, Katherine L. Vaughns

Katherine L. Vaughns

No abstract provided.

Asylum And Inspections Reform, Katherine L. Vaughns

Katherine L. Vaughns

No abstract provided.

Kiyemba, Guantanamo, And Immigration Law: An Extraterritorial Constitution In A Plenary Power World, Ernesto A. Hernandez-Lopez

Ernesto A. Hernandez

Immigration law is central to justifications for why five men remain detained indefinitely at Guantanamo, despite having writs of habeas approved in 2008. Since then, the Court of Appeals in Kiyemba v. Obama I, II, and III has used plenary powers reasoning to justify detentions under immigration law. The detainees are all non-combatants and Uighurs, Turkic Muslims from China. The Supreme Court may review these cases. Kiyemba I and III concern their judicial release into the U.S., while Kiyemba II regards barring their transfer because they may be tortured overseas. These cases raise significant constitutional habeas issues, but they also …

Explaining The Rise Of State And Local Immigration Laws, Pratheepan Gulasekaram

Pratheepan Gulasekaram

This Article provides a systematic empirical investigation of the genesis of state and local immigration regulations, discrediting the popular notion that they are caused by uneven demographic pressures across the country. Instead, we find systematic evidence for the significance of political contexts such as the strength of political parties in states and localities. The story we tell in this paper is both political and legal: understanding immigration politics uncovers vital truths about the recent rise of subnational involvement in a policy arena courts and commentators have traditionally ascribed to the federal government. This recognition of the political dynamics of immigration …

U.S. Asylum Law As A Path To Religious Persecution, Jack Dolance

Jack C Dolance II

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark, however—at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion”—in whatever form that religion may take. In the asylum context, then, “religion” must be defined broadly. Protection from …

U.S. Asylum Law As A Path To Religious Persecution, Jack Dolance

Jack C Dolance II

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark, however—at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion”—in whatever form that religion may take. In the asylum context, then, “religion” must be defined broadly. Protection from …