Law Commons^™

The Obama Administration’S Policy Change Grants Asylum To Battered Women: Female Genital Mutilation Opens The Door For All Victims Of Domestic Violence, David Z. Ma

David Z Ma

ABSTRACT Throughout his Presidential campaign in 2008 and at his inauguration on January 20, 2009, President Obama repeatedly promised the American people one absolute: change. Change would come in many forms, and on April 13, 2009, change came to immigration law and to victims of domestic violence. President Obama’s administration filed a supplemental appeal brief outlining its policies for victims of domestic violence seeking asylum in the U.S. This policy completely reversed the Bush administration’s position on the issue. Yet, how did this change come about? In the preceding decade before President Obama took office, the Board of Immigration Appeals …

Challenging The Doctrine Of Consular Non-Reviewability In Immigration Cases, Donald S. Dobkin

Donald S. Dobkin

No abstract provided.

Brave New World: The Use And Potential Misuse Of Dna Technology In Immigration Law, Janice D. Villiers

Janice D. Villiers

Deoxyribononucleic acid (“DNA”) technology revolutionized criminal law, family law and trust and estates practice. It is now revolutionizing immigration law. Currently DNA tests are not required, but may be recommended by the Department of Homeland Security when primary documentation such as marriage licenses, birth certificates and adoption papers are not available to prove the relationship between the U.S. citizen petitioner and the beneficiary who is seeking permanent resident status in the United States. DNA tests are attractive to the government as a means of countering fraud and because of administrative convenience, but adoption of a wholesale policy of DNA testing …

Prisons Without Convicts: Why Similar Protections As Those Offered To Prison Inmates By The Constitution Should Be Extended To Immigrant Detainees, Paul Wayner

Paul Wayner

No abstract provided.

Responsibility Sharing And The Rights Of Refugees: The Case Of Israel, Tally Kritzman-Amir

Tally Kritzman-Amir

This paper aims at examining the Israeli refugee law and practice through the lens of responsibility sharing. We will offer a critical analysis of the implementation of the Israeli asylum regime, showing the impact this regime has on responsibility sharing. We will also analyze the discourse on the issue of responsibility sharing, however limited in scope it is. This discussion emerges from an awareness of the fact that Israel is in a unique geopolitical situation, due to its proximity to Africa and being the only economically-stable democracy in the region. Israel is also embroiled in an ongoing conflict with its …

Defining “Sexual Abuse Of A Minor” In Immigration Law: Finding A Place For Uniformity, Fairness And Feminism, Kate Barth

Kate S. Barth

This article examines the circuit split over the proper definition of the term "sexual abuse of a minor" in the Immigration and Nationality Act, using considerations of fairness, uniform application of the law, and feminist perceptions of the purpose of statutory rape laws to help guide analysis. The Board of Immigration Appeals, the Second, Third, Fifth, Seventh, and Eleventh Circuits have tied the term "sexual abuse of a minor" to the definition given in 18 U.S.C § 3509(a)(8). The Ninth Circuit, on the other hand, recently decided that the term should more properly be tied to the definition given in …

Brave New World: The Use And Potential Misuse Of Dna Technology In Immigration Law, Janice D. Villiers

Janice D. Villiers

Deoxyribononucleic acid (“DNA”) technology revolutionized criminal law, family law and trust and estates practice. It is now revolutionizing immigration law. Currently DNA tests are not required, but may be recommended by the Department of Homeland Security when primary documentation such as marriage licenses, birth certificates and adoption papers are not available to prove the relationship between the U.S. citizen petitioner and the beneficiary who is seeking permanent resident status in the United States. DNA tests are attractive to the government as a means of countering fraud and because of administrative convenience, but adoption of a wholesale policy of DNA testing …

Slavery As Immigration?, Rhonda V. Magee

Rhonda V Magee

Slavery as Immigration? In this essay, the author argues that transatlantic slavery was, in significant part, an immigration system of a particularly pernicious sort -- a system of forced migration immigration aimed at fulfilling the nascent country's needs for a controllable labor population, and desire for a racialized one. As such, the law and policy of chattel slavery should be viewed as perhaps the most important historical antecedent to contemporary immigration law regarding low- and unskilled labor in the United States. Following an analysis of the treatment of chattel slavery in general immigration history scholarship, and in scholarship on the …

Halting The Deportation Of Businesses: A Pragmatic Paradigm For Dealing With Success, David P. Weber

David P Weber

Presently, there are estimated to be over 20,000 undocumented immigrants with six figure or higher annual incomes, and many of them are small business owners that provide valuable goods and services, pay taxes, and employ thousands of individuals who are lawfully authorized to work in the United States. Every time one of these individuals is removed from the country, the removal in effect acts to deport the immigrant’s business as well. This article proposes the creation of an entirely new visa category for certain undocumented entrepreneurs to resolve this issue. Part I of the article briefly discusses the economic benefits …

Looking Back, Moving Forward: The History And Future Of Refugee Protection, Shauna E. Labman

Shauna E. Labman

The origins of refugee protection are commonly associated with the aftermath of the Second World War and the huge outpouring of refugees that it sparked. The 1951 Refugee Convention, however, was in fact a revision and consolidation of previous international agreements relating to the status of refugees. In their own ways, all of the Convention’s predecessors responded to the refugee crises by facilitating the movement of refugees to safe states. With the 1951 Convention, in contrast, non-refoulement – the promise not to send people back to persecution – has come to be considered the core of refugee protection. While resettlement …

The New Sanctuary Movement: When Moral Mission Means Breaking The Law, And The Consequences For Churches And Illegal Immigrants, Kara L. Wild

Kara L. Wild

Are the churches involved in the New Sanctuary Movement -- a movement that hides illegal immigrants in churches to prevent them from being deported -- acting legally? If not, is there a way that they could pursue their goals in a legal manner? The author explores the movement's goal, to win public sympathy and eventual legality for the nation's illegal immigrant population by using methods that were popular during the successful 1980s Sanctuary Movement. The author examines the differences between the 1980s Movement and the current one, the likelihood of success for the New Sanctuary Movement's legal arguments, and the …

In The Name Of Efficiency: The Role Of Permanent Lok Adalats In The Indian Justice System And Power Infrastructure, Scott Shackelford

Scott Shackelford

No abstract provided.

Harmonizing Trade Liberalization And Migration Policy Through Shared Responsibility: A Comparison Of The Impact Of Bilateral Trade Agreements And The Gats In Germany And Canada, Kamaal Zaidi

Kamaal Zaidi

For many years, developed nations have been facing serious challenges with respect to demographic shifts. This has led to shape migration policy by hiring foreign workers or inviting business services from developing nations, which are characterized by a large work force. This paper examines the relationship between trade liberalization and migration policy by comparing Canada and Germany. The thesis of this paper is that bilateral trade agreements between Canada, Germany and other developing nations create more favorable migration policy for non-residents seeking employment in these two developed nations. This is more favorable compared to multilateral trade, particularly within Mode 4 …

Contemporary Constitutional Issue: Deportation By Private Hospitals, Jinsung Chang

Jason Zang

An indigent alien’s rights under the Constitution and Immigration and Nationality Act was traversed when a private hospital transferred him to Guatemala on an invalid order by Florida state court which violated Due Process rights entitled him to a specified proceedings delineated by Congress.

When Immigration Borders Move, Huyen T. Pham

Huyen T. Pham

With recent immigration enforcement efforts, we have created a completely new paradigm of moving borders: laws enacted at all levels of government that require proof of legal immigration status in order to obtain a driver’s license, a job, rental housing, government need-based assistance, and numerous other essential benefits. Unlike the fixed physical border, these laws require proof of immigration status at multiple, moving points in the country’s interior and are triggered through everyday transactions. A person who is unable to prove legal status is denied the restricted benefit; if a person is denied access to multiple essential benefits, then she …

Two Years Later, How Far Have We Come: A Review Of The 2006 Measures Of Improvement To The Immigration Courts And Board Of Immigration Appeals, Christina M. Workman

Christina M Workman

I have attaches for your review a copy of “How Far Have We Come: A Review of the 2006 Measures of Improvement to the Immigration Courts and Board of Immigration Appeals”. In this article I first explore the causes of large disparities in asylum denial rates both between and within Immigration Courts across the United States. In one Court alone, one judge grants asylum 9% of the time, while another judge on that same Court grants asylum 91% percent of the time. Critics of the Immigration Courts, including Federal Appellate Courts, have citied reasons including but not limited to poor …

A Pledge Of Double Allegiance: Prospectus For A New Inquiry Of Dual Citizenship In The United States, Matthew Axtell

Matthew Axtell

This essay analyzes the dual citizenship output of scholars from differing schools of thought, from traditionalist academics working in U.S. law schools, to writers utilizing postnational, New Left, or Latin American perspectives. These academics have taken a number of paths when analyzing dual citizenship. Demonstrating a mastery over changing legal doctrine, U.S. law professors offer tales of upward evolution, with legal regimes and policies gradually but inevitably moving from a “restrictive” past to a “tolerant” present. Postmodern social theorists portray dual citizenship as the start, not the end, of something very big. For them, dual citizenship heralds the arrival of …

“Otherness” As The Underlying Principle In Israel’S Asylum Regime, Tally Kritzman-Amir

Tally Kritzman-Amir

This paper aims to be one of the first thorough descriptions of the developing asylum system in the State of Israel. The argument presented in this paper is that, despite the inherent moral and doctrinal differences between asylum and immigration regimes, the Israeli asylum system is essentially an extension of Israel’s immigration and citizenship regime, as it excludes the non-Jewish refugees and frames the refugee as the “other.”

I begin this paper with a description of the Israeli immigration and citizenship regime. I show how the Israeli regime favors and includes Jews, and discriminates and excludes non-Jews, with the exclusion …

The Deportation Of Migrant Workers From Israel: Theory, Policy And The Law, Yossi Dahan

Yossi Dahan

This essay proposes a theoretical framework for understanding the deportation of tens of thousands of migrant workers from Israel between the years 1995 and 2005. To this end, it examines Israeli deportation policy based, inter alia, on an empirical study of hundreds of deportation cases litigated in the courts between 2001 and 2005. This examination demonstrates that the deportation campaign was designed to achieve two parallel goals: to lower labor costs by creating a large class of indentured workers through what has been referred to as the “binding arrangement” (a neo-liberal goal) and to deny the grant of civic status …

The Quiet National Security Revolution: Suing For Citizenship, Jeffrey A. Breinholt

Jeffrey A Breinholt

The article looks at an alarming trend of aliens suing for naturalization or adjustment of status where they feel that the post-9/11 terrorist screening mechanisms are too onerous. The article looks at current controversies over the No-Fly list, as well as the Cold War efforts to maintain the security of U.S. seaports, and, based on this history, concludes that it is just a matter of time before the judiciary begins to manage U.S. immigration policy and anti-terrorism measures.

Race And American Indian Tribal Nationhood, Matthew L.M. Fletcher

Matthew L.M. Fletcher

American Indian tribes and nations are at a crossroads. One on hand, many tribes like the Cherokee Nation – mired in the politics and law of disenfranchising the Cherokee Freedmen – continue to hold to a citizenry based in race and ancestry. Federal Indian law tends to protect, and encourage, even the worst abuses of this regime. The United States long has adopted Indian blood quantum as a proxy for tribal citizenship, creating unfortunate paradoxes for Indian tribes and their citizens. For example, the Supreme Court just a few days ago in Carcieri v. Salazar held against an Indian tribe …

Open Borders, Intellectual Property, & Federal Criminal Trade Secret Law, Shubha Ghosh

Shubha Ghosh

Many scholars have demonstrated that labor mobility between firms has lead to the economic success of Silicon Valley. California’s policy against enforcing covenants not to compete has been shown to provide the legal infrastructure for high labor mobility. Does the argument extend to mobility of skilled labor across national borders? This Article addresses that question in the context of the Economic Espionage Act of 1996, the first federal criminal trade secret law in the United States. By analyzing the scholarly literature and the case law under the Act, the author presents a theoretical framework for assessing the Act based on …

The Idea Of Pollution, John Copeland Nagle

John Copeland Nagle

Pollution is the primary target of environmental law. During the past forty years, hundreds of federal and state statutes, administrative regulations, and international treaties have established multiple approaches to addressing pollution of the air, water, and land. Yet the law still struggles to identify precisely what constitutes pollution, how much of it is tolerable, and what we should do about it.

But environmental pollution is hardly the only type of pollution. Historically, the idea of pollution referred to a host of effects upon human environments. This remains evident in contemporary anthropological literature, which studies the pollution beliefs of cultures throughout …

Looking Behind ‘Protection Gap’: The Moral Obligation Of The State To Necessitous Immigrants, Tally Kritzman-Amir

Tally Kritzman-Amir

Do states have a moral obligation towards immigrants whose immigration is a result of necessity? While some types of necessitous immigrants receive international protection because states hold legal duties towards them, many others are left unprotected. This article looks into this “protection gap” and examines that moral justification for eliminating it by imposing additional obligations on states towards additional immigrants. Part I examines the international law foundations of this dilemma. Part II offers a typology of the different moral obligations that states might owe to different immigrants. Parts III, IV and V suggest a theoretical moralistic argument on the scope …

Till Death–Or The Attorney General–Do Us Part: How The Extension Of Asylum Eligibility To Spouses Of Victims Of China's "One Couple, One Child" Policy Still Comports With Domestic Immigration Jurisprudence, Andrea R. Pestone

Andrea Pestone Capellán

Till Death–or the Attorney General–Do Us Part: How the Extension of Asylum Eligibility to Spouses of Victims of China's "One Couple, One Child" Policy Still Comports with Domestic Immigration Jurisprudence. It is a discussion of the One Child Policy in China, the domestic immigration law that attempts to respond to victims persecuted by the Policy, and the recent Attorney General decision Matter of J-S-, which seemingly precludes asylum eligibility to spouses of individuals who have suffered forcible abortions or sterilizations. This Comment analyzes the previous conflicting precedent, In re C-Y-Z- and Shi Liang Lin v. U.S. Department of Justice, statutory …

Rights, Remedies, & Habeas Corpus -- The Uighurs, Legally Free But Actually Imprisoned, Caprice L. Roberts

Caprice L. Roberts

For more than seven years, the Uighurs – Turkish Muslims who fled persecution in China only to be sold by Pakistani officials to the U.S. military for a bounty – have languished in the detainment facility in Guantánamo Bay, Cuba. Early on, the U.S. government admitted that the Uighurs are not enemy combatants. This summer, four Uighurs finally received extrajudicial relief and now reside in Bermuda; five secured release to Albania in 2006. Thirteen Uighurs remain confined at Guantánamo with their legal issues unresolved. Boumediene v. Bush extends the privilege of habeas corpus to detainees held in the U.S. Navy …

Pulling The Trigger: Separation Violence As The Basis For Battered Women, Marisa Cianciarulo, Dr. Cladia David

Marisa S. Cianciarulo

Maria Elena fears for her life. For years she has lived under the rule of a despot intent on maintaining absolute control of his realm. As a member of a historically oppressed tribe with few political rights, Maria Elena is a prime target for the dictator’s calculated methods of maintaining control. He has randomly imprisoned, tortured, beaten, and threatened to kill Maria Elena over a period of several years. The torture is worse when Maria Elena takes any action that challenges the despot’s absolute authority.

In this scenario, the classic refugee described above would apply for refugee protection in the …

Fitting Punishment, Juliet P. Stumpf

Juliet P Stumpf

Proportionality is conspicuously absent from the legal framework for immigration sanctions. Immigration law relies on one sanction – deportation – as the ubiquitous penalty for any immigration violation. Neither the gravity of the violation nor the harm that results bears on whether deportation is the consequence for an immigration violation. Immigration law stands alone in the legal landscape in this respect. Criminal punishment incorporates proportionality when imposing sentences that are graduated based on the gravity of the offense; contract and tort law provide for damages that are graduated based on the harm to others or to society. This Article represents …