Law Commons^™

The Unreasonable Seizures Of Shadow Deportations, Mary Holper

Mary Holper

President Trump, during his campaign, promised a “deportation task force” to swiftly deport the eleven million undocumented noncitizens in the United States. Within his first week in office, he issued two Executive Orders calling for stricter immigration enforcement and a stronger border. The Department of Homeland Security (“DHS”) Memos implementing his interior and border enforcement executive orders indicate that DHS will use every tool to enforce the immigration laws, expanding the use of procedural tools that bypass immigration courts and ensuring that noncitizens remain detained during these “shadow” deportations.Two of these procedural tools, administrative removal and expedited removal, allow an …

The Beast Of Burden In Immigration Bond Hearings, Mary P. Holper

Mary Holper

In this article, I examine the burden of proof in bond proceedings. I apply theories for why burdens of proof exist in the law to demonstrate why the government should bear the burden of proof. I also argue that in order to ensure that such detention comports with Due Process, the government must prove, by clear and convincing evidence, that a detainee is dangerous. This presumption of freedom previously existed, yet was eviscerated by the former Immigration and Naturalization Service in a 1997 regulation and the Board of Immigration Appeals in a 1999 decision. That the detainee must bear the …

Redefining Particularly Serious Crimes In Refugee Law

Mary Holper

Is Immigration Law Family-Friendly?, Mary Holper

Mary Holper

Confronting Cops In Immigration Court, Mary Holper

Mary Holper

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. …

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 …

The New Moral Turpitude Test: Failing Chevron Step Zero, Mary Holper

Mary Holper

In the waning days of the Bush administration, Attorney General Michael Mukasey decided In re Silva-Trevino, in which he reversed over a century of immigration law precedent by creating a new moral turpitude test. He abandoned the well-entrenched "categorical approach," the mechanism by which immigration judges decide whether a noncitizen is removable for a criminal conviction, and allowed judges to engage in a factual inquiry of whether an offense involves moral turpitude. The Attorney General made such a broad, sweeping change through a process that allowed no input from affected parties, including the individual whose case became the new precedent. …

Deportation For A Sin: Why Moral Turpitude Is Void For Vagueness, Mary Holper

Mary Holper

A major problem facing noncitizen criminal defendants today is the vagueness of the term “crime involving moral turpitude” (CIMT) in deportation law. The Supreme Court in the 1951 case Jordan v. DeGeorge decided that a statute authorizing deportation for a CIMT was not void for vagueness because courts had long held the noncitizen’s offense, fraud, to be a CIMT, so he was on notice of his likely deportation. I argue that when noncitizens are charged with an offense that case law has not clearly delineated as a CIMT, the term is vague, since the definition used by the agency and …

Habeas Corpus Reform In El Salvador, Mary Holper

Mary Holper

In this paper I compare the habeas corpus systems of El Salvador, the United States and Argentina. My purpose is to develop a general understanding of the procedure for bringing the writ in each country and analyze the substantive law governing the rights of habeas corpus petitioners in each country. I evaluate the systems against the backdrop of each country’s political and legal history with respect to the writ of habeas corpus. The ultimate aim of this paper is to reform the habeas corpus law of El Salvador by analyzing the Salvadoran system as compared to the Argentine and U.S. …