Law Commons^™

Beyond The Plenary-Power Doctrine: How Critical Race Theory Can Help Move Us Past The Chinese Exclusion Case, Freddy R. Funes

Freddy R Funes

In few areas does Critical Race Theory (CRT) give as much insight as it does in analyzing immigration law’s plenary-power doctrine. When in need of cheap labor, the United States opens its border, and, when the economy struggles, the United States reacts with racist violence against aliens. The plenary-power doctrine, which prevents courts from reviewing the actions of the political branches in the immigration context, furthers the aliens’ oppression. Thus, while the legislative and executive branches discriminate, the courts idly stand by. But the courts’ rationalizations for the plenary-power doctrine lack merit. Due to its precarious foundation, this Paper questions …

When Immigration Borders Move, Huyen T. Pham

Huyen T. Pham

With our recent immigration enforcement efforts, we have created a new paradigm of moving borders: laws enacted at all levels of government that require proof of legal immigration status in order to obtain essential benefits like a driver’s license, a job, and rental housing. Without proof of legal status, the applicant is denied an important benefit; after cumulative denials, the applicant can be effectively denied the ability to live in the United States. What are the implications of moving border laws? Now, more than ever, proof of legal immigration status has become centrally important, not just to gain admission at …

Removal Of Central American Gang Members: How Immigration Laws Fail To Reflect Global Reality, Freddy Funes

Freddy R Funes

Central American gangs have created numerous difficulties for Central American nations. Some of the violence and tactics learned by these gangs came from the United States, via it's new immigration policies. This article explains the faults of the current removal policy and offers solutions to mitigate the growing violence in Central America. Part II discusses the United States’ removal policy. Part III explains the myriad problems that this removal policy produces in Central America and within the United States. Part IV discusses how the United States’ current law fails to further the United States’ interests and how courts refuse to …

The Search For June Cleaver: International Marriage Brokerages And Mail-Order Brides, Itta C. Englander

Itta C. Englander

This paper chronicles a journey through the modern mail-order bride industry. It examines the mail-order bride industry from its early roots in the Western Hemisphere to its current permutations. It discusses the risks that mail-order brides face and explores possible solutions offered through domestic and international instrumentalities.

Not In My Backyard: On The Morality Of Responsibility-Sharing In Refugee Law, Tally Kritzman-Amir

Tally Kritzman-Amir

In this article I argue that the responsibility for protecting of refugees should be shared between the states of the world, rather than allocated in a random manner to the first country of asylum. I will start by explaining why the protection and provision of assistance to refugees is a responsibility-sharing problem. I will turn to discussing the moral considerations which should lead to responsibility-sharing efforts in the context of refugee migration. Then I will offer specific criteria to govern the allocation of responsibility to each country, which should be balanced and weighed against each-other in each refugee crisis, to …

Non-Refoulement And Jus Cogens: Limiting Anti-Terror Measures That Threaten Refugee Protection, Alice Farmer

Alice H Farmer

This article argues that we must insist on strict limits to the exceptions to non-refoulement articulated in the 1951 Convention on the Status of Refugees, given current state obligations under international law. There is great potential for refugee-receiving states to rely heavily on the exceptions to non-refoulement in enacting anti-terrorism policies, to the detriment of refugee protection. And yet, non-refoulement – the doctrine central to refugee protection that prohibits return of an individual to a country in which he or she may be persecuted – is emerging as a new jus cogens norm. Non-refoulement as articulated in the 1951 Convention …

Gender, Masculinities And Immigrant Workers: Using Gendered Experiences In The Las Vegas Residential Construction Trades To Reframe Title Vii Analysis, Leticia M. Saucedo

Leticia M. Saucedo

This Article explores the intersection of gender, immigration and masculinities in the context of the immigrant workplace in the United States. It does so by analyzing some of the findings from the Immigrant Construction Worker Study, a qualitative empirical study conducted in Las Vegas, Nevada of immigrant construction workers employed in the residential construction industry. Between 2006 and 2007 the author and her collaborator, sociologist Cristina Morales, interviewed over seventy-five (75) male and female construction workers in Las Vegas, with the purpose of understanding the demographic changes in the residential construction industry and their effects on workers. The study’s empirical …

Avoiding The 'Secret Sentence': A Model For Ensuring That New Jersey Criminal Defendants Are Advised About Immigration Consequences Before Entering Guilty Pleas, Joanne Gottesman

Joanne Gottesman

Reforms over the past decade have transformed the immigration law landscape and have led to more noncitizens than ever being subject to removal for less serious crimes than in the past. As a result of these changes, proper counseling of noncitizen criminal defendants is more critical than ever. This article examines the current state of the law in New Jersey regarding immigration related ineffective assistance of counsel claims and the responsibility of criminal defense attorneys to advise noncitizen clients about immigration consequences. It recommends judicial, legislative, and professional changes to better ensure that noncitizen defendants are properly advised about immigration …

Homeland Security Challenges Of Global Climate Change, Patrick E. Tolan

Patrick E. Tolan Jr.

The National Defense Authorization Act for Fiscal Year 2008 directs military planners to consider the effects of climate change on national security. This directive is not surprising following a year of increasing concern about global warming and prognostications of the myriad ills that such warming will produce.

Although some excellent articles have recently been published exploring potential overseas consequences to the Department of Defense, this article instead outlines the perhaps even more significant national security threats to the U.S. homeland.

The article takes a three-pronged approach analyzing potential weather effects, refugee issues, and economic consequences that could be prompted by …

The Real Id Act: Is It Really Worth It?, Sheena Eastman

Sheena Eastman

No abstract provided.

Voices On The Run: What The Slave Narratives Can Tell Us About The Immigration Debate, Hadley Ajana

Hadley Ajana

This paper compares three accounts of runaway slaves from the eighteenth and nineteenth centuries with three twentieth and twenty-first century accounts of Spanish speaking immigrants to the United States. The works examined are Interesting Narrative of the Life of Olaudah Equiano, or Gustavus Vassa, the African, Written by Himself; Narrative of the Life of Frederick Douglass; Harriet Jacob's Incidents in the Life of a Slave Girl; Barbara Kingsolver's Bean Trees; Victor Villasenor's Rain of Gold; and Sonia Nozaria's Enrique's Journey. Examining the rhetorical strategies used in the earlier works by the abolitions and the devices used in the modern writing, …

Overview And Analysis Of The Development, Relief, Education For Alien Minors Act (Dream Act) "What Was Not But Could Be", Jean P. Espinoza

Jean P. Espinoza LL.M.

No abstract provided.

The Economic Realities Of Immigration In The United States: Implications For Policy, Emily A. Harrell, David L. Franklin

Emily A Harrell

This paper presents a discussion of economic issues regarding the recent influx of illegal immigrants into the USA and is based on a review of economic literature about the issues. It uses a set of studies to frame the economic issues in terms of the current ongoing debate regarding the benefits and costs accruing to the US economy from the upsurge in immigration. It concludes with a discussion of the political economy underlying the debates as a means for suggesting policy and or legal reform initiatives that may be warranted in light of the debates, the available analyses, and the …

Rethinking Johnson V. M’Intosh (1823): The Root Of The Continued Forced Displacement Of American Indians Despite Cobell V. Norton (2001), T S. Twibell

Ty Twibell

“The Longest Journey, With A First Step”: Bringing Coherence To Sovereignty And Jurisdictional Issues In Global Employee Benefits Law, Paul Secunda

Paul M. Secunda

One of the most neglected areas of employee benefits law in the United States today is the extraterritorial application of ERISA to U.S. employees in other countries. Additionally, the courts and legislature have not spent the necessary time to discuss ERISA coverage issues for foreign employees, both legal and illegal and both working for foreign government and non-government employers, in the United States. These are increasingly crucial areas of U.S. employee benefits law as the globalization of the world's workplaces continues apace.

After surveying the tangled web of ERISA law in this context, the article proposes two statutory fixes and …

The Suspension Of Liberties, An Extension Of Rights: Examining Habeas Jurisdiction For Non-Citizen Guantanamo Detainees In The Al Odah And Boumediene Appeals, Marina A. Torres

Marina A Torres

This paper seeks to contribute to the literature surrounding the constitutional rights afforded to detainees currently held at the naval base in Guantanamo Bay, Cuba. More specifically, it offers a prospective and predictive analysis of the recent oral arguments heard in the consolidated Al Odah and Boumediene cases, held in December of 2007, in a historical context of previous judicial decisions and legislative decrees. Previous literature has not considered the constitutional protections, if any, afforded to non-citizen detainees held outside the territorial United States. Legal research has mainly focused on the application of either international law to Guantanamo detainees (if …

Exploitation Nation: The Thin And Grey Legal Lines Between Trafficked Persons And Abused Migrant Laborers, Dina Haynes

Dina Haynes

People around the world are on the move, pushed by external events such as civil war, political upheaval, and increasingly environmental disasters and pulled by the lure of a better life, a better job, a better way to provide for their families. The United States has created an inconsistent legal framework for responding to the exploitation of immigrants, dependent on the degree of victimhood, with the label of victim only frugally bestowed upon those who are also viewed as essential to sustaining the US economy. Trafficked persons are not useful to legitimate US businesspersons, and are accordingly protected. Agricultural and …

The Alien Invasion?, Ediberto Roman

Ediberto Roman

The Alien Invasion? explores the increasingly prevalent undercurrent of xenophobia and nativism appearing both in political circles and major media outlets throughout the nation. Of prime significance to the invasion rhetoric are the arguments that the current wave of immigration is of a volume unprecedented in American history, that it negatively impacts the nation’s economy, and that it puts America’s national security at risk by allowing potential terrorists to permeate our borders. By juxtaposing the substance of such claims with empirical data demonstrating the actual effects of the Latino and Latina immigrant population, The Alien Invasion? seeks to demonstrate that …

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 …

Hernandez-Ortiz V. Gonzales: Creating Unsound Rules For Adjudicating Asylum Claims In The Ninth Circuit, Sarah A. Schroeder

Sarah A Schroeder

United States asylum law has developed out of several international agreements to which the United States is a party. More specifically, the United States has incorporated into its domestic legislation the asylum requirements set forth in the United Nations Convention Relating to the Status of Refugees (“Refugee Convention”) and the United Nations Protocol Relating to the Status of Refugees (“Refugee Protocol”). The Refugee Convention accords refugee status to people who adequately demonstrate that they have been or will be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion. However, over time new …

Immigration Posses: U.S. Immigration Law And Local Enforcement Practices, Kevin J. Fandl

Kevin J Fandl

The failure of the United States Congress to pass comprehensive immigration legislation at a time when the issue of immigration has reached a boiling point has created an overwhelming demand by citizens for local reform. States have responded by enacting hundreds of laws that regulate immigration at the state-level. This creates significant tension both between states with conflicting laws, which creates havens in some states and rampant enforcement in others, and between states and the federal government, which is ultimately responsible for regulating immigration law. This article examines the history of immigration legislation since the founding of the United States …

The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo

Emily Ryo

Drawing upon original court records and other previously-unexamined archival materials, this article uncovers the story of one of the earliest reported and documented cases of sex trafficking in American history, United States v. Ah Sou, 138 F. 775 (9th Cir. 1905). Through Ah Sou’s legal challenge, we investigate the development of international human rights norms relevant to sex trafficking and the domestication of those norms in U.S. law. We then examine in detail the remedies presently available for sex trafficking victims and apply those remedies retrospectively to Ah Sou’s case. We conclude that despite the development of the law—both in …

Recent Trends In The Smuggling Of Chinese Into The United States, Jason A. Blatt

Jason A Blatt

Largely based on Chinese-language sources not previously translated into English, this article reveals the newest methods used by human smugglers to bring people from China into the United States. Besides describing where most Chinese migrants come from and conditions fueling illegal migration, this article discusses numerous factors contributing to the rapid expansion of human smuggling networks. Many of these factors, such as the expansion of underground financial networks and the decline of Taiwan’s high seas fishing industry, have not previously been analyzed in such detail. This article argues that the lack of normalized political and economic relations between China and …

Litigation Or Legislation: Protecting The Rights Of Internally Displaced Persons In Colombia, Jennifer Easterday

Jennifer Easterday

One of the most pressing and often overlooked consequences of over 40 years of fighting in Colombia is internal displacement. Approximately 3.8 million people have been displaced in Colombia since 1985, nearly 10% of its population. This is the second worst IDP crisis in the world, second only to Sudan. IDPs in Colombia suffer egregious violations of their basic human rights everyday.

In this Article, I analyze Colombian policy and legislation concerning IDPs, and how the continuing deprivation of rights resulting from displacement has been litigated in the Colombian court system. By considering the parameters of each attempt to protect …

The Disruption Of Marital Eharmony: Distinguishing Mail-Order Brides From Online Dating In Evaluating "Good Faith Marriage", Brandon N. Robinson

Brandon N. Robinson

ABSTRACT In today’s society, more and more people are turning to the information superhighway to find love. No longer confined to the girl or boy “next door,” many of today’s single men and women can connect with potential soul mates across the globe with the simple click of a button, symbolizing yet another consequence of a world community that is quickly becoming smaller and more interconnected. Once an international “match” has been made, the U.S. citizen can begin the complicated process of bringing his newfound loved one to the States. The IMO industry has a much more sinister underbelly, however, …

When “Fear Of Persecution…” Requires Deportation: “Catch 22” False-Document Prosecutions After A Grant Of Asylum, Peter Erlinder

C. Peter Erlinder

No abstract provided.

Introduction: Immigration Law In Pennsylvania: Policy And Practice, Jill E. Family

Jill E. Family

The first panel fulfilled goal one: to host a thoughtful, Pennsylvania-focused analysis of state and local efforts to legislate in the area of immigration law. The second panel fulfilled goal two: to provide a forum for Pennsylvania immigration attorneys to share their experiences amongst themselves and with the public. The panels together fulfilled goals three and four: to help bridge the gap between policy and practice and to increase the involvement of the Institute in this important debate.

A More Perfect Union, Michele Pistone, John Hoeffner

Michele R. Pistone

No abstract provided.

The Thirteenth Amendment And Access To Education For Children Of Undocumented Workers: A New Look At Plyler V. Doe, Maria Ontiveros, Joshua Drexler

Maria L. Ontiveros

This paper examines the extent to which the Thirteenth Amendment can be used to guarantee access to public education for the children of undocumented workers. It offers a reimagined version of Plyer, written using the Thirteenth Amendment, instead of the Fourteenth Amendment. After offering a brief summary of Thirteenth Amendment jurisprudence, it offers a variety of theoretical frameworks for analyzing the denial of education under the U.S. Constitution. It argues that the Thirteenth Amendment can provide a powerful tool for litigation, moral persuasion, organizing and legislation in the area.

Can't Live With 'Em, Can't Deport 'Em: Why Immigration Reform Efforts Have Failed, Marisa Cianciarulo

Marisa S. Cianciarulo

Abstract: The United States has a passionate love/hate relationship with undocumented immigrants. The refrain “We are a nation of immigrants” competes with the exhortation “We are being invaded.” Many Americans fault undocumented immigrants for breaking U.S. laws, not waiting their turn in line for lawful immigration and diluting already scarce public resources. Other Americans applaud the strong work ethic that many undocumented immigrants exhibit and the economic strength they bring to the country. In the post-September 11 years, the debate has reached a boiling point.

The conflicting emotions of the immigration debate aside, the United States’ need for immigration is …