Law Commons^™

Avoiding The Subject: The Opium War, Opium-Markets, And The Exclusion Of Chinese Laborers In The United States, Canada, And Mexico, Olivia L. Blessing

Olivia L Blessing

The 19th century saw significant increases in the number of Chinese immigrants entering North America, most significantly on the west coast of the United States. Already facing increasing divide amongst the American population over the issue of the Opium Wars and the resulting Opium-addiction amongst the Chinese, the United States found itself now confronting the problem in the form of immigrant workers. Although the Opium Wars and the issue of the Chinese Opium Dens were highly disputed outside the courts, the State and Federal courts surprisingly avoided discussing the topic in their legislative discussions surrounding the Chinese Exclusion Act of …

Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan

Anil Kalhan

With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth …

Living Among Guatemalan Mayans Is Fascinating Experience, Irene Scharf

Irene Scharf

I have just lived a dream. Five years ago I learned of a school where students of all ages could study Spanish intensively while living among the Guatemalan Mayans. Peace Accords had been signed in 1996, the government was encouraging tourism, and it was, finally, safe to visit.

Why a dream? Because, 25 years ago, when I traveled through Central and South America, I promised my family I would avoid Guatemala because of the perceived was dangers. During that trip, as I met my Europeans and other who had visited, remained safe, and found it a fascinating country, I vowed …

Nourishing Justice And The Continuum: Implementing A Blended Model In An Immigration Law Clinic, Irene Scharf

Irene Scharf

The purpose of this Article is to describe how the new Immigration Law Clinic at Southern New England School of Law has combined attention to the School's mission of educating students and expanding justice by serving the community with the broader goal of addressing the continuing educational needs of recent law school graduates. The Clinic not only offers direct legal services to clients but also trains and mentors recently graduated local attorneys, who offer both pro bono client representation as well as student supervision. Through the Immigration Law Clinic, these attorneys are trained in both immigration law and clinical supervision. …

Increase Quota, Invite Opportunities, Improve Economy: An Examination Of The Educational And Employment Crisis Of Undocumented Immigrants And Individuals From Abroad, Brittany Fink

Brittany Fink

No abstract provided.

Increase Quota, Invite Opportunities, Improve Economy: An Examination Of The Educational And Employment Crisis Of Undocumented Immigrants And Individuals From Abroad, Brittany Fink

Brittany Fink

No abstract provided.

“Branded To Drive: Obstacle Preemption Of North Carolina Driver’S Licenses For Daca Grantees”, Tung Sing Wong Mr.

Tung Sing Wong Mr.

The article focuses on whether driver’s licenses that North Carolina recently issued to Deferred Action for Childhood Arrivals (DACA) grantees are obstacle preempted. DACA grantees do not have legal status, but are protected from removal. North Carolina issued new driver’s licenses that publicize the immigration status of DACA grantees. The issue is whether a state can publish the immigration status of individuals who do not have legal status in the U.S., but are nonetheless protected from removal. Additionally, the article explores how the interaction of the North Carolina licenses with 287(g), Secured Communities, and recent state law such as Arizona's …

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 …

Business As Usual: Immigration And The National Security Exception, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

Javaid Iqbal is a native and citizen of Pakistan and a Muslim. After moving to the United States, Iqbal worked as a cable television installer on Long Island. Iqbal was one among hundreds of men apprehended and detained by the United States Department of Justice in the weeks that followed the September 11, 2001 attacks. Iqbal was held in a federal prison in Brooklyn, New York called the Metropolitan Detention Center (MDC), for more than one year. In January 2002, Iqbal was transferred to the maximum security section of the jail known as the Administrative Maximum Special Housing Unit (ADMAX …

The Role Of Prosecutorial Discretion In Immigration Law, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

The concept of "prosecutorial discretion" appears in the immigration statute, agency memoranda and court decisions about select immigration enforcement decisions. Prosecutorial discretion extends to decisions about which offenses or populations to target; whom to stop, interrogate, and arrest; whether to detain or release a noncitizen; whether to initiate removal proceedings; and whether to execute a removal order; among other decisions. Similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving cost-effective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances. Yet there is a dearth of literature on the …

Federal Habeas Corpus: Executive Detention And Post-Conviction Litigation, Brandon Garrett, Lee Kovarsky

Lee Kovarsky

This casebook is the first to cover federal habeas corpus comprehensively, presenting post-conviction review and executive detention litigation in an accessible way. It is designed both for standalone courses on habeas corpus, and for courses focusing on post-conviction litigation, wrongful convictions, and national security detention. The first two chapters introduce students to the habeas privilege and the Suspension Clause. A four-chapter unit on post-conviction litigation carefully explores cognizability, procedural doctrines, and merits adjudication. Two chapters develop the role habeas plays in review of immigration and other types of civil detention. A substantial two-chapter unit examines habeas review of military custody.

Protecting Immigrant Workers Through Interagency Cooperation, Jayesh Rathod

Jayesh Rathod

Stephen Lee’s Monitoring Immigration Enforcement offers a promising prescription for resolving the long-standing tension between the workplace enforcement priorities of the Department of Homeland Security (“DHS”) and the efforts by the Department of Labor (“DOL”) to protect the rights of immigrant workers. Lee convincingly describes - often with the aid of rich historical examples - the origins of the chronic imbalance of power between DHS and the DOL, and the limitations of past efforts to synchronize the work of the respective agencies. Lee’s proposal for interagency coordination, in the form of ex ante monitoring by the DOL of worksite enforcement …

"Health Care For All:" The Gap Between Rhetoric And Reality In The Affordable Care Act, Vinita Andrapalliyal

Vinita Andrapalliyal

The rhetoric of “universal health care” and “health care for all” that pervaded the health care debate which culminated in the Patient Protection and Affordable Care Act (ACA)’s passage. However, the ACA offers reduced to no protections for certain noncitizen groups, specifically: 1) recently-arrived legal permanent residents, 2) nonimmigrants, and 3) the undocumented. This Article explores how the Act fails to ensure “health care for all,” demonstrates the gap between rhetoric and reality by parsing the ACA’s legislative history, and posits reasons for the gap. The ACA’s legislative history suggests that legislators’ biases towards these noncitizen groups, particularly with respect …

The Case For Mexican Asylum Seekers Fleeing Cartel Violence, Perry B. Nava

Perry B Nava

The number of Mexican immigrants filing for asylum in the United States is on the rise as cartel violence affects more people each year. The perceived increase in cartel-related, violent crime is displacing people similar to how a war forces displaced refugees out of a country; but the United States is not accepting a great majority of the applications for asylum. This paper explores the more broadly applicable law that protects persecuted people; some of the issues that have simultaneously contributed to increased migration to the United States and aggressive expansion by the drug cartels; the result of the application …

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

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 …

Padilla Postconviction Claims In Florida: Squaring Chaidez, Hernandez And Castaño, Rebecca Sharpless, Andrew Stanton

Rebecca Sharpless

In Padilla v. Kentucky, the U.S. Supreme Court ruled that the Sixth Amendment requires defense attorneys to counsel their noncitizen clients about the immigration consequences of a plea. Padilla had pled guilty in state court to a drug crime and, after his conviction became final, filed a state postconviction motion alleging that his attorney rendered ineffective assistance of counsel by failing to advise him that his plea would trigger deportation. In holding that Padilla was entitled to competent advice regarding the consequences of his plea, the Court recognized what professional norms have required for at least the last two decades. …

Reclassifying "Terrorists" As Victims: Integrating Terrorism Analysis Into The Particular Social Group Framework Of Asylum, Emily Naser-Hall

Emily Naser-Hall

After the September 11th terrorist attacks at the hands of al-Qaeda operatives who slipped through the cracks of the US immigration system, immigration and asylum law became increasingly focused on ensuring that potential terrorists are not allowed into the United States. The USA PATRIOT Act and its subsequent legislation created what has become an unyielding bar to admission for any individual who is a member of a terrorist organization or who has committed terrorist activities. While the terrorism bar developed in response to real or perceived threats to US national security and has recently regained public light with the trial …

Reclassifying "Terrorists" As Victims: Integrating Terrorism Analysis Into The Particular Social Group Framework Of Asylum, Emily Naser-Hall

Emily Naser-Hall

No abstract provided.

The Advocate’S Dilemma: Framing Migrant Rights In National Settings, Maria Cook

Maria Lorena Cook

This article identifies and explores the dilemma of migrant advocacy in advanced industrial democracies, focusing specifically on the contemporary United States. On the one hand, universal norms such as human rights, which are theoretically well suited to advancing migrants’ claims, may have little resonance within national settings. On the other hand, the debates around which immigration arguments typically turn, and the terrain on which advocates must fight, derive their values and assumptions from a nation-state framework that is self-limiting. The article analyzes the limits of human rights arguments, discusses the pitfalls of engaging in national policy debates, and details the …

Revisiting The Meaning Of Marriage: Immigration For Same-Sex Spouses In A Post-Windsor World, Scott Titshaw

Scott Titshaw

When the Supreme Court struck down Section 3 of DOMA in United States v. Windsor, it eliminated a categorical barrier to immigration for thousands of LGBT families. Yet Windsor was not an immigration case, and the Court’s opinion did not address at least three resulting immigration questions: What if a same-sex couple legally marries in one jurisdiction but resides in a state that does not recognize the marriage? What if the couple is in a legally-recognized “civil union” or “registered partnership”? Will children born to spouses or registered partners in same-sex couples be recognized as “born in wedlock” for immigration …

Teaching The U.S. V. Arizona Immigration Law Case, Corey A. Ciocchetti

Corey A Ciocchetti

Arizona v. U.S. was one of the most anticipated decisions of the Supreme Court's October 2011 term. The case pits the state of Arizona and its immigration policy of "attrition through enforcement" against a much less aggressive federal immigration policy under President Obama.

These slides help tell the story and can be used to teach the case as well as important constitutional law issues such as: (1) enumerated powers, (2) preemption, (3) federalism, (4) state sovereignty and more.

The Xenophobic Fourth Amendment: How Racism Has Influenced The Discriminatory Application Of The Fourth Amendment To Non-Citizens, Steven T. Sacco Mr.

Steven T. Sacco Mr.

This article illustrates how racism continues to color judge-made immigration law in the United States, but specifically with respect to federal jurisprudential analysis and application of the right to freedom from unreasonable search and seizure under the Fourth Amendment as it is applied to non-citizens residing in the United States. The result is a different set of rules and reduced freedoms under the Fourth Amendment for non-citizens as compared to citizens – a xenophobic Fourth Amendment.

Assimilation Anxiety: Islamic Migration As A Perceived Threat To Western Cultures, David Barnhizer

David Barnhizer

In this cynical age it is common to smirk at claims about what is sometimes called American Exceptionalism, a term standing for the conclusion that America is an historically distinct (and better) system. To some degree it does represent cultural arrogance founded on assumption rather than fact. It also ignores “exceptionally” dark chapters in American history, including slavery, seizing of lands from Native Americans and imprisoning of US citizens of Japanese descent. Nonetheless it seems that given the diversity of the population and the sheer enormity of the nation that, as stated by an Asian Indian friend who is a …

New York Law Of Domestic Violence, Deseriee Kennedy

Deseriee A. Kennedy

NEW YORK LAW OF DOMESTIC VIOLENCE, 3rd ed., is a comprehensive 2-volume, 7-chapter, hardbound treatise published by West (Thomson-Reuters). The treatise is the seminal authority on domestic violence in New York State covering New York State laws and relevant U.S. Supreme Court cases. The authors of the book are Professor Breger (Albany Law School, Albany, NY), Professor Kennedy (Touro School of Law, Central Islip, NY), Jill M. Zuccardy, Esq. (New York City), and now retired Judge Lee Hand Elkins (formerly Brooklyn Family Court). The treatise and its authors have been cited as authority repeatedly by trial and appellate courts, as …