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Articles 1 - 10 of 10
Full-Text Articles in Law
Assumed Sane, Fatma Marouf
Assumed Sane, Fatma Marouf
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In 2014, the Board of Immigration Appeals (BIA) held in Matter of G-G-S- that a noncitizen’s mental health status at the time of an offense is irrelevant to determining whether the offense is a “particularly serious crime” for immigration purposes. Since a “particularly serious crime” is a bar to asylum and withholding of removal, it can result in a noncitizen’s deportation to a country where he or she faces a serious risk of persecution. In deciding that immigration judges “are constrained by how mental health issues were addressed as part of the criminal proceedings,” the BIA failed to recognize the …
Feminism In Yellowface, Stewart Chang
Feminism In Yellowface, Stewart Chang
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This article analyzes the relationship between sexualized stereotypes of Asian women, specifically the Asian prostitute epitomized in the Suzie Wong stereotype, and the tendency of American immigration law, even in pro-women legislation such as the TVPA, to promote conservative norms regarding female sexuality and domesticity. Part I explains the significance of Asian prostitution in the history and evolution of United States immigration policy. In the nineteenth century, the Asian prostitute was constructed as the antithesis to normative American sexuality, as a foreign peril that threatened the integrity of the American domestic unity and therefore required rejection and exclusion. Part II …
Believable Victims: Asylum Credibility And The Struggle For Objectivity, Michael Kagan
Believable Victims: Asylum Credibility And The Struggle For Objectivity, Michael Kagan
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Asylum adjudication is often the invisible frontline in the struggle by oppressed groups to gain recognition for their plights. Through this process, individual people must tell their stories and try to show that they are genuine victims of persecution rather than simply illegal immigrants attempting to slip through the system. In 2002, because the world had not yet acknowledged the nature of the calamity from which they were escaping, many Darfurian asylum cases would have relied on the ability of each individual to convince government offices to believe their stories. They would have had to be deemed “credible,” or they …
Immigrant Victims, Immigrant Accusers, Michael Kagan
Immigrant Victims, Immigrant Accusers, Michael Kagan
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The U Visa program provides an immigration status to noncitizen victims of crime, which is essential to prevent unauthorized immigrants from being afraid to seek help from the police, and thus becoming easy prey for criminals. This visa falls into a category of immigration programs that grant benefits on the basis of victim status, rather than on family or employment connections to the United States. But the federal government structured the U Visa program so that in order to be protected as a victim, a person must also become an accuser. The U Visa thus implicates the rights of third …
A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan
A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan
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Broad executive action has been the Obama Administration’s signature contribution to American immigration policy, setting off a furious debate about whether the President has acted outside his constitutional powers. But the legal debate about the scope of the President’s authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies, and thus has not focused on those areas where he has taken executive discretion into uncharted territory. This essay aims to add new focus to the debate about Pres. Obama’s executive actions by defining five different types of presidential discretion: Congressionally-authorized discretion, non-enforcement discretion, …
Immigration Law’S Looming Fourth Amendment Problem, Michael Kagan
Immigration Law’S Looming Fourth Amendment Problem, Michael Kagan
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In 2014, a wave of federal court decisions found that local police violate the Fourth Amendment when they rely on requests from the Department of Homeland Security to detain people suspected of being deportable immigrants. The problem with these requests, known as “detainers,” was that they were not based on any neutral finding of probable cause. But this infirmity is not unique to DHS requests to local police. It is characteristic of the normal means by which Immigration and Customs Enforcement (ICE) arrests people and detains them at the outset of deportation proceedings. These decisions thus signal a glaring constitutional …
Do Immigrants Have Freedom Of Speech?, Michael Kagan
Do Immigrants Have Freedom Of Speech?, Michael Kagan
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The Department of Justice recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. If the DOJ argument is right, then most of the 11 million unauthorized immigrants in the U.S. could be censored or punished for speaking their minds – as many of them have in support of comprehensive immigration reform and the Dream Act. This Essay explores the complicated and conflicted case law governing immigrants’ free speech rights, and argues that, contrary to the DOJ position, all people in the United States are protected …
Plenary Power Is Dead! Long Live Plenary Power!, Michael Kagan
Plenary Power Is Dead! Long Live Plenary Power!, Michael Kagan
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For decades, scholars of immigration law have anticipated the demise of the plenary power doctrine. The Supreme Court could have accomplished this in its recent decision in Kerry v. Din, or it could have re-affirmed plenary power. Instead, the Court produced a splintered decision that did neither. This essay examines the long process of attrition that has significantly gutted the traditional plenary power doctrine with regard to procedural due process, while leaving it largely intact with regard to substantive constitutional rights.
The Unconstitutional Use Of Restraints In Removal Proceedings, Fatma Marouf
The Unconstitutional Use Of Restraints In Removal Proceedings, Fatma Marouf
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This Article challenges the constitutionality of indiscriminately restraining civil immigration detainees during removal proceedings. Not only are immigration detainees routinely placed in handcuffs, leg irons, and belly chains without any individualized determination of the need for restraints, but Immigration and Customs Enforcement (ICE), the prosecuting party, makes the decisions about the use of restraints, rather than the judge. After examining the rationale for the well-established prohibition against the indiscriminate use of restraints during criminal and civil jury trials, and discussing how some courts have extended this rationale to bench trials, this Article contends that ICE’s practice violates substantive and procedural …
The New Era Of Presidential Immigration Law, Michael Kagan
The New Era Of Presidential Immigration Law, Michael Kagan
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At the dawn of the Obama Administration, Professors Adam Cox and Cristina Rodríguez wrote: “[T]he inauguration of a new President can bring with it remarkable changes in immigration policy.” At the time they wrote that, this proposition was in some ways more a matter of advocacy than a description of reality. As we approach the election of a new president in 2016, we finally live in the world that Professors Cox and Rodríguez advocated. The election of a new President will likely carry significant immediate consequences for immigration policy. My goal in this short space will be to focus on …