Law Commons^™

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 …

Is The Doctor In? The Contemptible Condition Of Immigrant Detainee Healthcare In The U.S. And The Need For A Constitutional Remedy, Kate Bowles

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Murky Immigration Law And The Challenges Facing Immigration Removal And Benefits Adjudication, Jill E. Family

Journal of the National Association of Administrative Law Judiciary

Immigration adjudication is more diverse than it may seem. Scholars tend to focus on one aspect of administrative immigration adjudication, the decision-making process established to determine whether an individual may be removed (deported) from the United States. But there is a whole other function of administrative immigration adjudication that relatively is ignored in the legal literature. Immigration adjudicators are also tasked with determining whether to grant immigration benefits, such as whether to grant lawful permanent resident (green card) status. Both types of administrative immigration adjudication, removal and benefits, are in crisis. This article explores the challenges facing each and argues …

The States Of Immigration, Rick Su

Journal Articles

Immigration is a national issue and a federal responsibility — so why are states so actively involved? Their legal authority over immigration is questionable. Their institutional capacity to regulate it is limited. Even the legal actions that states take sometimes seem pointless from a regulatory perspective. Why do they enact legislation that essentially copies existing federal law? Why do they pursue regulations that are likely to be enjoined or struck down by courts? Why do they give so little priority to the immigration laws that do survive?

This Article sheds light on this seemingly irrational behavior. It argues that state …

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. …

Immigration, Sovereignty, And The Constitution Of Foreignness, Matthew Lindsay

All Faculty Scholarship

It is a central premise of modern American immigration law that immigrants, by virtue of their non-citizenship, are properly subject to an extra-constitutional regulatory authority that is inherent in national sovereignty and buffered against judicial review. The Supreme Court first posited this constitutionally exceptional authority, which is commonly known as the “plenary power doctrine,” in the 1889 Chinese Exclusion Case. There, the Court reconstructed the federal immigration power from a form of commercial regulation rooted in Congress’s commerce power, to an instrument of national self-defense against invading hordes of economically and racially degraded foreigners.

Today, generations after the United States …

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 …

Alienating Sham Marriages For Tougher Immigration Penalties: Congress Enacts The Marriage Fraud Act, Karen L. Rae

Pepperdine Law Review

No abstract provided.

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

Emily Naser-Hall

No abstract provided.

Municipal And State Sanctuary Declarations: Innocuous Symbolism Or Improper Dictates?, Jorge L. Carro

Pepperdine Law Review

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 …

Understanding Immigration: Satisfying Padilla's New Definition Of Competence In Legal Representation, Yolanda Vazquez

Faculty Articles and Other Publications

Panel Discussion on Padilla v. Kentucky.

(Un)Reasonable Suspicion: Racial Profiling In Immigration Enforcement After Arizona V. United States, Kristina M. Campbell

Journal Articles

n June 25, 2012, the Supreme Court of the United States issued its landmark decision in Arizona v. United States, 1 striking down three of the four provisions of Arizona’s notorious Senate Bill (“S.B.”) 10702 challenged by the United States Department of Justice as preempted by federal immigration law. Despite agreeing with the government that the majority of Arizona’s attempt to regulate immigration at the state level through S.B. 1070 was impermissible, the Supreme Court let stand the most controversial section of the law, Section 2(B)—the socalled “show me your papers” provision.3 Under Section 2(B), state and local law enforcement …

“I Now Pronounce You Polimigra”: Narrative Resistance To Police-Ice Interoperability, Meghan E. Conley

Societies Without Borders

Police-ICE interoperability, known colloquially by immigrant rights actors as PoliMigra, is the cooperation of state and local law enforcement with federal immigration authorities to enforce federal immigration law. Hailed by the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and state and local authorities as a “common sense” approach to immigration enforcement, such collaboration is asserted to aid authorities in identifying and apprehending potential or proven threats to the nation. In contrast, immigrant rights actors argue that the blurring of lines between local police and federal immigration agents ultimately produces vulnerability for communities, both immigrant and native-born. In …

Reforming The Immigration Courts Of The United States: Why Is There No Will To Make It An Article I Court?, Leonard Birdsong

Barry Law Review

This article strongly reaffirms the author's support for the use of asylum as a way of providing justice for those fleeing persecution from other countries. Additionally, this article was written to help educate those interested in asylum law by providing some history and background on asylum. Part II of the article briefly discusses the history of asylum; enumerates the eligibility requirements for asylum; describes court proceedings in asylum cases; recounts recent statistics on grants of asylum; and also includes a brief history of our immigration courts. Part III examines the six significant problem areas our immigration courts have wrestled with …

Un-Torturing The Definition Of Torture And Employing The Rule Of Immigration Lenity, Irene Scharf

Faculty Publications

In the first three sections, I examine the background of the Convention in the context of international human rights instruments (Section I); the context for a critique of the CAT’s definition of torture, given the legislative history of the Convention and an existing statute that could aid in correcting the misinterpretation adversely affecting CAT enforcement (Section II); and the adverse international implication of the United States’ restrictive meaning of torture (Section III). In a concluding section (IV), I offer possible solutions to the problem, invoking a robust principle of Immigration Lenity to prevent the return of potential torture victims to …

Due Process For U.S. Permanent Residents: The Rights To Counsel, Sandra E. Bahamonde

ILSA Journal of International & Comparative Law

In 1945, the U.S. Supreme Court held that deportation is a serious penalty that may result in the loss of "all that makes life worth living."' This statement is as true today as it was nearly seventy years ago.

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 …

From "Plyler" To "Arizona": Have The Courts Forgotten About "Corfield V Coryell"?, John C. Eastman

Law Faculty Articles and Research

No abstract provided.

Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero

Journal Articles

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as …

The Immigration Prosecutor And The Judge: Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia

Journal Articles

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these …

My Great Foia Adventure And Discoveries Of Deferred Action Cases At Ice, Shoba S. Wadhia

Journal Articles

This Article describes my adventures in FOIA litigation and analyzes deferred action data collected informally by 24 ICE field offices between October 1, 2011, and June 30, 2012. This Article also offers recommendations for the agency on data collection, recordkeeping, and transparency in deferred action cases. Deferred action is a form of prosecutorial discretion that can be granted at any stage of the immigration enforcement process and historically has been applied both to people who meet group characteristics and on an individual basis in compelling humanitarian circumstances. The theory behind deferred action and prosecutorial discretion more generally is to enable …

Immigration Federalism: A Reappraisal, Pratheepan Gulasekaram, Karthick Ramakrishnan

Faculty Publications

This Article identifies how the current spate of state and local regulation is changing the way elected officials, scholars, courts, and the public think about the constitutional dimensions of immigration law and governmental responsibility for immigration enforcement. Reinvigorating the theoretical possibilities left open by the Supreme Court in its 1875 Chy Lung v. Freeman decision, state and local offi- cials characterize their laws as unavoidable responses to the policy problems they face when they are squeezed between the challenges of unauthorized migration and the federal government’s failure to fix a broken system. In the October 2012 term, in Arizona v. …

Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Federal Preemption And Immigrants' Rights, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

Recently, immigration scholars have focused on the relationship between federal, state, and local governments in regulating immigration to the exclusion of civil rights issues. States and localities assert that they should be able to use their Tenth Amendment police powers to regulate unauthorized immigrants within their borders, while the federal government claims exclusivity in the area of immigration law and policy. In the middle of this debate, there is the question of whether states abrogate individual civil rights and civil liberties when exercising their police powers to regulate immigration. This article takes a detailed look at these complex issues of …

Promoting Language Access In The Legal Academy, Gillian Dutton, Beth Lyon, Jayesh M. Rathold, Deborah M. Weissman

University of Maryland Law Journal of Race, Religion, Gender and Class

"Promoting Language Access in the Legal Academy," details the progress made by the legal profession in meeting the needs of individuals with limited English language proficiency. The authors outlines the current need, summarizes various approaches taken by law schools, and emphasizes the value of training bilingual law students as well as mobilizing a cadre of undergraduate interpreters.

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …