Immigration Law Commons^™

The C.A.P. Effect: Racial Profiling In The Ice Criminal Alien Program, Trevor George Gardner, Aarti Kohli

Scholarship@WashULaw

The goal of the Criminal Alien Program (CAP) is to improve safety by promoting federal-local partnerships to target serious criminal offenders for deportation. Indeed, the U.S. Congress has made clear that Immigration and Customs Enforcement (ICE) “should have no greater immigration enforcement priority than to remove deportable aliens with serious criminal histories from the United States…” The Warren Institute’s analysis of arrest data pursuant to an ICE-local partnership in Irving, Texas demonstrates that ICE is not following Congress’ mandate to focus resources on the deportation of immigrants with serious criminal histories.

This study also shows that immediately after Irving, Texas …

Straddling The Civil-Criminal Divide: A Bifurcated Approach To Understanding The Nature Of Immigration Removal Proceedings, Peter L. Markowitz

Articles

The article advocates for reclassifying immigration removal proceedings, distinguishing between exclusion and expulsion. It argues that while exclusion should remain a civil process, expulsion, particularly for lawful permanent residents, should be treated as a criminal matter due to its punitive nature and severe consequences. This bifurcated approach aims to align legal procedures with the reality of the impact on individuals and ensure constitutional protections.

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

Brief Of Amici Curiae In Support Of Petitioner, Juan Rivera V. State Of Maryland, No. 08-80, Maureen A. Sweeney

Court Briefs

The petitioner requested the Maryland Court of Appeals to reverse a decision that his criminal plea of guilty was voluntary. The Court of Special Appeals of Maryland had ruled it voluntary. Law professors at the University of Maryland and the University of Baltimore filed this amicus brief in support of the petitioner.

The brief presents the issue of whether a guilty plea is voluntary and knowingly given when it is based on affirmative misinformation about the direct immigration consequences of such a plea. The amici argue that the petitioner’s plea was unconstitutionally involuntary and unknowing because his attorney, the prosecutor, …

Straddling The Civil-Criminal Divide: A Bifurcated Approach To Understanding The Nature Of Immigration Removal Proceedings, Peter L. Markowitz

Articles

The article challenges the traditional classification of removal proceedings as civil, arguing that expulsion, particularly for permanent residents, functions similarly to criminal punishment and should therefore be treated as criminal. It proposes a bifurcated approach distinguishing exclusion and expulsion, advocating for criminal protections in expulsion proceedings to align with historical and constitutional principles.

Immigration Reform In America: Past, Present, And Future, Thaddeus Coffman

Undergraduate Theses and Capstone Projects

This paper examines immigration legislation throughout the history of the United States. The author has divided the focus of legislative activity into four main eras: the Laissez- Fair Era (1789-1875), the Anti-Asian Era (1876-1920), the National Origin Quotas Era (1921-1953), and the Illegal Immigration Era (1954-present). While these eras are not all inclusive, they are indicative of the main focus of legislation passed during their time. The author then compares the impact of major legislation passed during these eras to three current proposals aimed at addressing the increasing issue of illegal immigration: two versions of a guest-worker program and amnesty/legalization …

"We're Here To Protect Democracy. We're Not Here To Practice It": The U.S. Military's Involvement In Trafficking In Persons And Suggestions For The Future, Jorene Soto

Cardozo Journal of Equal Rights & Social Justice

The article argues that the U.S. military has historically been complicit in human trafficking, particularly through its involvement in prostitution near overseas bases, and that current legal and policy measures fail to adequately address this issue. While laws like the Trafficking Victims Protection Act (TVPA) and the Uniform Code of Military Justice (UCMJ) provide some framework, enforcement and penalties are insufficient to deter military personnel from contributing to trafficking. The article calls for stronger legal policies, enhanced education, and stricter penalties to combat this issue effectively.

Book Review, Erin Murphy

Journal of Legal Education

No abstract provided.

An Unwarranted Disparity: Granting Fast-Track Departures In Non-Fast-Track Districts, Evan W. Bolla

Cardozo Law Review

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Habeas Corpus, Judicial Review, And Limits On Secrecy In Detentions At Guantanamo, Jonathan Hafetz

Cardozo Public Law, Policy & Ethics Journal

The article examines the role of secrecy in post-9/11 counterterrorism detentions, particularly at Guantanamo Bay, and the legal challenges posed by the Detainee Treatment Act (DTA) and Military Commissions Act (MCA). These acts sought to limit habeas corpus jurisdiction, potentially restoring a system of unaccountable detentions. The analysis highlights how habeas corpus serves as a critical check on executive power, ensuring judicial review of detentions and transfers, and protecting against unlawful confinement. The Supreme Court's rulings in Rasul v. Bush and Hamdan v. Rumsfeld are central to this discussion, as they affirmed habeas protections and invalidated certain detention practices.

The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power, Juliet P. Stumpf

ExpressO

This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract …

'Tis A Gift To Be Simple: A Model Reform Of The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

This essay introducing the June 2006 edition of the Federal Sentencing Reporter (Vol. 18, No. 5) describes two important contributions to the movement for real reform of the federal sentencing system. First, Professor Bowman summarizes the recommendations of the Constitution Project Sentencing Initiative (CPSI) report on federal sentencing. The CPSI report, reproduced in this Issue, cautions against any over-hasty legislative response to the Supreme Court's decision in United States v. Booker, suggests some near-term improvements to the existing federal sentencing system, and then sets out a framework for a reformed and markedly simplified federal sentencing regime. Second, Professor Bowman describes …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The War On Terror, Local Police, And Immigration Enforcement: A Curious Tale Of Police Power In Post-9/11 America, David A. Harris

ExpressO

In post-9/11 America, no goal ranks higher for law enforcement than preventing the next terrorist attack. This is as true for local police departments as it is for the FBI, and police in cities. At the same time, many advocates of tightening U.S. immigration enforcement have recast their efforts as national security and anti-terrorism campaigns. Thus, these advocates and their many allies in the current administration and in Congress have called for local police to become involved in enforcing immigration law. Officials in both the executive and legislative branches of the federal government have taken a number of actions designed …

Bringing Human Rights Abusers To Justice In U.S. Courts: Carrying Forward The Legacy Of The Nuremberg Trials, Sandra Coliver

Cardozo Law Review

No abstract provided.

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

Deportations, Removals And The 1996 Immigration Acts: A Modern Look At The Ex Post Facto Clause, Lupe S. Salinas

ExpressO

The article addresses the punitive aspects of the deportation procedures as impacted by the 1996 Immigration Acts. When faced with the precedents in the field, that deportation is a civil procedure, federal courts conclude that the Ex Post Facto Clause does not apply. However, the article draws upon common law and other historical bases for the conclusion that a modern view should hold that conviction-related removals are punitive and subject to ex post facto analysis.

International Child Abductions: The Challenges Facing America , Charles F. Hall

ExpressO

International child abductors often escape domestic law enforcement and disappear without consequence or resolution. International child abductions occur too frequently; in the United States alone, the number of children abducted abroad every year has risen to over 1,000. Currently, 11,000 American children live abroad with their abductors. These abductions occur despite international treaties and the Congressional resolutions that have significantly stiffened the penalties for those caught. Effectively combating international child abductions requires drafting resolutions that are acceptable across the diverse societies and cultures of the international community. Without such resolutions to fill the gaps of current treaties this problem will …

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

ExpressO

No abstract provided.

National Identity Cards: Fourth And Fifth Amendment Issues, Daniel J. Steinbock

ExpressO

In the past two years there have been serious calls for a national identity system whose centerpiece would be some form of national identity card. Such a system is seen mainly as a tool against terrorists, but also as a useful response to illegal immigration, identity theft, and electoral fraud. Both proponents and opponents have noted the potential constitutional problems of such an identity system, but as yet there has been no published legal analysis of these questions. This article aims to fill that gap by analyzing the Fourth and Fifth Amendment issues in two major features of any likely …

Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero

Faculty Scholarship

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in targeting …

The Doctrine Of Non-Inquiry And The Preservation Of Human Rights:-Is There Room For Reconciliation?, Michael S. Topiel

Cardozo Journal of International and Comparative Law

The note explores the tension between individual human rights under international law and state interests in combating cross-border crime, focusing on the doctrine of noninquiry in extradition cases. It argues that while the Convention Against Torture imposes obligations to prevent extradition to situations of torture, the doctrine of noninquiry—where courts avoid scrutinizing the requesting state’s justice system—remains crucial for maintaining separation of powers and diplomatic relations. The analysis highlights the balancing act between protecting human rights and ensuring international cooperation in law enforcement.

Breard And Beyond: The Status Of Consular Notification And Access Under The Vienna Convention, Howard S. Schiffman

Cardozo Journal of International and Comparative Law

The article examines the challenges and implications of enforcing Article 36 of the Vienna Convention on Consular Relations in the U.S., focusing on whether individuals can seek remedies for violations in U.S. courts. It highlights the legal ambiguities surrounding the treaty's self-executing status and the barriers foreign states face in enforcing it domestically. The author emphasizes the need for improved U.S. compliance to protect its citizens abroad and maintain international legal order.

The Revitalization Of The Common-Law Civil Writ Of Audita Querela As A Post-Conviction Remedy In Criminal Cases: The Immigration Context And Beyond, Ira Robbins

Scholarly Articles in Law Reviews & Journals

Introduction: An alien lawfully enters the United States in 1972. He gets a job, gets married, and becomes a productive worker in the community. He is subsequently convicted of a felony, such as making false statements on a loan application. As a result, the Immigration and Naturalization Service (INS) brings deportation proceedings against him. The individual will seek any means possible to vacate the conviction, in order to stay in this country.' This Article explores whether the writ of audita querela. primarily used to provide post-judgment relief in civil cases at common law, can be used to challenge criminal …

Protecting Native American Culture, Leonard D. Duboff

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Recent Development, Constitutional Law: Protection Against Illegal Search And Seizure--Blackie's House Of Beef, Inc. V. Castillo, No. 79-1057 & 79-2358 (D.C. Cir. July 22, 1981), Stephen James Anaya

Publications

No abstract provided.

Eyewitness Identification In War Crimes Trials, Debra H. Nesselson, Steven Lubet

Cardozo Law Review

No abstract provided.