Immigration Law Commons^™

Under Arrest: Immigrants' Rights And The Rule Of Law, Shoba S. Wadhia

Faculty Scholarship

The discussion is broken down into four parts. First, I will review some basic historical points and terminology. Second, I will describe some of the government's immigration enforcement policies following the comprehensive immigration reform ("CIR") debate and the human consequences and concerns behind such policies. Third, I will describe the relevant legal authorities for arresting and detaining noncitizens. Finally, I will provide some recommendations for moving forward.

The Policy And Politics Of Immigrant Rights, Shoba S. Wadhia

Faculty Scholarship

This article examines how immigration policies over the past decade have affected immigrant rights, scrutinizes administrative and legislative efforts to improve or eliminate these measures, and makes recommendations for advancing a due process agenda in the future. The first part of this article analyzes administrative and legislative proposals under four themes: 1) checks and balances, 2) punishment does not fit the crime, 3) judicial review, and 4) detention. The second part of this article identifies efforts to redress measures emanating from the 1996 immigration laws and policies issued after September 11, 2001. For example, it analyzes legislation introduced in the …

Crossing Borders: Loving V. Virginia As A Story Of Migration, Victor C. Romero

Faculty Scholarship

The struggle of binational same-gender partners today parallels the struggles of Mildred and Richard Loving during the heyday of the Civil Rights Movement - not only in the obvious parallels between race and sexual orientation as barriers to freedom, but also in the way the law uses these immutable characteristics to limit the freedom of movement. It is this freedom of movement - this migration or immigration - that I want to focus on in this essay. Lest we forget, the Lovings' story is, importantly, a story of migration: It's a story of the great lengths to which an interracial …

Immigration: Mind Over Matter, Shoba S. Wadhia

Faculty Scholarship

This article examines the current field of debate and legislation on immigration reform and related due process issues. "Comprehensive Immigration Reform" is an expression in the immigration debate and embraces five tenets. First, reform addresses the eleven million people who are living in the United States without documentation and specifically provide them with an incentive to make themselves known to the government, register for some kind of work visa, and if they wish, get on the path to permanent residence. Second, reform embodies what lobbyists in Washington, D.C. call the "future flow," which corresponds to the flow of people who …

Asians, Gay Marriage, And Immigration: Family Unification At A Crossroads, Victor C. Romero

Faculty Scholarship

Family unification has long been a significant component of U.S. immigration policy, and the Asian Pacific American (APA) community has long been a champion of laws that strengthen America's commitment to this goal. The recent emergence of same-gender marriages among state and local governments has caused society to consider more closely its definition of the family, challenging the traditional notion that only civil unions between heterosexuals should be celebrated. But because U.S. immigration law does not include a gay or lesbian partner within its statutory definition of spouse, binational same-gender couples may not legally remain in the country together, even …

Race, Immigration, And The Department Of Homeland Security, Victor C. Romero

Faculty Scholarship

Despite the wisdom of separating the service and enforcement functions of our immigration bureau, the new tripartite system under the auspices of the Department of Homeland Security risks fueling the "immigrant Arab as terrorist" stereotype, rather than helping to re-establish the reality that noncitizen terrorists, like U.S. citizen ones, are a rare species.

Proxies For Loyalty In Constitutional Immigration Law: Citizenship And Race After September 11, Victor C. Romero

Faculty Scholarship

The purpose of this article is to share some thoughts about using citizenship and race as proxies for loyalty in constitutional immigration discourse within two contexts: one historical and one current. The current context is the profiling of Muslim and Arab immigrants post-September 11, and the historical context is the distinction the Constitution draws between birthright and naturalized citizens in the Presidential Eligibility Clause.

The Child Citizenship Act And The Family Reunification Act: Valuing The Citizen Child As Well As The Citizen Parent, Victor C. Romero

Faculty Scholarship

Leading civil rights advocates today lament the degree to which current immigration law fails to maintain family unity. The recent passage of the Child Citizenship Act of 2000 is a rare bipartisan step in the right direction because it grants automatic citizenship to foreign-born children of U.S. citizens upon receipt of their permanent resident status and finalization of their adoption. Congress now has before it the Family Reunification Act of 2001, which aims to restore certain procedural safeguards relaxed in 1996 to ensure that foreign-born parents are not summarily separated from their children, many of whom may be U.S. citizens. …

Devolution And Discrimination, Victor C. Romero

Faculty Scholarship

This essay explores the issue of whether discrimination against two historically disadvantaged groups - racial minorities, on the one hand, and gays and lesbians, on the other - might increase or decrease should the federal immigration power devolve to the individual states. I conclude that while the lack of uniformity that accompanies immigration law devolution might lead to undesirable results in welfare reform and criminal law enforcement, and would likely not stem the tide of racism, it might lead to the opening of opportunities for gay Americans to petition their binational partners for immigration benefits. Such a development would turn …

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 …

Noncitizen Students And Immigration Policy Post-9/11, Victor C. Romero

Faculty Scholarship

The purpose of this article is to describe the post-9/11 world for noncitizen students and scholars in light of recent federal legislation, specifically focusing on three laws: the USA-PATRIOT Act of 2001, the Border Commuter Student Act of 2002, and the proposed Capital Student Adjustment Act, currently pending in Congress. In all three, Congress is seen trying to walk the fine line between providing fair access to postsecondary education to noncitizen students and guarding against the possibility that such institutions are being used as a springboard for terrorist activity.

Critical Race Theory In Three Acts: Racial Profiling, Affirmative Action, And The Diversity Visa Lottery, Victor C. Romero

Faculty Scholarship

The usual debates surrounding multiculturalism pit individual rights against group grievances in a variety of contexts including racial profiling, affirmative action, and the diversity visa lottery, often with seemingly contradictory results. Liberals often favor affirmative action but decry both racial profiling and the diversity visa lottery, while many conservatives hold the opposite view. Critical race theory provides a unique alternative to stock liberal and conservative arguments, allowing one to draw meaningful and persuasive distinctions among these seminal issues surrounding law enforcement, education, and immigration policy.

The Selective Deportation Of Same-Gender Partners: In Search Of The "Rara Avis", Victor C. Romero

Faculty Scholarship

This article seeks to explore the possibility that a selective deportation of a same-gender partner who has overstayed her visa constitutes an outrageous case under the AADC test. Its modest goal is to discourage the INS from ever pursuing such a strategy, knowing that there are probably many who believe that same-gender overstays, even if civilly united in Vermont, are not the ideal candidates for "suspect class" status under U.S. constitutional law. That notwithstanding, common sense and sound doctrine suggest that, despite the many anti-gay and anti-immigrant decisions handed down over the last twenty years, the Court will not hesitate …

Postsecondary School Education Benefits For Undocumented Immigrants: Promises And Pitfalls, Victor C. Romero

Faculty Scholarship

Should longtime undocumented immigrants have the same opportunity as lawful permanent residents and U.S. citizens to attend state colleges and universities? There are two typical justifications for denying them such opportunities. First, treating undocumented immigrants as in-state residents discriminates against U.S. citizen nonresidents of the state. Second, and more broadly, undocumented immigration should be discouraged as a policy matter, and therefore allowing undocumented immigrant children equal opportunities as legal residents condones and perhaps encourages "illegal" immigration. This essay responds to these two concerns by surveying state and federal solutions to this issue.

Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero

Faculty Scholarship

This Essay will focus on "racial profiling" not just in the way people think about the term - that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black" - but also in the context of "affirmative action - namely, using race as a factor in employment and educational decisions. More broadly, then, I want us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual" which moves us slightly away from more pejorative notions of the phrase that have …

On Elián And Aliens: A Political Solution To The Plenary Power Problem, Victor C. Romero

Faculty Scholarship

The poignant story of a little boy fished out of the sea after losing his mother to the elements captured the country's imagination and ignited a political firestorm. The Elián González saga drew conflicting opinions from nearly every branch of American local, state, and federal governments.

This article takes no specific position on Elián's situation. Rather, this artivle values the González story for putting a human face on often faceless legal issues. More specifically, Elián's saga raises the following important question: When should the right of the human being to be treated as an individual trump the right of government …

The Domestic Fourth Amendment Rights Of Undocumented Immigrants: On Guitterez And The Tort Law/Immigration Law Parallel, Victor C. Romero

Faculty Scholarship

This Article is composed of three parts. Part I examines the problems raised by the Gutierrez I regime, including the collapse of the protective constitutional floor of immigrants' rights portended by that decision. Part II contends that the current plenary power approach to immigration and immigrants' rights issues would likely support, rather than dismantle, the Gutierrez I approach to undocumented immigrants' Fourth Amendment rights. Part III provides an alternative to the plenary power regime by drawing a parallel between domestic tort law for premises liability and immigrants' rights law. This part concludes by showing that Rowland and its progeny could …

Aren't You Latino: Building Bridges Upon Common Misperceptions, Victor C. Romero

Faculty Scholarship

This article addresses minority on minority oppression and itragroup animosity. The author discusses ways in which communities of color can use common misperceptions to their advantage as a bridge to building a larger community.

Expanding The Circle Of Membership By Reconstructing The Alien: Lessons From Social Psychology And The Promise Enforcement Cases, Victor C. Romero

Faculty Scholarship

Recent legal scholarship suggests that the Supreme Court's decisions on immigrants' rights favor conceptions of membership over personhood. Federal courts are often reluctant to recognize the personal rights claims of noncitizens because they are not members of the United States. Professor Michael Scaperlanda argues that because the courts have left the protection of noncitizens' rights in the hands of Congress and, therefore, its constituents, U.S. citizens must engage in a serious dialogue regarding membership in this polity while considering the importance of constitutional principles of personhood. This Article takes up Scaperlanda's challenge. Borrowing from recent research in social psychology, this …

Congruence Principle Applied: Rethinking Equal Protection Review Of Federal Alienage Classifications After Adanrand Constructors, Inc. V. Peña, Victor C. Romero

Faculty Scholarship

This article suggests that the Supreme Court's 1995 decision in Adarand Constructors, Inc. v. Peña constitutes a starting point for a renewed dialogue on the intersection of race, noncitizens' rights, and immigration law.

Part I of this Article examines the historical foundations of the plenary power doctrine up to the current dichotomy between judicial review of state and federal alienage classifications under equal protection. Part II reviews the Adarand decision, arguing that Justice O'Connor's congruence principle provides the bulwark for a revision of judicial review of federal legislation, especially in light of the historical and continuing perception of Asian- and …

Equal Protection Held Hostage: Ransoming The Constitutionality Of The Hostage Taking Act, Victor C. Romero

Faculty Scholarship

This Article contends that, following the Supreme Court's lead in Adarand Constructors, Inc. v. Peña and City of Cleburne v. Cleburne Living Centers, Inc., the continuing maltreatment of noncitizens in this country requires that federal alienage classifications be reviewed with the same strict, or at least heightened rational basis, scrutiny applied to state legislation.

Part II of this Article describes the 1979 Hostage Taking Convention and sets forth some of its provisions in an effort to better understand the impetus for the HTA. Part III examines the legislative history of the HTA and briefly describes the Yunis case as …

The Equal Protection Clause-State Statutory Restrictions On The Education Of Illegal Alien Children-Proposition 187, Benjamin N. Bedrick

Penn State International Law Review (1982 - 2011)

No abstract provided.

Haitian Refugee Center, Inc. V. James Baker, Iii: The Dred Scott Case Of Immigration Law, Thomas David Jones

Penn State International Law Review (1982 - 2011)

No abstract provided.

Is The United States Government Justified In Indefinitely Detaining Cuban Exiles In Federal Prisons?, Brigitta I. Sandberg

Penn State International Law Review (1982 - 2011)

No abstract provided.

Whatever Happened To The Fourth Amendment: Undocumented Immigrants' Rights After Ins V. Lopenz-Mendoza And United States V. Verdugo-Urquidez, Victor C. Romero

Faculty Scholarship

This Note rejects the Court's approach to the Fourth Amendment in Lopez and Verdugo and attempts to redefine the boundaries of Fourth Amendment protections for undocumented immigrants. Part I examines the impact of the Lopez and Verdugo decisions upon undocumented immigrants' Fourth Amendment rights. Part II evaluates the arguments for extending Fourth Amendment protections to undocumented immigrants. Viewing the Fourth Amendment as a restriction on government intrusion, Part III examines the constitutional remedies available to undocumented immigrants. This part rejects the Lopez restrictions on the applicability of the exclusionary rule and concludes that the Fourth Amendment neither draws distinctions among …

Indefinite Detention Of Cuban Aliens: Is The End In Sight?, Francis G. Troyan

Penn State International Law Review (1982 - 2011)

In spite of the fact that international law dictates that a sovereign should be able to protect its borders, international law also dictates that every human being has the right to be free from unnecessary detention. For nearly eight years the United States has indefinitely detained Cuban aliens who arrived in the Mariel boatlift of 1980. This comment examines this policy and offers alternatives to improve the plight of the Cubans without sacrificing the safety of Americans in general.

Re-Evaluating Alien Exclusion In Light Of Aids, Kerry E. Voss

Penn State International Law Review (1982 - 2011)

The Immigration and Naturalization Service has adopted an AIDS testing program to screen individuals requesting permanent status in the United States. The comment discusses this complex disease and the accompanying legal ramifications on immigration law, given the traditional bases for exclusion of aliens.

When Is There Going To Be A United States Law Governing The Admission Of Refugees And Asylum Seekers, Linda T. Cox

Penn State International Law Review (1982 - 2011)

This comment will trace the development of United States refugees and asylum laws. In addition, the policies underlying past, current and proposed immigration laws will be analyzed.