Immigration Law Commons^™

The Authority Of International Refugee Law, Evan J. Criddle, Evan Fox-Decent

William & Mary Law Review

As COVID-19 has spread around the world, many states have suspended their compliance with a core requirement of international refugee law: the duty to refrain from returning refugees to territories where they face a serious risk of persecution (the duty of non-refoulement). These measures have prompted some observers to question whether non-refoulement will survive the pandemic as a nonderogable legal duty. This Article explains why the international community should embrace non-refoulement as a peremptory norm of general international law (jus cogens) that applies even during public emergencies, such as the coronavirus pandemic. Viewed from a global justice perspective, the …

The Case Against Prosecuting Refugees, Evan J. Criddle

Faculty Publications

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Professor Stacy Kern-Scheerer: Reflections On The Fall 2020 Semester, Stacy Kern-Scheerer

Law School Personal Reflections on COVID-19

No abstract provided.

Arbitrary Arbiters: Evaluating The Right To Be Informed Of Eligibility For Discretionary Relief In Removal Proceedings, Michael Jordan

William & Mary Bill of Rights Journal

No abstract provided.

The Forgotten Relatives In The Fight Against Family Separation: A Constitutional Analysis Of The Statutory Definition Of Unaccompanied Minors In Immigration Detention, Alysa Williams

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Is The "Hire American" Executive Order A Suspect Classification?, Michael H. Leroy

William & Mary Bill of Rights Journal

President Trump’s Executive Order 13,788 declares a “Hire American” policy for H-1B visas. This action discriminates against Indians to benefit white American workers. The technology workforce in the United States has 4.6 million jobs. Most employees in this large workforce—about 76%—are U.S.-born. In this domestic segment, 85% of employees are white. Among foreign-born workers (11.6% of all workers), Asians make up 66%, with Indians predominating.

“Hire American” renews a mostly forgotten history of discrimination against Indian workers. The Immigration Act of 1917 enacted an “Asiatic Barred Zone.” Indian immigration was curtailed to 100 annual arrivals. Typical of the period, the …

Digital Internment, Margaret Hu

Faculty Publications

In Korematsu, Hirabayashi, and the Second Monster, Eric L. Muller explores whether Korematsu v. United States is dead post-Trump v. Hawaii, and whether by failing to strike down Hirabayashi v. United States, the “mother” of Korematsu and a “second monster” lives on. This brief response Essay contends that answering these questions first demands grasping how Trump v. Hawaiifailed to fully address the program implemented by the Muslim Ban–Travel Ban: Extreme Vetting. Extreme Vetting can be characterized as a form of “digital internment” through a complex web of cybersurveillance, administrative-imposed restraints, and “identity-management” rationales that are …

Pereira's Aftershocks, Lonny Hoffman

William & Mary Law Review

At the end of the 2017 term, the Supreme Court decided not to stop time. Nonpermanent residents who have been placed in removal proceedings may apply for a discretionary form of relief from the Attorney General known as “cancellation of removal.” To be eligible, an applicant must show (in addition to meeting other requirements) that she has been in the United States for at least ten consecutive years. The period of continuous physical presence is interrupted when the government serves the noncitizen with a notice to appear at a removal hearing. However, in Pereira v. Sessions, the Court held that …

Other Lands And Other Skies: Birthright Citizenship And Self-Government In Unincorporated Territories, John Vlahoplus

William & Mary Bill of Rights Journal

No abstract provided.

Embracing The Chinese Exclusion Case: An International Law Approach To Racial Exclusions, Lauri Kai

William & Mary Law Review

No abstract provided.

Brief Of Scholars Of Mormon History & Law As Amici Curiae In Support Of Neither Party, Anna-Rose Mathieson, Ben Feuer, Nathan B. Oman

Briefs

No abstract provided.

Algorithmic Jim Crow, Margaret Hu

Faculty Publications

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …

Crimmigration-Counterterrorism, Margaret Hu

Faculty Publications

The discriminatory effects that may stem from biometric ID cybersurveillance and other algorithmically-driven screening technologies can be better understood through the analytical prism of “crimmigrationcounterterrorism”: the conflation of crime, immigration, and counterterrorism policy. The historical genesis for this phenomenon can be traced back to multiple migration law developments, including the Chinese Exclusion Act of 1882. To implement stricter immigration controls at the border and interior, both the federal and state governments developed immigration enforcement schemes that depended upon both biometric identification documents and immigration screening protocols. This Article uses contemporary attempts to implement an expanded regime of “extreme vetting” to …

Even When You Win, You Lose: Executive Order 13769 & The Depressing State Of Procedural Due Process In The Context Of Immigration, Amy L. Moore

William & Mary Bill of Rights Journal

No abstract provided.

Section 4: Immigration Law Panel, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Amici Curiae Brief Of Scholars Of Mormon History & Law In Support Of Neither Party, Anna-Rose Mathieson, Nathan B. Oman

Briefs

No abstract provided.

Amici Curiae Brief Of Scholars Of American Religious History & Law In Support Of Neither Party, Nathan B. Oman, Anna-Rose Mathieson

Briefs

No abstract provided.

Note To Trump: Know What You Call Muslims Who Reject Radical Islam? Refugees, Angela M. Banks, Nathan B. Oman

Popular Media

No abstract provided.

Immigrant Covering, Stella Burch Elias

William & Mary Law Review

Over the last ten years there has been a marked shift in U.S. immigration law away from reliance upon statutory authorization and regulatory provisions to subregulatory or “liminal” rules and discretionary decision-making. This trend is apparent in both federal immigration law and in state and local rulemaking affecting immigrant communities. This Article proposes a new theoretical framework within which to analyze this phenomenon. It uses “covering,” a legal theory first developed in the context of employment discrimination and equal protection, as a lens through which to view these recent developments in immigration law and policy. It shows how immigration laws …

Section 6: Immigration, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Where The American Dream Becomes A Nightmare: Lgbt Detainees In Immigration Detention Facilities, Lauren Zitsch

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Confronting Cops In Immigration Court, Mary Holper

William & Mary Bill of Rights Journal

Part I of the Article outlines the police report problem by discussing the four situations in which police reports are used in immigration court, why police reports are unreliable, and the scope of the problem. Part II discusses criminal law’s treatment of police reports, focusing on the Confrontation Clause of the Sixth Amendment, which provides the constitutional justification for excluding police reports in criminal cases. Part III discusses the use of hearsay evidence in immigration cases, where hearsay is allowed due to the characterization of removal proceedings as civil, not criminal. While there has been a trend to reject unreliable …

Snap: How The Moral Elasticity Of The Denaturalization Statute Goes Too Far, Aram A. Gavoor, Daniel Miktus

William & Mary Bill of Rights Journal

Comprehensive immigration reform is a popular topic in Congress. While many reform bills have been offered, none have addressed the significant substantive and procedural issues surrounding denaturalization, the process where the federal government may seek to have a naturalized person’s citizenship revoked in federal court if his citizenship was unlawfully or fraudulently procured.Though denaturalization serves public policy as a final check on naturalization fraud, existing law also permits the government to denaturalize an individual solely for speech and expressive association that occurs after one acquires citizenship. This provision, 8 U.S.C. § 1451(c), violates naturalized citizens’ First Amendment rights to free …

Mail Order Feminism, Marcia Zug

William & Mary Journal of Race, Gender, and Social Justice

This Essay will argue that America’s current marriage crisis is a problem that could be solved by encouraging mail order marriages. Specifically, Part I of this Article will show how the current marriage crisis is the result of an increasing educational gap between American men and women that is leaving less educated men with few marriage prospects. It will further argue that the loss of marriage prospects is concerning both because marriage is often the social institution that supports men as their job prospects falter and because it has the potential to create an angry and dangerous underclass of men …

Who Is Patrolling The Border Of Ethical Conduct?: The Convergence Of Federal Immigration Attorneys, Benefit Fraud, And Model Rule 4.2, Erin E. Barrett

William & Mary Law Review

No abstract provided.

Members Only: Undocumented Students & In-State Tuition, Angela M. Banks

Faculty Publications

No abstract provided.

Rethinking Review Standards In Asylum, Andrew Tae-Hyun Kim

William & Mary Law Review

Factual findings drive asylum adjudication. If immigration judges get them wrong, they risk sending refugees back to persecution. Recent studies have exposed an immigration agency that is prone to inaccurate and ill-considered fact-finding due to its structural problems. Without the political will or the financial capital necessary to fix what many acknowledge as a compromised system of adjudication, the agency may continue to render decisions that cast doubt on its capability and expertise. With an agency either unable or unwilling to ensure an accurate and fair fact-finding process, the first meaningful review of an asylum applicant’s claim happens at the …

The Normative & Historical Cases For Proportional Deportation, Angela M. Banks

Faculty Publications

Is citizenship status a legitimate basis for allocating rights in the United States?

In immigration law the right to remain in the United States is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in the United States regardless of their actions. Noncitizens’ right to remain is less secure because they can be deported if convicted of specific criminal offenses. This Article contends that citizenship is not a legitimate basis for allocating the right to remain. This Article offers normative and historical arguments for a right to remain for noncitizens. This right should be granted to …

Secure Communities: Burdening Local Law Enforcement And Undermining The U Visa, Lindsey J. Gill

William & Mary Law Review

No abstract provided.

Crossing The Final Border: Securing Equal Gender Protection In Immigration Cases, Michelle L. Sudano

William & Mary Bill of Rights Journal

No abstract provided.