Immigration Law Commons^™

Buying The American Dream: Using Immigration Law To Bolster The Housing Market, Kit Johnson

Faculty Articles

Escaping notice in debate about immigration reform is a proposal that would give residency visas to foreign nationals on the condition that they buy an expensive home. Proponents see visas as a simple way to shore up the U.S. housing market. Yet complications abound. This Article scrutinizes the history, logic, economics, and morals of the proposed homebuyer visa, as well as its intersection with state laws that restrict foreign ownership of land.

Stateless In The United States: Current Reality And A Future Prediction, Polly J. Price

Faculty Articles

Statelessness exists in the United States-a fact that should be of concern to advocates of strict immigration control as well as those who favor a more welcoming policy. The predominant reasons for statelessness include the presence of individuals who are unable to prove their nationality and the failure of their countries of origin to recognize them as citizens. Migrants with unclear nationality, already a problem for the United States, obstruct efforts to control immigration by the deportation of unauthorized aliens. These existing problems of national identity will increase exponentially if birthright citizenship in the United States is amended to exclude …

Immigration Preemption After United States V. Arizona, Kit Johnson, Peter Spiro

Faculty Articles

Professors Kit Johnson and Peter Spiro debate the role states should play in immigration enforcement after the Supreme Court's decision in Arizona v. United States.

Importing The Flawless Girl, Kit Johnson

Faculty Articles

Fashion model visas have never been the subject of scholarly treatment, much less a focused analysis. In fact, they have been the subject of considerable confusion in Congress and have become a polarizing issue in public debate. Clarity is important, because the granting of visas to fashion models has an undeniably positive economic impact on a major U.S. industry. Moreover, fashion model visas have the unique potential to serve as levers to affect important aspects of social policy and to address public health concerns. This paper begins by examining what it takes to be a fashion model and why the …

Centering The Immigrant In The Inter/National Imagination (Part Iii): Aoki, Rawls, And Immigration, Robert S. Chang

Faculty Articles

Fifteen years ago, Keith Aoki and Professor Robert Chang published "Centering the Immigrant in the Inter/National Imagination" in an early LatCrit symposium. Fifteen years later Professor Chang uses the occasion of the current Symposium to revisit conversations with Keith about centering the immigrant in political theory, as he addresses the issue of immigration, the rights of immigrants, and what is to be our national self-conception. What follows is a sketch that shows how centering the immigrant exposes the inattention paid to the immigrant and the issue of immigration in social contract theory. It focuses on how the immigrant might be …

The Inquisitorial Advantage In Removal Proceedings, Won Kidane

Faculty Articles

This article takes a radically different and unique approach to improving due process in removal/deportation proceedings. It argues that the existing adversarial system of adjudication, which is incontrovertibly inefficient, expensive and unfair, is a product of cultural imaginary. It demonstrates that if the current adversarial model is measured by contemporary utilitarian standards, it is utterly counterproductive. The article then recommends the adoption of the inquisitorial model of the civilian system by converting the majority of the 951 government lawyers, who now serve as the non-citizens’ adversaries, into administrative law judges. Through a comparative analysis of the common law and civil …

The Wonderful World Of Disney Visas, Kit Johnson

Faculty Articles

International workers play an important role in perpetuating the carefully crafted fantasy that to visit the Walt Disney World Resort in Orlando, Florida is to be transported to far-off destinations around the globe. This Article examines how Disney has filled its need for these workers in two ways. For one, Disney has used a blend of chutzpah and ingenuity to forge new federal law establishing the Q visa. Additionally, Disney has dexterously used the existing J visa, along with an on-resort academic program, to bring international workers to Florida as students. An examination of Disney’s immigration practices offers insight into …

The Declaration Of Independence And Immigration In The United States Of America, Kenneth M. White

Faculty Articles

The United States has always been a nation of immigrants, and immigration policy has always been controversial. The history of immigration in the United States is contrasted in this article with a normative standard of naturalization (immigration policy) based on the Declaration of Independence. The current immigration debate fits within a historical pattern that pits an unrestricted right of immigration (the left) against exclusive, provincial politics (the right). Both sides are simultaneously correct and incorrect. A moderate policy on immigration is possible if the debate in the United States gets an infusion of what Thomas Paine called "common sense."

Compassionate Immigration Reform, Steven W. Bender

Faculty Articles

Ideals of comprehensive immigration reform have been co-opted by advocates of border and internal security and enforcement, leaving behind our aspirations as a compassionate nation of immigrants. Mindful of the tension between blind adherence to the rule of law and the goal of empathetic immigration policy, I suggest a reframing of comprehensive immigration reform as compassionate reform and sketch the details of this transformative policymaking approach.

Focusing on the life-threatening journey of undocumented immigrants and the perils they and their families face once inside the United States, I argue for a time-out on deaths at the border and on workplace …

Faces Of Immigration Reform, Steven W. Bender

Faculty Articles

Recognizing the need for a sympathetic construction of immigrants as a precursor to comprehensive immigration reform that goes beyond enforcement prerogatives, this article surveys the various “faces” of immigration reform - both of advocates for progressive reform and the potentially sympathetic group images they wield. The article concludes that no image - whether of undocumented workers generally, farm laborers, immigrant children and Dreamers, or undocumented veterans - is poised to garner sympathy from voters and policymakers, particularly against the backdrop of the current economic crisis. Reform may hinge, then, on interest convergence so powerful that it transcends the prevailing negative …

Secular Not Secularist America, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

The Alienage Spectrum Disorder: The Bill Of Rights From Chinese Exclusion In Guantanamo, Won Kidane

Faculty Articles

The fundamental notion that increased ties to the polity of the United States would entitle an alien to better rights is deeply-rooted in the jurisprudence. Ordinarily, these rights tend to strengthen as one moves forward from the beginning of the spectrum, which might involve the most attenuated contact, as in the case of enemy aliens detained by United States military in a foreign land or an overseas visa applicant, to the end of the spectrum, which might involve a United States citizen. While this seems to make perfect sense, this article argues that a closer examination of the century-old jurisprudence …

The Terrorism Bar To Asylum In Australia, Canada, The United Kingdom, And The United States: Transporting Best Practices, Won Kidane

Faculty Articles

The contemporary threat of terrorism that the Western world faces is primarily from so-called “aliens.” As such, the laws that are meant to combat terrorism necessarily involve the regulation of the admission and exclusion of aliens. This type of regulation is traditionally the purview of immigration law. Although the link between national security and immigration is by no means contemporary, the existing level of intersection between antiterrorism laws and immigration is essentially a post- 9/11 phenomenon.

The reason for this phenomenon is that the 9/11 attacks were planned and executed by aliens. Although there has not been a terrorist attack …

Patients Without Borders: Extralegal Deportation By Hospitals, Kit Johnson

Faculty Articles

Federal law requires hospitals to treat patients in need of emergency medical care regardless of whether or not they are lawfully present in the United States. And hospitals are prohibited from discharging those patients unless and until there is an assurance that their continuing medical needs will be met by another facility. Yet the federal government does not provide funding for the care of undocumented migrants after their need for emergency care has passed but their need for ongoing medical treatment lingers. Several hospitals have made the decision to privately repatriate, at the hospitals’ expense, undocumented patients needing long-term medical …

Revisiting The Rules Of Evidence And Procedure In Adversarial Immigration Proceedings, Won Kidane

Faculty Articles

This article addresses the concern over the state of deportation proceedings in the United States. Professor Kidane argues that a lack of formal rules of procedure and evidence is the main factor contributing to the unpredictability, and inconsistency inherent in our system of immigration law. The argument is placed in context by reviewing the growth of the administrative agencies up through the adoption of the Administrative Procedure Act (APA). Kidane notes that the APA embodies one approach as a compromise between those advocating strict formal rules of procedure and evidence and those supporting a more relaxed system for administrative proceedings. …

Immigration Reform From The Outside In, Bill Piatt

Faculty Articles

Immigration reform is made up of two differing extreme positions, but by seeking common ground, a more fair and balanced approach may be adopted in the best interests of all.Rather than trying to analyze positions as conservative or liberal, it makes more sense to view the extremes as a “closed border” versus “open border” approach. The extreme positions will not work, so a more middle-ground position would require a thoughtful examination of a number of issues. Those issues are what are the costs and benefits of removing those already illegally here; what role should the federal, state, and local governments …

New Legal Rights In The Legal System Of The United States Of America, Roberto Rosas, Bill Piatt

Faculty Articles

Currently, there exist an extensive variety of individual rights recognized both nationally and internationally. With the course of time, however, they change; therefore, governments occasionally consider it necessary to create additional protections for their citizens. Generally, these propositions are made possible through the creation and approval of new rights. Even though these new rights are based on other previously established rights, they do offer society the opportunity to protect and defend itself as well as allowing it to continue making progress.

Only a few of the new legal rights that have been recognized within the last few years will be …

Religious Freedom In The Face Of Harsh State And Local Immigration Laws, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane

Faculty Articles

The Immigration and Nationality Act ("INA "), as it must, excludes a terrorist from receiving asylum. The substantive criteria, and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exclude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however the margin of the possible error in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing …

The Challenges Of Representing Detained Non-Citizens In Expedited Removal Proceedings From The Perspective Of The Dickinson School Of Law Immigration Clinic, Won Kidane

Faculty Articles

Persons deprived of their liberties as a result of administrative detention for immigration reasons face a multitude of serious challenges. There is currently no recognized right to the government-appointed representation in immigration proceedings. As a result, on a very small percentage of immigrants obtain pro bono or any other kind of legal representation. This problem is compounded by the fact that most immigration detainees are detained in remote rural areas where the private bar is virtually unavailable. Those who are fortunate to obtain pro bono or other types of legal representation also face some serious challenges at the different stages …

Committing A Crime While A Refugee: Rethinking The Issue Of Deportation In Light Of The Principle Against Double Jeopardy, Won Kidane

Faculty Articles

The Double Jeopardy Clause of the United States Constitution provides: No person shall...be subject for the same offense to be twice put in jeopardy of life or limb . . . If a refugee who has committed a deportable offense and served his sentence is subsequently deported from a place where he calls home to a place where he would face persecution, he could literally be said to have been twice put in jeopardy of life and limb. That seems to be a prima facie violation of the Double Jeopardy Clause of the Fifth Amendment. This constitutional guarantee is, however, …

Immigration And Evil: The Religious Challenge, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Human Trafficking In The Heartland: Greed, Visa Fraud, And The Saga Of 53 Indian Nationals "Enslaved" By A Tulsa Company, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Realism, Freedom, And The Integral Development Of The Human Person: A Catholic View Of Education, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

The Effect Of 8 U. S. C. 1324(D) In Transporting Prosecutions: Does The Confrontation Clause Still Apply To Alien Defendants, Donna F. Coltharp

Faculty Articles

No abstract provided.

Kulturkampf In The Backwaters: Homosexuality And Immigration Law, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Natural Law And Birthright Citizenship In Calvin's Case (1608), Polly J. Price

Faculty Articles

The roots of United States conceptions of birthright citizenship lie deep in England's medieval past. This Article explores Calvin's Case (1608) and the early modem common-law mind that first articulated a theoretical basis for territorial birthright citizenship. Involving all the important English judges of the day, Calvin's Case addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI in 1603, would be considered "subjects" in England. Calvin's Case determined that all persons born within any territory held by the King of England were to enjoy the benefits of …

Migration, Identity & The Colonial Encounter, Tayyab Mahmud

Faculty Articles

The immigrant puts at issue assumptions of inviolability of borders, territoriality of sovereignty, and exclusivity of citizenship - fundamental characteristics of the modern state. The immigrant calls into question cultural homogeneity, linguistic commonality, shared history, and security of identity - the key ideologies of the nation. This article explores these issues by locating them in spatial and temporal sites removed from the common foci of current immigration debates. Using three stories of migration from colonial and postcolonial South Asia, the first part of the article demonstrates that within the general context of empire and imperialism, the determinants and processes of …

Foreword: Citizenship And Its Discontents - Centering The Immigrant In The Inter/National Imagination (Part Ii), Robert S. Chang, Keith Aoki, Ibrahim Gassama

Faculty Articles

A couple of years ago, the Immigration and Naturalization Service (INS) swept through several southern states to round up and deport undocumented workers. The sweep was called Operation SouthPAW, PAW standing for "Protecting America's Workers." The roundup occurred in two phases, which curiously took place mostly before and after the harvest. The operation was celebrated by the INS and mainstream media as hugely successful in protecting America's workers (and thus America) from encroachment by "unauthorized" workers. But who gains ideologically and materially from such policing actions? Who loses? These questions of material profit and ideological benefit lie at the heart …

Centering The Immigrant In The Inter/National Imagination, Robert S. Chang, Keith Aoki

Faculty Articles

In this Article, Professors Chang and Aoki examine the relationship between the immigrant and the nation in the complicated racial terrain known as the United States. Special attention is paid to the border which contains and configures the local, the national and the international. They criticize the contradictory impulse that has led to borders becoming increasingly porous to the flows of information, goods and capital while simultaneously constricting when it comes to the movement of certain persons, particularly those of Asian and Latinalo ancestry. The authors examine Monterey Park, California, as one site where there has been a large influx …