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Full-Text Articles in Immigration Law

Should Undocumented Aliens Be Eligible For Resident Tuition Status At State Universities, Nancy J. Brinkac Mar 1986

Should Undocumented Aliens Be Eligible For Resident Tuition Status At State Universities, Nancy J. Brinkac

San Diego Law Review

This Comment examines the eligibility rules governing residence tuition status at state universities and focuses on the limitations of the rules and their effect on the undocumented alien population. The author argues that tuition status at state colleges and universities is generally reserved for lawful residents and citizens only and analyzes this policy under equal protection doctrine. The author concludes that the discriminatory impact these rules have on undocumented aliens fails to promote a substantial governmental interest and thus violate the equal protection clause.


Foreword, Leon Wildes Mar 1986

Foreword, Leon Wildes

San Diego Law Review

As we proceed to celebrate the 100th Anniversary of the Statute of Liberty, it is appropriate that we pause to consider the direction which our immigration policy appears to be taking at this important juncture.


The Board Of Appellate Review Of The Department Of State: The Right To Appellate Review Of Administrative Determinations Of Loss Of Nationality, Alan G. James Mar 1986

The Board Of Appellate Review Of The Department Of State: The Right To Appellate Review Of Administrative Determinations Of Loss Of Nationality, Alan G. James

San Diego Law Review

This Article, authored by the Chairman of the Board of Appellate Review, traces the origins and development of the Board of Appellate Review and examines its role as the adjudicator of appeals from the Department of State's administrative determinations of loss of nationality. The author examines various administrative and judicial decisions, focusing on the role of the appellate process in loss of nationality proceedings, and examines whether a citizen who performed a statutory expatriating act intended to relinquish "man's most basic right:" citizenship.


The Ninth Circuit And The Protection Of Asylum Seekers Since The Passage Of The Refugee Act Of 1980, Carolyn P. Blum Mar 1986

The Ninth Circuit And The Protection Of Asylum Seekers Since The Passage Of The Refugee Act Of 1980, Carolyn P. Blum

San Diego Law Review

This Article examines the Ninth Circuit Court of Appeal's decisions concerning the Refugee Act of 1980, with respect to its interpretation of the asylum and withholding of deportation provisions. The author provides an overview of the statutory language, and then reviews the Ninth Circuit's decisions on standard of proof, method of proof, and the five statutory bases which underlie any claim to asylum or withholding of deportation: race, religion, nationality, membership in a particular social group, and political opinion. The author further analyzes the court's interpretation of the term "persecution" under the asylum and withholding of deportation provisions. The author …


Actual Minimum Job Requirements In Labor Certifications: Application Of Title 20, Section 656.21(B)(6) Of The Code Of Federal Regulations To Experience Or Training Gained With The Employer, Lorna Rogers Burgess Mar 1986

Actual Minimum Job Requirements In Labor Certifications: Application Of Title 20, Section 656.21(B)(6) Of The Code Of Federal Regulations To Experience Or Training Gained With The Employer, Lorna Rogers Burgess

San Diego Law Review

This Article examines the affect of Title 20, Section 656.21(b)(6) of the Code of Federal Regulations on employers who seek to obtain labor certification for an alien who has previously worked abroad for employer. The author provides a detailed examination of the requirements under section 656.21(b)(6), as well as other regulatory provisions that have allowed the labor certification of aliens who have previously been employed by the employer. The author argues that, while Department of Labor regulations preclude application requirements other than the actual minimum requirements of the employer, certain departmental interpretations indicate that it is possible to require experience …


Ins V. Phinpathya: Literalist Statutory Interpretation In The Supreme Court, Eleanor Pelta Mar 1986

Ins V. Phinpathya: Literalist Statutory Interpretation In The Supreme Court, Eleanor Pelta

San Diego Law Review

This Article examines the Supreme Court's holding in INS v. Phinpathya, in which it interpreted the seven-year continuous presence requirement for suspension of deportation as a condition that allows for no interruptions whatsoever. The author examines the holding in order to highlight the difficulties inherent in both literalist statutory interpretation and the use of `legislative intent." The author analyzes the legislative history of the suspension statute and the decision of the Court in Phinpathya, and concludes that the Court's approach drains the presence requirement of substantive policy content. The author then proposes an alternate mode of interpretation, which would enlarge …


The Proper Role Of Discretion In Political Asylum Determinations, Arthurc. Helton Sep 1985

The Proper Role Of Discretion In Political Asylum Determinations, Arthurc. Helton

San Diego Law Review

This Article examines the limits of discretion in asylum adjudications. The author describes recent administrative and judicial decisions regarding discretion, including the Supreme Court decision in INS v. Stevic. The author continues on to analyze the limits of administrative discretion under the Refugee Act of 1980 and international law, including the Protocol relating to the Status of Refugees and customary international legal principles respecting family reunification. The author concludes that an unprincipled expansion of the role of discretion in asylum cases could threaten the right to apply for asylum in the United States.


Naturalization Of Filipino War Veterans, David W. Sherman Sep 1985

Naturalization Of Filipino War Veterans, David W. Sherman

San Diego Law Review

This Comment addresses the issues surrounding the naturalization of Filipino war veterans. The author summarizes the historical background of this problem and suggests that, although during World War II Congress expanded naturalization opportunities for thousands of foreign soldiers across the world, the INS purposefully deprived Filipino veterans of the opportunity to apply for American citizenship. The author examines the decisional law to determine the nature and status of the issues involved in the naturalization of Filipino veterans and comments on future issues that might affect the efforts of Filipino veterans to secure the benefits of the wartime naturalization legislation.


The Need For Regulation Of Artificial Insemination By Donor, Richard J. Doren Sep 1985

The Need For Regulation Of Artificial Insemination By Donor, Richard J. Doren

San Diego Law Review

This Comment examines some of the legal issues surrounding the increased use of conception by artificial insemination by donor. The author argues that, while artificial insemination is becoming increasingly significant, it continues to be practiced by doctors without any guidelines for donor selection or a standardized system of record keeping. The author examines the current state of the artificial insemination system and the potential dangers presented by this unregulated system. The author concludes by presenting a model statute for regulating artificial insemination by donor.


Defining A Single Entity For Purposes Of Section 1 Of The Sherman Act Post Copperweld: A Suggested Approach, Thomas W. Mcnamara Sep 1985

Defining A Single Entity For Purposes Of Section 1 Of The Sherman Act Post Copperweld: A Suggested Approach, Thomas W. Mcnamara

San Diego Law Review

This Comment examines the Supreme Court's recent decision in Copperweld Corp. v. Independence Tube Co., in which the Court ruled that a parent and wholly owned subsidiary were a single entity and were, therefore, incapable of violating section 1 of the Sherman Act, which proscribes joint activity between independent business entities that restrains trade. The author examines the intra-enterprise conspiracy doctrine, examines the various approaches used by the various circuits to determine when affiliated corporations should be considered a single entity, and evaluates two possible alternatives to these tests. The author concludes by proposing a new approach, which would seek …


Foreword, Maurice A. Roberts Sep 1985

Foreword, Maurice A. Roberts

San Diego Law Review

The editors and contributors to the San Diego Law Review deserve the sincere gratitude of the growing body of persons, lawyers, and lawmen alike, interested in the latest developments in the dynamic field of immigration and nationality law.


Professional Responsibility In Immigration Practice And Government Service, Robert G. Heiserman, Linda K. Pacun Sep 1985

Professional Responsibility In Immigration Practice And Government Service, Robert G. Heiserman, Linda K. Pacun

San Diego Law Review

This Article examines the various mechanisms for assuring professional responsibility in immigrations practice and related government service. The author discusses the authority of the courts, the Immigration and Naturalization Service, and the states that discipline individual practitioners whose conduct violates ethical standards. The author further examines some of the ethical problems that frequently arise in immigration practice and describes the types of sanctions imposed. The author concludes by detailing the various standards of professional responsibility that regulate the conduct of government employees.


Alien Rights And Government Authority: An Examination Of The Conflicting Views Of The Ninth Circuit Court Of Appeals And The United States Supreme Court, Sana Loue Sep 1985

Alien Rights And Government Authority: An Examination Of The Conflicting Views Of The Ninth Circuit Court Of Appeals And The United States Supreme Court, Sana Loue

San Diego Law Review

This Article examines the conflicting decisions of the Ninth Circuit Court of Appeals for the Ninth Circuit and the United States Supreme Court in the area of immigration and nationality law. The author examines the decisions of both courts, the precedents culminating in these conflicting decisions, and the views of these courts of their proper role in this area of law. The author argues that despite cautioning the Ninth Circuit to refrain from legislating law judicially, the Supreme Court has itself been an activist court that has allocated greater power to the federal government at the expense of individual rights, …


Streamlining Deportation Proceedings: Self-Incrimination, Immunity From Prosecution And The Duty To Testify In A Deportation Context, Henry G. Watkins Sep 1985

Streamlining Deportation Proceedings: Self-Incrimination, Immunity From Prosecution And The Duty To Testify In A Deportation Context, Henry G. Watkins

San Diego Law Review

This Article examines several recent legislative proposals to streamline deportation proceedings and outlines a non-legislative proposal to streamline many deportation cases. The author addresses, in the deportation context, the invocation of the right against self-incrimination and offers a proposal to grant immunity from prosecution to persons in deportation proceedings, thus triggering the "duty to testify." The author argues that this proposal will eliminate many of the evidentiary and procedural problems now common in deportation proceedings and will result in a savings of time and resources.


Significant Developments In The Immigration Laws Of The United States 1983-1984, Margaret O'B. Scott Sep 1985

Significant Developments In The Immigration Laws Of The United States 1983-1984, Margaret O'B. Scott

San Diego Law Review

This Synopsis outlines significant developments in immigration law from July 1983 through December 1984. The Supreme Court was very active in the area of immigration law during this period. In particular, the Court addressed important issues of asylum, suspension of deportation, and fourth amendment seizures. The lower courts focused on similar fundamental immigration issues that are of mounting concern in the United States. Failure to pass the Simpson-Mazzoli bill reflected congressional discord in the area of immigration reform.


From Mezei To Jean: Toward The Exit Of The Entry Doctrine, Joseph M. Cooper Sep 1985

From Mezei To Jean: Toward The Exit Of The Entry Doctrine, Joseph M. Cooper

San Diego Law Review

This Comment examines the issues of whether non-entrant aliens possess rights under the Fifth Amendment to the Constitution. The author reviews the legal developments surrounding the admission of aliens and analyzes the doctrinal underpinning of the governmental power to exclude aliens. The author then examines the delegation of discretionary power to the executive branch under the Immigration and Naturalization Act and argues that this delegation of power runs afoul of Constitutional limitations. The author examines the recent decision in Jean v. Nelson and analyzes how the court could have reached a more just result. The author concludes that the traditional …


The Problem With General Utilites: Are There Solutions, Dennis J. Doucette Sep 1985

The Problem With General Utilites: Are There Solutions, Dennis J. Doucette

San Diego Law Review

This Comment examines the discussion surrounding the General Utilities doctrine, which states, with certain exceptions, that a corporation does not recognize gain upon distribution of appreciated assets. The author examines corporate tax law, and the development of the General Utilities doctrine and the problems associated with its application and usage. The author examines the various arguments for repeal of the General Utilities doctrine and discusses potential solutions to the General Utilities problem, including complete repeal of the doctrine, implementation of a flat tax and integration of the personal and corporate income tax systems.


Community Reimbursement For A Professional Degree Upon Dissolution, Susan C. Peshel Sep 1985

Community Reimbursement For A Professional Degree Upon Dissolution, Susan C. Peshel

San Diego Law Review

This Comment examines the recent amendments to the California Civil Code, which require that, at divorce, that the community be reimbursed for the costs of an education of training acquired during marriage. The author examines these new code provisions in relation to prior California case law, contrasts these provisions with responses taken by other states with respect to this issue, and examines the legislative history surrounding the passage of these provisions. The author then discusses the practical implications of the amendments, and examines the interrelationship of this reimbursement remedy with the California community property system.


The Right Of The Alien To Be Informed Of Deportation Consequences Before Entering A Plea Of Guilty Or Nolo Contendere, David M. Mckinney Dec 1983

The Right Of The Alien To Be Informed Of Deportation Consequences Before Entering A Plea Of Guilty Or Nolo Contendere, David M. Mckinney

San Diego Law Review

This Comment examines the use of guilty pleas by alien defendants. The author suggests that, while the Immigration and Nationality Act provides for deportation of aliens convicted of specified crimes, alien defendants frequently offer guilty pleas unaware or misinformed that they thereby subject themselves to potential deportation. The author argues that, traditionally, courts have not had to inform defendants of deportation consequences, but that deportation can be devastating to the alien and his family. The author concludes that a plea is not fully voluntary if offered unaware of such serious implications, and that courts should be required to inform alien …


The National Labor Relations Act And Undocumented Workers: The De-Alienation Of American Labor, Jose A. Bracamonte Dec 1983

The National Labor Relations Act And Undocumented Workers: The De-Alienation Of American Labor, Jose A. Bracamonte

San Diego Law Review

This Article examines the legal status and rights of undocumented workers under the National Labor Relations Act (NLRA). The author analyzes legislative policy and judicial decisions dealing with aliens and concludes that undocumented workers are within the coverage of the NLRA. He then addresses the question of a possible contradiction between federal labor and immigration law, but concludes that the two bodies of law are in accord. Even if such a contradiction antinomy exists, the author argues that the principles of accommodation support protection of undocumented aliens under the NLRA. The author concludes by addressing the complicated problems involved in …


Immigration Law Reform: Proposals In The 98th Congress, William French Smith Dec 1983

Immigration Law Reform: Proposals In The 98th Congress, William French Smith

San Diego Law Review

This Article argues that recent years have brought a growing concern that national immigration policy is outdated and incapable of addressing the rising pressures of international migration, and examines currently pending legislation to reform immigration law. The author briefly describes the need for reform, the principles which should govern such reform, and the recent attempts by the legislative and executive branches to bring about change. He then analyzes the material provisions of the Immigration Reform and Control Act of 1983, and concludes that the legislation is an appropriate and needed answer to a growing problem.


Foreword: Immigration & Nationality, James J. Orlow Dec 1983

Foreword: Immigration & Nationality, James J. Orlow

San Diego Law Review

My thesis is that, if the disposition of benefits is to be dependent upon a procedural system, then efforts must be taken to make that procedural system as fair as possible, although it is essentially irrelevant to do political work with judicial means when the substantive lawmaking has been delegated to the law enforcement agencies themselves. The Remedy to that fault may lie in the now reorganized Executive Office of Immigration Review.


Political Asylum And Withholding Of Deportation: Defining The Appropriate Standard Of Proof Under The Refugee Act Of 1980, Cheryl L. Edwards Dec 1983

Political Asylum And Withholding Of Deportation: Defining The Appropriate Standard Of Proof Under The Refugee Act Of 1980, Cheryl L. Edwards

San Diego Law Review

This Comment analyzes the different interpretations of the "well-founded fear of persecution" standard for determining when an alien is eligible for political asylum in the United States, as established in the Refugee Act of 1980. The author suggests that correct interpretation of the new standard has recently been the subject of dispute between the Immigration and Naturalization Service and the United States courts of appeals. The author examines the various interpretations and suggests a different interpretation of this standard based on the legislative history of the Act and the recommendations of the United Nations.


Domicile For Immigration And Federal Gift And Estate Tax Purposes--Is A Harmonious Rule Possible, Leon Wildes, David Grunblatt Dec 1983

Domicile For Immigration And Federal Gift And Estate Tax Purposes--Is A Harmonious Rule Possible, Leon Wildes, David Grunblatt

San Diego Law Review

This Article explores the question of when does a nonimmigrant alien establish a United States domicile and, thus, a residence subjecting him to estate and gift tax. The authors argue that the case law, in both the tax and immigration fields, gives only a partial answer to that question, and identifies only the G-4 visa holder as capable of establishing a domicile, but fail to include other categories. The authors recommend that regulations be promulgated to delineate whether and under what circumstances each category of nonimmigrant aliens may, if at all, establish a United States domicile.


A Child Is A Child - Or Is It? Legitimation Under Foreign Law And Its Immigration Consequences, Sana Loue Dec 1983

A Child Is A Child - Or Is It? Legitimation Under Foreign Law And Its Immigration Consequences, Sana Loue

San Diego Law Review

This Article analyzes the criteria established by the courts and the Immigration and Naturalization Service for determination of preference classification as a legitimated child where the legitimation occurs outside the United States. The author provides a comprehensive index of Board of Immigration Appeals decisions relating to legitimation under the laws of other counties, and concludes that a statutory amendment and the promulgation of additional regulations would resolve present inconsistencies and better effectuate the original purpose of existing immigration legislation.


Significant Developments In The Immigration Laws Of The United States 1982-1983, Daniel F. Morrin Dec 1983

Significant Developments In The Immigration Laws Of The United States 1982-1983, Daniel F. Morrin

San Diego Law Review

This synopsis outlines significant developments in immigration law from July 1982 through July 1983.


"Entry" As An Issue In Immigration Law, Julie A. Jones Dec 1983

"Entry" As An Issue In Immigration Law, Julie A. Jones

San Diego Law Review

This Comment addresses the issues surrounding whether an alien had made an "entry" for purposes of determining the right of an alien to remain in the United States. The author argues that the term means much more than simply being physically present in the country and its implications are profound. The author examines the elements of the statutory definition of "entry," articulated in Section 101(a)(13) of the Immigration and Nationality Act, and surveys the various interpretations thereof by federal courts and the Board of Immigration Appeals.


Motions Practice Before The Board Of Immigration Appeals, Gerald S. Hurwitz Dec 1982

Motions Practice Before The Board Of Immigration Appeals, Gerald S. Hurwitz

San Diego Law Review

This Article addresses the area of motions practice before the Board of Immigration Appeals, arguing that it is often a complex procedural maze for immigration attorneys. The author examines the intricacies of this procedure, focusing on motions to reopen, motion to reconsider, motions to remand, and motions for stays of deportation. He further examines the often contested issues of the prima facia case, particularly in the context of motions to reopen. In this discussion, the author, an appellate trial lawyer for the Immigration and Naturalization Service, stresses the practical aspects of motions practice in this area.


Federal Court Remedies In Immigration And Naturalization Cases, Ann Allott, Nancy B. Elkind Dec 1982

Federal Court Remedies In Immigration And Naturalization Cases, Ann Allott, Nancy B. Elkind

San Diego Law Review

This Article explores four different actions which could be utilized by practitioners in defense of an alien: mandamus, preliminary injunction and temporary restraining order, a Bivens tort action against the individual Service agents, and recovery of attorney's fees. They argue that delay, inadequacies, and abuse of discretion are familiar problems facing the immigration attorney, and that there are unique avenues for the practitioner to address these problems. The authors argue that, while these remedies are unusual and should be sought with a great deal of care, they remain viable causes of action to redress wrongs suffered by an alien at …


What Went Wrong With Wang?: An Examination Of Immigration And Naturalization Service V. Wang, Sana Loue Dec 1982

What Went Wrong With Wang?: An Examination Of Immigration And Naturalization Service V. Wang, Sana Loue

San Diego Law Review

This Article examines the United States Supreme Court's holding in INS v. Wang. The author argues that the decision severely limited judicial review of administrative decisions of suspension of deportation. She explores the factors considered by adjudicative bodies in ruling on extreme hardship and motions to reopen suspension proceedings, and examines the nature of the "extreme hardship" requirements in light of the holding in Wang. The author concludes that guidelines must be established which will aid in defining the term "extreme hardship" and establish a single evidentiary standard necessary to support this claim.