Immigration Law Commons^™

The Plea Bargain Crisis For Noncitizens In Misdemeanor Court, Jason A. Cade

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This Article considers three factors contributing to a plea-bargain crisis for noncitizens charged with misdemeanors: 1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; 2) the integration of federal immigration enforcement programs with the criminal justice system; and 3) the institutional norms in non-federal lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges. The Article contends that these factors increase the likelihood that a noncitizen’s low-level conviction will not reliably indicate guilt …

Dubious Deference: Reassessing Appellate Standards Of Review In Immigration Appeals, Michael Kagan

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The long-standing doctrine of deferential review by appellate courts of findings of fact by administrative agencies is seriously flawed for two main reasons. First, the most prominent justification for deference relies on the empirical assumption that first-instance adjudicators are best able to determine the truth because they can directly view witness demeanor. Decades of social science research has proven this assumption about the value of demeanor false. Second, in principle, the deference rule applies to all types of administrative adjudication, with no attention to the relative gravity of interests at stake in different types of cases or to the varying …

The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf

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U.S. asylum law is based on a domestic statute that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum provisions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. This Article highlights this significant omission and urges courts to examine the interpretations of other States Parties to the Protocol in asylum cases. Using as an example the current debate over social …

Deporting The Pardoned, Jason A. Cade

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Federal immigration laws make noncitizens deportable on the basis of state criminal convictions. Historically, Congress implemented this scheme in ways that respected the states’ sovereignty over their criminal laws. As more recent federal laws have been interpreted, however, a state’s decision to pardon, expunge, or otherwise set-aside a conviction under state law will often have no effect on the federal government’s determination to use that conviction as a basis for deportation. While scholars have shown significant interest in state and local laws regulating immigrants, few have considered the federalism implications of federal rules that ignore a state’s authority to determine …

Ten Years After Hoffman Plastic Compounds, Inc. V. Nlrb: The Power Of A Labor Law Symbol, Ruben J. Garcia

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No abstract provided.

Regrouping America: Immigration Policies And The Reduction Of Prejudice, Fatma Marouf

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No abstract provided.

Latino Voters 2012 And Beyond: Will The Fastest Growing And Evolving Electoral Group Shape U.S. Politics?, Sylvia R. Lazos

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The author reviews two recent books, Marisa A. Abrajano’s Campaigning to the New American Electorate: Advertising to Latino Voters (2010) and Marisa A. Abrajano’s and R. Michael Alvarez’s New Faces New Voices: The Hispanic Electorate in America (2010). These books are part of a growing literature that scientifically studies the evolving Latino electorate, and attempts to answer difficult questions about this ethnic group’s electorate cohesiveness and how candidates might be able to influence the Latino electorate. A careful read of Abrajano’s recent books brings additional understanding to Latino voter behavior, and by implication, how this key group will influence the …

The “Ethical” Surplus Of The War On Illegal Immigration, Francis J. Mootz Iii, Leticia M. Saucedo

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The Aristotelian philosopher, Gene Garver, suggests that rhetorical claims have an "ethical surplus" that extends beyond the specific claim being advanced at the moment. This follows from the fact that rhetoric includes not only logos, but also pathos and ethos. We adopt the thesis of "ethical surplus," but in a negative context. The "war on illegal immigration" has generated an ethical surplus that leads its promoters beyond the specific claim of securing borders against unlawful entry. After demonstrating that there is an express rhetoric of "war" used in connection with Arizona's adoption of recent anti-immigrant legislation, we explore …

The Hunt For Noncitizen Voters, Fatma E. Marouf

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No abstract provided.

We Live In A Country Of Unhcr: The Un Surrogate State And Refugee Policy In The Middle East, Michael Kagan

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Many gaps in the protection of refugees can be connected to a de facto transfer of responsibility for managing refugee policy from sovereign states to United Nations agencies. This phenomenon can be seen in dozens of countries in the Middle East, Africa and Asia, where the UN High Commissioner for Refugees (UNHCR) or the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) manage refugee camps, register newly arrived asylum-seekers, carry out refugee status determination, and administer education, health, livelihood and other social welfare programs.

In carrying out these functions, the UN acts to a great …

The "Illegal" Tax, Francine J. Lipman

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No abstract provided.

Implicit Bias And Immigration Courts, Fatma Marouf

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This Article highlights the importance of implicit bias in immigration adjudication. After tracing the evolution of prejudice in our immigration laws from explicit "old-fashioned" prejudice to more subtle forms of "modem" and "aversive" prejudice, the Article argues that the specific conditions under which immigration judges decide cases render them especially prone to the influence of implicit bias. Specifically, it examines how factors such as immigration judges' lack of independence, limited opportunity for deliberate thinking, low motivation, and the low risk of judicial review all allow implicit bias to drive decisionmaking. The Article then recommends certain reforms, both simple and complex, …

Boyd Law's Thomas & Mack Clinic Scores Important Ninth Circuit Victory, Anne R. Traum

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No abstract provided.

Constitutionalizing Immigration Law On Its Own Path, Anne R. Traum

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Courts should insist on heightened procedural protections in immigration adjudication. They should do so under the Fifth Amendment’s Due Process Clause rather than by importing Sixth Amendment protections from the criminal context. Traditional judicial oversight and the Due Process Clause provide a better basis than the Sixth Amendment to interpose heightened procedural protections in immigration proceedings, especially those involving removal for a serious criminal conviction. The Supreme Court’s immigration jurisprudence in recent years lends support for this approach. The Court has guarded the availability of judicial review of immigration decisions. It has affirmed that courts are the arbiters of constitutional …

Refugee Credibility Assessment And The “Religious Imposter” Problem, Michael Kagan

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Credibility assessment in refugee status determination (RSD) poses unique challenges when the outcome of asylum applications turns on the question of whether an asylum seeker is actually a member of a persecuted religious minority. These cases require secular adjudicators to delve into matters of religious identity and faith that are, by their nature, subjective and beyond the realm of objective analysis. This Article explores practical means of addressing this challenge through a case study of the RSD interviews of Eritrean asylum seekers in Egypt who based their refugee claims on Pentecostal religious associations. Analysis of the interview methods used in …

Shelter From The Storm: An Analysis Of U.S. Refugee Law As Applied To Tibetans Formerly Residing In India, Eileen Kaufman

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No abstract provided.

The Emerging Importance Of "Social Visibility" In Defining A Particular Social Group And Its Potential Impact On Asylum Claims Related To Sexual Orientation And Gender, Fatma E. Marouf

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An emerging issue in U.S. asylum claims based on "membership in a particular social group" is the relevance of social visibility in determining whether such a group exists. Of the five protected grounds for asylum, "membership in a particular social group" has always generated the most debate. In 2002, the United Nations High Commissioner for Refugees (UNHCR) issued guidelines that present the "protected characteristic" and "social perception" approaches as alternative ways of establishing a particular social group, instructing States Parties to the 1951 Refugee Convention (the "Convention") to determine first if there is a protected characteristic and, only if no …

Emerging Latina/O Nation And Anti- Immigrant Backlash, Sylvia R. Lazos

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This foreword is an introduction to the LatCrit XI, Working and Living in the Global Playground: Frontstage and Backstage symposium, convened at William S. Boyd School of Law, in Las Vegas Nevada, during October 2006 and called upon over 150 academics to focus on the impacts of globalization and immigration. At no time has LatCrit's critical approach of interconnecting the structures of inequality, the market forces of globalization, and the cultural hostility towards outsider groups been more relevant.

Backlash against immigrants, particularly Latina/o “illegals,” is on the rise. This Introduction seeks to outline the challenges that the current immigration quandary …

The Taxation Of Undocumented Immigrants: Separate, Unequal, And Without Representation, Francine J. Lipman

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No abstract provided.

Aliens In Our Midst Post-9/11: Legislating Outsider-Ness Within The Borders, Sylvia R. Lazos, Raquel E. Aldana

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Three recent books written by Professors Bill Ong Hing, Kevin R. Johnson, and Victor C. Romero provide skillfully crafted roadmaps with which to understand the key emerging issues that will shape immigration law well into the next decade: the relationship of immigration control to national security. This Review captures the insights provided by these three authors to examine the restrictive laws and policies aimed at noncitizens in the name of national security as highlighted by the current efforts to federalize driver’s licenses. As this Review explains, these three books map the current antagonistic attitudes towards noncitizens post 9/11, and serve …

Did Hoffman Plastic Compounds, Inc. Produce Disposable Workers?, Robert I. Correales

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On March 27, 2002, The United State Supreme Court ruled in Hoffman Plastic Compounds v. N.L.R.B. that, although undocumented workers are “employees” within the meaning of the National Labor Relations Act (NLRA), they cannot be answered backpay remedies, even if discharged in violation of the Act. The Hoffman decision represents a retrenchment from a trend in which virtually all jurisdictions that had considered the issue found in favor of the workers. The principal rationale in support of these remedies for undocumented workers had been that such awards are not only remedial but also serve important deterrent functions that protect the …

Ghost Workers In An Interconnected World: Going Beyond The Dichotomies Of Domestic Immigration And Labor Laws, Ruben J. Garcia

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Beginning with the September 11, 2001 ("9/11") terrorist attacks, the labor movement's plans to organize immigrant workers and achieve immigration reform have met serious challenges. After 9/11, the political climate surrounding immigrants put the AFL - CIO's hopes for legislative reform on hold, because of socially perceived connections between immigrants and terrorism. Then, in a March 2002 decision titled Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court held that undocumented immigrant workers could not collect back pay under the National Labor Relations Act (NLRA) when their rights to join unions are violated. According to the Court, back …

Across The Borders: Immigrant Status And Identity In Law And Latcrit Theory, Ruben J. Garcia

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Immigrants make up a large and increasing portion of the American community. The recent census found an unprecedented number of immigrants within the United States. Immigrants, however, have fewer legal protections than almost any other individuals within our borders. This lack of protection is especially disconcerting given that immigrants are often the most subordinated members of our communities. Particularly after the events of September 11, 2001, the rights and protections available to immigrants—whether they are documented or not—are tenuous. As LatCrit scholars have pointed out, immigration law is intensely racialized, and yet other bodies of law, such as civil rights …

Workers’ Compensation And Vocational Rehabilitation Benefits For Undocumented Workers: Reconciling The Purported Conflicts Between State Law, Federal Immigration Law, And Equal Protection To Prevent The Creation Of A Disposable Workforce, Robert I. Correales

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This Article argues that sound public policy supports states providing vocational rehabilitation services to undocumented workers who have been injured in work-related accidents. Part I of the Article provides context by analyzing some of the complexities of undocumented immigrants’ lives in the United States. Part II discusses the history and economics of vocational rehabilitation programs established by workers’ compensation systems. Part III discusses ways in which immigration law and enforcement contribute to the formation of this shadow population. Part IV analyzes purported conflicts between vocational rehabilitation programs and the Immigration Reform Control Act of 1986 as they arose in Tarango …

Missouri, The “War On Terrorism,” And Immigrants: Legal Challenges Post 9/11, Sylvia R. Lazos

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This article explains how the 2000 census confirmed what many already knew--the traditional image of what it means for Missouri to be a heartland state is changing. The 2000 census shows that the fastest growing racial/ethnic group in Missouri are Latinos. This growth in first generation immigrants has not been limited to Missouri's large urban centers. In rural Missouri and its small towns, the major group of first generation immigrants is Latinos.

“Latina/Oization” Of The Midwest: Cambio De Colores (Changes Of Colors) As Agromaquilas Expand Into The Heartland, Sylvia R. Lazos

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This article focuses on important developments in Latina/o experience in the United States. Latinas/os are now the majority minority group in the United States. Increasingly, Latinas/os are rural dwellers, living in areas without a historical Latina/o presence. Latinas/os are no longer concentrated into the land geography that was Mexico prior to the Treaty of Guadalupe Hidalgo. Rather, the most recent wave of Latina/o immigration has dispersed settlement throughout the United States. This article discusses these changes in Midwest rural communities, and describes this new pattern of Latina/o immigration to the United States. The article then focuses on the cultural, socio-economic, …

Book Annotations, Leah Chan Grinvald

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No abstract provided.

Critical Race Theory And Autobiography: Can A Popular Genre Make A Serious Academic Contribution?, Sylvia R. Lazos

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This Essay reviews “Notes of a Racial Caste Baby, Colorblindness and the End of Affirmative Action” by Bryan K. Fair, “How Did You Get to Be a Mexican? a White/Brown Man's Search for Identity” by Kevin R. Johnson, and “To be an American: Cultural Pluralism and the Rhetoric of Assimilation” by Bill Ong Hing. This Essay examines the potential contributions each book makes to legal scholarship and the popular press. The Essay first describes how each author uses the autobiographical narrative and what these narratives accomplish. The Essay examines each book's legal agenda and assesses how well each author achieves …

Immigration Laws As Instruments Of Discrimination: Legislation Designed To Limit Chinese Immigration Into The United Kingdom, Richard Klein

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No abstract provided.

Violence Against Women And The Asylum Process, John Linarelli

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Perhaps no area of public legislation generates as much controversy, or attracts as much rhetoric, as immigration. Immigration is perceived as the core of who we are as a nation. Legal norms governing the movement and migration of people across the borders of countries determine who is entitled to live in a country and ultimately who will control its resources. Immigration goes to the heart of sovereignty, particularly where sovereignty is popular, such as in consolidated democracies.' Asylum is a controversial issue within the immigration debate. This Article will interpret some of the recent developments in asylum law that are …