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Articles 151 - 180 of 217
Full-Text Articles in Immigration Law
Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams
Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams
Faculty Scholarship
This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …
“I Took Up The Case Of The Stranger”: Arguments From Faith, History And Law, David H. Michels, David Blaikie
“I Took Up The Case Of The Stranger”: Arguments From Faith, History And Law, David H. Michels, David Blaikie
Articles, Book Chapters, & Popular Press
It may seem surprising that faith groups would offer sanctuary to refused refugees, or material support to undocumented migrants. These acts of resistance and compassion require normally law-abiding moral people to make a conscious choice to defy government and perhaps, if necessary, even break the law. The success of sanctuary movements (defined broadly here) relies on broad public support both to attract willing collaborators, and to forestall government intervention. Previous studies have examined the discourse around sanctuary practice, and the ensuing public debates. This chapter adds to this body of work by offering an empirical study of how individuals and …
Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero
Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero
Faculty Scholarship
Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as …
My Great Foia Adventure And Discoveries Of Deferred Action Cases At Ice, Shoba S. Wadhia
My Great Foia Adventure And Discoveries Of Deferred Action Cases At Ice, Shoba S. Wadhia
Faculty Scholarship
This Article describes my adventures in FOIA litigation and analyzes deferred action data collected informally by 24 ICE field offices between October 1, 2011, and June 30, 2012. This Article also offers recommendations for the agency on data collection, recordkeeping, and transparency in deferred action cases. Deferred action is a form of prosecutorial discretion that can be granted at any stage of the immigration enforcement process and historically has been applied both to people who meet group characteristics and on an individual basis in compelling humanitarian circumstances. The theory behind deferred action and prosecutorial discretion more generally is to enable …
The Immigration Prosecutor And The Judge: Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia
The Immigration Prosecutor And The Judge: Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia
Faculty Scholarship
Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these …
Our Illegal Founders, Victor C. Romero
Our Illegal Founders, Victor C. Romero
Faculty Scholarship
This Essay briefly mines America’s history to argue that the law setting forth where our national borders are and how strictly we patrol them has always been subject to the vagaries of politics, economics, and perception. Illegal (im)migration has long been part of our migration history, engaged in not just by Latin American border crossers, but also by prominent colonists, giving the lie to the claim that upholding border laws should always be sacrosanct. In many school districts today, the usual summary of American history from our childhood civics classes no longer bypasses the uncomfortable truths of conquest and westward …
“You Will See My Family Became So American”: Immigration, Racial Visibility, And Specular Citizenship, Sherally Munshi
“You Will See My Family Became So American”: Immigration, Racial Visibility, And Specular Citizenship, Sherally Munshi
Studio for Law and Culture
This paper explores the vexed relationship between legal form and personhood that arises in the context of Indian immigration and naturalization in the early twentieth century. In 1932, Dinshah P. Ghadiali received notice that the government was seeking to cancel his citizenship on grounds of “racial ineligibility.” In his self-published writing about the trial, Ghadiali wondered whether he been singled out for persecution by professional rivals. In fact, he had been caught in a larger campaign to denaturalize citizens of Indian origin after the Supreme Court, in United States v. Bhagat Singh Thind (1923), determined that “Hindus” were racially ineligible …
Stateless In The United States: Current Reality And A Future Prediction, Polly J. Price
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 …
We Are All Here To Stay? Indigeneity, Migration, And ‘Decolonizing’ The Treaty Right To Be Here, Amar Bhatia
We Are All Here To Stay? Indigeneity, Migration, And ‘Decolonizing’ The Treaty Right To Be Here, Amar Bhatia
Articles & Book Chapters
This article examines issues of transnational migration in the settler-colonial context of Canada. First, I review some of the recent debates about foregrounding Indigeneity and decolonization in anti-racist thought and work, especially in relation to critical and anti-racist approaches to migration. The article then moves from this debate to the question of ‘our right to be here’, the relationship of this right to the treaties, and how migrant rights and treaty relations perspectives might interact in a context that must be informed by Indigenous laws and legal traditions.
Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Z. Huq
Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Z. Huq
Faculty Scholarship
In April 2010, the Arizona legislature enacted the Support Our Law Enforcement and Safe Neighborhoods Act. Commonly known as SB 1070, the law created a slate of new criminal offenses and arrest powers covering aliens within Arizona's borders. SB 1070 proved divisive. It inspired copycat legislation in several states, provoked sharp criticism from the legal academy, and – most relevant here – catalyzed a lawsuit by the U.S. Department of Justice seeking a preliminary injunction against the state law on the ground that it was preempted by federal law. Initially, the federal government's litigation prospects seemed dim. One term before …
Reverse-Commandeering, Margaret Hu
Reverse-Commandeering, Margaret Hu
Faculty Scholarship
Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anti-commandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration …
The Benefit Corporation: A Questionable Solution To A Non-Existent Problem., Justin Blount, Kwabena Offei-Danso
The Benefit Corporation: A Questionable Solution To A Non-Existent Problem., Justin Blount, Kwabena Offei-Danso
St. Mary's Law Journal
Throughout American history a continuous call for businesses to wield their power and influence in such a way as to not only create economic value for shareholders, but also to create value in an ethical manner that benefits society as a whole has existed. Currently, many businesses respond to this call by integrating social responsibility into their operations. A recent innovation on this front is the development of the “benefit corporation” by the non-profit organization “B Lab.” The benefit corporation is essentially a hybrid entity. It is designed to have characteristics of both non-profit and for-profit entities. The entity also …
To A Friend: The Honorable Will Garwood., Emilio M. Garza
To A Friend: The Honorable Will Garwood., Emilio M. Garza
St. Mary's Law Journal
William Lockhart Garwood died on July 14, 2011. In his thirty years on the court, Will would author numerous notable decisions, but his reputation would be solidified by two extraordinary cases: United States v. Lopez, in which, for the first time in recent judicial history, a court of appeals held that a congressional act was invalid as beyond the power of Congress under the Commerce Clause; and United States v. Emerson, in which, a court of appeals first articulated the Second Amendment protects individual Americans’ right to keep and bear arms. Neither case was without controversy. Not surprisingly, the Supreme …
Undocumented Children And Families In America: An Interdisciplinary Exploration Of Challenges And Emerging Opportunities, Diane C. Geraghty
Undocumented Children And Families In America: An Interdisciplinary Exploration Of Challenges And Emerging Opportunities, Diane C. Geraghty
Faculty Publications & Other Works
No abstract provided.
Dubious Deference: Reassessing Appellate Standards Of Review In Immigration Appeals, Michael Kagan
Dubious Deference: Reassessing Appellate Standards Of Review In Immigration Appeals, Michael Kagan
Scholarly Works
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
The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf
Scholarly Works
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 …
The Executive Right To Lease Mineral Real Property In Texas Before And After Lesley V. Veterans Land Board., Christopher S. Kulander
The Executive Right To Lease Mineral Real Property In Texas Before And After Lesley V. Veterans Land Board., Christopher S. Kulander
St. Mary's Law Journal
Abstract Forthcoming.
Deceiving Law Students: Employment Statistics And Tort Liability., Angie Roberts-Huckaby
Deceiving Law Students: Employment Statistics And Tort Liability., Angie Roberts-Huckaby
St. Mary's Law Journal
Abstract Forthcoming.
To A Professor: Douglas Haddock Retires., Charles Epps Ipock
To A Professor: Douglas Haddock Retires., Charles Epps Ipock
St. Mary's Law Journal
Abstract Forthcoming.
New Oil And Old Laws: Problems In Allocation Of Production To Owners Of Non-Participating Royalty Interests In The Era Of Horizontal Drilling., Benjamin Holliday
New Oil And Old Laws: Problems In Allocation Of Production To Owners Of Non-Participating Royalty Interests In The Era Of Horizontal Drilling., Benjamin Holliday
St. Mary's Law Journal
Oil and gas exploration and production is not only a big business, it is also an expensive one. As with any business, when faced with competing alternatives, operators generally prefer to pursue exploration in areas with more stable and predictable legal environments. Efforts have previously been made to make Texas such an environment, but as technology advances, legal rules often become unclear in their application. The explosion in horizontal drilling activity is challenging the courts and the Texas Railroad Commission to apply and adapt traditional legal and regulatory concepts to horizontal wells. The growing dominance of horizontal well development is …
Plugging The School-To-Prison Pipeline By Improving Behavior And Protecting Core Judicial Functions: A Constitutional Crisis Looms., Patrick S. Metze
Plugging The School-To-Prison Pipeline By Improving Behavior And Protecting Core Judicial Functions: A Constitutional Crisis Looms., Patrick S. Metze
St. Mary's Law Journal
The consolidation of the Texas Youth Commission (TYC) and the Texas Juvenile Probation Commission (TJPC) into the Texas Juvenile Justice Department (TJJD) in 2011, produced a unified state juvenile justice agency to promote public safety first and to produce positive outcomes for youth, families, and communities second. As Professor Metze’s second paper discussing ways to effect a change in the School-to-Prison Pipeline, he first highlights the progress of TJJD’s use of Positive Behavioral Interventions and Supports (PBIS) in the Texas juvenile correctional context as continued evidence that such techniques, if effective in the correctional setting, will certainly work in the …
Texas Legislative Implications For Minors Accused Of Sexting., Mallory N. Myers
Texas Legislative Implications For Minors Accused Of Sexting., Mallory N. Myers
St. Mary's Law Journal
State legislation criminalizing sexting—the possession or electronic transmission of visual material capturing a minor engaged in sexual conduct—should not punish minors similarly to adults. The Adam Walsh Child Protection and Safety Act of 2006 (Walsh Act) in conjunction with the Sex Offender Registration & Notification Act (SORNA), require that any individual, including a minor, convicted of child pornography register as a sex offender. As a result, states with legislation that categorize sexting as child pornography, will require a minor with a sexting conviction to register as a sex offender. This disportionate punishment on the minor will make it difficult for …
Water Can Be For Drinking Again: Economic And Collaborative Solutions To A Texas Water Fight., Aaron Culp
Water Can Be For Drinking Again: Economic And Collaborative Solutions To A Texas Water Fight., Aaron Culp
St. Mary's Law Journal
Abstract Forthcoming.
The Co-Author Prenup., David A. Schlueter
The Co-Author Prenup., David A. Schlueter
St. Mary's Law Journal
Producing a book or article with co-authors is not an easy task. There are six potential issues one might consider before deciding to co-author a book or article. First, do you really want to be a co-author? Second, how many co-authors are going to be involved in the project? Having more than one co-author can make the departure of a co-author less of an issue, but each co-author needs to have a clearly defined role. Third, what role will each member of the team perform and what are those roles? Fourth, what should the co-author “marriage” look like? Multiple scenarios …
Secured Transaction History: Protecting Holmes' Notes Through The Conditional Sales Acts., George Lee Flint Jr.
Secured Transaction History: Protecting Holmes' Notes Through The Conditional Sales Acts., George Lee Flint Jr.
St. Mary's Law Journal
The historical explanation for the adoption of the conditional sales acts is woefully lacking. How and why the first conditional sales acts arose are investigated. Grant Gilmore, when presenting his theory, confessed ignorance concerning the origins of the conditional sale transaction, first known as Holmes’ notes. The failure of traditional legal historians to explain the passage of the conditional sales acts encourages inquiry into their legislative history to find an explanation. Pre-Act American decisions provide clues regarding the ratification of the acts. The courts provided three explanations for their passage: to treat the conditional sale as a chattel mortgage, to …
The South Texas Drought And The Future Of Groundwater Use For Hydraulic Fracturing In The Eagle Ford Shale., Taelor A. Allen
The South Texas Drought And The Future Of Groundwater Use For Hydraulic Fracturing In The Eagle Ford Shale., Taelor A. Allen
St. Mary's Law Journal
Texas has undergone a succession of historic droughts, each one creating unique problems and controversies. The state is also one of the largest national producers of oil and gas with the Eagle Ford Shale fields contributing to the production boom. The technique used to extract the oil is called hydraulic fracturing, which requires large volumes of water to be injected at high pressures to “frac” and release gas from an underground formation. The amount of water required places even greater strain on the regional water supply. This Comment highlights legal issues raised by the high volumes of groundwater used for …
Defining Persecution, Scott Rempell
Defining Persecution, Scott Rempell
Utah Law Review
Persecution is the core concept of asylum and refugee protection. Although thousands (if not tens of thousands) of decisions hinge on its meaning, a consistent definition is yet to emerge. Unmoored to any unified understanding of the term, immigration agencies and federal courts of appeals continue to articulate many different conceptions of persecution - conceptions that lack internal consistency and a coherent analytical foundation. Moreover, legal scholars have not attempted to aid adjudicators’ understanding of persecution because, by and large, scholars do not believe that a unified definition is possible. Meanwhile, the divergent definitions and understandings of persecution continue to …
Immigration Federalism: A Reappraisal, Pratheepan Gulasekaram, Karthick Ramakrishnan
Immigration Federalism: A Reappraisal, Pratheepan Gulasekaram, Karthick Ramakrishnan
Publications
No abstract provided.
County Care: A Step Forward For Adequate Health Insurance For Undocumented Immigrants?, Alisha Howell
County Care: A Step Forward For Adequate Health Insurance For Undocumented Immigrants?, Alisha Howell
Public Interest Law Reporter
No abstract provided.
License To Thrive, Andrea Bland