Immigration Law Commons^™

Deficiencies In The Agricultural Labor Market, Rafael Rodriguez

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Premature Celebration: Obergefell Offers Little Immigration Relief To Binational Same-Sex Couples, Darlene Goring

All Scholarship

No abstract provided.

Special Immigrant Juvenile Status: Refining State And Federal Practice, Justin Potesta

Loyola of Los Angeles Law Review

Each year, thousands of unaccompanied minors enter the United States. Upon arrival, these children face a complicated legal process defined by several exchanges between state and federal entities. This Article focuses on one avenue of relief available to these unaccompanied minors: Special Immigrant Juvenile Status. While SIJS provides a path to citizenship for abused, neglected, or abandoned minors, the protection is often misapplied or misunderstood. Focusing on practical improvements, this Article highlights key areas where state and federal entities can more appropriately and efficiently address the unique concerns presented by SIJS-eligible unaccompanied minors.

Refugees Without Borders: Legal Implications Of The Refugee Crisis In The Schengen Zone, Bridget Carr

Michigan Journal of International Law

This Note will first examine current practices utilized by Member States and their strategic partners outside the Zone to manage flows of third-country nationals from the Middle East and North Africa. It will then explore how these practices are not compatible with principles of protection from degrading and inhuman treatment, non-refoulement, and non-discrimination as codified in the Schengen Borders Code, European Convention on Human Rights, and the Refugee Convention, among others. Finally, this Note will propose targeted reforms for the Schengen Zone’s internal and external border management aimed at protecting the human rights of displaced persons and modifying incentive structures …

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Cardozo Journal of Conflict Resolution

If Donald Trump, in kicking off his campaign for the White House, was saying "what everyone is thinking" about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales-some as old as The Flood. This article reconsiders news stories-and the storytelling …

The Development Of Legal Rights In The American Legal System, Roberto Rosas

Faculty Articles

This article takes a snapshot of some of the most controversial topics in American society today and the juridical response to these topics by individual states, the United States Congress, and the United States Supreme Court. Although there are numerous legal topics that deserve mention and analysis, this article is limited to the discussion of nine fairly new rights created by state and federal laws. The rights discussed in this article include the following: 1) The right to open carry a firearm; 2) The right to consume marijuana; 3) The right to marry or to civil unions between same-sex couples; …

The Grapes Of Wrath: On The Health Of Immigration Detainees, Stacey A. Tovino

Faculty Articles

This Article challenges the lack of health care provided to individuals in U.S. Immigration and Customs Enforcement (“ICE”) custody. As background, many immigration detainees are physically and emotionally vulnerable at the time of initial confinement due to a history of torture and trauma, which may include human trafficking, sexual violence, political oppression, psychosocial trauma, and acculturative stress. Detention can exacerbate preexisting vulnerabilities and contribute to severe physical and mental illness as well as death. Between October 2003 and October 2015, 153 individuals died while in ICE custody. Although most proposals for detainee health reform borrow heavily from constitutional law, international …

To Loose The Bonds: The Deceptive Promise Of Freedom From Pretrial Immigration Detention, Denise L. Gilman

Indiana Law Journal

Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through a custody determination process focused on the question of whether a mi-grant poses a flight risk or danger to the community. Yet, because the process skips the critical inquiry into the need for detention before setting monetary bond require-ments for release that are difficult to fulfill, freedom remains elusive.

The custody determination process is a cornerstone in the U.S. immigration de-tention edifice …

Bureaucratic Administration: Experimentation And Immigration Law, Joseph Landau

Faculty Scholarship

In debates about executive branch authority and policy innovation, scholars have focused on two overarching relationships—horizontal tension between the president and Congress and the vertical interplay of federal and state authority. However, these debates have overlooked the role of frontline bureaucratic officials in advancing the laws they administer. This Article looks to immigration law—in which lower-level federal officers exercise discretion delegated down throughout federal agencies—to identify how bottom-up agency influences can inform categorical, across-the-board executive branch policy. In this Article, I argue that decisions by frontline officers can and should be better harnessed to pair local laboratories of executive experimentation …

Biometric Identity, Jonathan T. Weinberg

Law Faculty Research Publications

No abstract provided.

Remarks On Executive Action And Immigration Reform, Shoba S. Wadhia

Faculty Scholarship

This essay places the President's executive actions on immigration last November into a larger context by providing a brief history of prosecutorial discretion in immigration cases. This essay also describes how law students at Penn State Law School used the President's announcement of executive actions as a platform for local change in the State College community.

The President And Deportation: Daca, Dapa, And The Sources And Limits Of Executive Authority - Response To Hiroshi Motomura, Shoba S. Wadhia

Faculty Scholarship

This Essay is a response to Washburn University School of Law's Foulston Siefkin Lecture, 2015 titled "The President and Deportation: DACA, DAPA, and the Sources and Limits of Executive Authority," delivered by Professor Hiroshi Motomura in March of 2015. Part II of this Essay provides a summary of Professor Motomura's remarks from this author's vantage point. Part III of this Essay analyzes and supports Professor Motomura's conclusion that deferred action is "different" from prosecutorial discretion and elaborates on how deferred action goes one step "further" than prosecutorial discretion.

Beyond Deportation: Understanding Immigration Prosecutorial Discretion And United States V. Texas, Shoba S. Wadhia

Faculty Scholarship

In this article, I place the Supreme Court case of United States v. Texas into a broader context by describing the history and legal authority for prosecutorial discretion in immigration law and highlighting the contents and recommendations in my book, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases. Part I of this article offers a primer on the role of prosecutorial discretion in immigration law and also describes two related programs announced by President Obama on November 20, 2014 and the subject of litigation for nearly two years as of this writing. Part II provides a history …

Is Immigration Law National Security Law?, Shoba S. Wadhia

Faculty Scholarship

The debate around how to keep America safe and welcome newcomers is prominent. In the last year, cities and countries around the world, including Baghdad, Dhaka, Istanbul, Paris, Beirut, Mali and inside the United States - have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War.

This article is based on remarks delivered at Emory Law Journal’s annual Thrower Symposium on February 11, 2016. It explores how national security concerns have shaped recent immigration policy in the Executive Branch, Congress and the states and the moral, legal and …

Danger And Dignity: Immigrant Day Laborers And Occupational Risk, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

The plight of immigrant workers in the United States has captured significant scholarly attention in recent years. Despite the prevalence of discourses regarding this population, one set of issues has received relatively little attention: immigrant workers’ exposure to unhealthy and unsafe working conditions, and their corresponding susceptibility to workplace injuries and illnesses. Researchers have consistently found that immigrant workers suffer disproportionately from occupational injuries and fatalities, even when controlling for industry and occupation. Why, then, are foreign-born workers at greater risk for workplace injuries and fatalities, when compared with their native-born counterparts? This Article seeks to develop answers to that …

Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Angus Gavin Grant, Sean Rehaag

Articles & Book Chapters

Canada’s refugee determination system was revised in 2012. One key feature of the new process is a quasi-judicial administrative appeal, on matters of both fact and law, at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). Under the new process, however, many claimants are denied access to the RAD.

This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the bars …

Being Deprived Of The Right To Effective Counsel In Removal Proceedings: Why The Eighth Circuit’S Decision In Rafiyev Must Be Overturned, Charles Shane Ellison

Faculty Scholarship

The situation for immigrants who have received frightfully defective assistance from their attorneys, or non-attorneys masquerading as such, is all too common. For the reasons discussed more fully in this article, immigrant victims are at particular risk in tribunals beneath the Eighth Circuit because of its aberrant precedent in the area of ineffective assistance of counsel in immigration proceedings. In this article, I will first provide an overview of the procedure for making a claim for ineffective assistance of counsel in removal proceedings and give a brief history of this procedure as used since the Board’s seminal decision in Matter …

Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young

Faculty Scholarship

No abstract provided.

Trafficking Smuggled Migrants: An Issue Of Vulnerability, Rachel A. Hews

Global Tides

This paper analyzes why the UN’s efforts against the sex trafficking of smuggled migrants, specifically regarding the Palermo and Smuggling Protocols, have been inadequate in preventing migrant smuggling. It concludes that the crime-based focus on prosecution overshadows prevention of the crime and protection of the victims, and that a human rights approach addressing the vulnerability of smuggled migrants would be more effective in reducing migrant smuggling long-term. Proposed solutions include decreasing both the “push” and “pull” factors of migration by ratifying existing legislation regarding basic human rights, implementing national policies that increase migrant rights in destination countries, and shifting further …

'And Ain't I A Woman?': Feminism, Immigrant Caregivers, And New Frontiers For Equality, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

This Article argues that feminist and other critical legal theories can address the profound inequalities that immigrant workers face. Part I draws from a body of feminist, political, and social science theories regarding social reproduction to assess the situation of immigrant domestic workers and their recent efforts to claim inclusion in workplace laws and protections. It locates the increasingly carceral dynamics that are expressed in the law and in state infrastructure and continuously undermine immigrant women's economic and social stability, as explained in further detail in Parts L.A and I.B.2, infra. Unbeknownst to many, the present period is the most …

Immigration, Criminalization, And Disobedience, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

This symposium essay explores two contending visions of immigration justice: one focused on expanding procedural rights for immigrants, and a second associated with a movement of immigrant youth who have come out en masse as “undocumented and unafraid,” issuing a fundamental challenge to immigration restrictionism. As immigration enforcement in the United States increasingly relies on criminal prosecution and detention, advocates for reform have increasingly turned to constitutional criminal procedure, seeking greater procedural protections for immigrants. But this essay argues that this focus on enhanced procedural protections is woefully incomplete as a vision of immigration justice. Although a right to counsel, …

Shrinking The Post-Plenary Power Problem, Michael Kagan

Scholarly Works

In this essay, Professor Michael Kagan responds to Professor Matthew J. Lindsay's article, Disaggregating “Immigration Law.” Professor Kagan posits a majority of Supreme Court justices appear to be at least occasionally uneasy with the plenary power doctrine that has shaped immigration law since the Chinese Exclusion Case, but they are not all sure how to live without it either. He argues so long as this remains the case, the Court’s immigration jurisprudence is likely to be incrementally favorable to immigrants on the whole, but tentative, inconsistent, and incoherent in some important ways. He concludes the importance of Professor Lindsay’s intervention …

Bridging The Confluence Of Water And Immigration Law, Tom I. Romero Ii

Scholarly Works

No abstract provided.

Domestic Violence And The Politics Of Self-Help, Elizabeth L. Macdowell

Scholarly Works

Self-help programs are conceptualized as alternatives to attorney representation that can help both courts and unrepresented litigants. The rhetoric of self-help also typically includes empowering unrepresented individuals to help themselves. But how do self-help programs respond to litigants’ efforts at self-advocacy? This Article reports findings from a study of courthouse self-help programs assisting unrepresented litigants applying for protection orders. The central finding is that self-help staff members were not neutral in the provision of services despite a professed ethic of neutrality. Using the sociological concept of demeanor, this Article shows that staff members rewarded protection order applicants who conformed to …

Limiting Deterrence: Judicial Resistance To Detention Of Asylum-Seekers In Israel And The United States, Michael Kagan

Scholarly Works

Governments have advanced the argument that asylum-seekers may be detained in order to deter other would-­be asylum­-seekers from coming. But in recent litigation in the United States and Israel, this justification for mass detention met with significant resistance from courts. This Essay looks at the way the American and Israeli courts dealt with the proposed deterrence rationale for asylum-seeker detention. It suggests that general deterrence raises three sequential questions:

1. Is deterrence ever legitimate as a stand alone justification for depriving people of liberty?

2. If deterrence is sometimes legitimate, is it valid as a general matter in migration control, …

Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions, Michael Kagan

Scholarly Works

President Obama’s ambitious use of executive discretion in immigration – especially the DACA and DAPA programs – should be understood in context of a struggle within the executive branch between the President and frontline enforcement officers in the Department of Homeland Security who have actively resisted his policy agenda. The so far successful litigation by 26 states to partially halt these programs has focused on this struggle within the executive branch, rather than on the stalemate between the President and Congress over legislative immigration reform. In preliminary rulings, the federal district court and the Court of Appeals have interpreted ambiguous …

The Grapes Of Wrath: On The Health Of Immigration Detainees, Stacey A. Tovino

Scholarly Works

This Article challenges the lack of health care provided to individuals in U.S. Immigration and Customs Enforcement (“ICE”) custody. As background, many immigration detainees are physically and emotionally vulnerable at the time of initial confinement due to a history of torture and trauma, which may include human trafficking, sexual violence, political oppression, psychosocial trauma, and acculturative stress. Detention can exacerbate preexisting vulnerabilities and contribute to severe physical and mental illness as well as death. Between October 2003 and October 2015, 153 individuals died while in ICE custody. Although most proposals for detainee health reform borrow heavily from constitutional law, international …

When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan

Scholarly Works

The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have …

The Preempting Of Equal Protection For Immigrants?, Jenny-Brooke Condon

Washington and Lee Law Review

Recent debates about immigration have focused overwhelmingly on unauthorized migration and the respective roles of the federal and state governments in enforcing immigration law. But that emphasis in law and theory has obscured a critical civil rights question of our time: what measure of equality is due to those with the opportunity to abide by the rules of entry, who are now lawfully present within the United States? Although the United States Supreme Court recognized decades ago that lawfully present migrants are a discrete and insular minority entitled to heightened judicial protection under the Equal Protection Clause of the Fourteenth …

Bridge Over Troubled Waters: Resolving The Ri Grande (Rio Bravo) Water Dispute., Ruben R. Barrera, Dan A. Naranjo

St. Mary's Law Journal

Abstract Forthcoming.