Immigration Law Commons^™

The Right To Remain, Timothy E. Lynch

Faculty Works

Article 12.4 of the International Covenant on Civil and Political Rights (ICCPR) states, "No one shall be arbitrarily deprived of the right to enter his own country." Citizens clearly enjoy Article 12.4 rights, but this article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR's preparatory works and the jurisprudence of the Human Rights Committee, this article demonstrates that Article 12.4 also forbids States from deporting long-term resident noncitizens both documented and undocumented - except under the rarest circumstances. As a result, the ICCPR right to remain in one's own …

Embracing Crimmigration To Curtail Immigration Detention, Pedro Gerson

Faculty Scholarship

Immigration advocates have long objected to both the constitutionality and conditions of immigration detention. However, legal challenges to the practice have been largely unsuccessful due to immigration law’s “exceptionality.” Placing recent litigation carried out against immigration detention during the COVID-19 pandemic within the context of the judiciary’s approach to immigration, this Article argues that litigation is an extremely limited strategic avenue to curtail the use of immigration detention. I then argue that anti-immigration detention advocates should attempt to incorporate their agenda into criminal legal reform and decarceration efforts. This is important for both movements. Normatively, immigration detention raises comparable issues: …

Denmark And Sweden: The Collision Between Welfare State Politics And Immigration, Amy Elizabeth Cantrell

Student Publications

The Scandinavian welfare states of Denmark and Sweden have famously similar socio-political and cultural systems, ones which have advanced the common perception of these nations as united in a common humanitarian and progressive global position. However there exists a significant divergence within either nation’s approach to immigration, asylum and integration policy, one indicative of the deeply ingrained deviations in popular understandings of national belonging and perspectives on greater European and global integration. By contextualizing the historical progressions of either nation and juxtaposing their individual responses to both the 2015 European refugee crisis and the contemporary Ukrainian conflict and resulting refugee …

Reimagining Sovereignty To Protect Migrants, Pooja R. Dadhania

Faculty Scholarship

The concept of sovereignty in international law allows states to exclude and expel most categories of migrants, subject only to very narrow exceptions from international human rights and refugee law. Inverting the state sovereignty paradigm traditionally used to exclude migrants, this Essay reimagines sovereignty to protect migrants by drawing on the international law doctrine of state responsibility. The doctrine of state responsibility requires states to remedy the consequences of their actions in violation of international law. States that violate the sovereignty of other states, more specifically their territorial integrity or political independence, and thereby cause forced migration should have an …

Non-State Actors "Under Color Of Law": Closing A Gap In Protection Under The Convention Against Torture, Anna R. Welch, Sangyeob Kim

Faculty Publications

The world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-state actors such as gangs, drug cartels, militias, and terrorist organizations is challenging states’ authority to control and govern torture committed within their territory.

In the United States, those seeking protection against deportation under the Convention Against Torture (“CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. However, what is …

Immigration Policy And Covid-19, Daniel Hostetter

Helm's School of Government Conference - 2021-2024

No abstract provided.

The Role Of Prosecutorial Discretion In The Constitutionality Of Daca, Olivia Dixon

SLU Law Journal Online

DACA has been a controversial immigration program for almost a decade, as it winds its way through the United States's court system. In this article, Olivia Dixon argues that federal judge Andrew Hanen's most recent holding, that DACA is unconstitutional, is wrong, specifically looking at the role prosecutorial discretion plays in the program's constitutionality.

Understanding The Nansen Passport: A System Of Manipulation, Kacey Bengel

Indiana Journal of Global Legal Studies

The aftermath of World War I, the "war to end all wars," left the world with as many new problems as it did resolutions. State powers tested and expanded the boundaries and interpretations of international law; in the end, there were the triumphant Allied Powers, the heavily wounded Central Powers, and millions of displaced individuals left adrift in the wake. Never before had the international community attempted to address the issue of refugees, and the product of the postwar efforts did not provide a complete solution. This paper will analyze the international community's] response to the massive refugee crisis and …

A Weaponized Process: The Deterioration Of Asylum Administration Under Trump, David C. Portillo Jr.

Journal of the National Association of Administrative Law Judiciary

Under the Trump Administration, a series of Attorney General decisions increased Executive Branch scrutiny over decisions of the Board of Immigration Appeals (BIA). This scrutiny serves to advance an anti-immigration policy at the cost of denying entry of valid asylum seekers. These decisions are due to tension between the politically directed executive power of Attorneys General and the Judicial nature of the BIA. This internal contradiction results in Attorney General decisions that are arbitrary, inconsistent, employ poor reasoning, deviate from precedent, and cause inhumane effects. The structure of asylum administration, as laid out in the Immigration and Naturalization Act and …

Law School News: The Dean Meets The Governor 01-26-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Rising Up Without Pushing Down: Lessons Learned From The Suffragettes' Anti-Immigrant Rhetoric, Kit Johnson

St. John's Law Review

(Excerpt)

American suffragist Elizabeth Cady Stanton famously wrote: “We hold these truths to be self-evident; that all men and women are created equal.” Yet when suffragettes spoke of “all” men and women, they were clear about exceptions. Immigrants did not qualify. Indeed, in her own address at the First Women’s Rights Convention, held in Seneca Falls, New York, in July 1848, Stanton said that “to have . . . ignorant foreigners . . . fully recognized, while we ourselves are thrust out from all the rights that belong to citizens, it is too grossly insulting to the dignity of woman …

Judical Line-Drawing And The Court's Failure To Protect Immigrants, Zoe Graham

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Immigration Reforms As Health Policy, Medha D. Makhlouf, Patrick J. Glen

Faculty Scholarly Works

The 2020 election, uniting control of the political branches in the Democratic party, opened up a realistic possibility of immigration reform. Reform of the immigration system is long overdue, but in pursuing such reform, Congress should cast a broad net and recognize the health policies embedded in immigration laws. Some immigration laws undermine health policies designed to improve individual and population health. For example, immigration inadmissibility and deportability laws that chill noncitizens from enrolling in health-promoting public benefits contribute to health inequities in immigrant communities that spill over into the broader population—a fact highlighted by the still-raging COVID-19 pandemic. Restrictions …

Lawful Work While Undocumented: Business Entity Solutions, Kit Johnson

Faculty Articles

Immigration law and business-associations law rarely enter the same conversation. This Article argues, however, that business entity formation—such as the use of limited liability companies—has the potential to not only expand opportunities for undocumented migrants but also to significantly benefit the U.S. economy. As such, this Article seeks to make a round of introductions: introducing immigration scholars and lawyers to concepts of business entity formation that can radically change the lives of undocumented persons in the United States and introducing corporate scholars and lawyers to the ways in which their work can intersect with immigration law to effect social and …

One Of The Greatest Human Tragedies Of Our Time: The U.N., Biden, And A Missed Opportunity To Abolish Immigration Prisons, Lauren E. Bartlett

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Problematic Private Immigration Detention Centers And The Lack Of Ice Oversight, Khou Yang

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

The Contested "Bright Line" Of Territorial Presence, Shalini Ray

Georgia Law Review

For this symposium on “Immigrants and the First Amendment,” this Essay considers the current scope of First Amendment protection for noncitizens abroad. Courts have interpreted the constitutional rights of noncitizens to vary with factors including status, ties, and location. But in a recent case, Agency for International Development v. Alliance for Open Society International, the Supreme Court announced that the First Amendment simply does not apply to noncitizens abroad. This Essay considers this new rule and its implications, concluding that a bright-line rule based on territorial presence masks more complex questions about the meaning of “here” and “abroad.”

The Immigrant Struggle For Effective Counsel: An Empirical Assessment, Jayanth K. Krishnan

Articles by Maurer Faculty

Recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. § 1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation there either.

One question which flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel petitions, which in the immigration law context are rooted in the Due Process Clause. …

Decitizenizing Asian Pacific American Women, Shoba Sivaprasad Wadhia, Margaret Hu

Faculty Scholarship

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws …

Immigration Detention As A Violation Of Transgender Detainees' Substantive Due Process Rights, Emily Torstveit Ngara

Lewis & Clark Law Review

Noncitizens in immigration proceedings are often subject to civil detention pending a final decision on their case. Transgender individuals in immigration detention are at high risk for physical and sexual assault, cruel and degrading treatment, denial of necessary medical care, and protective isolation. The well-documented harms caused to transgender individuals in detention violate Fifth Amendment substantive due process. This Article documents the harms of immigration detention specific to the transgender community, reviews substantive due process jurisprudence in the civil detention context, and analogizes Eighth Amendment claims for transgender prisoners to substantive due process claims. Immigration detention is predicated on the …

Undocuamerica Monologues, Motus Theater, Alejandro Fuentes Mena, Armando Peniche, Christian Solano-Córdova, Kirsten Wilson

University of Colorado Law Review

The following work contains three monologues from Motus Theater's UndocuAmerica Project, which aims to interrupt dehumanizing portrayals of immigrants by encouraging thoughtful engagement on the challenges faced by undocumented communities and the assets immigrants bring to our country. The monologues were created in a collaboration between leaders with DACA status and Motus Theater Artistic Director Kirsten Wilson during a seventeen-week autobiographical- monologue workshop. All three pieces were presented in a virtual performance on April 8, 2021, as an introduction to the 29th Annual Rothgerber Conference.

An Immigration Solution For Improving Rural Healthcare, Kit Johnson

Faculty Articles

If you are one of the more than 249 million people who live in urban areas of the United States, more than 80% of the U.S. population, you’ve likely never thought much about your physical proximity to a doctor. Primary care physicians and medical specialists abound in urban America. But if you are among the more than 59 million people who live in rural areas of the country, you may well know the struggle of finding primary care, a specialist, or a dentist. That is because there is a worrying shortage of medical professionals in rural America. There is a …

Discretion And Disobedience In The Chinese Exclusion Era, Shoba Sivaprasad Wadhia

Faculty Scholarship

This Article examines the use of prosecutorial discretion from its first recorded use in the nineteenth century to protect Chinese subject to deportation, following to its implication in modern day immigration policy. A foundational Supreme Court case, known as Fong Yue Ting, provides a historical precedent for the protection of a category of people as well as a deeper history of prosecutorial discretion in immigration law. This Article also sharpens the policy argument to protect political activists through prosecutorial discretion and forces consideration for how modern immigration policy should respond to historical exclusions and racialized laws. This Article centers its …

'Indirect Pathways Into Practice': Philippine Internationally Educated Nurses And Their Entry Into Ontario's Nursing Profession, Lualhati Marcelino

Theses and Dissertations (Comprehensive)

While there are several studies that highlight the quantitative and statistical profiles of internationally educated nurses (IENs) from the Philippines who migrate to countries throughout Asia, the Middle East, Europe, the United States and Canada, there is little research that delves deeply into the qualitative review and analysis of their experiences in their own words. This study addresses that gap by applying the transnational feminist concept of “global care chains” in a single case study design that explores the experience of nurses who migrated to Ontario through permanent and temporary immigration streams and were interviewed in 2011 to 2012 to …

Overstepping: U.S. Immigration Judges And The Power To Develop The Record, Jayanth K. Krishnan

Articles by Maurer Faculty

In 1952, Congress established a new federal position to be filled by “special inquiry officers” charged with overseeing deportation cases. These immigration judges—as they eventually came to be called—were assigned to work within the executive branch, namely, the Department of Justice, and they were to be answerable ultimately to a political appointee, the attorney general. Importantly, they received specific statutory authority allowing them to “develop the record” during an immigration case. This power enabled immigration judges to assemble evidence and call, “interrogate, examine, and cross‑examine . . . any witnesses.”

Given that many immigrants who appear in immigration court do …

Executive Discretion And First Amendment Constraints On The Deportation State, Jennifer Lee Koh

Georgia Law Review

Given the federal courts’ reluctance to provide clarity on the degree to which the First Amendment safeguards the free speech and association rights of immigrants, the immigration policy agenda of the President now appears to determine whether noncitizens engaging in speech, activism, and advocacy are protected from retaliation by federal immigration authorities. This Essay examines two themes: first, the discretion exercised by the Executive Branch in the immigration context; and second, the courts’ ambivalence when it comes to enforcing immigrants’ rights to be free from retaliation. To do so, this Essay explores the Supreme Court’s influential 1999 decision in Reno …

Fear Foreigners, And Free Expression: A Brief Reflection On Ideological Exclusion And Deportation In The United States, Julia Rose Kraut

Georgia Law Review

“Why should we be afraid of this man and his ideas?” asked Secretary of State William P. Rogers, referring to Belgian, Marxist economist Ernest Mandel.1 In 1969, Mandel applied for a nonimmigrant visa to visit the United States after receiving invitations to speak at several American colleges and universities, including Amherst College, Columbia University, Princeton University, Massachusetts Institute of Technology, and the New School for Social Research.2 Mandel had received visas to visit the United States twice before: one in 1962 and another in 1968.3 Yet, this time, Mandel’s application for a visa was denied.4

The State Department informed Mandel …

The Racial Justice Imperative To Reimagine Immigrant Children's Rights: Special Immigrant Juveniles As A Case Study, Dalia Castillo-Granados, Rachel Leya Davidson, Laila L. Hlass, Rebecca Scholtz

American University Law Review

The immigration legal system has codified and perpetuated racial violence in many ways, yet the experiences of young people of color in this system have yet to be deeply examined. This Article surfaces the distinct and varied racialized harms that children experience in the immigration system through the example of Special Immigrant Juveniles. Special Immigrant Juvenile Status (SIJS) is the only immigration status created for and limited to children. A child—defined in immigration law as someone who is under twenty-one years of age and unmarried—is eligible to seek SIJS with U.S. Citizenship and Immigration Services (USCIS) if a state court …

On The Cusp Film, Rommel H. Ojeda, Rommel H. Ojeda

Capstones

On the Cusp film follows the story of Dreamer Erika Apupalo, who immigrated to the United States at the age of 9. Her story is one that represents the determination that Dreamers or DACA-recipients have to achieve the American Dream (freedom), while dealing with the physical limitations of being out of status, and having to deal with the uncertainty of what could happen if she went back to her country. Taking place in 2006 in Tigualo, Ecuador, Erika takes us through her journey of migrating to the United State. “I remember the immigration officer asking me questions”, says Erika, who …

Witnessing Anew: Human Rights Advocacy For Migrants At The U.S. Southern Border In Covid-19 Times, Ellen Maccarone

Biennial Conference: The Social Practice of Human Rights

In this paper I provide a case study of transnational migrant advocacy done by the Kino Border Initiative during the COVID-19 pandemic. Shortly before the pandemic I spent a week with KBI for an immersion experience part of which focused on the ideas of human rights advocacy and witnessing. “Witness” in this context has both a spiritual/moral dimension and an experiential one that can form a foundation for advocacy. Using accounts of migrants to inform and humanize changed when interpersonal witnessing became impossible during the pandemic. This increased the levels of human rights abuses experienced by migrants and limited the …