Immigration Law Commons^™

Embracing Mercy: Rehabilitation As A Means To Fairly And Efficiently Address Immigration Violations, David C. Koelsch

Intercultural Human Rights Law Review

Efforts by the U.S. Congress and the Obama Administration to provide millions of undocumented immigrants a path to legal status will fail unless deserving immigrants are allowed to overcome prior immigration or minor criminal violations. Indeed, a pathway to legal status is a hollow gesture if the path is either too narrow or too steep. As one means of evaluating which immigrants should benefit from comprehensive immigration reform, rehabilitation allows immigrants to demonstrate that they deserve a second chance and provides policymakers with a buffer against critics of immigration reform who allege it is nothing more than an amnesty for …

Mexican Children Of U.S. Citizens: Viges Prin And Other Tales Of Challenges To Asserting Acquired U.S. Citizenship., Lee J. Teran

The Scholar: St. Mary's Law Review on Race and Social Justice

Mexican children with a U.S. parent face both historic and current challenges in acquiring U.S. citizenship. Following changes in U.S. immigration law, the number of individuals removed from the United States has swelled dramatically. This campaign against non-citizens has led to the removal of United States citizens, particularly individuals who were born abroad but claim citizenship through a U.S. citizen parent. Citizens are caught in the middle of conflicting goals between government efforts to adjudicate claims to acquired U.S. citizenship and the focus on crime and national security interests. Even though many U.S. parents and their children born abroad are …

Deporting The Pardoned, Jason A. Cade

Scholarly Works

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 …

Discretionary (In)Justice: The Exercise Of Discretion In Claims For Asylum, Kate Aschenbrenner Rodriguez

Faculty Scholarship

No abstract provided.

Recentering Foreign Affairs Preemption In Arizona V. United States: Federal Plenary Power, The Spheres Of Government, And The Constitutionality Of S.B. 1070, Patrick J. Charles

Cleveland State Law Review

Is foreign affairs preemption concerning immigration an all or nothing approach as the different lower courts and immigration scholars contend? The purpose of this article is to answer this question by recentering foreign affairs preemption in accordance with constitutional intent, an objective reading of Supreme Court precedent, and then reassembling the whole into a workable doctrine. This article will accomplish this in three parts. First, this article provides a brief examination of the plenary power doctrine over immigration, and its constructs according to the Founders' Constitution. This inquiry provides federal courts with the historical guideposts necessary to adjudicate foreign affairs …

Comment: Until The Plenary Power Do Us Part: Judicial Scrutiny Of The Defense Of Marriage Act In Immigration After Flores-Villar, Jessica Portmess

American University Law Review

No abstract provided.

The Removability Of Non-Citizen Parents And The Best Interests Of Citizen Children: How To Balance Competing Imperatives In The Context Of Removal Proceedings?, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The massive influx of illegal immigrants over the preceding decades has combined with the United States’ jus soli citizenship regime to produce a growing class of removable aliens: non-citizen parents of United States citizen children. The removability of parents obviously places the citizen children in the unfortunate position of having to leave their country of citizenship behind to accompany the parents, or arrange for living situations within the United States, perhaps with a relative, but be separated from their parents. The compelling interests raised by the removability of parents in such circumstances have given rise to distinct forms of relief …

A Season Of Change: Reforming The H2b Guest Worker Program, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: Each year, as spring and summer arrive, Americans partake in range of seasonal traditions: beautifying their lawns and gardens; enjoying harvests of fresh fruits, vegetables, and seafood; and attending local fairs and festivals. Although these rituals have become part of the American cultural fabric, few know that they are supported by thousands of temporary guest workers who enter the United States each year under the H-2 visa program.' The H-a program allows U.S employers to petition for seasonal agricultural workers (via the H-2A program) and seasonal nonagricultural workers (via the H-2B program) to work in this country on a …

Post Padilla: Padilla's Puzzles For Review In State And Federal Courts, Nancy J. King, Gray Proctor

Vanderbilt Law School Faculty Publications

This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment. Issues addressed include: express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; …

Realizing Padilla's Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Convictions, Yolanda Vazquez

Faculty Articles and Other Publications

On March 31, 2010 the United States Supreme court decided Padilla v. Kentucky and created a Sixth Amendment duty for defense attorneys to advise defendants of the immigration consequences of a criminal conviction. While Padilla answered the broad question of whether there is a duty to advise a defendant under the Sixth Amendment, it left many questions unanswered. One critical inquiry is how defense attorneys and the courts will determine what advice concerning the immigration consequences of the criminal conviction will satisfy defense counsels’ Sixth Amendment duty under Padilla.

This Article discusses the potential detrimental impact of Padilla’s ambiguous holding …

Where Do We Go From Padilla V. Kentucky? Thoughts On Implementation And Future Directions, Maureen A. Sweeney

Faculty Scholarship

On March 31, 2010, the U.S. Supreme Court held in the landmark case of Padilla v. Kentucky that the Sixth Amendment right to effective assistance of counsel in criminal cases includes the right for non-U.S. citizens to be correctly and specifically advised about the likely immigration consequences of a plea agreement. The decision represents an important shift in the way courts have addressed such claims by noncitizen defendants. The Court’s decision recognizes a constitutional requirement that defense counsel provide advice in an area of law in which few defense counsel are knowledgeable, and therefore raises important and difficult questions about …

Penalty And Proportionality In Deportation For Crimes, Maureen A. Sweeney, Hillary Scholten

Faculty Scholarship

No abstract provided.

Denying Formalism's Apologists: Reforming Immigration Law's Cimt Analysis, Jeremiah J. Farrelly

University of Colorado Law Review

Congress has long favored the "crime involving moral turpitude" as a statutory device to remove "undesirable" aliens from the United States. Unfortunately, Congress never bothered to define this important phrase. The judicial standard developed to address this shortfall has long been seen as unnecessarily formalistic, arbitrary, and both over- and under-inclusive. Until recently, however, these issues were ignored. In 2008, the Board of Immigration Appealsrightly deferred to by the Seventh Circuit-and the Attorney General finally addressed these issues, making significant revisions to the traditional standard. The Third Circuit, rather than following the Seventh Circuit in allowing the reform of an …

The Political Economy Of International Labor Migration Law, Joel P. Trachtman

Employment Research Newsletter

No abstract provided.

Reclaiming The Immigration Constitution Of The Early Republic, James Pfander

Faculty Working Papers

In contrast to the view that national immigration policy began in 1875, this article explores evidence that immigration policy dates from the early republic period. Built around the naturalization clause, which regulates the ability of aliens to own land and shaped their willingness to immigrate to America, this early republic immigration policy included strong norms of prospectivity, uniformity, and transparency. Drawing on these norms, which readily apply in both the naturalization and immigration contexts, the paper argues against the plenary power doctrine, particularly as it purports to authorize Congress to change the rules of immigration midstream and apply them to …

Fact Or Fiction: The Legal Construction Of Immigration Removal For Crimes, Maureen A. Sweeney

Faculty Scholarship

Thousands of long-term legal permanent residents are deported from the United States each year because they have been convicted of criminal offenses, many quite minor. These deportations occur without any of the constitutional safeguards that generally protect criminal defendants. Immigration authorities rely on cases asserting that such deportations are not punishment for the crime, but merely collateral consequences of the conviction. This article challenges that reasoning. It argues that its factual and doctrinal foundation has completely disintegrated over the last 20 years. Far-reaching changes in immigration law and enforcement have rendered deportation for aggravated felonies a “definite, immediate and largely …

A Fraudulent Sense Of Belonging: The Case For Removing The 'False Claim To Citizenship' Bar For Noncitizen Voting, Anne Parsons

The Modern American

No abstract provided.

Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless

Articles

No abstract provided.

“To Remand, Or Not To Remand”: Ventura’S Ordinary Remand Rule And The Evolving Jurisprudence Of Futility, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

It is a foundational principle of administrative law that a reviewing court should not dispose of a petition for review or appeal on grounds not relied upon by the agency, and should not reach issues in the first instance not addressed administratively. In such circumstances, there is a strong presumption that the reviewing court should remand the case to the agency for further proceedings rather than reach out to decide the disputed issues. The United States Supreme Court explicitly extended operation of the “ordinary remand rule” to the immigration context in its 2002 decision in INS v. Ventura. Notwithstanding subsequent …

A Chance For Redemption: Revising The "Persecutor Bar" And "Material Support Bar" In The Case Of Child Soldiers, Kathryn White

Vanderbilt Journal of Transnational Law

Armed groups in conflicts around the world frequently exploit child soldiers. Despite the unique experience of child soldiers, who are frequently recruited by means of force and deceit, immigration law as it is currently applied may bar former child soldiers from receiving asylum in the United States. In particular, the prevailing agency interpretation of the "persecutor bar" and the "material support bar" equates child soldiers with adults who have committed serious atrocities. This Note argues that the application of these asylum bars to former child soldiers runs against social values and standards of moral culpability in the United States. Child …

Application Of Non-Implemented International Law By The Federal Court Of Appeal: Towards A Symbolic Effect Of S. 3(3)(F) Of The Irpa?, France Houle, Noura Karazivan

Dalhousie Law Journal

Since 1999, the Supreme Court has explored the linkages between domestic statutes and international norms and values and has slowly developed the basic principles underlying a new mechanism of relevancy that the authors call harmonization of domestic law with international law The authors analyze this development in PartI of the present article. In Part II, they study the application of this harmonization mechanism in the field of Canadian immigration law Of, particular importance in the Immigration and Refugee Protection Act is s. 3(3)(f), for it directs judges to construe and apply the IRPA in a manner that "complies with international …

The Hidden Dimension Of Nineteenth-Century Immigration Law, Kerry Abrams

Vanderbilt Law Review

Most histories of immigration law are histories of restriction. This emphasis is hardly surprising: beginning in 1875, Congress passed increasingly draconian acts, mostly targeting Chinese immigrants, which ultimately led to the outright exclusion of nearly all Asian immigrants. Then, in the 1920s, Congress enacted quotas aimed at keeping the U.S. population primarily white, with an emphasis on immigrants from northern and western European stock. And throughout history in general, immigration law has focused not only on excluding but also on deporting those immigrants deemed undesirable.

In addition to focusing on exclusion, immigration law history has also been preoccupied with federal …

The International Law Of Economic Migration: Toward The Fourth Freedom, Joel P. Trachtman

Upjohn Press

This volume examines the welfare economics, political economy, and legal experience in international economic migration, and on the basis of its analysis, suggests the structure of a multilateral framework agreement on international economic migration.

"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana

Faculty Scholarship

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …

Pulling The Trigger: Separation Violence As A Basis For Refugee Protection For Battered Women, Marisa Cianciarulo, Claudia David

American University Law Review

For over a decade, women seeking asylum from persecution inflicted by their abusive husbands and partners have found little protection in the United States. During that time, domestic violence-based asylum cases have languished in limbo, been denied, or occasionally been granted in unpublished opinions that have not provided a much-needed adjudicative standard. The main case setting forth the pre-Obama approach to domestic violence-based asylum is rife with misunderstanding of the nature of domestic violence and minimization of the role that society plays in the proliferation of domestic violence. Fortunately, however, a recent Obama-administration legal brief indicates that women fleeing countries …

Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau

Faculty Scholarship

Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …

The Constitutionality Of State And Local Laws Targeting Immigrants, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This paper addresses current immigration issues across the country, specifically in Arkansas, and how lawyers can seek to achieve social justice for immigrants. There currently has been a lot of activity and discussion surrounding state and local laws targeting immigrants. Central to this discussion has been whether states and localities are constitutionally permitted to enact immigration laws and whether state and local actions upset the current immigration system and how, if at all, their actions affect documented and undocumented immigrants' rights. When states and localities pass immigration related laws, the main concern is whether federal, state or local governments are …

Book Review Of A Refugee’S Struggle For Safety In America, Nancy Morawetz

Journal of Legal Education

No abstract provided.

People Not Equal: A Glimpse Into The Use Of Profiling And The Effect A Pending U.N. Human Rights Committee Case May Have On United States' Policy, Lindsay N. Wise

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Golden Cage: How Immigration Law Turns Foreign Women Into Involuntary Housewives, Magdalena Bragun

Seattle University Law Review

This Comment begins with a presentation of the general principles of immigration law, introducing the reader to concepts such as immigrant and nonimmigrant status, derivative status, and adjustment of status. Part III offers a more detailed presentation of the H status, emphasizing H-1B classification and describing specific regulations that are pertinent to the subsequent discussion of the spousal employment authorization problem. Part IV presents five arguments why spouses of foreign professionals should be allowed to work, considering issues such as spousal dependency, equal treatment, the competitiveness of the United States in the global search for talent, and tax benefits.