Immigration Law Commons^™

Substantive Due Process For Noncitizens: Lessons From Obergefell, Anthony O'Rourke

Journal Articles

The state of Texas denies birth certificates to children born in the United States — and thus citizens under the Fourteenth Amendment — if their parents are undocumented immigrants with identification provided by their home countries’ consulates. What does this have to do with same-sex marriage? In a previous article, I demonstrated that the Court’s due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This short essay builds upon my earlier analysis by examining Obergefell v. Hodge’s applications outside the context of same-sex marriage. Obergefell’s due process holding, I …

Incompetent But Deportable: The Case For A Right To Mental Competence In Removal Proceedings, Fatma E. Marouf

Scholarly Works

Important strides are currently being made toward increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found mentally incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding such as removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial …

Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres

Michigan Journal of Race and Law

At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and state …

The Padilla Wrecking Ball: Advocating For Change In Post-Padilla Jurisprudence To Address What Really Ails The Immigration System’S Treatment Of Noncitizen Defendants In The Post-Conviction Context, Daniel Mcdermott

University of Miami Inter-American Law Review

No abstract provided.

To Plea Or Not To Plea: Retroactive Availability Of Padilla V. Kentucky To Noncitizen Defendants On State Postconviction Review, Jaclyn Kelley

Michigan Journal of Race and Law

The United States incarcerates hundreds of thousands of noncitizen criminal defendants each year. In 2010, there were about 55,000 "criminal aliens" in federal prisons, accounting for approximately 25 percent of all federal prisoners. In 2009, there were about 296,000 noncitizens in state and local jails. Like Jose, these defendants usually do not know that their convictions may make them automatically deportable under the INA. Under the Supreme Court's recent ruling in Padilla v. Kentucky, criminal defense attorneys have an affirmative duty to give specific, accurate advice to noncitizen clients regarding the deportation risk of potential pleas. This rule helps assure …

Removal Of Central American Gang Members: How Immigration Laws Fail To Reflect Global Reality, Freddy Funes

University of Miami Law Review

No abstract provided.

Collateral Consequences Of Criminal Convictions To Noncitizens, Fernando A. Nuñez

Faculty Scholarship

The criminal defense attorney's intuitive pursuit of freedom for a client is almost always the best approach in the representation of individuals charged with a crime. When representing noncitizens, however, the prudent practice is to deemphasize immediate freedom and instead to focus on the collateral consequences the conviction will have on the noncitizen's immigration status.

Driving Down The Wrong Road: The Fifth Circuit's Definition Of Unauthorized Use Of A Motor Vehicle As A Crime Of Violence In The Immigration Context., Heather Harrison Volik

St. Mary's Law Journal

Individuals who are not United States citizens and participate in violent or severe criminal activity are likely to be deported and become inadmissible for life. But noncitizens can also be deported for minor criminal activity which does not cause harm or serious damage. In such cases, deportation is an extreme punishment out of proportion to the offense. Unauthorized use of a motor vehicle (UUMV) is an example of a crime which can be committed without serious harm or damage. The Fifth Circuit regularly sustains decisions of lifetime reentry ban for noncitizens convicted of UUMV. Under immigration law, “aliens” who are …

Immigration And Constitutional Consequences Of Post-9/11 Policies Involving Arabs And Muslims In The United States: Is Alienage A Distinction Without A Difference?, Susan M. Akram, Maritza Karmely

Faculty Scholarship

There has been much public and academic discussion on post-9/11 government policies and whether their impact on Arabs and Muslims in the United States is unconstitutional “racial profiling” or legitimate immigration control based on constitutionally permissible nationality distinctions. The main assumption underlying this debate is that the focus of the government's policies in the “war on terror” is noncitizens, even if principally Arabs and Muslims. Thus, the racial profiling issues center on the differences between the constitutional due process analysis applied to noncitizens and that applied to citizens. This Article challenges the above argument and a number of its underlying …

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

Scholarly Works

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 …

Preserving The Essence Of Zadvydas V. Davis In The Midst Af A National Tragedy, N. Alejandra Arroyave

University of Miami Law Review

No abstract provided.

Bicentennial Man -- The New Millennium Assimilationism And The Foreigner Among Us, Lolita K. Buckner Inniss

Publications

No abstract provided.

The Exclusion Of Mentally Ill Aliens Who May Pose A Danger To Others: Where Does The Real Threat Lie?, Jennifer Blakeman

University of Miami Inter-American Law Review

No abstract provided.

Introduction: The Value Of Our Work, Professor Elvia R. Arriola

University of Miami Law Review

No abstract provided.

The Detention Of Aliens: Theories, Rules, And Discretion, Stephen H. Legomsky

University of Miami Inter-American Law Review

No abstract provided.

A Call For Reform Of Recent Immigration Legislation, Jason H. Ehrenberg

University of Michigan Journal of Law Reform

The Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 dramatically limit the procedural rights of aliens who have been convicted of serious crimes. Consequently, aliens who have immigrated to the United States to escape persecution in their homelands are deported without adequate hearing or appeal. This Note argues that the laws violate international obligations and Constitutional law. It advocates amending the laws to give the Attorney General discretion over deportation decisions, eliminating retroactive application of deportation for aggravated felons, and reinstating judicial review of deportation or exclusion decisions.

Expanding The Circle Of Membership By Reconstructing The "Alien": Lessons From Social Psychology And The "Promise Enforcement" Cases, Victor C. Romero

University of Michigan Journal of Law Reform

Recent legal scholarship suggests that the Supreme Court's decisions on immigrants' rights favor conceptions of membership over personhood. Federal courts are often reluctant to recognize the personal rights claims of noncitizens because they are not members of the United States. Professor Michael Scaperlanda argues that because the courts have left the protection of noncitizens' rights in the hands of Congress and, therefore, its constituents, U.S. citizens must engage in a serious dialogue regarding membership in this polity while considering the importance of constitutional principles of personhood. This Article takes up Scaperlanda's challenge. Borrowing from recent research in social psychology, this …

Congruence Principle Applied: Rethinking Equal Protection Review Of Federal Alienage Classifications After Adanrand Constructors, Inc. V. Peña, Victor C. Romero

Faculty Scholarship

This article suggests that the Supreme Court's 1995 decision in Adarand Constructors, Inc. v. Peña constitutes a starting point for a renewed dialogue on the intersection of race, noncitizens' rights, and immigration law.

Part I of this Article examines the historical foundations of the plenary power doctrine up to the current dichotomy between judicial review of state and federal alienage classifications under equal protection. Part II reviews the Adarand decision, arguing that Justice O'Connor's congruence principle provides the bulwark for a revision of judicial review of federal legislation, especially in light of the historical and continuing perception of Asian- and …

The Antiterrorism Act, The Immigration Reform Act, And Ideological Regulation In The Immigration Laws: Important Lessons For Citizens And Noncitizens., Kevin R. Johnson

St. Mary's Law Journal

This Article analyzes how the Antiterrorism Act and the Immigration Reform Act reflect a larger historical dynamic in the relationship between domestic subordination and immigration law. The U.S. government historically employed immigration laws in an effort to protect the established political and social order. History reveals a strong correlation between the severe treatment politically subversive U.S. citizens received and the constriction of the immigration laws. This Article argues the lack of constitutional protections for noncitizens helps to explain the recurrent backlash against them. The treatment of noncitizens suggests how far the government might go to suppress domestic political dissent by …

Whose Alien Nation?: Two Models Of Constitutional Immigration Law, Hiroshi Motomura

Michigan Law Review

A Review of Peter Brimelow, Alien Nation: Common Sense About America's Immigration Disaster

The Single-Scheme Exception To Criminal Deportations And The Case For Chevron's Step Two, David A. Luigs

Michigan Law Review

This Note applies the two-step Chevron analysis to the single-scheme exception and argues that courts should reject the BIA's single-act test. In applying Chevron, this Note uses the narrow controversy over the proper interpretation of the single-scheme exception as a window on the larger ambiguity that plagues the Supreme Court's Chevron jurisprudence. This Note suggests an answer to a broader issue that has remained unclear under the Supreme Court's precedents: how courts should review agency interpretations at Chevron's second step.

Whatever Happened To The Fourth Amendment: Undocumented Immigrants' Rights After Ins V. Lopenz-Mendoza And United States V. Verdugo-Urquidez, Victor C. Romero

Faculty Scholarship

This Note rejects the Court's approach to the Fourth Amendment in Lopez and Verdugo and attempts to redefine the boundaries of Fourth Amendment protections for undocumented immigrants. Part I examines the impact of the Lopez and Verdugo decisions upon undocumented immigrants' Fourth Amendment rights. Part II evaluates the arguments for extending Fourth Amendment protections to undocumented immigrants. Viewing the Fourth Amendment as a restriction on government intrusion, Part III examines the constitutional remedies available to undocumented immigrants. This part rejects the Lopez restrictions on the applicability of the exclusionary rule and concludes that the Fourth Amendment neither draws distinctions among …

The Mccarran-Walter Act And Ideological Exclusion: A Call For Reform, Alison E. Clasby

University of Miami Law Review

No abstract provided.

The Unfair Immigration-Related Employment Practices Provision: A Modicum Of Protection Against National Origin And Citizenship Status Discrimination, Fedric J. Bendremer, Lisa A. Heiden

University of Miami Law Review

No abstract provided.

State And Local Enforcement Of The Criminal Immigration Statutes And The Preemption Doctrine, Cecilia Renn

University of Miami Law Review

No abstract provided.

Legalization Under The Immigration Reform And Control Act Of 1986: Scope Of Confidentiality Provisions And Problems In Proving Residence, James Marx

University of Miami Law Review

No abstract provided.

Project Save: Can It Work?, Madelyn S. Lozano

University of Miami Inter-American Law Review

No abstract provided.

The Indefinite Detention Of Excluded Aliens: Statutory And Constitutional Justifications And Limitations, Michigan Law Review

Michigan Law Review

Part I of this Note examines the statutory authority for the indefinite detention of excluded aliens. It concludes that although the INA does not explicitly authorize such detention, the statute's purposes and specific provisions imply that Congress intended to establish a statutory preference for the detention of excluded aliens. The Note then argues in Part II that indefinite detention is constitutionally permissible when it is necessary to vindicate the government's sovereign right to exclude aliens. The Note concludes, however, that the Constitution requires the government to make a continuing good faith effort to deport a detained, excluded alien.

A Territorial Approach To Representation For Illegal Aliens, Michigan Law Review

Michigan Law Review

This Note rejects these arguments in favor of the thesis that the census clause affirmatively requires including illegal aliens in the census figures used to apportion representatives among the states. Part I argues that the framers intended to allocate representation among the states based on a number of considerations, including wealth, and chose total population within the territory of each state as the best measure of those considerations. Part II contends that the requirement of individual equality in voting rights does not apply to interstate comparisons of voting power. Rather, a specific structural agreement reached by the states as sovereign …

Aliens And Equal Protection: Why Not The Right To Vote?, Gerald M. Rosberg

Michigan Law Review

A constitutional right of at least some aliens to vote does not seem to me at all unthinkable. Throughout much of the nineteenth century and part of the twentieth, aliens enjoyed the right to vote in a great many states. The states that extended the franchise to aliens plainly did not believe that they were acting under constitutional compulsion. But given our present understanding of the mission of the equal protection clause, much can now be said in defense of such a constitutional right. My purpose here is to outline the case that might be made for the right of …