Immigration Law Commons^™

The Wonderful World Of Disney Visas, Kit Johnson

Faculty Articles

International workers play an important role in perpetuating the carefully crafted fantasy that to visit the Walt Disney World Resort in Orlando, Florida is to be transported to far-off destinations around the globe. This Article examines how Disney has filled its need for these workers in two ways. For one, Disney has used a blend of chutzpah and ingenuity to forge new federal law establishing the Q visa. Additionally, Disney has dexterously used the existing J visa, along with an on-resort academic program, to bring international workers to Florida as students. An examination of Disney’s immigration practices offers insight into …

The Declaration Of Independence And Immigration In The United States Of America, Kenneth M. White

Faculty Articles

The United States has always been a nation of immigrants, and immigration policy has always been controversial. The history of immigration in the United States is contrasted in this article with a normative standard of naturalization (immigration policy) based on the Declaration of Independence. The current immigration debate fits within a historical pattern that pits an unrestricted right of immigration (the left) against exclusive, provincial politics (the right). Both sides are simultaneously correct and incorrect. A moderate policy on immigration is possible if the debate in the United States gets an infusion of what Thomas Paine called "common sense."

The First To Go: If The Budget Sinks The Ship Of State, Will Immigrants Get The Heave-Ho?, Justin Mcdevitt

Public Interest Law Reporter

No abstract provided.

A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan

St. Mary's Law Journal

The Texas Supreme Court recently rendered several decisions involving governmental entities reflecting the court’s inflexible application of the doctrine of sovereign immunity. These decisions raise concerns that the Court may be insulating government employees from adherence to ethical codes of conduct. Just as Congress enacted legislation requiring accuracy and reliability from financial officers of corporations, there exists a similar need for Texas courts to protect the public from governmental harm through misconduct. The current awareness of governmental officials lessens the likelihood of governmental transparency and accountability. This Article analyzes the Court’s current application of the sovereign immunity doctrine to provide …

No Exception To The Rule: The Unconstitutionality Of State Immigration Enforcement Laws, Pratheepan Gulasekaram

Publications

No abstract provided.

¡Silencio! Undocumented Immigrant Witnesses And The Right To Silence, Violeta R. Chapin

Publications

At a time referred to as "an unprecedented era of immigration enforcement," undocumented immigrants who have the misfortune to witness a crime in this country face a terrible decision. Calling the police to report that crime will likely lead to questions that reveal a witness's immigration status, resulting in detention and deportation for the undocumented immigrant witness. Programs like Secure Communities and 287(g) partnerships evidence an increase in local immigration enforcement, and this Article argues that undocumented witnesses' only logical response to these programs is silence. Silence, in the form of a complete refusal to call the police to report …

Reflections On The Special Humanitarian Parole Program For Haitian Orphans, Whitney A. Reitz

NYLS Law Review

No abstract provided.

Refugee Law And Policy: A Comparative And International Approach, Jennifer Moore, Karen Musalo, Richard A. Boswell

Faculty Book Display Case

The fourth edition of Refugee Law and Policy, which includes all legal developments through mid-2010, provides a thoughtful scholarly analysis of refugee law, and related protections such as those available under the Convention against Torture. The book is rooted in an international law perspective, enhanced by a comparative approach. Starting with ancient precursors to asylum, the casebook portrays refugee law as dynamic across time and cultural contexts. This edition of the casebook has incorporated substantial new materials on the cutting edge area of social group claims, and their relevance to claims for protection based on gender-persecution and LGBT status. …

Helping Haiti In The Wake Of Disaster: Law Students As First Responders, Melissa Gibson Swain, Jonel Newman

Intercultural Human Rights Law Review

This is the story of how we put an immediate-need and longer-term TPS service effort together, the lessons we learned in doing so, and what we believe to be a sustainable clinical pedagogy, and law school service model built around disaster assistance and recovery. We begin by examining how lawyers and law students have traditionally made valuable contributions to disaster response by using their legal training. All too often, those efforts have been hampered by the post-disaster ad hoc nature in which they have been constructed, and by the limitations inherent in the relatively small number of lawyers available to …

In Times Of Famine, Sweet Potatoes Have No Skin: A Historical Overview And Discussion Of Post-Earthquake U.S. Immigration Policy Towards The Haitian People, Jordan E. Dollar, Allison D. Kent

Intercultural Human Rights Law Review

This article is an examination of the U.S. immigration policy towards Haitians both before and after the January 12, 2010 earthquake. In order to understand the U.S. policy response and the Haitian community's reaction to said policy, it is imperative to first understand the historical framework of the U.S. immigration policy towards Haitians. Fundamentally, the U.S. immigration policy towards Haitians is based on two erroneous premises: (1) Haitians are only economic migrants; and (2) fair immigration treatment of Haitians will lead to a mass migration into the U.S.

Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan

Cardozo Law Review

Though unauthorized migration into the United States has diminished substantially since 2007, anti-"illegal alien" state and local laws and furor are flaring again. While one of the biggest worries regarding such "anti-alien" laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive, national unity-rebuilding as well as divisive, inflammatory ways. Anti-alien legislation is a proxy way to vent resurgent racialized …

A Tale Of Two Decades: War Refugees And Asylum Policy In The European Union And The United States, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits., Stephen T. Black, Katherine D. Black, Michael D. Black

St. Mary's Law Journal

When a litigant receives an award of damages or agrees to a settlement of a lawsuit for which the litigant and her attorney have agreed to a contingent fee, a portion of those damages or the settlement is paid to the attorney. For income tax purposes, there is a question of whether the litigant should include the portion paid to her attorney as her own income. The question is not merely academic. In a tax system that does not always allow the litigant to deduct her attorney's fees, the litigant may end up paying tax on money that she never …

Unforgiving Of Those Who Trespass Against U.S.: State Laws Criminalizing Immigration, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

Since around 2005, states and localities have been using criminal trespass laws to target undocumented immigrants for unlawful presence. Specifically, in April 2010, Arizona passed SB 1070: Support Our Law Enforcement and Safe Neighborhoods Act. SB 1070 creates crimes involving trespassing by “illegal aliens” and harboring or concealing unlawful aliens. This paper argues that state trespass laws that criminalize unlawful presence of immigrants are unconstitutional regulations of immigration and are a preempted exercise of state power. In evaluating the constitutionality of state trespass laws that criminalize immigration status, this paper proceeds in three parts. The first part of the paper …

Compassionate Immigration Reform, Steven W. Bender

Faculty Articles

Ideals of comprehensive immigration reform have been co-opted by advocates of border and internal security and enforcement, leaving behind our aspirations as a compassionate nation of immigrants. Mindful of the tension between blind adherence to the rule of law and the goal of empathetic immigration policy, I suggest a reframing of comprehensive immigration reform as compassionate reform and sketch the details of this transformative policymaking approach.

Focusing on the life-threatening journey of undocumented immigrants and the perils they and their families face once inside the United States, I argue for a time-out on deaths at the border and on workplace …

Faces Of Immigration Reform, Steven W. Bender

Faculty Articles

Recognizing the need for a sympathetic construction of immigrants as a precursor to comprehensive immigration reform that goes beyond enforcement prerogatives, this article surveys the various “faces” of immigration reform - both of advocates for progressive reform and the potentially sympathetic group images they wield. The article concludes that no image - whether of undocumented workers generally, farm laborers, immigrant children and Dreamers, or undocumented veterans - is poised to garner sympathy from voters and policymakers, particularly against the backdrop of the current economic crisis. Reform may hinge, then, on interest convergence so powerful that it transcends the prevailing negative …

Opening The Floodgates Or Filing The Gap: Perdomo V. Holder Advances The Ninth Circuit One Step Closer To Recognizing Gender-Based Asylum Claims, Jesse Imbriano

Villanova Law Review (1956 - )

No abstract provided.

Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan

Articles

Though unauthorized migration into the United States has diminished substantially since 2007, anti-“illegal alien” state and local laws and furor are flaring again. While one of the biggest worries regarding such “anti-alien” laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. [PARA] This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive, national unity-rebuilding as well as divisive, inflammatory ways. Anti-alien legislation is a proxy way to vent resurgent …

Secular Not Secularist America, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Is Ze An American Or A Foreigner? Male Or Female? Ze's Trapped!, Annette De La Torre

Cardozo Journal of Equal Rights & Social Justice

The note argues that the legal and medical frameworks governing the treatment of transgender and transsexual immigrant detainees in U.S. Immigration and Customs Enforcement (ICE) facilities are inadequate, leading to violations of their Eighth Amendment rights. It contends that the legal system's reliance on narrow medical definitions and outdated gender roles fails to protect these detainees from unsafe and inhumane conditions. The analysis emphasizes the need for comprehensive reforms to address housing, medical care, and staff training to ensure dignity and safety for transgender detainees.

Inside The Border, Outside The Law: Undocumented Immigrants And The Fourth Amendment, D. Carolina Nuñez

Faculty Scholarship

As states enact immigration-related laws requiring local law enforcement officers to identify and detain undocumented immigrants, the Fourth Amendment rights of aliens are becoming critically important. In United States v. Verdugo-Urquidez, a divided Supreme Court suggested that aliens in the United States do not have Fourth Amendment rights unless they have established "substantial connections" to the United States. Lower courts have relied on Verdugo's holding to categorically deny Fourth Amendment rights to certain classes of undocumented immigrants. Commentators have criticized the "substantial connections" test as an isolated misinterpretation of Court precedent regarding the rights of aliens within the United States. …

Constitutionalizing Immigration Law On Its Own Path, Anne R. Traum

Scholarly Works

Courts should insist on heightened procedural protections in immigration adjudication. They should do so under the Fifth Amendment’s Due Process Clause rather than by importing Sixth Amendment protections from the criminal context. Traditional judicial oversight and the Due Process Clause provide a better basis than the Sixth Amendment to interpose heightened procedural protections in immigration proceedings, especially those involving removal for a serious criminal conviction. The Supreme Court’s immigration jurisprudence in recent years lends support for this approach. The Court has guarded the availability of judicial review of immigration decisions. It has affirmed that courts are the arbiters of constitutional …

Implicit Bias And Immigration Courts, Fatma Marouf

Scholarly Works

This Article highlights the importance of implicit bias in immigration adjudication. After tracing the evolution of prejudice in our immigration laws from explicit "old-fashioned" prejudice to more subtle forms of "modem" and "aversive" prejudice, the Article argues that the specific conditions under which immigration judges decide cases render them especially prone to the influence of implicit bias. Specifically, it examines how factors such as immigration judges' lack of independence, limited opportunity for deliberate thinking, low motivation, and the low risk of judicial review all allow implicit bias to drive decisionmaking. The Article then recommends certain reforms, both simple and complex, …

Boyd Law's Thomas & Mack Clinic Scores Important Ninth Circuit Victory, Anne R. Traum

Scholarly Works

No abstract provided.

Protecting Immigrant Workers Through Interagency Cooperation, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

Stephen Lee’s Monitoring Immigration Enforcement offers a promising prescription for resolving the long-standing tension between the workplace enforcement priorities of the Department of Homeland Security (“DHS”) and the efforts by the Department of Labor (“DOL”) to protect the rights of immigrant workers. Lee convincingly describes - often with the aid of rich historical examples - the origins of the chronic imbalance of power between DHS and the DOL, and the limitations of past efforts to synchronize the work of the respective agencies. Lee’s proposal for interagency coordination, in the form of ex ante monitoring by the DOL of worksite enforcement …

9/11 And The Transformation Of U.S. Immigration Law And Policy, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Paradox Of Law Enforcement In Immigrant Communities: Does Tough Immigration Enforcement Undermine Public Safety?, David Kirk, Andrew V. Papachristos, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Frustrated by federal inaction on immigration reform, several U.S. states in recent years have proposed or enacted laws designed to stem the flow of illegal immigrants into the U.S. and to facilitate their removal. An underappreciated implication of these laws is the potential alienation of immigrant communities – even law abiding, cooperative individuals – from the criminal justice system. The ability of the criminal justice system to detect and sanction criminal behavior is dependent upon the cooperation of the general public, including acts such as the reporting of crime and identifying suspects. Cooperation is enhanced when local residents believe that …

The Search For Fair Agency Process: The Immigration Opinions Of Judge Michael Daly Hawkins, 1994-2010, Lenni B. Benson

Articles & Chapters

Judge Michael Daly Hawkins has been a member of the Ninth Circuit Court of Appeals since 1994; but he has been concerned with the forms and varieties of administrative or bureaucratic process his entire career. When he became a member of the federal judiciary, his role was clearly altered. However, his commitment to fairness and integrity in adjudication remained undiminished. This article will explore some of Judge Hawkins’s many immigration decisions, both majority and dissenting opinions, which reflect his commitment to the preservation of a due process.

The reality of immigration adjudication in the Ninth Circuit is that there are …

Rethinking Indirect Victim Eligibility For U Non-Immigrant Visas To Better Protect Immigrant Families And Communities, Elizabeth Mccormick

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Political Origins And Development Of Australia’S People Smuggling Legislation: Evil Smugglers Or Extreme Rhetoric?, Jack H. Smit

Theses: Doctorates and Masters

This thesis explores the Australian State response to the voyage facilitators of maritime asylum seekers, commonly known as ‘people smugglers’. It does so by examining a number of Parliamentary debates and previously confidential Cabinet papers. Negative depictions of asylum seekers and their voyage facilitators as well as the prevailing political discourse is critically explored while Parliamentary debates are analysed using Critical Discourse Analysis. The research questions the ways Australian legislators justified the criminalisation of these voyage facilitators and investigates whether political elites were sufficiently informed about the circumstances of maritime asylum seeker journeys and the unique nature of their travel …