Interrogating Iqbal: Intent, Inertia, And (A Lack Of) Imagination, 2010 Penn State Law
Interrogating Iqbal: Intent, Inertia, And (A Lack Of) Imagination, Victor C. Romero
In Ashcroft v. Iqbal, the Court reaffirmed the long-standing equal protection doctrine that government actors can only be held liable for discriminatory conduct when they purposefully rely on a forbidden characteristic, such as race or gender, in promulgating policy; to simply know that minorities and women will be adversely affected by the law does not deny these groups equal protection under the law. This Essay interrogates this doctrine by taking a closer look at Iqbal and Feeney, the thirty-year-old precedent the majority cited as the source of its antidiscrimination standard. Because Feeney was cited in neither of the lower court ...
Immigration And The Civil Rights Agenda, 2010 Yale Law School
Immigration And The Civil Rights Agenda, Cristina M. Rodríguez
Faculty Scholarship Series
During Congress's efforts to pass comprehensive immigration reform in
2006 and 2007, media and academic commentators characterized the activism
that animated the immigrant community as the beginnings of a civil rights
struggle' -one that would dovetail with the growing political power of the country's Latino population to produce a major new social movement. These
predictions were stirring, and the large-scale immigration marches of 2006,
which helped prevent the passage of a House bill that would have made
unlawful status a felony rather than adopt a legalization program, illuminated
the agency and power of immigrant communities. But the intensity ...
Immigration As Urban Policy, 2010 University at Buffalo School of Law
Immigration As Urban Policy, Rick Su
Immigration has done more to shape the physical and social landscape of many of America’s largest cities than almost any other economic or cultural force. Indeed, immigration is so central to urban development in the United States that it is a wonder why immigration is not explicitly discussed as an aspect of urban policy. Yet in the national conversation over immigration, one would strain to hear it described in this manner. This essay addresses this oversight by making the case for a reorientation of immigration toward urban policy; and it does so by advocating for an immigration regime that ...
Lessons Learned, Lessons Lost: Immigration Enforcement's Failed Experiment With Penal Severity, 2010 University at Buffalo School of Law
Lessons Learned, Lessons Lost: Immigration Enforcement's Failed Experiment With Penal Severity, Teresa A. Miller
This article traces the evolution of “get tough” sentencing and corrections policies that were touted as the solution to a criminal justice system widely viewed as “broken” in the mid-1970s. It draws parallels to the adoption some twenty years later of harsh, punitive policies in the immigration enforcement system to address perceptions that it is similarly “broken,” policies that have embraced the theories, objectives and tools of criminal punishment, and caused the two systems to converge. In discussing the myriad of harms that have resulted from the convergence of these two systems, and the criminal justice system’s recent shift ...
The Overlooked Significance Of Arizona's New Immigration Law, 2010 University at Buffalo School of Law
The Overlooked Significance Of Arizona's New Immigration Law, Rick Su
The current debate over Arizona's new immigration statute, S.B. 1070, has largely focused on the extent to which it “empowers” or “allows” state and local law enforcement officials to enforce federal immigration laws. Yet, in doing so, the conversation thus far overlooks the most significant part of the new statute: the extent to which Arizona mandates local immigration enforcement by attacking local control. The fact is the new Arizona law does little to adjust the federalist balance with respect to immigration enforcement. What it does, however, is threaten to radically alter the state-local relationship by eliminating local discretion ...
Local Fragmentation As Immigration Regulation, 2010 University at Buffalo School of Law
Local Fragmentation As Immigration Regulation, Rick Su
Immigration scholars have traditionally focused on the role of national borders and the significance of nation-state citizenship. At the same time, local government scholars have called attention to the significance of local boundaries, the consequence of municipal residency, and the influence of the two on the fragmentation of American society. This paper explores the interplay between these two mechanisms of spatial and community controls. Emphasizing their doctrinal and historic commonalities, this article suggests that the legal structure responsible for local fragmentation can be understood as second-order immigration regulation. It is a mechanism that allows for finer regulatory control than the ...
Leveraging Asylum, 2010 University of Michigan Law School
Leveraging Asylum, James C. Hathaway
I believe that the analysis underlying the leveraged right to asylum is conceptually flawed. As I will show, there is no duty of non-refoulement that binds all states as a matter of customary international law and it is not the case that all persons entitled to claim protection against refoulement of some kind are ipso facto entitled to refugee rights. These claims are unsound precisely because the critical bedrock of a real international legal obligation-namely, the consent of states evinced by either formal commitments or legally relevant actions -does not yet exist.
The Veil That Covered France's Eye: The Right To Freedom Of Religion And Equal Treatment In Immigration And Naturalization Proceedings, 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law
The Veil That Covered France's Eye: The Right To Freedom Of Religion And Equal Treatment In Immigration And Naturalization Proceedings, Kendal Davis
Nevada Law Journal
In June 2008, France’s highest administrative court upheld a decision to deny citizenship to a Muslim woman because, essentially, she was ‘not French enough.’ This decision incited both praise and outrage in the international human rights arena regarding considerations such as the right to freedom of religion, gender equality, and citizenship.
This Note examines relevant French domestic law and international human rights instruments, and argues that while immigration and naturalization decisions remain an exercise of broad sovereign powers, the emerging human rights norm to be free from discrimination should apply in naturalization proceedings. Furthermore, despite judicial deference and flexibility ...
Rejecting Refugees: Homeland Security's Administration Of The One-Year Bar To Asylum, 2010 Georgetown University Law Center
Rejecting Refugees: Homeland Security's Administration Of The One-Year Bar To Asylum, Andrew I. Schoenholtz, Philip G. Schrag, Jaya Ramji-Nogales, James P. Dombach
Georgetown Law Faculty Publications and Other Works
Since 1980, the Refugee Act has offered asylum to people who flee to the United States to escape persecution in their homeland. In 1996, however, Congress amended the law to bar asylum – regardless of the merit of the underlying claim – for any applicant who fails to apply within one year of entering the United States, unless the applicant qualifies for one of two exceptions to the rule.
In the years since the bar was established, anecdotal reports have suggested that genuine refugees, with strong merits claims to asylum, have been rejected solely because of the deadline. Many scholars and practitioners ...
A Statute In Particularly Serious Need Of Reinterpretation: The Particularly Serious Crime Exception To Withholding Of Removal, 2010 Boston College Law School
A Statute In Particularly Serious Need Of Reinterpretation: The Particularly Serious Crime Exception To Withholding Of Removal, Michael Mcgarry
Boston College Law Review
Withholding of removal provides that a deportable alien may avoid removal if she can show that it is more likely than not that her life or freedom will be threatened if she is removed to a particular country. Aliens are not eligible for withholding of removal, however, if they are found to have been convicted of a particularly serious crime as defined by 8 U.S.C. § 1231(b)(3)(B)(ii). Although Congress provided a per se definition of a particularly serious crime in the statute, the majority of U.S. courts of appeals have held that immigration judges ...
Conference On Privacy And Internet Access To Court Files, Panel Two: Should There Be Remote Public Access To Court Filings In Immigration Cases?, Robert Hinkle, David Mccraw, Daniel Kanstroom, Eleanor Acer
Boston College Law School Faculty Papers
No abstract provided.
Forced Marriage As A Harm In Domestic And International Law, 2010 Allard School of Law at the University of British Columbia
Forced Marriage As A Harm In Domestic And International Law, Catherine Dauvergne, Jenni Millbank
This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages ...
Entering The Mainstream: Making Children Matter In Immigration Law, 2010 Michigan State University College of Law
Entering The Mainstream: Making Children Matter In Immigration Law, David B. Thronson
No abstract provided.
Thinking Small: The Need For Big Changes In Immigration Law's Treatment Of Children, 2010 Michigan State University College of Law
Thinking Small: The Need For Big Changes In Immigration Law's Treatment Of Children, David B. Thronson
No abstract provided.
The Alienage Spectrum Disorder: The Bill Of Rights From Chinese Exclusion In Guantanamo, 2010 Seattle University School of Law
The Alienage Spectrum Disorder: The Bill Of Rights From Chinese Exclusion In Guantanamo, Won Kidane
The fundamental notion that increased ties to the polity of the United States would entitle an alien to better rights is deeply-rooted in the jurisprudence. Ordinarily, these rights tend to strengthen as one moves forward from the beginning of the spectrum, which might involve the most attenuated contact, as in the case of enemy aliens detained by United States military in a foreign land or an overseas visa applicant, to the end of the spectrum, which might involve a United States citizen. While this seems to make perfect sense, this article argues that a closer examination of the century-old jurisprudence ...
The Terrorism Bar To Asylum In Australia, Canada, The United Kingdom, And The United States: Transporting Best Practices, 2010 Seattle University School of Law
The Terrorism Bar To Asylum In Australia, Canada, The United Kingdom, And The United States: Transporting Best Practices, Won Kidane
The contemporary threat of terrorism that the Western world faces is primarily from so-called “aliens.” As such, the laws that are meant to combat terrorism necessarily involve the regulation of the admission and exclusion of aliens. This type of regulation is traditionally the purview of immigration law. Although the link between national security and immigration is by no means contemporary, the existing level of intersection between antiterrorism laws and immigration is essentially a post- 9/11 phenomenon.
The reason for this phenomenon is that the 9/11 attacks were planned and executed by aliens. Although there has not been a ...
Transnational Regulation Of Migration, 2010 Yale Law School
Transnational Regulation Of Migration, Cristina M. Rodríguez
Faculty Scholarship Series
Two significant conceptual errors frame the public debate
concerning labor migration and the related phenomenon of illegal
immigration. Each error stems from lawmakers’ failure or refusal to
recognize the ongoing and transnational nature of migration. First, the
immigration debate occurs largely within a domestic political framework,
and the assumption that the United States can address immigration
issues, particularly illegal immigration, through the perfection of
domestic enforcement mechanisms pervades the discourse. But
migration is inherently international, and its management requires
engagement with other governments and with social facts beyond U.S.
control. Second, the rhetorical emphasis placed on “fixing” our broken ...
Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, 2010 University of Miami School of Law
Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless
No abstract provided.
Immigration As Invasion: Sovereignty, Security, And The Origins Of The Federal Immigration Power, 2010 University of Baltimore School of Law
Immigration As Invasion: Sovereignty, Security, And The Origins Of The Federal Immigration Power, Matthew Lindsay
All Faculty Scholarship
This Article offers a new interpretation of the modern federal immigration power. At the end of the nineteenth century, the Supreme Court and Congress fundamentally transformed the federal government’s authority to regulate immigration, from a species of commercial regulation firmly grounded in Congress’ commerce authority, into a power that was unmoored from the Constitution, derived from the nation’s “inherent sovereignty,” and subject to extraordinary judicial deference. This framework, which is commonly referred to as the “plenary power doctrine,” has stood for more than a century as an anomaly within American public law. The principal legal and rhetorical rationale ...
Reform In California's Immigration Enforcement And Immigration Court, 2010 Claremont McKenna College
Reform In California's Immigration Enforcement And Immigration Court, Nelson E. Gil
CMC Senior Theses
According to the Department of Homeland Security, Office of Immigration Statistic, California accounts for approximately 2,600,000 illegal immigrants in 2009. This number represents about 25 percent of the entire estimated illegal immigrant population in the United States, which is roughly 10.8 million. Between 2003 and 2008, the U.S. government removed 1,446,338 noncitizens from the United States. This rise in deportation is a result o the changes that have been enacted by the federal government over the years that transformed the nature of immigration enforcement. This thesis explores the California Immigration Enforcement system from the ...