Book Notes 45 Law and Social Inquiry 1185 (November, 2020) L1-2CONTENTS Constitutional Theory and History. 1186 Criminal Justice and Social Control: Capital Punishment. 1186 Criminal Justice and Social Control: The Carceral State. 1187 Criminal Justice and Social Control: General. 1187 Criminal Justice and Social Control: Policing. 1188 Human Rights. 1189 Islamic Law and Society. 1189 Judicial Selection.... 2020
Ernesto Hernández-López BORDER BRUTALISM 46 Fordham International Law Journal 213 (January, 2023) Concepts like freedom and liberty motivate Americans on the global stage. This has racial implications past and present. Exploring these arguments, this Essay: (1) reviews Greg Grandin's The End of the Myth: From the Frontier to the Border Wall in the Mind of America and (2) proposes a framework to identify law's place in these motivations. The End... 2023
Kate Huddleston Border Checkpoints and Substantive Due Process: Abortion Rights in the Border Zone 125 Yale Law Journal 1744 (April, 2016) This Note assesses the constitutionality of Texas House Bill 2 (H.B. 2), which regulates abortion providers, as applied to clinics located in the area between the state's border with Mexico and internal federal immigration checkpoints. Should these statutory provisions go into full effect and lead to these clinics' closure, undocumented immigrants... 2016
Natsu Taylor Saito Border Constructions: Immigration Enforcement and Territorial Presumptions 10 Journal of Gender, Race and Justice 193 (Winter 2007) Securing our border is essential to securing the homeland. . . . I appreciate once again being here with the Border and Immigration Security officers. . . . By defending our border, you're defending our liberty, and our citizens, and our way of life. President George W. Bush, November 28, 2005, Tucson, Arizona In the post-September 11th world,... 2007
Jennifer M. Chacón Border Exceptionalism in the Era of Moving Borders 38 Fordham Urban Law Journal 129 (November, 2010) Historically, the courts have indicated that the tasks of enacting and enforcing immigration laws are federal functions. The federal agents who police the nation's borders have exceptionally broad policing authority--an authority that the courts have justified based on the special need to secure the nation's borders from a variety of threats. Part... 2010
Gabriela A. Gallegos Border Matters: Redefining the National Interest in U.s.-mexico Immigration and Trade Policy 92 California Law Review 1729 (December, 2004) Introduction. 1730 I. The Standard Story: Economics-Based Justifications for Trade and Immigration Policies. 1734 A. Macroeconomics-Based Trade Liberalization Policy. 1735 B. Microeconomics-Based Restrictive Immigration Policy. 1738 II. The Real Story: Nativistic Racism Plus Economic Interest. 1740 A. Nativistic Racism Defined. 1740 B. Nativistic... 2004
Christopher J. Walker Border Vigilantism and Comprehensive Immigration Reform 10 Harvard Latino Law Review 135 (Spring, 2007) We must begin by recognizing the problems with our immigration system. For decades, the United States has not been in complete control of its borders .. We're a nation of laws, and we must enforce our laws. We are also a nation of immigrants, and we must uphold that tradition, which has strengthened our country in so many ways. These are not... 2007
Sara Daly Bordering on Discrimination: Effects of Immigration Policies/legislation on Indigenous Peoples in the United States and Mexico 38 American Indian Law Review 157 (2013-2014) Border security and state immigration legislation are issues that many Americans love to hate. By and large, there is little debate about the need for national security measures at the borders. However, when it comes to the implementation of policies that actually attempt border security and immigration enforcement, the end results risk stifling... 2014
Richard Delgado , Jean Stefancic Borders by Consent: a Proposal for Reducing Two Kinds of Violence in Immigration Practice 52 Arizona State Law Journal 337 (Summer, 2020) We describe a new consensual theory of borders and immigration that reverses Peter Schuck's and Rogers Smith's notion of citizenship by consent and posits that borders are legitimate--and make sense--only if they are products of consent on the part of both countries on opposite sides of them. Our approach, in turn, leads to differential borders... 2020
Nick Petree Born in the Usa: an All-american View of Birthright Citizenship and International Human Rights 34 Houston Journal of International Law 147 (Fall 2011) I. INTRODUCTION. 148 II. IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES. 151 A. History of Immigration. 151 B. Citizenship. 153 III. THE HISTORY AND RIGHTS UNDERLYING THE FOURTEENTH AMENDMENT. 159 A. Debate Over the Meaning. 159 B. The Historical Context of the Fourteenth Amendment. 163 C. Conflict Between the Purpose of the Fourteenth Amendment... 2011
Taunya Lovell Banks Both Edges of the Margin: Blacks and Asians in Mississippi Masala, Barriers to Coalition Building 5 Asian Law Journal L.J. 7 (May, 1998) Asians often take the middle position between White privilege and Black subordination and therefore participate in what Professor Banks calls simultaneous racism, where one racially subordinated group subordinates another. She observes that the experience of Asian Indian immigrants in Mira Nair's film parallels a much earlier Chinese immigrant... 1998
Stewart Chang Bridging Divides in Divisive Times: Revisiting the Massie-fortescue Affair 42 University of Hawaii Law Review Rev. 4 (Spring, 2020) This Article revisits the infamous Massie-Fortescue rape and murder cases that occurred in Hawai'i during the 1930s, in order to challenge the methods by which race scholars have previously analyzed the case by relying on gender hierarchies. Thalia Massie, a white woman, accused five Hawaiians of gang raping her, even though they were of various... 2020
Tom I. Romero, II Bridging the Confluence of Water and Immigration Law 48 Texas Tech Law Review 779 (Summer, 2016) I. Introduction. 780 II. The Irrigation Era and the Need for a Docile Labor Supply. 782 III. The Metropolitan Revolution and the Rise of the Illegal Gardner. 798 IV. The Great Local Thirst for Proper Documentation. 807 V. Conclusion. 815 Appendix: A Timeline of Important Moments in Water and Immigration Law and Policy. 817 2016
Rachel K. Alexander Bridging the Title Vii Gap: Protecting All Workers from "Work Authorization" Discrimination 10 University of Maryland Law Journal of Race, Religion, Gender and Class 199 (Fall 2010) Despite the numerous laws protecting workers in the United States, a gap remains that leaves all categories of workers unprotected under certain circumstances. Many scholars have examined protections and remedies available to unauthorized immigrant workers, including existing protections after the United States Supreme Court's decision in Hoffman... 2010
Victor M. Hwang, Asian Pacific Islander Legal Outreach Brief of Amici Curiae Asian Pacific Islander Legal Outreach and 28 Asian Pacific American Organizations, in Support of All Respondents in the Six Consolidated Marriage Cases, Lancy Woo and Cristy Chung, et Al., Respondents, V. Bill Lockyer, et Al., Appell 13 Asian American Law Journal 119 (November, 2006) Asian and Pacific Islander (API) people in this country are intimately familiar with the enormous harm that marriage discrimination causes families, individuals, and communities. Since the very beginning of our immigration to the United States and for much our history in California, Asians and Pacific Islanders have been denied equal access to... 2006
Richard Frankel BRINGING "CIVIL"ITY INTO IMMIGRATION LAW: USING THE FEDERAL RULES OF CIVIL PROCEDURE TO FIX IMMIGRATION ADJUDICATION 76 Vanderbilt Law Review 1379 (October, 2023) Government lawyers frequently argue, and courts have frequently held, that noncitizens in removal proceedings do not have the same rights as defendants in criminal proceedings. A common argument made to support this position is that removal proceedings are civil matters. Accordingly, a noncitizen facing deportation has fewer due process protections... 2023
Kevin R. Johnson BRINGING RACIAL JUSTICE TO IMMIGRATION LAW 116 Northwestern University Law Review Online 1 (May 13, 2021) From at least as far back as the anti-Chinese laws of the 1800s, immigration has been a place of heated racial contestation in the United States. Although modern immigration laws no longer expressly mention race, their enforcement unmistakably impacts people of color from the developing world. Specifically, the laws, as enacted and... 2021
Victor C. Romero Broadening Our World: Citizens and Immigrants of Color in America 27 Capital University Law Review 13 (1998) Your world is as big as you make it. I know, for I used to abide In the narrowest nest in a corner, My wings pressing close to my side. But I sighted the distant horizon Where the sky line encircled the sea And I throbbed with a burning desire To travel this immensity. I battered the cordons around me And cradled my wings on the breeze Then soared... 1998
Hiroshi Motomura Brown V. Board of Education, Immigrants, and the Meaning of Equality 49 New York Law School Law Review 1145 (2004-2005) Being asked to speak at a symposium on Brown v. Board of Education about the impact of Brown on immigration law is very much like being asked to teach immigration law at the University of North Carolina in Chapel Hill. Much of my personal challenge at UNC is to think about issues of race and equality, but in the specific ways that the study of... 2005
Anton F. Mertens Build a Better Mousetrap and the World Will Beat a Path to Your Door : Can the Employment-based Immigration Process Be Improved? 5 John Marshall Law Journal 513 (Spring 2012) I. Introduction. 514 II. Historical Perspective. 515 A. Immigration History Before 1900. 518 B. Immigration History from 1900 to 1952. 520 C. The Immigration and Nationality Act of 1952 to Present. 523 III. Overview of the Employment-Based Immigration Process. 527 A. Employment-Based Immigration Preference System. 529 1. First Preference. 530 2.... 2012
Ernesto Sagás , Ediberto Román Build the Wall and Wreck the System: Immigration Policy in the Trump Administration 26 Texas Hispanic Journal of Law and Policy 21 (Spring, 2020) When Donald J. Trump launched his presidential bid in 2015, he promised: I will build a great, great wall on our southern border. And I will have Mexico pay for that wall. Mark my words. He often repeated this promise at campaign rallies, sparking chants of Build the wall! Build the wall! from an ecstatic crowd. However, as of early 2020,... 2020
Audrey E. Martin BUILDING TREATIES INSTEAD OF WALLS: HOW NAFTA AND THE USMCA MAKE THE CASE FOR TREATIES AS THE FUTURE OF U.S. IMMIGRATION POLICY 95 Tulane Law Review 387 (January, 2021) I. Introduction. 387 II. Mexican Immigration to the United States: Now and Then. 390 A. Setting the Scene: Modern U.S.-Mexico Immigration. 391 B. Understanding the Past: The History of U.S. Immigration Law and Mexico. 394 III. Solving the Problem by Treaty: The EU Case Study. 401 A. The EU Model: Exploring the Articles. 403 B. The EU Model:... 2021
Kristin A. Collins Bureaucracy as the Border: Administrative Law and the Citizen Family 66 Duke Law Journal 1727 (May, 2017) This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal... 2017
Amit Jain Bureaucrats in Robes: Immigration "Judges" and the Trappings of "Courts" 33 Georgetown Immigration Law Journal 261 (Winter, 2019) As U.S. immigration policy and its human impact gain popular salience, some have questioned whether immigration courts--often the first-line adjudicators of deportation--are courts at all in the American adversarial legal tradition. This Article aims to answer this question through a focus on the role of the immigration judge (IJ). Informed by... 2019
Shoba Sivaprasad Wadhia Business as Usual: Immigration and the National Security Exception 114 Penn State Law Review 1485 (Spring 2010) I. Introduction. 1486 II. Continuing Impact of Post 9-11 Immigration Practices. 1491 A. PENTBOTTM Detentions and OIG Detainee Report. 1401 B. OIG MDC Report. 1493 C. Turkmen Lawsuit. 1495 D. 48 Hour Rule. 1497 E. Closed Hearings. 1499 F. Alien Absconder Initiative. 1499 G. Voluntary Interview Program. 1501 H. Special Registration. 1502 I. Other... 2010
Benny Agosto, Jr. , Lupe Salinas , Eloisa Morales Arteaga But Your Honor, He's an Illegal!--ruled Inadmissible and Prejudicial 17 Texas Hispanic Journal of Law and Policy 27 (Spring, 2011) C1-3Summary I. Introduction. 29 II. The Development of the American Immigrant Population. 30 III. The Treatment of Undocumented Aliens and Others in Criminal Cases. 34 A. Rule 403 Unfair Prejudice Standards. 34 B. Presentation of Unfairly Prejudicial Testimony in Criminal Cases. 35 1. Old Chief v. United States. 35 2. The State of Texas v. Ricardo... 2011
Erin B. Corcoran Bypassing Civil Gideon: a Legislative Proposal to Address the Rising Costs and Unmet Legal Needs of Unrepresented Immigrants 115 West Virginia Law Review 643 (Winter 2012) I. Introduction. 644 II. The Problem. 646 A. What Is at Stake: The Consequences of a Removal Order. 646 B. Barriers to Accessing Competent Representation. 649 C. Challenges for Pro Se Immigrants. 650 III. Efforts to Establish a Constitutional Right to Counsel in Civil Litigation (Civil Gideon) Have and Will Likely Continue to be Unsuccessful. 653... 2012
Brendan Joseph Pratt CAGES AND COMPENSATORY DAMAGES: SUING THE FEDERAL GOVERNMENT FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 68 UCLA Law Review 288 (May, 2021) The Trump Administration's zero-tolerance, family separation policy tore thousands of children from their parents. Federal law enforcement officers at the border have caged infants and returned traumatized teenagers to parents only after long periods of detention. The government frustrated family reunification efforts, perhaps indefinitely, by... 2021
Priscilla Mendoza Calentando Las Hieleras ("Warming up the Ice Boxes"): Holding For-profit, Private Detention Centers Accountable for Immigrant Detainees' Due Process Rights 44 Thurgood Marshall Law Review 163 (Spring, 2020) When most people hear hieleras or iceboxes, they are probably thinking of getting ready to take out the beers, sodas, and waters to a family cookout, camping trip or any other outdoor activity. However, that is not the case when you're speaking to immigrants, immigration lawyers, and immigration activists. The latter has a much crueler meaning... 2020
George Fishman CALIFORNIA DREAMIN': CAN STATE UNIVERSITIES LEGALLY HIRE NON-WORK AUTHORIZED ALIENS 48 Journal of College and University Law 95 (2023) A notable group of immigration law professors has assured California that it can allow its State universities to hire aliens not authorized to work under federal law, concluding that the Immigration Reform and Control Act of 1986's prohibition on hiring undocumented persons [known as employer sanctions] does not bind state government entities.... 2023
Vinay Harpalani, J.D., Ph.D. CAN "ASIANS" TRULY BE AMERICANS? 27 Washington and Lee Journal of Civil Rights and Social Justice 559 (Spring, 2021) Recent, tragic events have brought more attention to hate and bias crimes against Asian Americans. It is important to address these crimes and prevent them in the future, but the discourse on Asian Americans should not end there. Many non-Asian Americans are unaware or only superficially aware of the vast diversity that exists among us, along with... 2021
Mohar Ray Can I See Your Papers? Local Police Enforcement of Federal Immigration Law Post 9/11 and Asian American Permanent Foreignness 11 Washington and Lee Race and Ethnic Ancestry Law Journal 197 (Winter, 2005) If I see someone come in and he's got a diaper on his head and a fan belt around that diaper on his head, that guy needs to be pulled over and checked. U.S. Congressional Representative John Cooksey of Louisiana, Radio Announcement after September 11, 2001 In the aftermath of the September 11, 2001 terrorist attacks perpetuated by nineteen foreign... 2005
Daniel G. Orenstein , Stanton A. Glantz Cannabis Legalization in State Legislatures: Public Health Opportunity and Risk 103 Marquette Law Review 1313 (Summer, 2020) Cannabis is widely used in the United States and internationally despite its illicit status, but that illicit status is changing. In the United States, thirty-three states and the District of Columbia have legalized medical cannabis, and eleven states and D.C. have legalized adult use cannabis. A majority of state medical cannabis laws and all but... 2020
Brian G. Slocum Canons, the Plenary Power Doctrine, and Immigration Law 34 Florida State University Law Review 363 (Winter, 2007) There is a fundamental dichotomy in immigration law. On one hand, courts have consistently maintained that Congress has plenary power over immigration and reject most constitutional challenges on that basis. On the other hand, courts frequently use canons of statutory construction aggressively to help interpret immigration statutes in favor of... 2007
Shayak Sarkar CAPITAL CONTROLS AS MIGRANT CONTROLS 109 California Law Review 799 (June, 2021) The disparate treatment of capital and labor reflects one of globalization's central asymmetries: the law often allows financial capital, but not people, to move freely across borders. Yet scholars have largely neglected the intersection of these two regimes, the legal restrictions on migrants' capital, particularly when the migrants themselves are... 2021
Laura Fernandez Feitl Caring for the Elderly Undocumented Workers in the United States: Discretionary Reality or Undeniable Duty? 13 Elder Law Journal 227 (2005) Although contributing substantially to the economic growth of the United States, undocumented workers presently receive little return on their investment, as current immigration laws deprive them of the social benefits received by all other workers, namely social security benefits. In this note, Laura Fernandez Feitl examines the criteria which... 2005
Karen Korematsu Carrying on Korematsu: Reflections on My Father's Legacy 9 California Law Review Online 95 (January, 2020) Five months before he passed away, my father, Fred Toyosaburo Korematsu, gave me a charge: continue his mission to educate the public and remind people of the dangers of history. At that time, I was running my commercial interior design firm. I was far from a public speaker, educator, and civil rights advocate. However, for the previous four years... 2020
Ilyce Shugall , Rebecca Desnoyers Case Note: Orozco V. Mukasey: When an Entry May Not Be an "Admission" and the Fundamental Problems with the Ninth Circuit's Analysis 35 William Mitchell Law Review 68 (2008) I. Introduction. 69 II. Historical Background and Development. 74 A. A Brief Overview of the Immigration and Nationality Act. 74 B. Adjustment of Status Under INA section 245(a). 77 1. Background. 77 2. Current Provision. 80 C. The Term Admission . 81 1. Entry vs. Admission. 81 2. Multiple References in INA. 84 D. Waivers Authorized for Fraud and... 2008
Rusty Lookadoo CATCH-2022: HOW EUROPE'S DIVESTMENT OF ITS MARITIME MIGRATION OBLIGATIONS CONTINUES TO BURDEN THE SHIPPING INDUSTRY 47 Tulane Maritime Law Journal 163 (Winter, 2023) I. Introduction. 163 II. Background. 168 A. Legal Obligations Under the International Treaty Schema. 168 B. Attempts to Escape SAR Obligations. 171 III. Existing Responses to the Refugee Crisis. 172 A. Europe's Response Burdens the Shipping Industry. 173 B. The Legality of the U.K.'s Legislative Response. 176 IV. Resolving the Government-Industry... 2023
Sheldon A. Evans Categorical Nonuniformity 120 Columbia Law Review 1771 (November, 2020) The categorical approach, which is a method federal courts use to categorize which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law... 2020
Chad G. Marzen , William Woodyard II Catholic Social Teaching, the Right to Immigrate, and the Right to Regulate Borders: a Proposed Solution for Comprehensive Immigration Reform Based upon Catholic Social Principles 53 San Diego Law Review 781 (Fall, 2016) C1-2Table of Contents Introduction. 783 I. The Current Debate Concerning Immigration Reform. 793 A. Immigration to the U.S.--Statistical Trends and the Emerging Issues of Immigration to the U.S. 793 B. Background of Key Modern Immigration Laws. 794 1. The Immigration Reform and Control Act of 1986. 795 2. Illegal Immigration Reform and Immigrant... 2016
Brooke Rogers Cazorla V. Koch Foods of Mississippi, Llc: Where Discovery Issues Meet Current Immigration Policy 50 Loyola University Chicago Law Journal 459 (Winter 2018) In 2016, the Fifth Circuit addressed whether a district court's finding that Rule 26 of the Federal Rules of Civil Procedure allowed discovery of U-visa information from individual plaintiffs. The court declined to impose an order of its own. Instead, it remanded the case to the district court to devise an approach to U-visa discovery that... 2018
Kara W. Swanson CENTERING BLACK WOMEN INVENTORS: PASSING AND THE PATENT ARCHIVE 25 Stanford Technology Law Review (2022) (Spring, 2022) This Article uses historical methodology to reframe persistent race and gender gaps in patent rates as archival silences. Gaps are absences, positioning the missing as failed non-participants. By centering Black women inventors and letting the silences fill with whispered stories, this Article upends our understanding of the patent archive as an... 2022
Darlène Dubuisson , Patricia Campos-Medina , Shannon Gleeson , Kati L. Griffith CENTERING RACE IN STUDIES OF LOW-WAGE IMMIGRANT LABOR 19 Annual Review of Law and Social Science 109 (2023) race, racism, immigration, work, justice, rights This review examines the historical and contemporary factors driving immigrant worker precarity and the central role of race in achieving worker justice. We build from the framework of racial capitalism and historicize the legacies of African enslavement and Indigenous dispossession, which have... 2023
Robert S. Chang , Keith Aoki Centering the Immigrant in the Inter/national Imagination 10 La Raza Law Journal 309 (Spring 1998) In this Article, Professors Chang and Aoki examine the relationship between the immigrant and the nation in the complicated racial terrain known as the United States. Special attention is paid to the border which contains and configures the local, the national and the international. They criticize the contradictory impulse that has led to borders... 1998
Robert S. Chang , Keith Aoki Centering the Immigrant in the Inter/national Imagination 85 California Law Review 1395 (October, 1997) In this Article, Professors Chang and Aoki examine the relationship between the immigrant and the nation in the complicated racial terrain known as the United States. Special attention is paid to the border which contains and configures the local, the national and the international. They criticize the contradictory impulse that has led to borders... 1997
Danielle Kalil CERTIFIED DISASTER: A FAILURE AT THE INTERSECTION OF THE U VISA AND THE CHILD WELFARE SYSTEM 35 Georgetown Immigration Law Journal 513 (Winter, 2021) C1-3Table of Contents L1-2Introduction . L3514 I. U Nonimmigrant Status Offers Protection to Immigrant Victims of Crime. 518 A. Purpose and History of U Nonimmigrant Status. 521 B. How U Nonimmigrant Status Works. 523 C. The Helpfulness Requirement and Law Enforcement Certification. 526 D. Defining Certifying Agency. 529 E. Special Considerations... 2021
Eric Mogilnicki, B. Graves Lee, (, (, Covington & Burling, LLP CFPB AND DOJ STATEMENT CAUTIONS AGAINST CONSIDERATION OF IMMIGRATION STATUS UNDER FAIR LENDING LAWS 2023-OCT Business Law Today 51 (October, 2023) On October 12, the CFPB and Department of Justice issued ( a joint statement... 2023
Rose Cuison Villazor Chae Chan Ping V. United States: Immigration as Property 68 Oklahoma Law Review 137 (Fall, 2015) There is arguably no other case that is more familiar to immigration legal scholars than Chae Chan Ping v. United States. Chae Chan Ping, a Chinese laborer and long-term non-citizen resident of the United States found himself excluded at the border after a trip to China. Border officers denied him entry under an amendment to the Chinese Exclusion... 2015
Adina B. Appelbaum Challenging Crimmigration: Applying Padilla Negotiation Strategies Outside the Criminal Courtroom 6 Georgetown Journal of Law & Modern Critical Race Perspectives 217 (Fall, 2014) Crimmigration, the nexus of criminal and immigration law, means that each year, hundreds of thousands of noncitizens are arrested for minor or nonviolent crimes, convicted in criminal court, placed in immigration court deportation proceedings, and deported. The U.S. government has criminalized immigrants at an increasing rate over time, and law... 2014
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