Law Review Essays and Articles

Fragile Immigration Legality Collapses in the Trump Era

People often think of immigration legality in black and white terms—immigrants are “documented” or “undocumented”; they are present “legally” or “illegally.” There has long been, however, a significant gray area of quasi-legality in the U.S. immigration system. This gray area expanded for decades due to diverging policies of the executive and legislative branches, which each play a role in the formation of immigration policy. The presidency of Donald Trump and its anti-immigration agenda exposed the vulnerability of this class of quasi-status immigrants who were long lawfully present in the country, but for whom Congress had not established a pathway to secure permanent legal status. This Article explains the rise of quasi-status immigration and how the Trump administration was able to exploit it. It also offers solutions for the Biden administration and Congress to help remedy the system.

Americans, But Not Citizens: An Argument for Nationality-Based Asylum Protection

Since 2017 the Trump administration has been undoing immigration protections for hundreds of thousands of longtime U.S. residents, including those with Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS). Many of the people affected by these changes have lived in the United States for decades and have become culturally American, even though they are not U.S. citizens. This article argues that those who are ethnically American and fear persecution on that basis should be able to seek asylum in the United States under the protected ground of “nationality.”

MS-13 as a Terrorist Organization: Risks for Central American Asylum Seekers

In its first year, the Trump Administration has used aggressive rhetoric in a crusade against the transnational gang MS‑13. In April, Attorney General Jeff Sessions called MS‑13 “one of the most violent gangs in the history of our country” and said that the gang “could qualify” as a terrorist organization. Since then, the administration has put its fight against MS‑13 at the front and center of its agenda.

Protection for Families: New Standards Developing in Asylum Law

Fear of persecution based on one’s family ties has long been considered a basis for asylum in the United States. Recently, however, the scope of that protection has come under dispute and, as a result, may be expanding. This Essay argues for a more expansive interpretation of these asylum claims, recognizing family-based persecution even when persecutors have multiple motives for targeting their victim.

Getting to Group Under U.S. Asylum Law

In February 2014, the Board of Immigration Appeals (BIA or the Board) issued two new precedential decisions, Matter of M-E-V-G- and Matter of W-G-R-, clarifying the legal requirements for PSG asylum. This Essay argues that the BIA’s decisions further confuse this already complex area of law and the standards established in the decisions exclude particular social groups already recognized under U.S. law. The complications and contradictions in these and other BIA decisions carry the risk of exclu

Haiti, the Dominican Republic, and Race-Based Statelessness in the Americas

This Article examines the crisis of “race-based statelessness” in the Dominican Republic, which denies citizenship to hundreds of thousands of people, based on racial and ethnic prejudice. In September 2013, the Dominican Constitutional Court upheld a constitutional amendment to revoke the citizenship rights of persons born in Dominican territory to undocumented immigrants, who are primarily black and of Haitian origin. This Article describes the illegality of the Dominican constitutional amendm

Should Domestic Courts Prosecute Genocide? Examining the Trial of Efraín Ríos Montt

In 2013, in a highly publicized case, Efraín Ríos Montt, the de facto leader of Guatemala from 1982-1983, was ordered to stand trial for genocide in Guatemala for the deaths of at least 1771 Ixil Mayan people during the most violent period of the country’s thirty-six-year-long civil war. The trial was historic; Ríos Montt became the first former head of state to be tried for genocide in his home country. This Article, using the Ríos Montt trial as a case study, asks: should domestic courts prosecute genocide?

The Arab Spring's Four Seasons: International Protections and the Sovereignty Problem

In December 2010, public demonstrations erupted throughout the Middle East against autocratic regimes, igniting a regional political transformation known as the Arab Spring. Depending on events, modern international criminal and humanitarian law provided certain protections to vulnerable populations. However, international law did not provide a uniform degree of protection to civilians and combatants who faced similar circumstances. This Article argues for a uniform standard of protections for all populations affected by armed conflict, war crimes, and crimes against humanity.

A Legal 'Red Line'? Syria and the Use of Chemical Weapons in Civil Conflict

In June 2012, U.S. President Barack Obama warned the Syrian government that deploying chemical weapons in Syria’s ongoing civil war would be crossing a “red line” that would be met with “enormous consequences.”   One year after President Obama’s tough remarks, evidence surfaced that Syrian President Bashar al-Assad was using chemical weapons against his own people.   In response, the Obama administration changed its policy from providing only humanitarian aid to rebel forces to also providing di

Gang and Cartel Violence: A Reason to Grant Asylum from Mexico and Central America

This Essay argues that the United States should view migrants fleeing violence in Mexico and Central America as refugees. This Essay will describe the nature of the threat from gangs and cartels, present the major arguments for granting gang-based asylum under international refugee law, and describe how the U.S. courts and government have interpreted those arguments. The final section of this Essay will offer an interpretation of refugee law that both bridges the gap between traditional interpretations of the Refugee Convention and also addresses a pressing need to adapt its original meaning to present-day conflicts in Latin America.

Welcoming Women: Recent Changes in U.S. Asylum Law

In the summer of 2009, the Obama Administration made public a Department of Homeland Security (“DHS”) brief submitted in the case of a Mexican woman who requested asylum based on the fear she would be killed by her former domestic partner if she returned to Mexico. The government’s brief in the case, the Matter of L-R-, proposed new legal justifications for granting battered women asylum, but stopped short of advocating a full grant of protected status. This essay endorses a specific legal regime, based on the arguments made in two recent asylum cases, and relevant international treaties governing asylum, and argues that deserving women should receive asylum protection in the United States.