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The article examines the duty of the U.S. government to protect noncitizens in immigration detention. Topics discussed include the tendency of the case law in the area to tolerate ambiguity and inconsistencies, changes in the legal landscape caused by the lawsuits filed by immigrant detainees over confinement in overcrowded and inadequate conditions during the COVID-19 pandemic, and the use of the power to incarcerate in the duty to protect argument in the pandemic litigation.

This Article explores the application of the terrorism bar in immigration law to noncitizens who have participated in an independence movement. It proposes a uniform standard that immigration adjudicators can use to determine whether a foreign entity is a state in order to promote accurate applications of the terrorism bar. The terrorism bar in the Immigration and Nationality Act is broad—it can bar most forms of immigration relief, including asylum, and reaches far beyond ordinary definitions of terrorism. For example, the terrorism bar can block immigration relief for noncitizens who nonviolently supported a militia fighting for independence against a repressive state or who received military-type training from such an organization. The terrorism bar applies even if that militia is supported by the United States. The bar can also ensnare a noncitizen’s spouse and children who have not themselves participated in those activities. Especially in light of its far reach and harsh consequences, it is of the utmost importance to accurately apply the bar, which can be challenging for cases on the margins. One such area is the application of the bar to noncitizens who have supported independence movements leading to the creation of new states, which are situations that often produce large numbers of asylum seekers and refugees. The complexity arises because the terrorism bar requires unlawful conduct, but participation in and support of a state’s armed forces are not unlawful. During an independence movement, a new state can emerge, and support of its armed forces is not unlawful even though hostilities may continue with the state from which it seceded. Adjudicators need to be able to determine when an entity achieved statehood because it could mean the difference between a noncitizen participating in unlawful rebellion, which could trigger the terrorism bar, and supporting the armed forces of a state, which would not. However, there is currently no uniform framework for analyzing questions of statehood in the context of the terrorism bar. Drawing from international law and domestic law, this Article proposes a standard that immigration adjudicators can use to assess questions of statehood to avoid the creation of “paper terrorists”— noncitizens who have participated in independence movements and are mistakenly labeled as terrorists under the Immigration and Nationality Act. This proposal stems from, and is consistent with, the statutory language of the Immigration and Nationality Act, and therefore does not require any legislative action. The proposed standard encourages immigration adjudicators to give full effect to the statutory language to promote more accurate applications of the terrorism bar. [ABSTRACT FROM AUTHOR]

This article contributes to histories of formal American imperialism by telling the stories of Filipinas/os and Puerto Ricans who, after 1899, became "noncitizen American nationals." Drawing on congressional, legal, and administrative sources, the article argues that noncitizen nationality was colonial subjecthood, a status invented to prevent island peoples from becoming U.S. citizens. Filipinas/os and Puerto Ricans were not the first U.S. colonial subjects, and this article shows how the similar status of "ward" had recently come to define the relationship between the U.S. and Native Americans. The article closes with an examination of some of the rights, liberties, opportunities, and obligations that gave substance and meaning to American colonial subjecthood in the early twentieth century. [ABSTRACT FROM AUTHOR]

The large-scale deportation of noncitizens from the United States is not new. However, the speed, and secrecy, by which many of these deportations are carried out is unprecedented. Deportations are, increasingly, executed not through a legal court process, but rather, extrajudicially--in detention centers and at border crossings, outside the purview of judges or neutral adjudicators. One kind of this "shadow deportation" is what I term "third country deportation"--the removal of noncitizens to a country other than that designated by an Immigration Judge, after relief to the designated country has been granted, and after the court proceeding has concluded. This article builds upon the work of other scholars who have illuminated deportations that occur in the shadows--including expedited removal, administrative removal and reinstatement of removal--all of which happen quickly, and largely without judicial review. This article argues that "third country deportations" are not only part of this growing, and dangerous, trend toward deportations that happen outside the courtroom, but that they are in direct violation of both our domestic and international legal obligations. In fact, third country deportations place already vulnerable noncitizens at risk of being removed to countries where they face persecution and torture, without the process and judicial oversight that a court proceeding provides. In order to comply with our legal obligations, this article contends that notice, burden shifting, and a full evidentiary hearing are required when the government seeks to remove a noncitizen to a country other than that designated by an Immigration Judge. [ABSTRACT FROM AUTHOR]

This Essay questions a fundamental premise on which the U.S. civil immigration detention system is built: Is a civil--that is, nonpunitive-- system of immigration detention even possible? The Supreme Court has not questioned this assumption. Most scholars who critique the state of immigration confinement in the United States assume the possibility of a civil detention system but argue the modern system is too much like punishment to be civil in nature. And, that contention is true: One of us has experienced both punitive incarceration and so-called civil immigration detention and is left with the conclusion that there is little meaningful difference between the two forms of confinement. Civil immigration detention is just like prison, if not worse. But, in an era when the scope of immigration confinement is expanding rapidly--with tens of thousands of people in the custody of federal immigration-enforcement agencies each day under civil legal powers--which question should we be asking ourselves: How do we make civil detention civil? Or, is civil detention just a fallacy? [ABSTRACT FROM AUTHOR]

The article examines the 2017 ruling by the U.S. Supreme Court in the case Pereira v. Sessions and its impact/s on immigration removal proceedings of non-U.S. citizens. Topics include subject matter jurisdiction, judicial decision-making, and the effect/s of a defective notice on the jurisdiction of immigration courts.

In many countries, the law permits state authorities to detain noncitizens before deportation. Typically judicial decisions about preremoval detention must be made within a short period of time during which deportable noncitizens are held in police premises, and depending on the country detention may last just one month (e.g., France) or up to 18 months (the Netherlands). While previous research has explored various dimensions of noncitizen detention including the legal procedure, health consequences, the condition of detention centers, and the lives of deportable noncitizens, the empirical assessment of the determinants of decisions on preremoval detention are largely unexplored. Using data from court proceedings of police petitions of detention in Spain and a quantitative strategy, in this article we undertake an empirical analysis of noncitizen detention combining personal background of deportable noncitizens, legal factors of the case, and the behavior of different actors involved in the procedure. To do it, we fit models that take into account variation occurred at judicial district levels. Results indicate, on the one hand, that relevant actors involved in the procedure use different informational cues to decide on cases. On the other hand, the role of prosecutors and attorneys during hearings proves also relevant to predict detention. [ABSTRACT FROM AUTHOR]

The article addresses the issue of noncitizens who are not guaranteed counsel in removal proceedings in the U.S. It presents a historical background of immigration in the U.S. and the provision of certain limited rights given to noncitizens under the country's case law. It provides some solutions to the issue, including forming the right to counsel in removal proceedings through a new rule in case law and amending the Immigration and Nationality Act (INA).

As nations around the world enact legislation, ratify treaties, and sign international human rights conventions, it is no secret that the United States often observes these processes from the sidelines-refusing to sign, refusing to participate, and refusing to acknowledge egregious human rights concerns. This passivity, however, is not confined to the Legislative and Executive Branches. The Judiciary continues to limit recovery for those seeking redress from human rights abuses. In 1980, the human rights community celebrated the reemergence of a small thirty-three-word long statute, the Alien Tort Statute. Buried in the Judiciary Act of 1789, the statute provides jurisdiction over civil claims brought by aliens seeking recovery for torts committed in violation of international law. The Supreme Court's celebrated 1980 opinion on the Alien Tort Statute, Filartiga v. Peña-Irala, reflected an idealistic perspective on human rights. Today, idealistic notions have withered. In Jesner v. Arab Bank, the Supreme Court held that corporations can no longer be defendants under the Alien Tort Statute. Courts reviewing Alien Tort Statute claims conduct a two-part analysis, which first asks whether the alien plaintiff's allegations rest on a specific obligatory norm and then asks whether judicial caution is warranted. This Comment argues that the Court in Jesner misconstrued this two-part analysis to favor corporate protection. Specifically, this Comment argues that the Court failed to properly define international norms and thus disregarded international norms condemning the financing of terrorism. And even with this misconstrued analysis, the Court failed to recognize norms of corporate liability. This Comment also argues that the Court's exercise of judicial deference overlooked the United States' interest in holding corporations liable for their human rights abuses, and reinforced the international community's resentment for America's indifference to human rights accountability. Finally, this Comment analyzes the jurisprudential shift that evinces partiality toward corporations at the expense of victims. [ABSTRACT FROM AUTHOR]

The Child Citizenship Act of 2000 has provided automatic U.S. citizenship to countless foreign-born adoptees. Within the Act exists a noticeable gap in coverage for those U.S. international adoptees who were over the age of 18 as of the Act's passage in 2001. As a result, tens of thousands of U.S. adoptees are considered deportable non-citizens. The deportation of a handful of U.S. adoptees, men and women who had lived nearly their entire lives in the United States, has generated significant media attention and public sympathy. However, Congress has yet to pass legislation, namely the Adoptee Citizenship Act, amending the Child Citizenship Act to retroactively grant citizenship status to those left unprotected. Adoptees and their advocates cannot wait for this protection to be granted. This Note provides alternative arguments and sources of law that adoptees and advocates should consider in deportation proceedings and in broader legislative lobbying efforts. In particular, this Note argues that the Child Citizenship Act, as it stands, cannot withstand equal protection scrutiny, encouraging courts to apply a more heightened standard than rational basis review. These arguments aim to persuade courts to reverse the deportable status of many U.S. international adoptees and to further motivate Congress to amend the Child Citizenship Act. [ABSTRACT FROM AUTHOR]

In Lucio-Rayos v. Sessions, the Tenth Circuit concluded that a noncitizen facing deportation is ineligible to apply for a defense to such deportation if the only evidence regarding the noncitizen's criminal history is an ambiguous record of conviction that fails to clarify whether the conviction constitutes a disqualifying crime. Such a conclusion exacerbated a burgeoning circuit court split on the same issue and had a sweeping and detrimental impact on the legal remedies available to thousands of noncitizens facing removal throughout the Tenth Circuit's jurisdiction. This Article contends that Lucio-Rayos ran afoul of Supreme Court precedent insofar as it (1) misunderstood the import of the Supreme Court's recent decision in Moncrieffe v. Holder and related case law regarding application of the categorical approach in removal proceedings, and (2) undermined congressional intent as established through clear statutory language and case law interpreting that language. Ultimately, this Article argues that the Tenth Circuit's errors in Lucio-Rayos--as well as the related and unresolved circuit court split--have significant and concerning legal implications for precedent related to the categorical approach more generally and profound practical implications for thousands of noncitizens facing removal across the country. [ABSTRACT FROM AUTHOR]

The article offers information legal framework and justice gap for non-citizens in U.S. Topics discussed include information on the legal services innovations for immigrants; federal government has authorized non lawyer representation of non-citizens since 1975; and views on Board of Immigration Appeals (B1A or Office of Legal Access Programs (OLAP) for immigrants justice.

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) authorizes the mandatory detention, without the possibility of bond, of noncitizens convicted of certain qualifying offenses for the duration of their removal proceedings. Congress enacted the mandatory detention statute because it was concerned that noncitizens who are convicted of crimes will further engage in criminal activity and fail to appear for their removal hearings. To ensure noncitizens are not deprived of their constitutional right to due process, federal courts have construed § 1226(c) to contain an implicit time limitation against unreasonably prolonged detention. These courts have adopted either a bright-line or case-by-case approach to determine the point at which mandatory detention without bond becomes unconstitutionally impermissible. After six months of detention, the former requires an automatic bond hearing and the latter instructs detainees to file a habeas corpus petition that, if granted, triggers a bond hearing. This year, the Supreme Court in Jennings v. Rodriguez rejected the lower courts’ construction § 1226(c) and held that interpreting § 1226(c) to contain an implicit time limitation is improper because the statute is neither ambiguous or unclear. The Court, however, declined to consider whether its interpretation of § 1226(c) is constitutional and instead remanded the case back to the Ninth Circuit to consider constitutional arguments on the merits. This Comment argues that the majority’s decision in Jennings v. Rodriguez failed to enforce the Constitution and protect the due process rights of detained noncitizens by interpreting § 1226(c) as not having a time limit on detention without bond. It further contends that while the lower courts correctly interpreted § 1226(c) to include a time limit, the current approaches applied by these courts do not properly protect detainees’ constitutional rights because under both approaches, detainees cannot challenge the reasonableness of their continued detention until after six months. Limiting detainees’ opportunity to challenge their continued detention for six months raises the same “serious doubts” of constitutionality that Justice Breyer argued, in dissent, are raised when § 1226(c) is interpreted as forbidding an individualized bond hearing. Alternatively, this Comment proposes that detained noncitizens—who pose little risk of flight or danger to the community— should receive prosecutorial discretion in the form of deferred action as to their continued detention at any point during their detention, including during the “presumptively reasonable” six-month period under the current two approaches. If prosecutorial discretion is not granted, detained noncitizens should then be entitled to automatic and periodic bond hearings beginning at six months of detention. [ABSTRACT FROM AUTHOR]

Kurds are the largest minority ethnic group in Turkey. Most Kurds share the common religion of Islam with Turks, but they also have a distinct language, culture, and history. Turkey's current Constitution, drafted after a military coup in 1980, is thoroughly nationalist and contains repeated references to the Turkish language, people, and culture. Most relevant for the purposes of citizenship, an ambiguous and controversial Article 66 declares that, "everyone bound to the Turkish State through the bond of citizenship is a Turk." Many Kurds interpret this provision as an imposition of an ethnic identity--of being a Turk--that they vehemently reject. This Article explores the historical origins of this provision, studies its competing interpretations, and analyzes its consequences. It argues that citizenship in Turkey has attained a political meaning that has shaped, and at times, trumped, its legal definition. In the name of promoting national unity and solidarity, Kurds have been relegated to "alien citizen" status--assigned its duties but denied many of its benefits. Kurds have been shut off from the political discourse and denied the right to education and media in their own language. These state policies have expelled Kurds to the fringes of society, undermining the very national solidarity that they sought to construct. [ABSTRACT FROM AUTHOR]

The constitutional rights of aliens outside the United States make themselves known more by their absence than by their presence. Claims to such rights appear in judicial decisions usually to be denied and rarely to be granted. Only a few such rights exist at all for aliens outside U.S. territory, at least in the pure form of rights based entirely on the U.S. Constitution, independent of statutes and treaties. This otherwise disheartening conclusion still leaves open the protection of constitutional interests by other means--the protection of interests beyond the scope of particular constitutional provisions and by means other than judicial enforcement of constitutional rights. Rights and remedies derived from other sources of law constrain the power of government even when the Constitution does not do so itself or does so only to a very limited extent. Checks and balances between Congress and the President can significantly deter government action against aliens, but they do so primarily through the means of duly enacted law that, almost by definition, requires a basis in non-constitutional law. Individual constitutional rights play a similar role, by stimulating or checking political action, most likely through the adaption of existing mechanisms of enforcement to counter novel threats to rights, whether of citizens or aliens. The article concludes by examining how even this limited role of constitutional rights might operate to check the immigration orders recently issued by President Trump. [ABSTRACT FROM AUTHOR]

Outside the United States, many constitutional scholars have noted the rise of 'weak' or weakened models of judicial review, which give legislatures broad powers to determine the (final) scope and meaning of constitutional norms. Yet, the normative attractiveness of this model remains underexplored. Some scholars have suggested that to be desirable, models of this kind require the existence of at least some degree of political competition. This article, however, goes further and suggests that the normative desirability of weak, as opposed to strong, review depends on the degree to which political parties in fact compete over the protection of individual rights-or engage in actual processes of debate and contestation aimed at promoting both majority rule and the protection of individual rights. Competition of this kind also seems quite uneven across issues, even in systems with generally strong norms of political competition. In this sense the desirability of weak-form review, as a rival to United States style models of strongform review, is also ultimately quite contingent and context-specific in nature. The article makes these arguments drawing on case studies of the protection of the rights for noncitizens in immigration detention in three countries with weak-form systems of review for rights protections-i.e. the United Kingdom, New Zealand, and Australia. It also suggests the broader relevance of these findings for debates over judicial review in the United States, and elsewhere. [ABSTRACT FROM AUTHOR]

In a 2007 article, Adam Cox and Eric Posner developed a "Second Order" theory of immigration law that offered predictions about when countries are likely to provide noncitizens with strong legal protections from removal. They argued that states benefit when migrants make "country-specific" investments, but that migrants are only willing to make those investments when they are afforded strong legal protections that would secure their place in the host country. One implication of this theory was that because countries with less common national languages require greater country-specific investments from migrants, those countries are likely to provide migrants with strong legal protections. In this short paper, we empirically test that hypothesis. Consistent with the theory, we find that countries with less common national languages are more likely to provide a right to asylum in their constitution or sign bilateral labor agreements. [ABSTRACT FROM AUTHOR]

France lives with a tension between its internationalist and Universalist aspirations and the national preoccupations of its domestic politics. On the one hand, international treaties prevail over ordinary domestic legislation. On the other hand, constitutional control over treaties ensures that essential elements of "national sovereignty" are preserved. This concept is unclear and gives considerable scope for judicial interpretation. The treatment of foreigners by French law starts from the requirement to afford them basic minimum rights and freedoms, including the right to asylum. Constitutional rights are limited, but they are enlarged by the ordinary law, which the legislator is free to change. Basic civil liberties are well protected, but the legislator has a greater margin of appreciation in relation to social advantages and assistance justified by the constitutional principle of solidarity. Basic medical, income, and legal protection are assured, but beyond that the legislator is free to allocate benefits according to criteria related to the degree to which the foreigner is integrated into French society. [ABSTRACT FROM AUTHOR]

In 1906, the High Court of Australia decided a case that is still cited today in support of the Commonwealth's sweeping power over 'aliens' under the Constitution. The significance of the case as a violation of the rule of law has, however, yet to be appreciated. In Robtelmes v Brenan (1906), the High Court declared the country's entire community of South Sea Islanders to be 'indisputably alien' people who could be 'forcibly deported' under the 'aliens power' in the Constitution. Under legal principles unchanged since Calvin's Case (1608), nationality and alien status had nothing to do with the colour of a person's skin. Contrary to law, the newly established Australian High Court held that all Islanders were aliens because of their race. Moreover, in their previous political careers, the three judges -- Chief Justice Griffith and Justices Barton and O'Connor -- had been leading advocates for replacing Islanders with white labourers for plantation labour. It was also, then, as this article demonstrates, a major conflict of interest for these High Court judges to uphold the expulsion of Islanders in their judgment in Robtelmes. The article argues the expulsion of the Australian Islander community was therefore unlawful. [ABSTRACT FROM AUTHOR]

This research examines Chinese expatriates working in Chinese multinational companies subsidiaries in the United Arab Emirates. We identify three salient social referents used by Chinese expatriates to assess distributive justice, i.e. employees working in mainland China, locals from the host country, and employees working in developed country multinational companies in the host country. For each referent, we explore the determinants of perceived distributive justice. The results show that equity and non‐monetary rewards are stable and influential factors for perceived distributive justice. Compensation disparity vis‐à‐vis employees working in mainland China and in international multinational companies has a significant effect on perceived distributive justice. However, compensation disparity is not used when it comes to assessing perceived distributive justice compared to locals in the host country. Finally, our findings suggest that only equity and non‐monetary rewards have significant effects on expatriation satisfaction, not perceived distributive justice. [ABSTRACT FROM AUTHOR]

The article evaluates the evaluate the Alien Tort Statute's (ATS) extraterritorial application in the U.S.; discusses the Fifth Circuit's decision in the case "Adhikari v. Kellogg Brown & Root, Inc.;" and mentions extraterritorial applications of U.S. law.

Defining the scope of the Constitution's application outside U.S. territory is more important than ever. In February, the Supreme Court heard oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican teenager across the border. At the same time, federal courts across the country scrambled to evaluate the constitutionality of an Executive Order that, among other things, deprived immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause--the broadest constitutional limit on the government's authority to deprive persons of "life, liberty, or property"--remains obscure. Up to now, scholars have uniformly concluded that the founding generation did not understand due process to apply abroad, at least not to aliens. This Article challenges that consensus. Based on the historical background, constitutional structure, and the early practice of federal law enforcement on the high seas, this Article argues that the founding generation understood due process to apply to any exercise of federal law enforcement, criminal or civil, against any person anywhere in the world. Outside the context of war, no one believed that a federal officer could deprive a suspect of life, liberty, or property without due process of law-- even if the capture occurred abroad or the suspect was a noncitizen. This history supports generally extending due process to federal criminal and civil law enforcement, regardless of the suspect's location or citizenship. This principle has immediate implications for cross-border shootings, officially sponsored kidnappings and detentions abroad, the suspension of immigration benefits, and the acquisition of foreign evidence for criminal defendants. [ABSTRACT FROM AUTHOR]

The article focuses on laws governing privacy rights of non-U.S. persons in signals intelligence in the U.S. Topics discussed include Fourth Amendment to U.S. Constitution and statutory protections focused on U.S. persons; an account of Universal Declaration of Human Rights and International Covenant on Civil and Political Rights made for the same; and enactment of Communications Act of 1934 for governing privacy rights in the country.

Congress strikes at the core of state sovereignty when it disenfranchises voters. Yet demands for national disenfranchisement laws have become pervasive since the 2016 election, and Congress has a ready model: a federal statute prohibiting noncitizens from voting in federal elections. Despite upending centuries of state control over voter qualifications, this statute remains unchallenged in court and unexamined in academia; its constitutionality has been assumed. This Article challenges this assumption, arguing that the federal ban on noncitizen voting-along with every other voter qualification Congress imposes-unconstitutionally infringes state sovereignty. Most voting rights scholarship focuses on the constitutional amendments that prevent disenfranchisement based on race, sex, wealth, and age. This Article demonstrates how the Constitution limits the federal government even further. By tracing the history of the Elections Clause and analyzing contemporary election law jurisprudence, this Article shows how Congress's traditional sources of authority over federal elections do not empower it to impose substantive qualifications on voters. More fundamentally, examination of the text and history of the Voter Qualifications Clauses reveals that states possess an exclusive power to determine who is ineligible to vote. This analysis makes evident that all congressionally-imposed voter qualifications-even those that do not invidiously discriminate-cannot survive the constraints of American federalism. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Supreme Court's determination in the case District of Columbia v. Heller that the Second Amendment to America's Constitution contains the fundamental right of armed self-defense in the home, and it mentions how various circuit courts in the country have validated laws which place alienage restrictions on firearm ownership and possession. According to the article, illegally-present noncitizens are not entitled to the constitutional right to possess firearms.

Noncitizens must comply with immigration laws just because citizens say so. The citizenry takes for granted its monopoly on immigration control, but the legitimacy of this arrangement has been called into question by cutting-edge political theorists. One prominent theorist argues, for example, that basic democratic principles require that noncitizens living outside the United States have a say in the formation of immigration law since they must obey it. This Article provides a legal response to these political theory developments, assimilating them, along with the facts on the ground, into an account of "illegal" migration as First Amendment speech. If noncitizens' voices are unjustly excluded from the immigration law conversation, then "illegal" migration is speech of necessity--there is no other way for noncitizens to be heard. Protest speech occurs every time a migrant crosses a border without permission and every time a noncitizen chooses to overstay a visa: these defiant actions declare the illegitimacy of immigration law. In turn, the individual speech acts of millions of "illegal" migrants help to foment an immigrants' rights consciousness and enable groups of migrants to engage in core, protected forms of dissent, like marching in the streets shouting "NOT ONE MORE DEPORTATION" and tweeting #Not1More. By speaking in these disruptive and unorthodox ways, the undocumented force the citizenry to grapple with the serious constriction of noncitizens' lives that immigration laws cause. If these millions of protesters had respected our immigration laws by staying at home, pining for--but failing to seize--a better life in the United States, citizens could not know concretely how immigration laws limit noncitizens' lives, nor learn whether our legal and political system is resilient enough to accommodate millions of people the citizenry did not ask for. Thus, "illegal" migration makes the immigration law conversation more consistent with American free-speech values than it would otherwise be. [ABSTRACT FROM AUTHOR]

Citizenship scholarship is pervasively organized around a binary concept: there is citizenship (which is acquired at birth or through naturalization) and there is noncitizenship (which accounts for everyone else). This Article argues that this understanding is woefully incomplete. In making this argument, I tell the story of noncitizen nationals, a group referred to by this Article as American nationals. Judicially constructed in the 1900s, and codified by Congress in 1940, American nationals possess some of the rights inherent to citizenship, such as the right to enter and reside in the United States without a visa. Yet, they do not have the right to vote or to serve on a jury. Thus, contrary to the usual binary framing of citizenship, the category of American nationals suggests that many people qualify as neither citizens nor aliens. Although American national status has existed for over a century, very little is known about how this status became part of U.S. nationality law. This Article aims to reverse this oversight by exploring the legal construction of noncitizen national status and its implications for our understanding of citizenship. In so doing, this Article makes two contributions. The first and primary goal of this Article is to complete our legal historical knowledge about how law has conferred and denied citizenship. Specifically, this Article examines key congressional, judicial, and executive actions between 1898 and 1940 that led to the creation of this liminal form of political membership for Americans living in the U.S. territories. Second, this Article introduces two conceptual frameworks that flow from noncitizen national status: interstitial citizenship and unbundling citizenship. That is, American nationals disrupt the binary framing of citizenship by occupying the space between the citizen and the alien. This liminal status, which this Article calls interstitial citizenship, reveals that citizenship is far more fluid than previously appreciated. Moreover, this flexible form of citizenship suggests that the rights of citizenship may be unbundled. Notably, both interstitial citizenship and unbundling citizenship have legal and policy implications for immigration reform. [ABSTRACT FROM AUTHOR]

This article revisits the two seminal Alien Tort Statute (ATS) cases Filártiga v. Peña-Irala and In re: Marcos Human Rights Litigation. Setting aside the dominant framework of accountability, the article explores the historical narratives produced in those cases. It exposes how Filártiga and Marcos recast as entirely foreign violence in which the US executive was deeply involved, due to a combination of legal and political constraints in the exercise of a controversial form of jurisdiction. Moreover, these constraints have persisted in subsequent ATS litigation, creating a trade-off between individual accountability and narratives about US hegemony. By offering an alternative account of ATS litigation and exposing hitherto ignored costs of familiar legal developments, this article challenges the assumption that broad assertions of jurisdiction are necessarily beneficial in human rights struggles, and urges international lawyers to pay more attention to the interplay among doctrine, political circumstances and historical narrative when considering and comparing human rights mechanisms. [ABSTRACT FROM AUTHOR]

On March 31, 2016, in Valenzuela Gallardo v. Lynch, the U.S. Court of Appeals for the Ninth Circuit found that the phrase "an offense relating to obstruction of justice," used as one definition of an aggravated felony within the Immigration and Nationality Act, raised grave unconstitutional vagueness concerns because there are no limits to where the process of justice begins and ends. This issue, identified by the Ninth Circuit, was not addressed by the Second or Eighth Circuits despite these courts interpreting the same statutory provision in separate cases. This Comment argues that the Ninth Circuit was correct on two accounts. First, the phrase, obstruction of justice, does raise unconstitutional vagueness concerns. Under the Board of Immigration Appeal's new interpretation of the phrase, nearly every specific intent crime could be considered obstruction of justice. Second, the Second and Eighth Circuits overlooking this concern does not create a circuit split. Neither court held that the phrase was without unconstitutional vagueness concerns, but rather had no reason to discuss unconstitutional vagueness in their analysis. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. District Court for the Northern District of California's ruling in the 2016 case Lyon v. U.S. Immigration and Customs Enforcement (ICE) which deals with America's immigration laws and the determination that due process in the U.S. may include a right of access to counsel for detained noncitizens. The legal rights of noncitizens involved in removal (deportation) proceedings are examined, along with the Sixth Amendment to the U.S. Constitution.

The article discusses America's EB-5 immigrant visa program and lawful permanent resident (LPR) status in relation to the administrative and judicial options that are available to foreign investors who have had their U.S. Citizenship and Immigration Services Form I-829 petitions denied as of 2016. Legal requirements for foreign nationals seeking LPR status in America are examined, along with administrative review procedures and removal (deportation) proceedings in the U.S.

This Article explores the increasing importance of quasi-criminal proceedings in the legal landscape and posits that it is no longer inaccurate to perceive our legal system as divided simply into civil and criminal branches. The rise of quasi-criminality has in essence created a hidden third tier that borrows, in diverse ways, from the other two to address a variety of social ills, both perceived and actual. Part One examines the historical bases identified by the U.S. Supreme Court for designating a proceeding "quasi-criminal:" the coexistence of criminal charges based on the same conduct, exemplified most powerfully by forfeiture actions; and the significant loss of liberty, often coupled with stigmatic harm. Part Two discusses the contemporary expansion of quasi-criminality beyond traditional formulations in three contexts: the civil commitment of sexual predators; sex offender residency restrictions; and the detention and expulsion of noncitizens who are lawful permanent residents. Part Three concludes by discussing how the modern, quasi-criminal landscape reflects a broader "control culture" that has fostered a return to an outsider jurisprudence directed at those believed to be incapable and unworthy of assimilation. [ABSTRACT FROM AUTHOR]

This article considers the medical measures of the 1920 Aliens Order barring aliens from Britain. Building on existing local and port public health inspection, the requirement for aliens to be medically inspected before landing significantly expanded the duties of these state agencies and necessitated the creation of a new level of physical infrastructure and administrative machinery. This article closely examines the workings and limitations of alien medical inspection in two of England's major ports--Liverpool and London--and sheds light on the everyday working of the Act. In doing so it reflects on the ambitions, actions and limitations of the state and so extends research by historians of the nineteenth and early twentieth century on the disputed histories of public health and the complexities of statecraft. Overall it suggests the importance of developing nuanced understandings of the gaps and failures arising from the translation of legislation into practice. [ABSTRACT FROM AUTHOR]

The article discusses the regulation of noncitizen access to welfare and Medicaid health insurance in U.S. history in relation to the origins of immigrant status restrictions in American social policy. The U.S. Supreme Court's ruling in the 1971 state alienage-based restrictions and constitutional law case Graham v. Richardson is examined, along with the legal aspects of public assistance programs in America. Unauthorized (illegal) immigration in the U.S. is assessed, along with state laws.

The article examine the Australian legislative framework for immigration detention of actual or suspected unlawful non-citizens. Topics discussed include protection obligations under the Migration Act 1958; law and policy governing immigration detention for unlawful non-citizens; and decision of the Australian High Court in the case 'Al-Kateb v Godwin.'

The article discusses how the U.S. government's expedited removal system violates several of the statutory, regulatory, and constitutional law protections for noncitizens who flee their home countries due to persecution, and it proposes various ways to correct the mistreatment of asylum seekers in the U.S. The right to asylum in America is addressed, along with the nation's Immigration and Naturalization Act, a credible fear standard, and the U.S. Citizenship and Immigration Services agency.

This Note explores why, as a matter of law and policy, the U.S. government has not extended more privacy protections to foreigners subject to signals intelligence activities conducted outside the United States. Edward Snowden's unauthorized disclosures generated significant international pressure on the United States to reform its surveillance practices, including extending more privacy protections to foreigners. The U.S. government responded by increasing transparency and offering policy reforms. However, most of the changes relating to non-U.S. persons are cosmetic; they largely formalize current practices and incentives, making real changes only at the margins. Several possible reasons explain the U.S. government's approach: the cost of surveillance on the U.S. economy may be exaggerated; the diplomatic costs have already declined; the argument that U.S. government surveillance violates international human rights law is tenuous; and alternative policies are not clearly superior to the status quo. Therefore, while affording non-U.S. persons fewer protections may entail some costs, those costs are uncertain or declining, and national security interests as well as political and pragmatic considerations create powerful incentives to maintain the status quo. Signals collection for foreign intelligence purposes provides not just information to detect and thwart international terrorism and espionage, but also information valuable for the conduct of foreign affairs. It appears that in order to facilitate these goals, the U.S. government decided to maintain the distinction between U.S. persons and non-U.S. persons and their different levels of privacy protection. [ABSTRACT FROM AUTHOR]

This paper addresses the lack of collective political action and engagement in protests and anti-deportation campaigns (ADCs) on the part of foreign-national offenders facing deportation from the UK. Taking ADC guidelines from migrant support groups, and drawing on ethnographic fieldwork conducted in London, I show that the circumstances of foreign-national offenders, and in particular their own understandings of their removal, appear incompatible with open political action and with the broader work of ADC support groups. The findings presented throughout this paper make the case that foreign-national offenders have conflicting notions about their deportation and their ‘right’ to protest and campaign against it, revealing how perceptions of legitimacy impact not only on how policies are lived and experienced but also on the scope for political action on the part of those who are experiencing those policies. [ABSTRACT FROM PUBLISHER]

The article discusses the significance of parental domicile under the Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution, and it mentions "birth tourism" in America which involves maternity hotels and travel agencies which cater to foreign parents who are seeking U.S. citizenship for their soon-to-be-born children. The 1898 U.S. Supreme Court case United States v. Wong Kim Ark, which deals with parental domicile and American citizenship law, is examined.