Marquette Grad and Lawyers Honored for Service

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Category: Immigration Law, Marquette Law School, Pro Bono, Public
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As noted at the 2012 hooding ceremony this past Saturday, May 19, 2012, our recent graduates join a long line of Marquette lawyers in their dedication to excellence, faith, leadership, and service. This dedication to the university’s guiding values will be the measure of their contributions as lawyers. Perhaps former Dean Howard D. Eisenberg, whose legacy both Dean Kearney and speaker Judge Diane Sykes drew upon during the ceremony, expressed it best: “For those who seek an opportunity to do well, I hope you succeed, but neither your success nor your happiness can be measured unless you also do good.”

Exemplifying these values is our recent graduate Melissa Longamore (’12) (pictured), a recipient of this year’s Outstanding Public Service Law Student Award from the Wisconsin State Bar. As a law student, after establishing the Marquette Immigration Law Association, Melissa sought out new opportunities for herself and other interested Marquette law students to serve local immigrants with unmet legal needs. Among the new initiatives she helped bring about is the volunteer clinic at Voces de la Frontera, where she and other students, under the supervision of immigration attorneys, provide information and referrals to local immigrant clients. It has been gratifying to see the outpouring of enthusiasm among the student body for these efforts to serve the local immigrant community. It is also gratifying to Melissa’s excellence recognized by the bar.

Similar kudos are due to this month’s blogger, Quarles & Brady lawyer, Michael Gonring (’82), recognized for a lifetime of service, with the bar’s Pro Bono Award for Lifetime Achievement; as well as to alumna (and retired Kenosha County Circuit Court Judge) Hon. Barbara A. Kluka (’78), who is the deserved recipient of this year’s Lifetime Jurist Achievement Award.

 

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Prosecutorial Discretion from the Department of Homeland Security?

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Category: Immigration Law, Public
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Prosecutorial Discretion from the Department of Homeland Security? I’ll believe it when I see it. 

I spend a good amount of time reading through articles on the latest immigration buzz.  Since this summer, a lot of it has been centered on prosecutorial discretion in civil immigration enforcement. 

On June 17 of this year, Director John Morton of Immigration and Customs Enforcement (ICE) issued a memo meant to set guidelines on exercising prosecutorial discretion.  The June 17 memo, often referred to as “the Morton Memo”, builds on an earlier memo setting enforcement priorities.  The Morton Memo acknowledges that the Department of Homeland Security (DHS) has limited enforcement capacity, and that it should focus its resources on aliens that represent the largest threat toU.S. interests. 

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Tackling the Unauthorized Practice of Law in Wisconsin Today

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Category: Immigration Law, Legal Ethics, Legal Practice, Pro Bono, Public, Wisconsin Law & Legal System
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Professor Michael McChrystal once pointed out that in the State of Wisconsin, the penalty for working as a beautician without a license is not much different from the penalty for practicing law without a license. Read more »

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Quill Winners Explore Visa Adjudications and Limits of Public Trust Doctrine

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Category: Environmental Law, Immigration Law, Wisconsin Law & Legal System
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Congratulations to 3Ls Cain Oulahan and Gabe Johnson-Karp, the winners of this year’s Gold and Silver Quill Awards, respectively.  The Quill Awards recognize the top two student comments published in the Marquette Law Review.

Cain’s comment is “The American Dream Deferred: Family Separation and Immigrant Visa Adjudications at U.S. Consulates Abroad.”  He explores the tension between the general preference in American law in favor of keeping families together and some specific requirements of immigration law that can break families apart for many years while a parent or spouse seeks to obtain a visa from an American consulate abroad.  As Cain puts its,

This problem arose with the creation by Congress in 1996 of what are known as the unlawful presence bars to admission.  After more than ten years since the passage of the unlawful presence bars, it is now appropriate to look closely at their impact and examine whether they constitute sound public policy. This Comment argues that they do not. This Comment explains how the system puts families through unnecessary and unjustifiable hardship by imposing a punishment that is disproportionate to the seriousness of the immigration violation. This Comment points to the lack of evidence that the unlawful presence bars significantly deter illegal immigration, and the fact that they tear families apart or force them to move abroad. For these reasons, this Comment recommends that Congress make sensible changes that will promote family unity while imposing penalties that are more proportionate to the seriousness of the immigration violation.

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Most Important United States Supreme Court Case in Refugee Law: I.N.S. v. Elias-Zacarias

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Category: Human Rights, Immigration Law, International Law & Diplomacy, Judges & Judicial Process
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[Editor's note:  This is a sixth installment in the "what is the most important Supreme Court case in your subject area" series.]

One of my subject areas is refugee law. There are only a handful of Supreme Court decisions in the area, but instead of making the selection easier, the paucity of case law only made it harder to choose one case as the “most” important.  Because the Court has interpreted the Refugee Act relatively rarely, each of its decisions in the area has taken on even more significance than it might otherwise have had.  For instance, it is difficult to overstate the impact of the decision in Sale v. Haitian Centers Council, Inc., the repercussions of which still plague the international refugee law system, because the Court said that the United States could stop and return Haitians at sea, without verifying whether they were refugees, seemingly in direct conflict with the highest principle of international refugee law, “non-refoulement,” or, “non-returning,” of refugees. And what about the pair of cases, INS v. Stevic and INS v. Cardoza-Fonseca, which, prior to Sale, held that the Refugee Act  created two distinct categories of refugees, those whom the U.S. had promised not to return to their persecutors and those whom the U.S. could, in its discretion, allow to stay in the U.S. (a distinction generally not recognized by any of the other nations who signed the refugee treaties)?

In the end, of course, it’s impossible to identify a single case as most important. But I decided to write about INS v. Elias-Zacarias, 502 U.S. 478 (1992), because its holding, that an asylum applicant must provide direct or circumstantial evidence establishing the alleged persecutor’s motivations, has had such dramatic, and (I hope) unintentional impacts on refugee law and practice in the United States.  One could even argue that the extreme disparities in judges’ decisions in similar asylum cases stem, at least in part, from the near-impossibility of reliably applying Elias-Zacarias‘s demand for evidence of the persecutor’s motive, in the context of the record that can reasonably be developed in the vast majority of asylum cases. Read more »

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Best of the Blogs Part II: Drugs, Immigration, and the Hotel “Death Ray”

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Category: Criminal Law & Process, Human Rights, Immigration Law, Legal Writing, Tort Law
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If that title doesn’t increase readership of my posts, I don’t know what will.

My contribution this week to our “best of the blogs” feature (which I have taken license to interpret as “best of the blogs and other news read online…”) is even more random than usual.

First, the drug-related story that caught my eye in the relatively recent past.  The Daily Beast Cheat Sheet reported on September 27th about a Cato Institute study showing that since Portugal decriminalized drug possession in 2001, drug use among adolescents has fallen, HIV infection rates fell, and addicts have increasingly sought help to overcome their addictions.  The full story was in Time, here. An excerpt: Read more »

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Best of the Blogs (Well Mostly the Immigration-Related Ones)

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Category: Civil Rights, Constitutional Interpretation, Criminal Law & Process, Human Rights, Immigration Law
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No More Deaths, http://www.flickr.com/photos/steev/138245726/sizes/o/in/photostream/Refugee law does not get all that much attention in the blogosphere, even on the immigration-related blogs, probably because the numbers of refugees and asylees are so low in the context of U.S. immigration as a whole.   This week, though, there was a little discussion of a new study showing that asylum-seekers’ success rates have gone up to about 50%.  The study also confirms that asylum requests (that is, requests for refugee status made by people who are in the United States already) continue to fall.  The Wall Street Journal’s Law Blog mischaracterized the study to some extent, asserting that “Recently revealed statistics show that illegal immigration is down. But another method of gaining residence in the U.S. is up: seeking political asylum,” when, as I just explained, asylum requests actually continue to fall.  It is only the rate of success that has gone up.

The increased success rate is surely due to the fact that more asylum seekers are finding legal representation:  as the study explains, unrepresented asylum seekers have a success rate of about 11%, while those with attorneys have about a 54% chance of winning asylum.  The study also shows that the dramatic disparities in grant rates by different judges continues (e.g., in the New York Immigration Court, judges’ asylum grant rates ranged from 6% to 70%).

In any event, the other statistics referred to in that WSJ Law Blog post are from a Pew Hispanic Center study showing a dramatic decline in the population of undocumented immigrants in the United States over the past few years.   Read more »

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We Have Met the Other and He Is Us (Law Professors)

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Category: Civil Rights, Constitutional Interpretation, Federal Law & Legal System, Human Rights, Immigration Law, Political Processes & Rhetoric
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In the latest development in what is starting to feel like a trip  “through the looking glass” to some bizarre version of the legal world as I understood it in law school, actual, important politicians have raised the spectre of  repealing or amending or re-interpreting the Fourteenth Amendment, specifically, its provision that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  It seems especially sad that those who want to abolish or change the long-standing, post-Civil-War principle of birthright citizenship in the United States are, mainly, Republicans: one might call the Fourteenth Amendment “one of the [Republican] party’s greatest feats,” as did the Economist in the article linked above.  In any event, the Economist article does a pretty fair job, I think, of discussing the various perspectives on the issue (including pointing out that the so-called “anchor baby” idea is almost completely a fallacy, since a child cannot petition to make his parent a citizen until after the child is 21). Read more »

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Best of the Blogs

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Category: Constitutional Interpretation, Federal Law & Legal System, Immigration Law, Marquette Law School, Political Processes & Rhetoric
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The first item that caught my eye this week was a little blog our student Priya Barnes is writing as she visits Germany, attending the Summer Session in Giessen, Germany, that Professor Fallone blogged about on Monday.  So far, she’s only offered one entry, about her travels, but I intend to watch for more….

Mark Tushnet (who gave a terrific presentation at Marquette last week, co-sponsored by the student American Constitution Society organization and the local lawyer’s chapter of ACS) raises some interesting questions about Republican-sponsored legislation that would require congressional review of proposed “major regulations.” The idea is that agency rules would be transformed into agency proposals, to be okayed by Congress.  For “non-major” proposals, Congressional silence would equal assent, while majority votes of both chambers would be required for adoption of new “major regulations.”   Read more »

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Libertarians and Liberals

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Category: Business Regulation, Federal Law & Legal System, Health Care, Immigration Law, Political Processes & Rhetoric
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It is a peculiar characteristic unique to our country that Americans talk about political issues in constitutional terms, thereby turning every policy debate into an argument over basic principles.  That was my thought when I read about Senate candidate Rand Paul and his “Constitutionalist” view that the federal government has no right to dictate the behavior of private enterprises.  Mr. Paul came under fire last week for suggesting that the Civil Rights Act of 1964 went too far when it prohibited discrimination by private businesses.  You can read more here (astute students in my Constitutional Law class will observe that Mr. Paul inspired one of the questions on my final exam this year).

Paul objects to federal policies regulating business due to his reading of the U.S. Constitution.  His political philosophy might best be characterized as extreme libertarianism.  Following the objectivist principles of Ayn Rand, he argues that the public should be left to their own devices and that greater social benefits will accrue naturally over time from the enlightened (and rational) self-interest of individuals.  Ironically, Paul’s embrace of self-interest as a moral good in itself is directly at odds with the view of the Framers of the Constitution.  The people who designed our constitutional system spent much time criticizing the biases, prejudices, and self-interested motivations of the general public.  The system of government that they created was intended to ameliorate the very aspects of human nature that objectivists like Rand Paul celebrate. Read more »

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When Do Police Have Reasonable Suspicion That You Are a Non-Citizen?

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Category: Human Rights, Immigration Law, Political Processes & Rhetoric
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For the past couple of weeks I have been stewing about how to respond to Rick’s post in which he tried to analogize the outcry against Arizona’s new immigration law to the Tea Party’s blowout bash against the new federal health care legislation.  He called the left out for hypocrisy in its condemnation of the accusations of “socialized medicine” and “death panels,” asserting that the left is “is just as over the top as the most silly Tea Party [when it terms the Arizona law] ‘racist,’ ‘hysterical nativism,’ and evocative of Nazi Germany and Communist Russia. It is cause, we hear, to read Arizona out of the civilized community.”

His rhetorical approach was really effective, I think, so I am going to copy it: starting with a concession to gain your trust, before pointing out the flaw I see in Rick’s argument. Read more »

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May Day Tea Parties

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Category: Civil Rights, Immigration Law, Political Processes & Rhetoric
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Most recently, the political left accused conservatives of dumbing down the President’s health care bill. It did not usher in “socialized medicine” and did not call for “death panels.” The conservatives weren’t completely wrong. The bill – both by its provisions and by anticipated responses to what are the almost certain ways in which it will fail to achieve its intended purposes – dramatically increases and centralizes public control of health care markets including decisions on what treatments are and are not “cost effective.”

But the folks on the left also had a point. Although one cannot expect mass political movements to be marked by the dispassionate and, we hope, carefully reasoned discourse to be heard in the court room or lecture hall, supporters of the health care bill argued (with some justification) that the over the top rhetoric obscured rather than clarified. Tea parties, they said and still say, are exercises in political hysteria and ignorance in which honest differences of opinion are turned into existential conflict and ordinary political opponents are portrayed as extraordinarily evil. Mass opposition to disfavored legislation and politicians is fine as long as it is accurate and temperate. This is what they say.

Except when they don’t. Read more »

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