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.
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.
[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.