Volume 2016, No. 6

Articles

Is Assisted Procreation an LGBT Right?

By Michael Boucai

A movement long identified with the notion that “love makes a family” today flirts dangerously with the dogma that “blood is thicker than water.” Biogeneticism, an ideology that favors biological modes of kinship and genetic conceptions of identity, informs many LGBT individuals’ choices about why and how to have children. In turn this ideology marks two troubling features of political efforts to facilitate LGBT parenthood: first, the markedly different understandings of equality—full versus formal, lived versus legal—that guide movement approaches to assisted procreation and adoption, respectively; and second, invocations of a fundamental “right to procreate” that valorize reproduction, idealize a biological model of parenthood, and threaten to entrench biogenetic bias in family law and constitutional doctrine.

Crimmigration and the Void for Vagueness Doctrine

By Jennifer Lee Koh

Since the Supreme Court’s 2015 decision in Johnson v. United States—a federal sentencing decision holding that the residual clause of the Armed Career Criminal Act was void for vagueness—the vagueness doctrine has quietly and quickly exploded in the legal landscape governing the immigration consequences of crime. On September 29, 2016, the Supreme Court granted certiorari in Lynch v. Dimaya, an immigration case in which the Court will resolve a circuit split addressing whether part of the federal definition of a “crime of violence”—a classification that triggers nearly automatic deportation and immigration detention—is unconstitutionally vague.

This Article argues in favor of applying the void for vagueness doctrine to various statutory provisions that lie at the crossroads of immigration and criminal law, including the provision before the Court in Dimaya. The vision of vagueness articulated in this Article complements the Supreme Court’s recent jurisprudence with respect to the methodology for assessing the immigration consequences of crime known as the categorical approach, and is consistent with the Court’s decision in Johnson as well as the values animating the vagueness doctrine. Those twin values—providing reasonable notice and preventing arbitrary or discriminatory law enforcement practices—apply with exceptional force in immigration, an area of law in which the liberty stakes of the crime-based removal grounds are high, notice is critical, and the risk of arbitrariness and discrimination by government actors at multiple levels is acute.

The One-Year Bar to Asylum in the Age of the Immigration Court Backlog

By Lindsay M. Harris

Imagine being forced to flee your home, separated from your children, and undergoing the perilous journey to seek safety and protection in the United States. Upon arrival, you are immediately detained and questioned about your intentions. You explain that you fear for your life and seek asylum protection. You may even undergo a detailed interview with an asylum officer, who finds that you have a significant possibility of establishing asylum eligibility. You are released from detention to pursue your asylum claim in immigration court. You diligently attend check-ins with an Immigration and Customs Enforcement officer for the next two years but struggle to find affordable legal representation as you await your first court date—scheduled two years after your arrival. When you appear at that court date, without an attorney, you learn for the first time that you were required to file an application for asylum with the immigration court within one year of your arrival. Your failure to do so bars you from asylum eligibility. You are now only eligible for a lesser form of relief and will live in limbo—you will never be reunited with your children who remain in danger in your home country, you can never travel abroad, and you will never become a permanent resident or a United States citizen.

This absurd situation, faced by thousands of asylum seekers navigating our complex immigration system alone, results from the disastrous interplay of a twenty-year-old law barring asylum for those who do not file within one year of arrival, and an immigration court backlog rendering compliance virtually impossible. Our immigration courts are overwhelmed, with over 521,000 cases pending and a wait, on average, of almost two years for an initial court hearing. More than half of the recently arrived asylum seekers, largely women and children fleeing violence in Central America, lack legal representation. The United States Government provides no notice to asylum seekers of the one-year bar, practically denying all but those with competent legal counsel a meaningful opportunity to file within one year.

Drawing upon contemporary cases, this Article is the first to illuminate the human costs of the one-year bar to asylum in this age of unprecedented immigration court backlog: needless deprivation of rights and full protection for vulnerable children and families seeking protection in the United States. It is also the first to analyze the Executive Office for Immigration Review’s recent attempt to solve this problem for asylum seekers represented by legal counsel. In doing so, the Article lays out a detailed road map of complementary reforms and actions by each actor in the immigration system necessary to ensure access to justice—specifically, to provide a fair and meaningful opportunity to apply for asylum for all asylum seekers.

Note

Bell v. Itawamba County School Board: Testing the Limits of First Amendment Protection of Off-Campus Student Speech

By Margaret Malloy

After hearing that his female classmates were being sexually harassed by two coaches at his school, eighteen-year-old high school senior and aspiring rapper Taylor Bell recorded a rap song off campus criticizing and arguably threatening harm to the coaches. When the high school’s administrators found out, they suspended Bell. Bell subsequently filed suit, alleging a violation of his First Amendment right to free speech.

These events and the subsequent years of civil litigation surrounding them highlight the murky state of student speech law. The reigning “substantial disruption” standard derived from Tinker v. Des Moines Community School District is too vague and outdated to protect either students or administrators when it comes to off-campus speech. Additionally, the case law governing when schools can punish student speech that originates off campus remains unclear.

This Note highlights the lack of consensus among courts dealing with student speech issues, and urges courts to adopt a modified version of the standard that Judge E. Grady Jolly of the Fifth Circuit proposed in his concurring opinion in Bell v. Itawamba County School Board. To be effective, the Jolly standard must be clarified with regard to what constitutes an “actual threat.” This Note further argues that clarifying these standards, in light of the ubiquity of social media and current alarming levels of school violence, is essential. The proposed standard would prohibit schools from punishing off-campus speech in most cases—except where the speech implicates a compelling school interest, such as maintaining safety on campus.