STU Scholarly Works (St. Thomas University)
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How The Race of A Neighborhood Criminalizes The Citizens Living Within: A Focus on The Supreme Court and The High Crime Neighborhood
No full textMy whole life I was taught that all men are not created equal. This was beaten into my brain by my loving mother who just wanted me to be safe. You see, this message was part of what most young Black men hear when given “the talk.” I remember multiple variations of the talk given to me throughout my early childhood. However, a variation of the talk was most vividly remembered while taking our dog for a walk around my neighborhood with my mother. At the time, we lived in a suburban area, in a predominantly White neighborhood of Baton Rouge, Louisiana. I remember seeing a squirrel in a neighbor’s yard and our feisty rescue terrier taking off after it. Naturally, I gave chase as well, running into the back of our neighbor’s yard. Instantly, my mother began to yell “what are you doing!” Me, not thinking I had done anything wrong, justified my actions by answering “getting our dog” with a confused look on my face. After retrieving the dog, my mom went on to speak about how I could not do the same things that my White friends, John, Steven, Bobby, could do because I was Black. White citizens and police often see Black men as, in the words of Jay Z, “[g]uilty until proven innocent.” This is something that Trayvon Martin eventually would lose his life over. Four years later, this talk would hit me differently. I was eighteen years old and a senior at a majority Black public high school. Because I worked hard throughout my first three years of high school, I had the ultimate privilege of a Louisiana senior student, and that was getting out of school after only half a day. I was allowed to leave school early daily because of the number of credits I earned. I vividly remember one day in February of 2007. I remember it because I received a driving ticket for speeding in a school zone while being late for school. Because of that incident, my mother justly punished me by taking away my driving privileges for a month. At the time, I was a product of busing––my house was not in walking distance from my school. During my punishment, my grandfather would pick me up when I was dismissed; however, he did not show on this day. Students who were dismissed early had fifteen minutes to leave campus or they would be forced to stay in detention until regular dismissal. After fifteen minutes, I began to walk to my aunt’s house; she lived about five miles away. After walking nearly half a mile, a fellow minority classmate, Adrian, saw me and offered me a ride. As I approached his car, I remember him telling me to hurry because the police “be tripping.” I remember thinking, why would they “trip” when we had done nothing wrong? Less than thirty seconds later, red and blue lights flashed, and police pulled us over. Soon after the car came to a stop, the police, using a megaphone, ordered both of us to exit the vehicle. Then, we were ordered to place our hands on the hood of the car. The officers informed us that we were leaving from the direction of the (majority Black) school, and they noticed Adrian picking me up. The officers stated that they believed we were skipping school. Later, I would learn in my Criminal Procedure class about Whren v. United States, a case that explains how motive is not important when an officer makes a stop. I would also learn through Illinois v. Wardlow, that police could create reasonable suspicion out of almost anything, including running after seeing cops. Soon after, the officers demanded that we remove everything in our pockets as they proceeded to pat us down. The Supreme Court, in Terry v. Ohio, manufactured this tool that allows officers to conduct these searches with any amount of reasonable suspicion. When the officers stated their belief that we were skipping, I informed them that we were seniors and only attended school for half days. We also provided them with our IDs and informed them that we were over the age of eighteen, which meant that even if we did wish to skip school, we could do so without breaking the law. They answered, “well, we’re just going to call the school and be sure.” Confused, I picked up my cellphone while lying on the car’s hood, in an attempt to call my mother. Instantly, one of the officers scolded me for making a sudden movement. Everything I was told from “the talk” went out of the window. Now, I was infuriated. Here I was, embarrassed on the side of the road, while other classmates and peers drove past us. I was spread out with my pockets emptied; while the police fondled and yelled at me for going after my own phone! There isn’t enough emphasis I can add on these pages to communicate my feelings in that moment and yet I try. Then, I verbally “went off” on these officers. I told them how I felt; and that they were being “assholes” for no reason. The moment my friend and I showed our IDs, we dispelled their suspicion about any crimes; thus, the moment we disproved the officers’ theory, we had a right to be released. Adrian told me, “chill out, we’re good.” However, my friend’s attempt to calm me down proved unsuccessful. I continued my verbal assaults and asked if I was going to get shot for playing with my phone, which they could clearly see, and had already handled. I still remember the look on one of the officer’s face. He knew I was right. From that point on, he did not say another word and did not attempt to restrict my words or hand motions because he knew I was justified. However, it was not until his partner received clearance from the school that he would let us go. After a short time, we were released with no apologies since the officers were “just doing their jobs.” My mom used the “the talk” to adequately prepare me for the injustices I would experience just because I am a Black man. However, there is no talk that could prepare me for the trauma these police dealings would have on me almost fifteen years later. Even more alarming is that, even after six years as a veteran cop myself, these traumas continue to exist for me
Beyond Culture: Reimagining The Adjudication of Indigenous Peoples\u27 Rights in International Law
No full textThis article argues that the current model of Indigenous rights adjudication foregrounds essentialized notions of culture, backgrounding interests of Indigenous peoples (IPs) that are not necessarily related to culture. Culture imposes a burden that limits the possibilities of human rights for Indigenous peoples, which is at least in part attributable to the current model\u27s lack of precision. We show that the jurisprudence on IP rights by international adjudicatory bodies focuses on culture without meaningful attempts to explain and define it, is imprecise on how culture affects the reading of the human right for which it serves as the basis, as well as the engagement with a possible right to culture or the need for cultural accommodation. This lack of precision can be read as a pluralism of approaches, which could open avenues for different versions of culture to be accommodated; however, it also has the effect of enabling other interests to become bycatch, and then be warped and reshaped
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 15 (2020)
Culture, Morality, and The Law: The Treatment of Homosexuals in Jamaica
No full textThis paper presents the issue from the diverse contextualities including religion, natural law jurisprudence, culture and rule of law using the New Haven School of Jurisprudence methodology in dissecting the treatment of homosexuals in the island nation of Jamaica
Practice and Ontology of Implied Human Rights in International Law
No full textSince the XIXth Century, implied (unenumerated) rights have been widely recognized by the courts of several countries with the purpose of addressing the shortcomings existing in national constitutions with respect to the protection of the fundamental rights and freedoms of the human person. In the last decades, such a trend has been emulated by international human rights treaty bodies and regional courts, which use implied human rights to fill the gaps existing in human rights instruments. This practice increases the level of protection afforded to individuals and communities, achieving the goal of guaranteeing effectiveness of human rights
An Immigration Lawyer Walked into a Barr: The Impact of Trump’s Justice Department on the Defense of Criminal Immigrants
No full textSome may think the legitimate prospect of a Trump political era started in earnest subsequent to the future president being ribbed by President Barrack Obama and roasted by Seth Meyers at the White House Correspondents\u27 Dinner, in jokes primarily fueled by Trump\u27s public questioning of Obama\u27s legitimacy as president and domestic birth. For others, the seminal event-beginning the era-was Trump\u27s slow, unwalking, gliding descent down his gilded escalator at Trump Tower to officially announce his candidacy in an isolationist and xenophobic diatribe. However, I would argue that those moments didn\u27t reflect the real reality of the era, as there was prevailing mystery over not just whether Trump could actually win election on such a paranoid platform, but also over whether he really meant the rhetoric he was feeding to his prospective base voters like so much red meat. The highlights of that rhetoric have been repeated ad nauseum to the point of losing their power to shock: categorically deriding immigrants as rapists and murderers; labeling Federal District Court Judge Gonzalo Curiel, a United States-born child of immigrants, as disloyal and inherently conflicted to sit as a judge; and later wondering why the United States tolerated immigrants from shithole countries (all either African or, like Haiti, populated by African descendants), rather than places like Norway.\u27 But again, it was realistic for observers to believe that this early show was perhaps just a mirage for votes, in the same way that they might believe that a man whose domestic real estate empire sat in the immediate crosshairs of human-caused sea level rise and whose personal history was so objectively salacious couldn\u27t possibly be stridently both anti-climate science and anti-Roe v. Wade? Perhaps the nationalist tone-especially its nostalgia for a day gone by-wasa political game? Soon after the election, the country got the confirmation of Trump\u27s actual views on immigration when long-time immigration hawk Kris Kobach appeared on camera on his way into Trump Tower to consult with the President-elect. In Kobach\u27s hands was a list of talking points, an early blueprint for the nascent administration\u27s immigration playbook, one in which it amplified existing law, published interpretations, and sometimes made even obviously dubious legal cases, all with the unambiguous public purpose of vilifying immigrants and sowing distrust of outsiders, while capitalizing on the available legal room for heightening enforcement and curtailing immigration processing. Thus, inarguably the Trump Era had begun in earnest. Installing immigration firebrand Jefferson B. Sessions, M, as Attorney General, and Sessions\u27s former policy advisor and communications director (and hypocritical immigration extremist) Steven Miller as policy advisor, cemented the branding. Existing hierarchical enforcement priorities were abandoned, so all cases became priorities. Immigration backlogs swelled; racist and paranoid exclusion policies were implemented barring (mostly) the international Muslim community from visiting or immigrating to the United States; family units seeking asylum from Central America were separated and children were detained apart from their parents. Immigration practice became headline material in the popular press. The administration\u27s positions on niche immigration policy issues, formerly the bailiwick of immigration nerds and advocates, such as the Flores settlement agreement (governing the length and conditions of family detainees) were suddenly the material of late-night talk show comedic takedowns. Of course, the administration was undeterred by any negative press. Instead, the administration doubled down, in such measures as: proposing new rules, to be applied retroactively, that would govern how and when foreign students and other non-immigrants triggered unlawful presence that would bar or hinder their immediate immigration options;\u27 announcing a denaturalization task force that would ferret out supposedly high volumes of ill-gotten citizenship; and proposing leaps in application fees and massive increases in the filing fees for appeals.- The scope has been simply breathtaking: the Trump Era has been marked by more than one substantive change to immigration policy every workday that Trump has been in office. Within the Department of Justice is the Executive Office of Immigration Review (EOIR), primarily comprised of a network of 69 immigration courts (and approximately 465 immigration judges), and the EOIR\u27s appellate body, the Board of Immigration Appeals (BIA). These forums, of course, are appointed by and answer to the Attorney General. Attorney General Sessions implemented docket reforms, pairing strict case processing metrics-such as case completion goals/quotas and standards for reviewing performance based on a reversal rate by the BIA-with a restaffing of the BIA by some of the most conservative immigration judges in the country. Simultaneously, the BIA issued decisions limiting the
circumstances in which a judge may grant continuances in pending cases and eliminated a judge\u27s authority to administratively close proceedings. 9 Further, the Trump administration slashed refugee admissions, so those fleeing persecution would not be processed abroad and assigned to be received by the United States2;0 meanwhile, the Attorney General and EOIR issued decisions curtailing the eligibility of asylum seekers from the Western Hemisphere, and those who transit through the Western Hemisphere to be eligible for asylum once here, within the physical United States, issuing separate decisions addressing asylum seekers passing through a third country in transit. EOIR further limited or eliminated eligibility for asylum for victims of domestic violence, violence by private actors, and those persecuted based on their membership within a family unit. Not only did the administration create a new vision for asylum in which asylees must be processed while they reside in a third country (Mexico), but it devised a scheme in which immigrants who missed their United States court hearings while residing in a third country pursuant to this policy, could still be ordered removed in absentia. Thus, the entire philosophical self-identification of the United States as a nation of immigrants was, and remains, under question. Actually, in the eyes of the administration, that is not an open question, as even the United States Citizenship and Immigration Services, the services component of the Department of Homeland Security (DHS), has gone so far as to remove that very language from its mission statement. With this metamorphosis of self-image as a backdrop, the remainder of this article will address technical questions and trends in decision-making at the Board of Immigration Appeals. Remember, the initial thesis to draw national attention to immigration was the flawed premise that immigrants are criminals. In reality, of course, there is no objective correlation between immigration and criminality, but that is irrelevant in stoking nationalist fears. Based on cheers of build the wall, the stoking has resonated in some quarters. I would agree that the real motivator of ethnic insecurity is the rapid ethnographic changes via immigration following the Immigration and Nationality Act of 1965, or Hart-Celler Act, which for the first time restricted allocation of western hemisphere immigration, but over time reshaped the ethnic makeup of the United States to a degree unanticipated at its passage. Ironically, national numbers only now approach early twentieth-century highs in terms of the percentage of national population that is foreign born (i.e. there is ample precedent for this level of immigration), but that population is decidedly now largely non-European. The United States Department of Justice (USDOJ) has two primary immigration-related roles: the EOIR administrative court system (the immigration courts and the BIA) and, via the United States Attorneys\u27 Offices, prosecuting immigration-related offenses, including unlawful entry and reentry into the United States. The USDOJ also defends the government\u27s decisions in immigrants\u27 circuit court appeals ( petitions for review ) of removal proceedings. Thus, the optics and reality of the USDOJ are crucial to assuring the public that it is properly entrusted with both its enforcement role and its distinct role as an impartial adjudicative body. Jefferson Sessions certainly clouded this role in a speech vilifying the defense bar and characterizing the EOIR as having an executive role enforcing immigration law, escalating calls for an independent immigration court system. This, finally, brings us to the thesis of the article: beyond the rhetoric, how has this administration actually affected the legal removability of actual criminal immigrants? In other words, just how conservative is the EOIR in the time of President Trump and his DOJ, under the respective leaderships of Jefferson B. Sessions I (February 2017 - November 2018), Acting Attorney General Matthew Whitaker (November 2018 - February 2019), and William P. Barr (February 2019 to present)? More specifically, what trends, if any, can be discerned from canvassing lines of cases regarding the deportability of immigrants who have criminal histories? Finally, being as this article is the end-product of a symposium of Barry University and the Orange County (Florida) Bar Association, I will give special consideration to the Florida implications of those trends. To make the article of more utility to non-experts in the immigration field, some context will establish the essentials of the practice and the legal issues discussed
Congressional Oversight Disputes as Political Questions, Part I: The Decline of the Interbranch Accommodation Doctrine
No full textIn Part I, I argue that the accommodation doctrine - a ripeness doctrine courts within the D.C. Circuit have relied upon in assessing the appropriateness of judicial enforcement of a congressional subpoena against the Executive branch - has declined in its vitality and utility
New Regulations, New Understandings: Taking Advantage of The Section 199A Deduction with Restricted Imposed by Section 643(f)
No full textThis Article explores the intricacies and benefits of the Section 199A deduction and a general description of the final regulations. Part II of this Article discusses the Section 199A deduction, the technicalities, and operational component of the same. Part III of this Article discusses how individuals and relevant passthrough entities (“RPE”) have the ability to aggregate similar businesses they own to either qualify or even maximize on their Section 199A deduction. Part IV of this Article discusses the Section 199A calculation for RPEs and trusts, including the difference for trusts in calculating the Section 199A deduction before and after the final regulations. Finally, Part V concludes with a summary of the main takeaways the final regulations left tax planners with
Shut Up and Dribble: The Racial Subordination of The Black Professional Athlete
No full textMost popular sports in the U.S. today are dominated by Black athletes. The professional Black athlete today has opportunities that the majority of his nonathlete counterparts do not. Judging objectively, professional Black athletes “made it.” Lucrative lifestyles and international fame, however, has come at a high price in recent years. In the era of the Black Lives Matter movement, a domestic race war, and the increase unleashing of violence against the Black community by police, Black athletes are caught in the middle. Athletes are natural born leaders. This has led to the strong convictions and rightful protest by many of them during times of turmoil. This Note aims to highlight two in particular—Muhammad Ali and Colin Kaepernick. Part I offers a brief history of African Americans in sports and the impact of professional sports on American society. This then sets the stage for why Black professional athletes are perhaps the perfect class of individuals to highlight and discuss racial subordination in the U.S. In part II this Note then uses the stories of Muhammad Ali, Colin Kaepernick, and others alike, to debunk three main ideas in Part III. First, it aims to highlight why we do not live in a post-racial America. Second, it criticizes a belief that suffering by racial minorities comes exclusively as a result of class rather than race. This is where the racial subordination of class privileged minorities plays a role in highlighting the other, non-economic, ways in which class privileged minorities continue to experience “otherness.” It does this in the context of Black professional athletes. Lastly, it uses the Black professional athlete to highlight other forms of racial subordination endured by class privileged African Americans and people of color that are non-economic