47 Stetson L. Rev. i (2017-2018)

handle is hein.journals/stet47 and id is 1 raw text is: 




STETSON LAW REVIEW


VOLUME 47                              FALL 2017                             NUMBER   1



ARTICLES

Executive Order 13769 and America's Longstanding Practice
of Institutionalized Racial Discrimination Towards
Refugees and Asylum Seekers                                        Kaila C. Randolph   1

       One  of the paradoxes  of international human rights law is the international
       community's  inability to curb xenophobic attitudes resulting in discriminatory
       regulations that exclude refugees. The United States has an established history of
       excluding immigrants, particularly refugees, based on national or ethnic origin,
       masked  under national security. After the Civil War and the abolition of slavery,
       lawmakers  sought to control the ethnic composition of the country, by prohibiting
       the entry of certain ethnic groups. The practice was implemented through racially
       discriminatory legislation until the Immigration and Nationality Act of 1965.
       Nonetheless, the federal government continued to exercise racial discrimination
       through  the adjudication of asylum claims. The United States exemplified its
       present-day practice of racial exclusion with Executive Order 13769 Protecting the
       Nation from Foreign Terrorist Entry into the United States, which prohibits the
       admission of Syrian nationals indefinitely and suspends the U.S. Refugee Admissions
       Program  for a minimum of 120 days. Such immigration policies and regulations are
       a form  of institutionalized racial discrimination that violate a refugee's equal
       protection and due process rights under the Fifth Amendment and international
       human  rights norms  and customs. Although the Ninth Circuit Court of Appeal
       unanimously stayed the injunction, the appellate court did not review the merits of
       the case. This Article traces the enduring practice of institutionalized racial
       discrimination towards refugees in the United States and the illegality of Executive
       Order 13769 under federal and international law. Finally, the United States has both
       constitutional and international obligations to denounce xenophobia and racially
       discriminatory laws.



Post-Conviction Review:
Questions of Innocence, Independence, and Necessity              Fiona Leverick,
                                                                Kathryn Campbell &
                                                                     Isla Callander   45

       Alongside a growing recognition of the existence of miscarriages of justice, there has
       been a parallel development of schemes to address wrongful convictions after the
       normal appeals process has been exhausted. This Article addresses the question of
       what  constitutes the proper role for such schemes, drawing on a comparative
       examination of the respective schemes in Canada, Scotland, and North Carolina. It
       puts forward four arguments. First, it argues that there is a clear need for post-
       conviction review  schemes  to operate outside of the  courts, supported by
       investigative resources and the power to compel the production of evidence, and for
       them  to be independent from government. Second, it argues that such schemes
       should not restrict their remit to cases in which fresh evidence emerges, but should
       be empowered   to refer cases back to the court of appeal where there has been a
       procedural impropriety that casts doubt on guilt. They should not, however, be
       permitted to refer cases back to the court where there is overwhelming evidence of
       guilt, despite the seriousness of the procedural breach concerned. While there is a
       good argument that a court should overturn a conviction where a serious breach of
       procedure calls into question its moral authority to adjudicate, this argument does

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