Scharf urges rational statutory construction to ease immigration plight of child victims of abuse, neglect

My colleague Irene Scharf published further research into easing immigration hardships for undocumented youth who have been victimized by abuse, abandonment, or neglect.  She explains (footnotes omitted):

In 1990, aiming to ease the difficult situation for undocumented child immigrants who were dependent on juvenile courts for their protection, Congress enacted the Special Immigrant Juvenile provision of the Immigration and Nationality Act, located at 8 U.S.C. § 1101(a)(27)(J) (the provision). In 2008, in an effort to further ease the plight of these young people, it amended the provision to relieve the proof requirement from proving abuse, abandonment, or neglect by both parents to that of one or both parents. Unfortunately, the provision maintains its “two-tier” citizenship system because one of its subsections denies Special Immigrant Juveniles (SIJ) who naturalize the same rights as other citizens possess to petition for their parents to immigrate [8 U.S.C. § 1101(a)(27)(J)(iii)(II)]. In Second Class Citizenship? The Plight of Special Immigrant Juveniles [40 Cardozo L. Rev. 579 (2019)], I concluded that this limitation violates Due Process by creating this two-tier citizenship system. To address this inequity, courts should employ the doctrine of “rational legislating” to interpret this provision in a way that would place SIJs on an equal footing with other citizens. This would more accurately reflect the intent Congress had when it amended the provision in 2008, and permit naturalized SIJs to reunify with their parents.

Professor Scharf in the article further frames the problem in describing its impact on the lives of young people from Guatemala, Honduras, and El Salvador, relating experiences amalgamated from real clients of the immigration law clinic she has supervised for nearly two decades.

The article is Robbing Special Immigrant Juveniles of Their Rights as U.S. Citizens: The Legislative Error in the 2008 TVPRA Amendments, 30 Berkeley La Raza L.J. 41 (2020).

Comparative research overviews tort law throughout Central America

Dean Castro Valle

Dean Claudia María Castro Valle of the Universidad Tecnológica Centroamericana (UNITEC), Honduras, has published a fascinating comparative overview of Central American tort law in Louisiana State University Law's (11:1) Journal of Civil Law Studies (2018).  The article is available for free download.

Dean Castro Valle nimbly frames the civil law mechanisms of Central America in the context of tort objectives, considering the interplay of corrective and distributive justice and the amalgamation of Roman and Anglo legal principles.  There is too little such scholarship about Latin America, owing in part to the language barrier.  Dean Castro Valle's research arises in the context of regional interest in economic and legal integration, a reminder that Central America should not be forgotten as a rising and economic and political force in the twenty-first century.

Here is the introduction (footnotes omitted).

In order to achieve the proper protection of individual interests, tort rules need to be applied efficiently whenever these interests are subjected to any kind of harm. For that to be possible, the traditional approach has been the acceptance that any loss or injury sustained by legally protected interests must meet certain requirements. The requirements include the actual existence of specific regulation designed for their legal protection, compensability, imputability to a person other than the victim, and certainty. Hence, tort is generated from the infringement of the general duty of respect due to any legally protected interest. It is a non-contractual obligation imposed on a person, in order to compensate the holders of such interests, for any injuries or losses caused. These interests can be either material or moral.

The primary requirement for the application of tort law is that the sustained damages, losses, or injuries must originate from a negligent or intentional activity or omission. This means that care and
precaution were omitted in the execution of such activity, and that the causation between this activity and the harmful effects can be proved in a court of justice. However, tort liability is essentially patrimonial. Its function is to grant, impede or repair a specific economic loss, while its application allows the reparation of indirect patrimonial injuries and non-pecuniary damages.

The aim of this paper is to compare the way that tort liability is regulated in the Central American civil codes (Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica, and Panama), understanding the similarities and differences in their approach. This sort of analysis could be the base of any harmonization effort, so relevant in the actual regional context, in view of the recent developments of the Central American economic integration process.