Tag Archives: Immigration

Theorizing Transnational Resistance “From the Inside Out”

Ama Ruth Francis, Global Southerners in the North, 93 Temp. L. Rev. 689 (2021).

In Global Southerners in the North, Ama Ruth Francis offers a new theoretical angle on the long-standing and crucial question of how to mobilize popular opinion and legal power on behalf of migrants who lack political voice. Her contribution decenters the state as the key actor in international law, and suggests instead that scholars concentrate on individuals and sub-state spaces. Focusing on climate change migration, Francis suggests that the way to address the severe power asymmetries between those responsible for and those most impacted by the changing climate is to reconceptualize the Global South to include all people and spaces rendered expendable by racial capitalism. She builds on the Third World Approaches to International Law (TWAIL) literature to argue that international law should be theorized as a shared commitment that can be furthered by political agents – in other words, that states are not the only actors capable of creating international law.

Francis begins her analysis by noting that the Global South is not a monolithic bloc; there are vast differences across and within states. For example, among the BRICS nations (Brazil, Russia, India, China, and South Africa), China is a major emitter even though it remains part of the Global South. Moreover, within states in the Global North and the Global South, racial capitalism creates significant gulfs between rich and poor that underlie disparities in both emissions and community resilience in the face of climate change. She describes the TWAIL literature on international environmental law that discusses the history of colonial expansion and domination linked to environmental degradation, and explains how this project of global economic inequality was justified and continues to be bolstered by international law. Continue reading "Theorizing Transnational Resistance “From the Inside Out”"

Follow the Money: Capital Controls as Migrant Control

Shayak Sarkar, Capital Controls as Migrant Controls, 109 Cal. L. R. 799 (2021).

When I picture immigration enforcement, my mind’s eye sees walls bisecting dusty hills, “POLICE” slashed across ICE uniforms, sheriffs with immigrant detainers, and the bright painted bricks and silvery wire of detention facilities. I don’t see money.

At least, I didn’t. Then I read Shayak Sarkar’s Capital Controls as Migrant Controls. Now, like a Sixth Sense, when I picture immigration control, I see money. I see it everywhere, walking around. Capital Controls will shift your perspective on the relationship between how we control capital and how capital is a tool of immigration control. Continue reading "Follow the Money: Capital Controls as Migrant Control"

A Positive Immigration Agenda for Racial Justice

Kevin Johnson, Bringing Racial Justice to Immigration Law, 116 Nw. U.L. Rev. 1 (2021).

Since the summer of 2020, Americans have been having more explicit discussions about racial hierarchy in the United States and the role of law enforcement in maintaining such hierarchy. Kevin Johnson’s forthcoming essay, Bringing Racial Justice to Immigration Law, brings that conversation to immigration law. Johnson argues that Congress, but ultimately the Supreme Court, needs to explicitly address the racial animus that has motivated the structure of immigration law in the United States. Through an examination of immigration history, the emergence of a robust immigrant rights movement, and the significant backlash from the Trump Administration, Johnson demonstrates that a positive agenda for immigration reform is required in order for the country to move towards a more just immigration system, rather than simply reverting to the pre-Trump immigration system, which was not a model for justice.

Johnson’s essay begins by mapping the racially discriminatory foundations of immigration law and the minimal role that courts have played in acknowledging and remedying such discrimination. The essay then discusses the emergence of the robust immigrant rights movement despite the fact that non-citizens are not eligible to vote. A response to the growth of the immigrant rights movement was a backlash by the Trump Administration. The next section of the essay explores the efforts undertaken by the Trump Administration to “maintain and reinforce the racial caste quality of the immigration system.” (P. 3.) The essay ends with an appreciation for the immigrant rights movement, and the claim that the goals sought by the movement will only be “meaningful, lasting, and truly transformative” if the Supreme Court jurisprudence shifts to require robust constitutional review of immigration laws and “allows the courts to serve as a check on racial animus.” (P. 3.) Continue reading "A Positive Immigration Agenda for Racial Justice"

Rescue Based in Liberty and Dignity

Shalini Bhargava Ray, The Law of Rescue, 108 Cal. L. Rev. 619 (2020).

The Law of Rescue connects aiding migrants to the body of law governing rescue generally. Professor Shalini Bhargava Ray proposes a new theoretical framework for the law of rescue based on her examination of prosecutions for migrant rescue. Her framework de-emphasizes economic interests and lifts up considerations of liberty and dignity.

While “[t]he law of rescue was not designed to express, promote, or protect the human dignity of beneficiaries or the liberty of rescuers,” (P. 623) Professor Ray argues that it should be redesigned to do so. Her new framework would balance three considerations: (1) the rescuer’s liberty to engage in the rescue; (2) the beneficiary’s need for rescue; and (3) the potential third-party harm flowing from a consensual rescue. Continue reading "Rescue Based in Liberty and Dignity"

Resistance is Not As Useless As We Believed

Daniel Farbman, Resistance Lawyering, 107 Cal. L. Rev. 6 (2019), available at SSRN.

“Resistance is useless,” said the Vogon guard to Ford and Arthur, the intergalactic protagonists of Douglas Adam’s Hitchhiker’s Guide to the Galaxy. That statement turned out to be pretty accurate. Despite Ford’s attempt at resistance through searing critique of the bureaucratic system that the Vogon guard serves, he and Arthur are summarily pushed through the airlock into the starry void.1

Perhaps what Ford needed was the lesson in Daniel Farbman’s Resistance Lawyering:  that resistance staged from within an unjust and illegitimate system, rather than from the outside, can be dramatically effective. Farbman illustrates this through examining resistance to the Fugitive Slave Act of 1850, the sharp edge of a system that shaped both the racial trajectory of this nation and our national yardstick of the meaning of injustice. Continue reading "Resistance is Not As Useless As We Believed"

Long-Term Residence as Evidence of De Facto Membership

Shoba Sivaprasad Wadhia, Americans In Waiting: Finding Solutions for Long Term Residents, 46 Notre Dame J. Leg. 29 (2019).

In 2018 the Pew Research Center reported that approximately two-thirds of all unauthorized migrant adults in the United States have lived here for more than ten years. The average length of residence is fifteen years. The unauthorized migrant population has become a more settled population rather than a temporary population and mass deportation is politically impossible. In light of these realities it is critically important to seriously explore a pathway to lawful immigration status and/or citizenship for this population. Wadhia’s recent article in the Notre Dame Journal of Legislation argues that long-term residence should be a basis for access to regularizing immigration status in the United States. This argument is rooted in the historical use of long-term residence as the basis for a variety of forms of relief in immigration law.

Americans in Waiting: Finding Solutions for Long Term Residents offers a detailed overview of the role that long-term residence has played in the past, the role that it currently plays, and the role that it could play to address the immigration status of the almost 11 million unauthorized migrants in the United States. Long-term residence in the United States has been recognized as a mitigating factor in deportation cases since 1891 when Congress authorized the deportation of individuals who became a public charge within one year of arrival. The one-year statute of limitations was later extended to five years and this approach to deportation grounds was continued in 1917 when crime-based deportation grounds were adopted. Continue reading "Long-Term Residence as Evidence of De Facto Membership"

Watch This Space: AI at the Border

Petra Molnar, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, 8 Cambridge Int’l L. J. 305 (2019).

As scholars of immigration law have been busy digesting the firehose of law and policy changes shooting out of the Trump administration, the use of new technologies at the border has been proliferating. Petra Molnar’s new article, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, reminds us that we must begin to pay closer attention to these developments and how they are deployed and regulated. Building on her excellent report, Bots at the Gate, the article provides a timely and useful roadmap of the relevant technologies and their very real risks. Though in the end Molnar is more sanguine than I about the potential of human rights law to mediate these risks, she rings a crucially important warning bell that we would all do well to keep an ear out for over the roar of the firehose.

The article begins, as it should, with a basic description of the “class of technologies that assist or replace the judgment of human decision-makers.” Automated decision-making has the potential to impact adjudication processes and outcomes by the full range of immigration actors, from border patrol to immigration courts. But what technologies are contained within this category? Molnar lists four: artificial intelligence, machine learning, automated decision systems, and predictive analytics, describing them as technologies that can be taught and can learn. Along with the description, she raises the key concern about the opacity of how exactly these decisions are made. As Frank Pasquale and others have asked, what is in that algorithm? Bias, perhaps? Molnar makes the important connection between the literature that critically examines automated decision-making and immigration adjudication. She notes that these technologies present the same risks as human decision-makers: accountability, bias, discrimination, error, and transparency, reminding us not to be fooled by the algorithm’s veneer of scientific objectivity. Continue reading "Watch This Space: AI at the Border"

Creatively Searching for Fairness

Fatma Marouf, Invoking Common Law Defenses in Immigration Cases, 66 UCLA L. Rev. 142 (2019).

Immigration lawyers search for ways to squeeze fairness out of a system that bristles at the concept. Professor Marouf’s article, Invoking Common Law Defenses in Immigration Cases, is a wonderful contribution to this immigration law tradition of creatively searching for fairness in the system. The harshness of immigration law creates the need for Professor Marouf’s contribution. The value of her contribution stems not only from her creative approach, but because her efforts serve as a reminder that immigration law desperately needs reform to become fair.

Professor Marouf is driven to explore the applicability of common law defenses in immigration cases precisely because immigration law is not fair. If consequences were proportional, if more robust relief from removal were available, or if the grounds of removal were not so broad, there would be less of a need for creative approaches such as Professor Marouf’s. As Professor Marouf states in her article, “all possible defenses must be explored.” Continue reading "Creatively Searching for Fairness"

Crowd-Sourcing Decolonization

Tendaye Achiume, Migration As Decolonization, 71 Stan. L. Rev. 1509 (2019).

At last—an article that squarely confronts the unquestioned authority of nation states to exclude economic migrants, and that moves the discussion beyond the red cape of open borders. Tendayi Achiume deconstructs the stone foundations of sovereignty in her ambitious and thought-provoking article, Migration as Decolonization.

Above the fever pitch of international debate surrounding global migration, one truth seems unassailable: that it is the prerogative of the sovereign state to exclude economic migrants. Faced with this unbreachable barrier, the battle around immigration moves elsewhere, pitched instead around how broadly to define the categories of those privileged to cross international borders—which citizens, residents, workers, humanitarian refuge-seekers, among others. Separated from the sound and fury of this debate is a silence around when purely economic migrants—“those who enter the territory of a foreign state in order to pursue better life outcomes”—have any legal claim to cross borders.

Achiume’s thesis is that the process of decolonization, which is ensnared in inequitable neocolonial relationships, must continue through the right of individual self-determination through economic migration. This right has boundaries. It belongs to individuals from nations subjected to the inequity-producing rules and institutions of colonization, who seek to better themselves within nations that hold “colonial advantage” over the country from which the individual originates. The journey to this conclusion takes three moves. Continue reading "Crowd-Sourcing Decolonization"

Out of the Mouths of Babes

International and domestic laws aimed at protecting children involved in human smuggling generally operate under the assumption that these children are vulnerable and defenseless prey to dangerous and violent criminals, for whom they work against their will. In her recent article, “Circuit Children”: The Experiences and Perspectives of Children Engaged in Migrant Smuggling Facilitation on the US-Mexico Border, sociologist Gabriella Sanchez uses original qualitative fieldwork to upend or at least nuance this claim that sits at the heart of current anti-smuggling laws. The children whose stories she tells offer a much more complex picture of their role in helping others navigate the U.S.-Mexico border.

While many scholars have decried the carceral turn in human smuggling laws, Sanchez offers a key piece of evidence demonstrating the fundamental problems with this move to criminalization. It is, as has been far too obvious of late, easy for politicians and governments to demonize actors in the migratory process, both migrants and those who help them to move. But the carceral approach masks the structural forces that render migration both necessary and nearly impossible to undertake lawfully for individuals who do not win the birthplace lottery. Sanchez’s body of work highlights the humanity and dignity of the individuals who facilitate migrant journeys—who might, from a different perspective, be viewed as part of a modern-day Underground Railroad. Though she refrains from hitting the reader over the head, the unmistakable take-away from her work is that these individuals are not the source of the problem; they are doing the best they can in the face of structural and geopolitical forces beyond their control. Continue reading "Out of the Mouths of Babes"

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