Tag Archives: Immigration
Mar 8, 2017 Jaya Ramji-NogalesLexImmigration
As immigrant communities and immigrants’ rights advocates stare down the barrel of the Trump administration, anti-trafficking appears to be the sole immigration-related issue that might gain bipartisan traction. As has historically been the case with refugees and asylum seekers, Democrats and Republicans may find common ground in concern over the situation of trafficked individuals, especially those subject to sexual trafficking. Refugee advocates and scholars have long raised concerns about the impact of collaborations with strange bedfellows on law and policy-making. Janie Chuang’s article, Giving as Governance? Philanthrocapitalism and Modern-Day Slavery Abolitionism, raises a similar set of worries around the anti-trafficking agenda, introducing a new character to the cast: the philanthrocapitalist. This piece presents a comprehensive and thoughtful set of concerns about the outsized and largely unaccountable role of a new generation of hyperengaged donors in shaping the anti-trafficking policy agenda.
In Prof. Chuang’s words, philanthrocapitalism is a “relatively new form of philanthropy, born of a new generation of the ultra-rich who aspire to use their business skills to fix the world’s social problems.” She explains that these donors play a much more direct role in shaping responses to societal issues than philanthropists in previous eras, who gave money to support third parties’ efforts to effect social change. This is a sound analysis, though it then raises the question of whether these are differences of degree or of kind. Philanthropists have always had some control over policymaking agendas through their selection of projects and varying levels of control through reporting and funding mechanisms. What is different about these new philanthrocapitalists? Continue reading "Who Should Set the Anti-Trafficking Agenda?"
Jan 6, 2017 Jill FamilyLexImmigration
For undocumented immigrants, deportation is a constant looming threat. Given the harsh and broad categories of things that an immigrant can do to become deportable, the unfairness of the deportation adjudication system, and the devastating consequences of deportation, it makes sense that immigration law scholars focus on the phenomenon of deportation. Nathalie Martin, whose primary scholarly focus is not immigration law, reminds immigration law scholars that, unfortunately, there are many problems to explore beyond deportation.
Martin explores themes of scarcity by reporting on what she learned through a qualitative study of 50 undocumented immigrants in New Mexico. The study, funded by the National Conference of Bankruptcy Judges, investigates the banking and credit habits of undocumented immigrants through a snowball sampling technique. In Survival in the Face of Scarcity, Martin uses data from the study to explore how issues of scarcity are compounded for a population without legal status. As Martin explains, her findings “show a perfect storm” (P. 109) where individuals with limited rights are fearful to assert any legal rights they have. Continue reading "Problems Beyond Deportation"
Jun 30, 2016 Angela BanksLexImmigration
International human rights are often described as universal rights. The universality of this legal regime leads many people to view it as an appropriate resource for addressing the plight of undocumented migrants. Yet the legal protections provided within the international human rights regime are often unavailable to undocumented migrants, or the rights that are most important to them are not protected. International and immigration law scholars rarely acknowledge these limitations, which makes Professor Jaya Ramji-Nogales’ article such an important oorontribution. “The Right to Have Rights”: Undocumented Migrants and State Protection provides an excellent analysis of the limits of international human rights law in protecting undocumented migrants.
Two of the central challenges that undocumented migrants face are vulnerability within their states of residence due to their limited “recourse against exploitation due to fear of deportation” and “the rupture of family and community ties through deportation.” (P. 1050.) The rights to territorial security (by which Ramji-Nogales means the right to remain in one’s state of residence), family unity, and the absence of discrimination due to immigration status are important rights for addressing undocumented migrants’ central challenges. Continue reading "Undocumented Migrants and International Law"
May 30, 2016 Juliet StumpfLexImmigration
I admit it. I’m a data geek. Not that I produce any of it myself—regression analysis makes my hair stand on end—but I am really good at admiring the work of people who are really good with data. And the data I really like (lots) sheds light on issues we all really care about. Presumptuous of me, you might think, to think I know what you care about. But don’t you care about lawyers?
You will, if you don’t, after you read Ingrid Eagly and Steven Shafer’s A National Study of Access to Counsel in Immigration Court. Before delving into it, recall Judge Richard Posner’s less-than-oblique critique of the immigration bar in 2015:
There are some first-rate immigration lawyers, especially at law schools that have clinical programs in immigration law, but on the whole the bar that defends immigrants in deportation proceedings … is weak—inevitably, because most such immigrants are impecunious and there is no government funding for their lawyers.
Eagly and Shafer begin where Judge Posner left off—with the story of the momentum toward establishing a first-rate public defender system for poor immigrants facing deportation. Judge Robert Katzmann, Peter Markowitz, Stacy Caplow, and Claudia Slovinsky led the most prominent of these efforts, which culminated in the New York Immigrant Family Unity Project. That project provides detained New Yorkers with representation in removal proceedings at state expense. And what convinced the New York state legislature to support such a scheme, aside from Judge Katzmann’s gravitas and Stacy Caplow and Peter Markowitz’s irresistible charm? Continue reading "Getting it Wrong on Right to Counsel, By the Numbers"
May 16, 2016 Jaya Ramji-NogalesLexImmigration
Over the past few months, the world has been transfixed by the flows of Syrian refugees pouring into Europe. These mass movements were, of course, preceded by much larger populations fleeing Syria for neighboring countries such as Jordan, Lebanon, and Turkey; at last count, four million Syrians resided in these three states. Though international law mandates protection against refoulement, or return to Syria, for those who fit the definition of a refugee, the UN Refugee Convention says nothing about who should bear the costs of protecting these refugees. This is the gap that Tendayi Achiume seeks to fill in her forthcoming article, Syria, Cost-sharing, and the Responsibility to Protect Refugees.
The question of global cost-sharing for refugees is ground well-trod, perhaps most famously by Prof. Peter Schuck in his 1997 article, Refugee Burden-Sharing: A Modest Proposal. That controversial piece has since framed the debate around the topic. Prof. Achiume steps into this arena with a novel and provocative proposal: to leverage the international legal doctrine known as the Responsibility to Protect (RtoP) in order to frame international coordination around and equitable cost-sharing for refugees. Perhaps best known as the doctrine that enabled humanitarian intervention in Libya, RtoP is not without its critics, as Prof. Achiume readily acknowledges. Her article suggests using RtoP as a tool to address the free rider problem in responding to mass refugee flows while at the same time viewing the situation of Syrian refugees as a tool to rethink potential uses of RtoP on the world stage. Making this case is not a task for the faint of heart; Prof. Achiume’s combination of boldness and fine-grained attention to each layer of her complex argument will manage to convince even the most skeptical of readers to rethink their views of refugee cost-sharing and RtoP. Continue reading "Rethinking International Law’s Responses to Refugee Flows"
Nov 10, 2015 Jill FamilyLexImmigration
Jason A. Cade,
Enforcing Immigration Equity, 84
Fordham L. Rev. (forthcoming 2015), available at
SSRN.
In the late twentieth century, Congress amended the immigration laws to severely limit the power of immigration judges, the agency’s adjudicators, to grant relief from removal on equitable grounds. At the same time, Congress expanded the categories of activities that render a foreign national removable. The result of the statutory tinkering was that it was much easier to be removable and much harder to be granted relief from removal.
The severity of those reforms is well known. Professor Jason Cade’s contribution to the discussion is that he persuasively argues that those statutory reforms from twenty years ago are linked to the most visible controversy in immigration law right now: President Obama’s executive actions creating the chance for a temporary reprieve from removal. Continue reading "A Need for Equity in Immigration Law (Congress, are you listening?)"
Sep 9, 2015 Angela BanksLexImmigration
A perennial question for scholars interested in social justice is how politically and socially marginalized groups can become full members of society. Jennifer Lee provides an important contribution to the literature addressing this issue. Building on insights from the social movement literature on strategic framing, Lee contends that strategic mainstreaming offers an opportunity for marginalized groups to obtain immediate benefits. Lee focuses on unauthorized immigrant workers and views strategic mainstreaming as a tool to successfully litigate workplace violations, petition for immigration status, and obtain desired public policy reforms.
Much has been written within the social science social movement literature about the role of frames and framing strategy in bringing about legal reform. Frames serve as tools for organizing and understanding information. Because of the relationship between cultural norms and law, framing offers a useful strategy for legal reform advocates. As Lee notes, “law is neither objective nor fixed but rather dependent on the relationship law shares with the dominant cultural and social patterns of society.” (P. 1068.) Consequently social movements seeking legal reform “are more powerful when the messages of the movement align with the values of mainstream culture.” (P. 1069.) Lee focuses on one type of framing strategy—mainstreaming. This is the process by which “interpretive frames correlated to dominant cultural values” are used “to create connections to mainstream society.” (P. 1064.) Through mainstreaming advocates seek to demonstrate common ground between those seeking reform and dominant cultural values. Continue reading "Cultural Narratives and Legal Rights"
Apr 1, 2015 Jaya Ramji-NogalesLexImmigration
Moria Paz,
Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls (Stanford Public Law Working Paper No. 2526521), available at
SSRN.
What is the relationship between international human rights law and migration? Though many might assume a simple one – human rights protect migrants – the reality is much more complex, raising profound questions about state sovereignty, politics, and the nature of international law. In her new paper, Human Rights, Immigration and Border Walls, Moria Paz maps out the central tension of this relationship, providing an insightful and balanced description of deep structural problems with the current human rights approach to migration.
Paz defines clearly for the reader the tension between sovereignty and individual rights that underpins the relationship between human rights and migration. She argues that the two normative doctrinal approaches available to resolve questions of migration necessarily clash. According to Paz, the human rights approach locates the right to a minimum level of human dignity in the individual, whether or not that individual has complied with formal immigration requirements. Yet these rights exist in a statist international legal regime that provides states with absolute authority to decide who can enter, “under what conditions, and with what legal consequences.” In other words, states and their members have the right to decide who can become a member of their political community and how the state’s resources will be allocated. This tension is, of course, grounded in age-old questions about international law’s ability to constrain state behavior. Yet the highly politicized nature of migration law sharpens this perennial conflict, leading to interesting and unexpected outcomes. Continue reading "The Borders of Human Rights"
Jun 6, 2014 Angela BanksLexImmigration
The Fourteenth Amendment of the United States Constitution grants birthright citizenship to all individuals born within the territory of the United States, with an exception for the children of diplomats. Consequently, the children of unauthorized migrants born in the United States are United States citizens. A number of individuals, including members of Congress, contend that birthright citizenship serves as an incentive for unauthorized migration. As recently as January 3, 2013, the House of Representatives considered a bill that would limit constitutional birthright citizenship to the children of U.S. citizens, lawful permanent residents, and noncitizens serving in the armed forces. Carolina Núñez’s article makes an important contribution to this debate, and to the academic literature on citizenship and membership more broadly, because it offers substantive criteria for determining who should have birthright citizenship in the United States and because it analyzes a variety of proxies for measuring these substantive criteria.
Through an examination of post-American-Revolution cases and the congressional debates for the Fourteenth Amendment, Núñez identifies three substantive factors that have been critical in making membership decisions: mutuality of obligation, community ties, and community preservation. Núñez introduces three models of membership utilized in U.S. law (the territorial model, the status-based model, and the post-territorial model) and assesses each model’s ability to effectively measure the substantive criteria. She concludes that the use of “inaccurate proxies are unavoidable” when assigning birthright citizenship, but that the territorial model offers the most accurate proxy. (P. 857.) Continue reading "The Substantive Criteria Underlying Birthright Citizenship"
May 9, 2014 Juliet StumpfLexImmigration
César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. (forthcoming 2014), available at SSRN.
When the news came out that nearly half a million noncitizens now find themselves in immigration detention, it struck me that this may be the most invisible civil-rights issue of our era. Immigration Detention as Punishment, by César Cuauhtémoc García Hernández, offers a compass through this tricky and contested terrain.
Formally, immigration detention is a civil status, an administrative adjunct to deportation. Detained noncitizens have lesser procedural protections against unnecessary or excessive detention than the criminal justice system provides to pre-trial detainees. Yet, immigration detention functions to deprive noncitizens of social and physical liberty in the same way as criminal incarceration. The government detains noncitizens in the same jails and prisons as criminal defendants and the convicted. The lives of noncitizens in detention are regulated in the same way as the lives of those whose confinement results from the criminal justice system. Continue reading "Civilizing Civil Detention"
