New Immigration Articles

May 12, 2009

Here are some new immigration articles from the Social Science Research Network (www.ssrn.com):

“The Rights of Migrants” New York University Law Review, Vol. 84 ADAM B. COX, University of Chicago – Law School ERIC A. POSNER, University of Chicago – Law School [BLOGGER’S NOTE: ADAM COX IS WRITING SOME VERY INTERESTING IMMIGRATION SCHOLARSHIP AND POSNER IS AN EXCELLENT LAW & ECON SCHOLAR.].

Why do states provide migrants rights associated with citizenship? Existing accounts typically answer this question in terms of obligation – of a duty on the part of states to confer citizenship. Moreover, scholars tend to lump together the bundle of rights conventionally associated with citizenship when they answer this question. In contrast, this Article disaggregates the rights associated with citizenship, asks what both states and migrants want, and inquires into how the suite of rights associated with citizenship might advance those interests. States want to encourage migrants to enter their territory and to make country-specific investments, but have an interest in being able to remove immigrants or make their lives less comfortable if circumstances change. However, migrants will not enter and make country-specific investments if the state can easily remove them or change the conditions in which they live. Accordingly, the “optimal contract” reflects the trade-offs between commitment and flexibility. We discuss ways in which basic rights to liberty and property, political rights including voting, and other rights may embody the optimal contract in different circumstances.

“Non-Citizens and Civil Liberties” ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES, David S. Tanenhaus, ed., Macmillan, 2008 Valparaiso University Legal Studies Research Paper No. 09-03 BERNARD TRUJILLO Valparaiso University – Law School [BLOGGER’S NOTE — BERNIE IS A THOUGHTFUL SCHOLAR AND I HAVE CO-AUTHORED WORK WITH HIM.]

This Article, written as an Encyclopedia entry, summarizes some of the major decisions of the SCOTUS clarifying non-citizens’ access to the Bill of Rights. The Article gives special attention to SCOTUS jurisdiction in the areas of free speech, Fourth Amendment, Fifth Amendment protections in deportation proceedings, and access to the Bill of Rights by aliens unlawfully present.

“The Ring of Truth: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations” International Journal of Refugee Law, Vol. 21, Issue 1, pp. 1-33, 2009 JENNI MILLBANK, University of Technology, Sydney – Faculty of Law [BLOGGER’S NOTE: ANY PRACTITIONER KNOWS THAT CREDIBILITY DECISIONS MAKE OR BREAK AN IMMIGRATION CASE.]

Credibility assessment has always been a major issue in refugee determinations and its importance increases in the context of widespread introduction of fast-track processes and the manifest trans-national trend to truncate (or indeed remove) avenues for review. This article explores the practice of credibility assessment in lower level tribunals using a case study of over 1000 particular social group (PSG) ground decisions made on the basis of sexual orientation over the past fifteen years. Credibility played an increasingly major role in claim refusals, and negative credibility assessments were not always based on well-reasoned or defensible grounds. The article uses this specific case study in order to found recommendations for structural and institutional change aimed at improving more generally the credibility assessment process in refugee determinations.

“Critical Condition: Using Asylum Law to Contest Forced Medical Repatriation of Undocumented Immigrants” KENDRA STEAD, affiliation not provided to SSRN [BLOGGER’S NOTE: THIS IS A HOT — AND IMPORTANT — ISSUE.].

This Comment examines the legality of medical repatriation of immigrant patients. It proceeds to explore options available to patients opposed to repatriation. In particular, the Comment asserts that some patients facing medical repatriation may have viable asylum claims. A successful asylum application would block the repatriation, alleviate the hospital?s funding concerns, and secure more appropriate care for the patient. Further, the discussion of the interrelation between health care and immigration law that an asylum claim would promote will encourage lawmakers to develop policies to better address the issues raised by medical repatriations.

Patients Without Borders: Extralegal Deportation by Hospitals Kit Johnson University of North Dakota School of Law Univeristy of Cincinnati Law Review, Vol. 78, No. 2, 2010 [BLOGGER’S NOTE — HOT TOPIC, SOLUTION OFFERED, AND AUTHOR HAS GREAT LAST NAME; WHAT MORE COULD YOU WANT? :).]

ABSTRACT: Federal law requires hospitals to treat patients in need of emergency medical care regardless of whether or not they are lawfully present in the United States. And hospitals are prohibited from discharging those patients unless and until there is an assurance that their continuing medical needs will be met by another facility. Yet the federal government does not provide funding for the care of undocumented migrants after their need for emergency care has passed but their need for ongoing medical treatment lingers. Several hospitals have made the decision to privately repatriate, at the hospitals’ expense, undocumented patients needing long-term medical care. That is, the hospitals have hired transport to return these medically needy individuals to the care and custody of their native countries. Yet there is no legal authority for hospitals to enforce federal immigration law in this way. To the contrary, repatriation is subject to challenge on due process, equal protection, and preemption grounds. It may also be the basis for civil tort actions, statutory claims, and criminal charges. There is no question that hospitals face significant problems in treating undocumented migrants with long-term medical needs. The answer, however, cannot be private action that amounts to institutionalized vigilantism. There must be a public solution. I propose a new administrative process whereby hospitals can call upon the Department of Homeland Security to initiate the expedited removal and transfer of medically needy undocumented migrants.