New Immigration Articles

May 5, 2009

Here are two new immigration articles posted on the Social Science Research Network (www.ssrn.com):

“Undocumented College Students and Financial Aid: A Technical Note” Review of Higher Education, Vol. 32, p. 407, MICHAEL A. OLIVAS, University of Houston Law Center [BLOGGER’S NOTE; OLIVAS IS THE TRUE GURU ON THIS ISSUE.]

ABSTRACT: In spring 2008, an issue over which I have been toiling away in obscurity for years became a matter of debate for the U.S. presidential candidates. On one side the Democrats were promoting college access for undocumented students; on the other, Republicans were all for locking them out of higher education (except Governor Huckabee, who in what I think was his finest hour said that we should not hold the sins of parents against their children). What was all the hullabaloo about? A number of states and their colleges and universities have been struggling with this issue, and ten states have acted to grant residency tuition to undocumented college residents in their states. There has been litigation in state and federal courts over this issue. Against this backdrop of state activity, the federal stage has also been bustling. The Development, Relief, and Education for Alien Minors (DREAM) Act was introduced in Congress in 2003 but has languished there, as comprehensive immigration reform efforts failed in late 2007. If passed, this legislation would allow “alien minors” to start on the path towards permanent residency and, ultimately, citizenship. It would also address, among other issues, amnesties or legalization and work authorization. Finally, an important provision would render DREAM students eligible for all federal financial-aid programs except Pell. But since the presidential campaigns began in earnest, the legislation has been stalled. In short, there has been a surprising amount of litigation and, recently, legislation on an issue that affects only a few students, but extremely vulnerable ones. In the states, advocates on both sides have engaged in efforts to get new provisions signed into law and to prevent them from becoming law. There is likely to be federal comprehensive immigration reform at some point, which will include provisions for undocumented college students to regularize their immigration status. In a related field, that of financial aid, there are some technical issues that affect undocumented college applicants, and citizen children whose parents may be undocumented. As a general rule, the undocumented are ineligible for federal financial aid, and in virtually all states, for state financial aid as well. Moreover, there are several technical and administrative problems that even citizen college applicants face in negotiating the complex financial aid application process. The U.S. Department of Education has issued verification guidance on “discrepant tax data” and “conflicting information” that has relevance to the treatment of undocumented college applicants or citizen applicants whose parents are undocumented. Studies indicate that many undocumented taxpayers pay taxes and file their tax returns, using ITIN’s, and if they do so, those tax returns may be used by their citizen children to establish financial aid eligibility through the required FAFSA. This article reviews the overlapping regimes of financial aid, immigration, and taxation, with particular attention to he status of undocumented college students.

“Defining ‘Sexual Abuse of a Minor’ in Immigration Law: Finding a Place for Uniformity, Fairness and Feminism” KATE BARTH, University of Pennsylvania — School of Law

ABSTRACT: This article examines the circuit split over the proper definition of the term “sexual abuse of a minor” in the Immigration and Nationality Act, using considerations of fairness, uniform application of the law, and feminist perceptions of the purpose of statutory rape laws to help guide analysis. The Board of Immigration Appeals, the Second, Third, Fifth, Seventh, and Eleventh Circuits have tied the term “sexual abuse of a minor” to the definition given in 18 U.S.C p. 3509(a)(8). The Ninth Circuit, on the other hand, recently decided that the term should more properly be tied to the definition given in 18 U.S.C.A. pp. 2242-2246. In addition, the First Circuit has refused to tie “sexual abuse of a minor” to a federal definition and has instead indicated that any state conviction for statutory rape constitutes an aggravated felony as intended by the INA. The differences between these possible definitions are striking. Because an alien who is concluded to have been convicted of “sexual abuse of a minor” is deportable as an aggravated felon, the breadth of the definition chosen by the courts has far-reaching consequences on the lives of the aliens it impacts. This article argues that rather than looking to p. 3509(a)(8) or fully relying on a state conviction, courts should compare the state statute of conviction with the narrower definition of “sexual abuse of a minor” encoded in substantive federal criminal law at pp. 2242-2246 because this definition is construed in favor of the alien, results in a more uniform application of the law and aligns more closely with feminist perceptions of what a statutory rape law should accomplish.

Redefining the Rights of Undocumented Workers by Keith Cunningham-Parmeter (Willamette), American University Law Review (forthcoming) [BLOGGER’S NOTE: KEITH IS WRITING ON CRITICAL ISSUES OF THE RIGHTS OF MIGRANT WORKERS.]

ABSTRACT: Should a nation extend legal rights to those who enter the country illegally? The Supreme Court recently addressed this question when it held that unauthorized immigrants who are fired illegally for unionizing cannot recover monetary remedies. This has led to a significant decline in employment protections for unauthorized immigrants beyond the unionized sector. For example, some courts now question whether unauthorized immigrants can receive full remedies for sexual harassment, workplace discrimination, or on-the-job injuries. Scholars have criticized these losses but have yet to formulate a coherent framework for evaluating the employment rights of unauthorized immigrants. This article does so by distilling and applying several core principles at issue when employment laws conflict with immigration laws. I begin by explaining how the text and purpose of selected immigration and employment statutes show that Congress never intended to restrict unauthorized immigrants’ employment rights. Remedial restrictions not only harm the workplace protections at issue, they fail to discourage illegal immigration. Thus, neither legislative intent nor national immigration goals justify limiting the workplace remedies available to unauthorized immigrants. Although the future rights of unauthorized workers will turn partly on the issues of statutory purpose and immigration policy discussed in the early sections of the article, equally important are the consequences of diminished rights. Accordingly, I conclude the article by explaining why restricting workplace protections based on status harms citizens as well as immigrants. I contend that employment protections are “rights of partial inclusion” that reflect a distinctive sphere – the workplace – where unauthorized immigrants should be placed on par with citizens in pursuing collective interests. In contrast to arguments that favor limiting resources to lawful residents, partial inclusion explains how employment protections can effectively preserve national identity while simultaneously enhancing unauthorized immigrants’ incentives for social investment. In doing so, partial inclusion furthers the community’s self-definition, while providing unauthorized immigrants with a sense of belonging in a world increasingly focused on their exclusion.

The Centrists Against the Ideologues: What are the Falsehoods that Divide Americans on the Issue of Comprehensive Immigration Reform? Robert Gittelson, Notre Dame Journal of Law, Ethics, and Public Policy, Vol, 23, No. 1, p. 115, 2009 [BLOGGER’S NOTE: ROBERT GITTLESON IS A VERY INFORMED OBSERVER OF IMMIGRATION AND IMMIGRATION REFORM.].

ABSTRACT: At first glance, many people with moderate interest in the ongoing debate over Comprehensive Immigration Reform (CIR) assume the divisiveness inherent in this issue to be one of right versus left. However, upon further review, a more accurate assessment would be to state that this issue is better defined as one that divides the moderate middles of both parties from their more radical fringes at either end of the spectrum. I’ve concluded that the real problem, more than anything, is that this issue is divided along a very simple axis—namely, the informed versus the misinformed. There are many, many people out there who have heard a preponderance of flatly wrong information that has consistently been publicly disseminated by the opponents of CIR, and have swallowed it hook, line, and sinker. So what exactly are these “myths” that the restrictionists or nativists have been propagating? Well, there are several, and they have pervasively made their way into the mainstream of this debate. There are four myths in particular that I will attempt to debunk in this article. First, that CIR is bad for our national security. Second, that illegal immigrants are a net burden on our tax base. Third, that CIR is just another code word for amnesty, and if it passes, it will make the problem of illegal immigration worse, because it will encourage more illegal immigrants to sneak into our country. And finally, that since these immigrants took it upon themselves to come here illegally, the United States has no moral or ethical responsibility to allow them to stay, or specifically to legalize their status to remain in the United States. We have to face the fact that in the continuing debate for comprehensive immigration reform, there are very few clearly defined black and white issues. The final solutions will almost certainly emerge as murky shades of gray. That being said, it is vital that we go into this debate with as many truths as possible, and eliminate propaganda, spin, and outright falsehoods. This debate deserves nothing less than our best, bipartisan good-faith effort to achieve workable and enforceable legislation. Our government has an ethical responsibility to enact this vital legislation, and it has a moral responsibility to make sure that the final legislation reflects fairness, inclusiveness, and the American values that we hold to be self-evident.

Exploitation Nation: The Thin and Grey Legal Lines between Trafficked Persons and Abused Migrant Laborers By: Dina Francesca Haynes – New England Law Notre Dame Journal of Law, Ethics, and Public Policy, Vol, 23, No. 1, 2009 [BLOGGER’S NOTE: DINA WRITES SOME GREAT STUFF.]

ABSTRACT: People around the world are on the move, pushed by external events such as civil war, political upheaval, and increasingly environmental disasters and pulled by the lure of a better life, a better job, a better way to provide for their families. The United States has created an inconsistent legal framework for responding to the exploitation of immigrants. The degree to which we offer protections against exploitation depends on the degree to which we recognize victimhood, with the label of victim only frugally bestowed upon those who are also viewed as essential to sustaining the US economy. Trafficked persons are not useful to legitimate US businesspersons, and are accordingly protected, while agricultural and factory workers are very useful to businesspersons whom we regard as legitimate. This paper looks at the psychology of migration and migration theory, and the human rights framework as a protection tool designed for migrants. It explores the notion of exploitation, and in particular the extent to which people in transit, migrants, are particularly vulnerable due to the very human nature that drives them to wish to improve their circumstances. It looks at the characteristics of exploitation, from the perspective of the exploiter and the exploited, and proposes that part of the reason migrants are so vulnerable to exploitation is the private sphere nature of the movement through and into new cultures and legal systems in which the migrant lives and works on the fringes of society, not fully embraced by it. The author then identifies two specific forms of exploitation, human trafficking and the labor abuse of agricultural laborers and guestworkers, and examines the international and domestic US legal responses to exploitation in those two contexts, theorizing that Americans and countries adhering to free market economies have very mixed feelings about exploitation. On the one hand we believe that exploitation is morally and past a certain degree even legally wrong, but on the other accepting it as a necessary characteristic of doing business in the global market. The article then looks into principles of democracy and capitalism to search for answers, suggesting that legal responses to exploitation alone will never be sufficient, and that civil society, wielding human rights arguments and tools may be the most effective counterforce to exploitation. Finally, the author offers a prescription for change, recommending in part that civil society and immigration law responses be bolstered to protect against exploitation and create a culture of concern for exploitated persons.