New Immigration Articles from SSRN

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

“Catholic Social Teaching and Global Migration: Bridging the Paradox of Universal Human Rights and Territorial Self-Determination” Seattle University Law Review, Vol. 32, No. 2, 2009 VINCENT D. ROUGEAU, Notre Dame Law School

ABSTRACT:  This essay considers how law, religion, and democratic pluralism revolve around a particular issue: global migration. “Global migration” encompasses a number of related issues that are often collapsed under the term “immigration.” In nations that have constructed their identities around waves of settlers or migrants — places like the United States, Canada, Australia, and New Zealand — immigration involves the formal reception of foreigners into the host country as potential new citizens. This is just one part of the migration of peoples around the globe. Migration also encompasses emigration, asylum, economic migration,and undocumented or irregular immigration. This larger collection of human movements presents new challenges to democratic nations in a global environment in which most have explicitly committed themselves to certain fundamental, democratic values and human rights norms. Furthermore, these same values relate closely to core notions of Christianity. Catholic social teaching is a tradition within Christianity that emphasizes the dignity of the human person and, as such, complements and supports key liberal values essential to democracy and modern human rights discourse.

“Patients Without Borders: Extralegal Deportation by Hospitals” Univeristy of Cincinnati Law Review, Vol. 78, No. 2, 2010 KIT JOHNSON, University of North Dakota School of Law

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.

“Putting an End to an Unintentional Result: Why the Requirement that Female Immigrants Receive the Gardasil Vaccine Prior to Becoming Permanent Residents Should Be Suspended” Valparaiso University Law Review, Vol. 44, 2009 ELIZABETH R. SHEYN, affiliation not provided to

ABSTRACT:  This Article concerns the recent (August 2008) CDC-sponsored requirement that female immigrants to the United States receive the Gardasil vaccine prior to changing their residency status and, eventually, becoming naturalized citizens. The Article provides a background of the Gardasil vaccine including its usage and development, highlights the vaccine’s potential side-effects and other problems, and discusses potential social, economic, and constitutional issues raised by the Gardasil vaccine requirement in the immigration context. Finally, the Article argues that the requirement that female immigrants receive the Gardasil vaccine should be suspended.

“Why Laws on Identity Theft Do Not Protect Property or the Modern Economy: Criminalizing Blue Collar Immigrants with White Collar Laws and the Troubled History of Identification” ANA MARIA MERICO, University of Arizona – James E. Rogers College of Law; DAVID SPIRO, International Studies Association.  BLOGGER’S NOTE:  THIS ARTICLE TOUCHES ON A VERY IMPORTANT TOPIC THAT IS RELEVANT TO THE “IDENTITY THEFT” PROSECUTIONS IN POSTVILLE AND THE RECENT CASE DECIDED BY THE SCOTUS.

ABSTRACT:   It is often said that the law lags behind technology, particularly information technology. In the case of laws on identity theft the reverse is true. Identification, and its use by legal systems, has a legacy of racism, imperialism, and xenophobia. We argue that modern laws on identity theft have dragged their legacy of racism and xenophobia into the present, and as a result they are not only objectionable, but dysfunctional as well. The reason that laws on identity theft are so important is that identity is a ubiquitous and integral part of the functioning of the modern economy. Economic exchange has become increasingly conceptual in its nature. It started with simple barter, and that barter was protected by law more than 4000 years ago. As barter transformed into the use of coinage, then money, and then specie, the law had little difficulty codifying protection of property. Over the past 50 years the payments industry has evolved rapidly, and today money as both a means of exchange and as a store of value is based upon identity tokens. Credit is also an integral part of the economy, and assumption of credit is based on individual identification techniques. Protecting identity and identification is crucial to the functioning of the modern economy. Laws protecting identity, and the property (and claims on property) that is based upon identification, go back to the Common Law, and have been legislated at both the federal and state levels. The intent of the laws was to prevent white collar criminals from stealing credit cards, credit card numbers, bank accounts, and credit identities. Identity theft, according to the Federal Trade Commission, is the fastest growing crime in America. The law, however, has been applied to nearly everything except theft of identity for pecuniary gain. More commonly they are used by prosecutors against undocumented workers who make up social security numbers t gain work. After paying US taxes and earning minimum wage, these workers are often detained for extended periods and then released into “Operation Streamline,” which deports them immediately and without due process. Other recent examples of prosecutions include a man who used his ex-wife’s online user information to have prurient cyber-chats with other men; and a political activist who forged signatures on a nomination petition. At the same time, at least two State Attorneys General have had their credit card numbers stolen, and the police apparently lacked the motivation to even check the addresses to which criminals had sent thousands of dollars in fraudulently obtained goods. No matter what legal school of thought one agrees with, this misapplication of the law is problematic. It represents a failure of the regulatory state, it constitutes disparate impact on racial, national, and socioeconomic groups, it is a failure to codify the social norms of society, it fails to deter crime, and in terms of expressive intent it is pernicious in what it conveys to the populace. Yet it is perfectly consistent with the history of identity and identification. One might immediately think that identity theft laws have suffered from the same intellectual confusion as academic theories of identity, or that the law has lagged technology or even that such confusion might be forgiven in the panicky reaction of Congress after September 11, 2001. In fact, confusion over identity and identification traces back to at least the Middle Ages. (Ironically, our most prominent remnant of medieval identification is the badge that law enforcement officials use to show “who they are”). With the extraordinary changes in physical and social mobility in the Victorian era, the legal system began to implement systems of identification such as physiognomy and fingerprinting. These techniques developed as a reaction to the increased presence of “foreigners” whom, it was suspected, were committing most of the crime in society. In India, the British instituted fingerprinting because the people they were trying to govern all looked alike to them. Americans began using fingerprinting after the Chinese Exclusion Act of 1882 because they could not describe the difference between Asians who had immigrated to the US legally. Fingerprinting first became a national system in Argentina, where criminologists thought that the “Latin race” had a biological predilection toward violent crime. Identity is a very confusing word. It is used to both to associate individuals with groups, and to differentiate what is unique about each individual. The unique aspects of an individual – a signature, a fingerprint (and now other biometrics), a combination of DNA – can be used by governments to nab criminals, and they can be used by individuals to protect and to authenticate claims on things of value. As Simon Cole points out, the history of identification technologies have been entangled in the politics of controlling marginal groups and reinforcing negative racial stereotypes. Because identification technologies have the potential to spot criminals, and also to target potential future criminality, the technologies stigmatize marginalized social groups. They were developed, in large part, to control “a wide range of people considered ‘suspect’ and alien for other reasons: the natives of Europe’s colonies; recent immigrants; people of color; poor, mobile ‘vagrants’; ‘degenerates’; and prostitutes.” (Cole, 2001: p. 3). So it is little wonder that the xenophobia and racism, stemming from popular fear following the terrorism of September 11, 2001, that led to a series of laws limiting civil rights in the US included identity theft laws. And it is little wonder that the laws have been used to criminalize immigrants rather than to protect property and to enable the efficient functioning of the modern economy. Future laws on identity theft should be more specific, so they are not subject to misuse and disparate impact. We posit that terms of identification based on race and ethnicity are of little utility in the modern legal system. Both laws and systems of identification should be based on the functional reasons they are used. An identity that is used for banking does not have to include anything other than a unique identifier that is difficult to steal and counterfeit. An identity that is used to confirm one?s contributions to a national pension system, such as Social Security, can also be separate and distinct, and the laws regarding it should be separate and distinct.

KJ