New Immigration Articles from SSRN

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

“Bringing International Law to Bear on the Detention of Refugees and Conditions of Detention in the United States” Willamette Journal of International Law and Dispute Resolution, Symposium Issue GWYNNE SKINNER, Willamette University – College of Law.  BLOGGER’S NOTE:  Now that the Obama adminsitration has declared “detention now, detention forever,” how could this article not be more topical?  ABSTRACT: After describing how U.S. immigration law and policy results in the detention of refugees, this Article sets forth the application of international law – treaties as well as customary international law – to both the detention of those claiming asylum and to the conditions of immigration detention. The article also outlines findings of a recent human rights fact-finding with regard to conditions of immigrant detention. The article concludes that the United States in not in compliance with international law in the detention of refugees, and that it is not in compliance with federal constitutional law or international law with regard to the conditions of immigrant detention. especially where refugees are concerned.

“Islamophobia: American Muslims and the Fight Against Discrimination” SAHAR SULTAN, Hastings Race and Poverty Law Journal.  BLOGGER’S NOTE:  A timely and important topic.    ABSTRACT:  The 2008 Presidential elections proved to be historical for many reasons, among them, the legitimization of Islamophobia. The outright distrust of Muslims in America has become commonplace and as the number of Muslims grow, it is important for Muslims to legitimize their place in America. The workplace is where discrimination can hit the hardest and cost the most, not just for the employee, but also for the employer. Specifically, this note will focus on Title VII, how it is being used in the courts and how it should be used to bring the statute in line with its original intent. Not only is a new framework for Title VII needed, but also more a new framework for communication is imperative for shifting this tide. This atmosphere of distrust, resulting from the post 9/11 climate can take two forms. It can grow and take the form of domestic discrimination similar to the plight of Irish-Americans, African-Americans, Japanese-Americans, and the many other groups whose rights were diminished throughout American history based on fear and hatred. Alternatively, the outcome can be that of growth and understanding, one that recognizes that Muslims are not ‘the enemy within’ but rather contributing and patriotic Americans.

 “Ethical Territoriality and the Rights of Immigrants” Amsterdam Law Forum, Vol. 1, No. 1, 2008 LINDA S. BOSNIAK, Rutgers University School of Law, Camden.  BLOGGER’S NOTE:  All of Professor Bosniak’s scholarship is worth reading. ABSTRACT:  In this essay Bosniak discusses the normative idea of ethical territoriality: the conviction that a person’s physical presence within the territory of a state should be the basis for extending important rights and recognition. Bosniak examines commitment to ethical territoriality that is often found in legal and political thought. Why should the simple fact of the person’s presence in a state’s territory serve to ground rights and recognition there, and are the implications of thinking in such a manner? The essay specifically deals with the ethical territory argument in relation to irregular immigrants who are within the territory of a state without formal permission. According to the author, territoriality is still a dominant idea, but becomes in practice less justifiable.

“The Role of Prosecutorial Discretion in Immigration Law” Connecticut Public Interest Law Journal, Forthcoming SHOBA SIVAPRASAD WADHIA, Pennsylvania State University – Dickinson School of Law.  BLOGGER’s NOTE:  This is an all-important, yet under-theorized, topic.  ABSTRACT:  The concept of “prosecutorial discretion” appears in the immigration statute, agency memoranda and court decisions about select immigration enforcement decisions. Prosecutorial discretion extends to decisions about which offenses or populations to target; whom to stop, interrogate, and arrest; whether to detain or release a noncitizen; whether to initiate removal proceedings; and whether to execute a removal order; among other decisions. Similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving cost-effective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances. Yet there is a dearth of literature on the role of prosecutorial discretion in immigration law. This article describes the theory, history, and current standard of prosecutorial discretion in immigration matters. Drawing on important and relevant lessons from the criminal and administrative law paradigms, this article shows why the existing model of prosecutorial discretion in immigration affairs is inadequate and in some instances misguided. Recognizing the striking impact of arbitrary immigration enforcement decisions on undocumented noncitizens and their families, this article advocates for a bolder standard on prosecutorial discretion and greater mechanisms for oversight and accountability when such standards are ignored. Moreover, this article recommends that the Department of Homeland Security recognize select acts of prosecutorial discretion as a substantive rule, where the actions operate as a de facto benefit to individuals who satisfy an identifiable set of criteria and favorable equities. This article is divided into five sections: 1) Legal Background and History, 2) Lessons from Criminal Law, 3) Lessons from Administrative Law, 4) Limitations of Prosecutorial Discretion, and 5) Recommendations. Some overlap was unavoidable.

“Asylum-Seeking Families in Current Legal Discourse: A UK Perspective” DALLAL E. STEVENS, University of Warwick – School of Law.  ABSTRACT:  Asylum-seeking families in the UK tend to be regarded as a homogeneous group. This article questions that assumption and suggests that, in reality, the term ‘asylum-seeking family’ can denote various relationships between family members. There are, it is argued, many ‘typologies’ of the asylum-seeking family, and typology is crucial to the form of protection afforded to the asylum-seeker. The article examines the issues and difficulties confronting some of these typologies with particular reference to the role played by law in granting or resisting protection. A key focus is Article 8 and the developing jurisprudence before the European as well at national courts on the interpretation of ‘family life’ and ‘private life.’ In discussing a number of recent highly significant UK cases, it will be shown that for some types of family, Article 8 might provide a route to greater protection than is currently achievable under the asylum process.

“The High Cost of Free Speech: Anti-Solicitation Ordinances, Day Laborers, and the Impact of ‘Backdoor’ Local Immigration Regulations” KRISTINA M. CAMPBELL, University of Denver Sturm College of Law BLOGGER’s NOTE:  A former MALDEF staff attorney, Campbell has some fresh perspectives on day laborer ordinance litigation.  ABSTRACT:  This paper examines how local efforts to regulate the activities of immigrants, while not regulation of immigration per se, can have a substantial and detrimental effect on the civil rights of immigrants and Latinos. The paper discuss how day laborers – individuals, mostly Latino men, who seek short-term employment in public fora – are routinely targeted by state and local governments, federal immigration authorities, anti-immigrant activists, and the general public as a symbol of the employment of unauthorized aliens. Even though many day laborers are lawfully present, or have authorization to work in the United States, due to the high-profile nature of their job search – which usually involves waiting on corners in front of big-box stores or in nearby labor centers for a potential employer to offer them work – day laborers are assumed to be “illegal aliens” and, therefore, implicitly deserving of the derision and scrutiny that accompanies such a categorization. As such, day laborers are a visible and vulnerable population, subject to discriminatory treatment on the basis of real or perceived immigration status on a daily basis. However, despite the abundance of public scorn and contempt directed at day laborers, federal courts have uniformly upheld their right to solicit employment in public fora and have repeatedly struck down anti-solicitation ordinances designed to chill their First Amendment free speech rights. This paper argues that these decisions – while significant and important holdings that reaffirm the fundamental right of all persons, even those with unpopular messages, to speak and be heard – are largely pyrrhic victories for the day laborers themselves, who remain subject to discrimination, wage-theft, and abuse by unscrupulous employers because of the inherent vulnerability of day work. It then discusses the ways in which day laborers have empowered themselves – not only by challenging the anti-solicitation ordinances directed at them, but by organizing to ensure better wages and working conditions – and explores possible ways in which the First Amendment litigation successes day laborers have enjoyed can translate into a more practical, every day benefit for the men and women working “on the corner.”

KJ