New Immigration-Related Articles from SSRN

Here are a few new immigration-related articles from the Social Science Research Network (www.ssrn.com):

“Pulling the Trigger: Separation Violence as a Basis for Refugee Protection for Battered Women” American University Law Review, Vol. 59, No. 2, p. 337, 2009 MARISA SILENZI CIANCIARULO, Chapman University – School of Law CLAUDIA DAVID, affiliation not provided to SSRN.  ABSTRACT:   For over a decade, women seeking asylum from persecution inflicted by their abusive husbands and partners have found little protection in the United States. During that time, domestic violence-based asylum cases have languished in limbo, been denied, or occasionally been granted in unpublished opinions that have not provided a much-needed adjudicative standard. The main case setting forth the pre-Obama approach to domestic violence-based asylum is rife with misunderstanding of the nature of domestic violence and minimization of the role that society plays in the proliferation of domestic violence. Fortunately, however, a recent Obama-administration legal brief indicates that women fleeing countries where governments are unable or unwilling to protect them from their abusive husbands finally may be able to avail themselves of U.S. asylum law. This article proposes a workable standard for adjudicating such claims. Based in part on psychological research on the dynamics of abusive relationships, particularly the phenomenon known as “separation violence,” this article formulates a particular social group that satisfies the various legal elements for political asylum: “women who have left severely abusive relationships.” This social group is based on research demonstrating that abusers strike out with increased violence when their partners leave the relationships, in many cases even killing them. This article explores the dynamics of abusive relationships, the failure of U.S. adjudicators to understand those dynamics, and the application of international human rights law to domestic violence survivors. [Professor Cianciarulo’s work is always first-rate.]

“Taking Prevention Seriously: Developing a Comprehensive Response to Child Trafficking and Sexual Exploitation” Vanderbilt Journal of Transnational Law, Vol. 43, No. 1, 2010.  JONATHAN TODRES, Georgia State University College of Law.  ABSTRACT:  Millions of children are victims of trafficking and commercial sexual exploitation each year. Governments have responded with a range of measures, focusing primarily on seeking to prosecute perpetrators of these abuses and offering assistance to select victims. These efforts, while important, have done little to reduce the incidence of these forms of child exploitation. This Article asserts that a central reason why efforts to date may not be as effective as hoped is that governments have not oriented their approaches properly toward prioritizing prevention – the ultimate goal – and addressing these problems in a comprehensive and systematic manner. Instead, efforts to date have been piecemeal and oriented toward dealing with exploitation of children after the harm occurs. This Article argues for refocusing efforts toward the development of a comprehensive, prevention-oriented strategy that addresses the root causes of these problems. The Article discusses how certain critical issues – (1) research/data; (2) program design; (3) the dominant principle guiding state responses; (4) stakeholder coordination; and (5) the interrelationship among rights – have been largely ignored in developing responses to child trafficking and commercial sexual exploitation. The Article suggests that, by focusing greater attention on these issues, governments and child advocates can develop more effective responses to the trafficking and commercial sexual exploitation of children and increase the likelihood that responses to these problems will help prevent such abuse of children.  [This article obviously touches on topical and important issues.].

 “Human Security and the Rights of Refugees: Transcending Territorial and Disciplinary Borders” Michigan Journal of International Law, Vol. 30, No. 3, pp. 763-807, 2009 ALICE EDWARDS.  ABSTRACT:The human security paradigm focuses directly and specifically on people and their right to live in safety and dignity and to earn a livelihood, rather than on the State and its security and sovereignty. Human security treats security, rights, and development as mutually reinforcing goals and is oriented as much toward the protection of individuals as toward their empowerment. It also reinforces the view that no matter how vigorously a State defends its national borders, today’s global threats, such as environmental degradation, international terrorism, poverty, and infectious diseases do not respect them. It also challenges us to revisit notions of territory and sovereignty as far as they inhibit global action in the face of transnational threats to our shared security and humanity. However, the idea of human security has met considerable criticism. One of the main concerns of the human security framework is that it may undermine hard-won human rights guarantees or otherwise displace law-based systems of protection. This concern has raised many questions about the discourse on human security. Is it intended to or likely to re-place or undermine human rights? Does it threaten these hard-won legal gains? These questions are addressed in this article. A second level of inquiry in this article interrogates what the “human security/human rights” dialogue means for the protection of refugees, who have typically been outside the remit of States’ national interests, except insofar as they are seen as threats to a State’s security or some geopolitical pawns in the realist security paradigms of the Cold War and its bipolar politics. As non-citizens who are on the perimeters of the citizen-state protection system, refugees have been reliant largely on specific legal regimes, supported by humanitarian goodwill, for their protection. However, these legal regimes have been increasingly eroded by state noncompliance and exploitation of legal loopholes. This article asks whether the framework of human security may offer a complementary source of protection in the face of eroding refugee rights.  [Human security is the hot new topic in international law.]

“Regulating Immigration Legal Service Providers: Inadequate Representation and Notario Fraud” Fordham Law Review Vol. 78, No. 2 CAREEN SHANNON.  ABSTRACT:  Immigrants are often easy prey for bogus or incompetent attorneys, “notarios,” scam artists, and other bad actors who take advantage of immigrants’ limited knowledge of U.S. law, lack of English fluency, and lack of cultural knowledge to charge exorbitant fees for wild promises of green cards and citizenship that the bad actors cannot – or in some cases never intended to – deliver. Such exploitation is merely a symptom, however, of the larger problem of inadequate access to competent legal counsel by foreign nationals seeking to navigate our labyrinthine scheme of immigration laws, regulations, and policies. Contrary to popular belief, not all of these foreign nationals are “illegal aliens” who slipped over our southern border; many are entitled to obtain lawful immigration status, if only they had adequate guidance from qualified counsel to help them seek it. Unfortunately, there is no constitutionally guaranteed right to counsel in immigration proceedings (even in cases where deportation is at stake), and competent private and nonprofit resources are limited. After illustrating the nature of the problem with some real-life stories of immigrants who have been victimized by fraudulent service providers, and discussing the current state of the law with respect to what constitutes the inadequate practice of immigration law and who is legally permitted to represent immigrants in immigration matters, this report proposes changes to local, state, and federal law and policy that would help to combat fraudulent activities by unscrupulous non-lawyers and inadequately trained lawyers alike. These and other proposals are put forth in an attempt to help lay the groundwork for ensuring that immigrants in need of competent legal counsel can access the help to which they should be entitled. [Careen Shannon is an excellent immigration attorney who is writing on the exploitation of immigranbts by notarios.].

“How Did the 2008 Economic Crisis Affect Social and Political Solidarity in Europe?” Transit, Forthcoming JENNIFER HOCHSCHILD, Harvard University.  ABSTRACT: One possible outcome of the economic crash of 2008 was that the majority or mainstream members of a society would direct their anger and fear against the minority or marginal members of their society. The result would be not only a deteriorating national and international economy but also increased hostility and fear among racial, ethnic, or nationality groups in a country. Social solidarity would decline, perhaps irrevocably. Another possible outcome of the 2008 economic crash was that both mainstream and marginal members of society would lose faith in their governments, or even in democratic governance more generally. Political solidarity would decline, perhaps irrevocably. To provide one type of evidence on whether these fears were warranted, I compared results for questions asked in both 2006 and late 2008-2009 on the European Social Survey for thirteen western European countries. The results show that Europeans did lose faith in their national economies over those two years, but did not lose faith in their national governments or in the practice of democracy. Similarly, in the majority of these thirteen countries, respondents did not lose more faith in parliaments, the legal system, or politicians between 2006 and 2008. Finally, views did not change a great deal with regard to the impacts of immigration on one’s country or the desirability of permitting more immigrants of various kinds. That result holds for those who do, and those who do not, feel discriminated against. In sum, so far as public opinion surveys can demonstrate, the economic crisis of 2008 did not undermine social or political solidarity in western Europe, [Hochschild’s scholarship is always insightful.]

KJ