New Immigration Articles from SSRN

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

“Restructuring Immigration Adjudication” Duke Law Journal, Vol. 59, pp. 1635-1721, 2010 Washington U. School of Law Working Paper No. 10-04-02 STEPHEN H. LEGOMSKY, Washington University School of Law.  ABSTRACT:  For decades, the immigration adjudication system has been under relentless attack from both the left and the right. The left has been concerned with the fairness of the proceedings, the accuracy and consistency of the outcomes, and the acceptability of both the procedures and the outcomes to the parties and to the public. The right has focused on the fiscal costs and elapsed times of these proceedings. This Article demonstrates that all of these criticisms have been well founded and that the roots of the problems are severe underfunding, reckless procedural shortcuts, the politicization of the process, and a handful of adjudicators personally ill suited to the task. Over the years, commentators and commissions have offered thoughtful solutions, but consensus has proven elusive. This Article calls for redesigning the entire system. For the trial phase, this Article endorses previous proposals for converting the current immigration judges into administrative law judges, who enjoy greater job security, and moving them from the Department of Justice into a new, independent executive branch tribunal. For the appellate phase, this Article proposes radical surgery, replacing both administrative appeals and regional court of appeals review with a single round of appellate review by a new, Article III immigration court. The new court would be staffed by experienced Article III district and circuit judges serving two-year assignments. This new system would significantly depoliticize the hiring, judging, supervision, and control of immigration adjudicators. It would consolidate the two current, largely duplicative rounds of appellate review into one, in the process restoring the Article III jurisdiction that Congress stripped away in 1996. It would save tax dollars and speed the removal process, thus reducing not only prolonged detention, but also what some believe is a meaningful incentive to file frivolous appeals to delay removal. It would preserve both specialized expertise and a generalist perspective. And it is politically realistic, permitting all sides to meet the specific objectives they hold most dear while requiring each side to make only modest concessions.

“Asylum in a Different Voice: Judging Immigration Claims and Gender” REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM, Jaya Ramji-Nogales, Andrew I. Schoenholz and Philip G. Schrag, eds., NYU Press, 2009 CARRIE MENKEL-MEADOW, Georgetown University Law Center, University of California, Irvine School of Law.  ABSTRACT An extensive statistical study of disparities in asylum adjudication throughout the United States reveals gross disparities in rates of asylum grants by region of country, experience of adjudicators, prior employment, and other factors. One of the most robust findings was one of gender disparities in adjudication rates. If the adjudicator of claims for asylum was female there was a 44% greater likelihood that asylum would be granted. This chapter in the book reporting these findings reflects on this significant finding of gender differences in judging and discusses, in light of the author’s prior work on gender differences in lawyering, whether these findings are confined to immigration cases, other “gender salient” case types, or have more generalizable significance. The article also reviews the prior literature on the presence or absence of gender differences in judging behavior.

“Sanctuary Cities: The Reason Illegal Aliens are Getting Away with Crimes?” KERRY PLANER, affiliation not provided to SSRN.  ABSTRACT:  The question remains: what is preventing authorities from following federal legislation? Likewise, where does the system fail, allowing for criminal aliens to escape deportation? It is no coincidence that these crimes occurred in cities and towns that promote sanctuary policies. Sanctuary cities prevent the adequate cohesion between local law enforcement and federal officials. In Section II, this note will discuss what sanctuary cities are and how and why they are created. Next, section III will detail the history of immigration legislation in the United States, pre- and post-9/11. Section IV will then analyze why federal legislation and immigration laws preempt sanctuary city policies and will look at the case law that supports the preemption. Section V discusses the harms of sanctuary cities, focusing specifically upon the vast amount of crimes occurring at the hands of illegal aliens, including gang crime and sex offenses. It will center on why sanctuary cities, through their passive measures, permit illegal immigrants to continue violating criminal laws in addition to being here illegally. The fact that many criminal illegal immigrants are repeat offenders, once subject to the hands of the authorities, compels the public to ask how this happens. This section will also examine the arrest procedure of an illegal immigrant and what should happen at the state and local level. And finally, Section VI and VII examine possible solutions to prevent criminal aliens from slipping through the cracks of the legal system and harming American citizens. This note does not attempt to discuss a possible solution to the illegal immigration problem that the country faces, but focuses more on illegal immigrants who are committing crimes over and over again, in part because they are not being reported to ICE, are not being denied bail, and ICE and state and local authorities are not provided with the appropriate resources and funding to handle such a tremendous amount of illegal immigrant cases.

“The Battle Against Migrant Trafficking in Canada: Is the Target Organized Crime or Irregular Immigration?” Our Diverse Cities, No. 7, pp.118-122, 2010 LOUIS-PHILIPPE JANNARD, McGill University  FRANÇOIS CRÉPEAU, McGill University – Faculty of Law: Hans & Tamar Oppenheimer Chair in Public International Law.  ABSTRACT:  This article examines the battle against migrant trafficking in Canada from a legal standpoint. It raises various questions about the purpose of the measures and sanctions against this offense in Canada under the Immigration and Refugee Protection Act (IRPA). The results show a significant discrepancy between the provisions of IRPA and the practices of Canadian courts, which are also inconsistent with foreign laws, the practices of foreign courts, and the provisions of international law. These findings illustrate the need for legislative amendments. ^top

The Rights of Others: Legal Claims and Immigration Outside the Law Hiroshi Motomura University of California, Los Angeles, School of Law Duke Law Journal, Vol. 59, pp, 1723-1786, 2010 UCLA School of Law Research Paper No. 10-07 Abstract: This Article analyzes the rights of unauthorized migrants and elucidates how these noncitizens are incompletely but importantly integrated into the U.S. legal system. I examine four topics: (1) state and local laws targeting unauthorized migrants, (2) workplace rights and remedies, (3) suppression of evidence from an unlawful search or seizure, and (4) the right to effective counsel in immigration court. These four inquiries show how unauthorized migrants – though unable to assert individual rights as directly as U.S. citizens in the same circumstances – can nevertheless assert rights indirectly and obliquely by making transsubstantive arguments that fall into five general patterns. The first is an institutional competence argument that the wrong decisionmaker acted. The second is an argument that an unauthorized migrant was wronged by a comparatively culpable person. The third is a citizen proxy argument that sustaining an unauthorized migrant’s claim will protect a U.S. citizen or lawful permanent resident. The fourth is that an unauthorized migrant may be unable to challenge the substance of a decision, yet may mount a successful procedural surrogate challenge to the way that decision was reached. The fifth is a phantom norm argument that, even if a government action withstands constitutional challenge, it violates a statute or regulation. These patterns illustrate how typical doctrinal relationships and litigation strategies – for example, choosing between equal protection and preemption arguments, or between seeking redress for harms to individuals and harms to groups – shift significantly for unauthorized migrants. These patterns of oblique rights reflect a pervasive national ambivalence about immigration outside the law.

KJ