New Immigration Articles From SSRN

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

“The Plenary Power Doctrine and the Constitutionality of Ideological Exclusions: A Historical Perspective” Texas Review of Law & Politics, Vol. 15, 2010 PATRICK J. CHARLES.  ABSTRACT:  For over a century it has been repeatedly but unsuccessfully argued that the First Amendment in the Constitution limits the federal government’s plenary power to exclude or expel aliens from the United States. Such arguments have persisted despite the Supreme Court having repeatedly determined that the First Amendment does not restrict such power. Instead, the Court has upheld the federal government’s plenary power to “forbid aliens or classes of aliens from coming within their borders, and expel aliens or classes of aliens from their territory” regardless of whether its justification is based upon ideological or association grounds. Numerous commentators, scholars, and attorneys have attacked this rationale by arguing that the Bill of Rights limits the federal government’s power to exclude or expel aliens.  This article sets forth the well-established, and often forgotten, doctrine of allegiance, the Anglo-American legal precedent for ideological exclusion and expulsion, the inherent authority of nations as understood by early international law commentators, how the Founding Fathers understood these doctrines, and the reasons this power resides with the federal government. The evidence demonstrates that ideological exclusion and expulsion are constitutionally permissible and are political questions to be determined by the people through their federal representatives.

“Systemic Failure: Mental Illness, Detention, and Deportation” UC Davis Journal of Immigration Law and Policy, Forthcoming BILL ONG HING, University of San Francisco – School of Law; UC Davis School of Law.  ABSTRACT:  Our detention and deportation system failed Tatyana Mitrohina. She was born in Russia with heart defects and deformed hands. She was rejected by her parents for many years, spending her infancy in hospitals and institutions. Though she was later able to move back home, her parents abused her and then abandoned her. She immigrated to the United States as a young teen, adopted by U.S. citizens. After more than a decade, she had a child of her own, whom she abused. Tatyana was diagnosed with mental illness. Although she was convicted of child abuse, the state court recommended medication, counseling, and a chance to regain custody of her child. But ICE took over, and Tatyana was removed and her child was taken away permanently. She should not have lost her child. She should not have been removed. This article discusses the victimization of Tatyana Mitrohina by the U.S. detention and removal system. However, this article also recounts some of the choices made along the way of Tatyana’s life, including choices that were manifested in the outcome of her removal proceedings. The choices include those made by her parents, the state court, the Immigration and Customs Enforcement officials, the immigration judge, her lawyers, and policymakers. Of course, Tatyana’s choices and even the choices made by the immigration clinic I help to direct are relevant. In this article, I describe Tatyana’s background, the incidents that led up to her being taken into ICE custody, and her removal proceedings. As she was in detention and suffering from mental illness, I describe some of the special challenges that detained respondents in removal proceedings encounter, as well as the special challenges faced by those who are suffering from mental illness. I describe how different choices made along the way affected the outcome of the case, and finally, I make note of how alternative choices could very well have resulted in a better outcome for Tatyana.

“Children in Transit: Results of Interviews with Central American Unaccompanied Minors Encountered in Mexico” Centers for Interamerican Studies and Programs Working Paper No. 21 ANITA KHASHU.  ABSTRACXT:  Unaccompanied minors are amongst the most vulnerable of migrants traveling through the Americas. As a result of their particular vulnerabilities, they become victims of some of the most serious security problems in the region, such as human trafficking, corruption of public officials in particular police, gang violence, and other more generalized forms of violence and crime. Despite the great need, there is very little research about this migration flow, particularly about Central American unaccompanied minors’ experiences in Mexico. More research is needed to aid state and non-government actors in both the United States and Mexico in developing improved procedures for apprehension, detention, adjudication of immigration claims, and repatriation. This working paper summarizes findings from a study of unaccompanied minors experiences migrating from Central American to and through Mexico on their way to the United States. Findings from semi-structured interviews conducted with 77 detained and non-detained unaccompanied minors encountered in Mexico are summarized, including information on the demographic and social characteristics of the interview sample; their language skills, education, and levels of literacy; their living and employment situation prior to migrating; and their migration histories and experiences. The hope is that increased knowledge of this migration flow will assist policy makers in the region improve policies for the care, detention, and repatriation of unaccompanied minors, as well as develop effective preventative practices.

“Native Competition and Low-Skilled Immigrant Inflows” BRIAN C. CADENA, University of Colorado at Boulder – Department of Economics.  ABSTRACT:  This paper demonstrates that immigration flows respond to differences in labor market conditions by documenting the systematic change in newly arriving low-skilled immigrants’ location choices in response to exogenous supply increases among the US- born. In contrast to previous treatments of this question, this paper relies on an identifiable source of exogenous variation that alters the expected returns to entering a labor market. Using pre-reform welfare participation rates as an instrument for changes in native labor supply, I find that immigrant inflows shifted away from cities with more welfare leavers toward cities with smaller reform-induced supply shifts. The empirical methods I use improve upon previous immigrant location studies by explicitly allowing for unobserved city amenities that provide different values based on the immigrant’s source country. The extent of the selection uncovered is substantial: for each additional native woman working in a city as a result of welfare reform, 0.8 fewer female immigrants choose to live and work there. These results provide direct evidence that selective location choices among immigrants tend to equilibrate labor market returns across geography.

“Asylum Policy in the European Union: An Examination of the Reception Conditions Directive and Housing Facilities for Asylum Seekers in Malta” THOMAS (BOBBY) ROBERT CAMERON, Ryerson University   ABSTRACT:  The working paper attempts to answer the following question: what are the legislative shortcomings in the European Union’s Directive 2003/9/EC on the minimum standards for the reception of asylum seekers which have subsequently contributed to legitimizing the State’s “right” to accommodate asylum seekers in undignified, ghettoized housing facilities and why do these shortcomings exist? This Directive – which is framed in a language of humanity, dignity, and respect – attempts to establish adequate reception conditions for asylum seekers across the EU including access to employment, education, health care, and housing. Essentially this paper attempts to explain how ghettoized housing facilities for asylum seekers in the Mediterranean island-State of Malta are implicated by the contested meaning of ‘adequate’ and ‘dignified’ as stipulated in the Directive. In doing so, this paper demonstrates the extent to which, and why, asylum policy in the EU has contributed to the marginalization of asylum seekers.I n the context of a human rights-based approach, this paper combines a review of the literature in the field with an in-depth analysis of the lived experiences of asylum seekers in a State-funded housing facility for asylum applicants in Malta.

“Empowering Our Children to Dream Without Limitations: A Call to Revisit the ‘Natural Born Citizen’ Requirement in the Obama Era” Chicana/o-Latina/o Law Review, Vol. 29, p. 43, 2010 CLAUDINE V. PEASE-WINGENTER, Phoenix School of Law.  ABSTRACT:  This article examines the unique requirement in the U.S. Constitution that American presidents must be “natural born” citizens. Although U.S. citizenship is constitutionally required to serve in other elected offices, the presidential requirement of “natural born” citizenship is anomalous. Indeed, it has been criticized as establishing a type of second-class citizenship by excluding whole segments of our citizenry from ever aspiring to our country’s highest office. Because naturalized citizens are excluded by the “natural born” requirement, the exclusion now disproportionately impacts people of color since most naturalized citizens are originally from Latin America or Asia. The “natural born” citizen requirement directly impacts only a handful of politicians who might campaign for the White House but for their foreign birth. Nonetheless, the requirement indirectly impacts large numbers of children who can never aspire to the presidency due to a fluke of birth, over which they had no control.  Modern scholars have consistently concluded that the “natural born” requirement has outlived any usefulness it once had, and it is blatantly discriminatory. Nonetheless, past efforts to eliminate the requirement have not been successful.  This article advocates that the families of children excluded by the “natural born” requirement would be the best candidates to take up this cause. Specifically, a powerful alliance could be forged between parents serving in the military, the parents of foreign-born adoptees, and the parents of immigrant children.

“Strengthening Accountability in UNHCR” International Journal of Refugee Law, Vol. 22, Issue 2, pp. 159-172, 2010 VOLKER TURK.  ABSTRACT:  Accountability is an important principle for the United Nations High Commissioner for Refugees (UNHCR) because of the Office’s particular mandate to lead and coordinate international action to protect, assist, and find solutions for refugees and other populations of concern. The dependency by populations of concern on humanitarian action and international protection creates a situation of power that requires a corresponding system of checks and balances. This needs to be balanced with the obligation of organizations like UNHCR to account for the use of financial, political, and material means that have been put at their disposal by states. Bearing in mind its various dimensions, accountability is defined by UNHCR as a commitment to deliver results for populations of concern within a framework of respect, transparency, agreed feasibility, trust, delegated authority, and available resources. Correspondingly, UNHCR’s aim is to build a modern system of accountability that is sufficiently robust and comprehensive to respond to the different accountability requirements expected of today’s international multilateral organizations.

KJ