New SSRN Immigration Articles
Here are some new immigration articles from teh Social Science Research Network (www.ssrn.com):
“Deportation is Different” Cardozo Legal Studies Research Paper No. 308 PETER L. MARKOWITZ, Benjamin N. Cardozo School of Law. ABSTRACTY: Over one hundred years ago, the Supreme Court emphatically declared that deportation proceedings are civil, not criminal, in nature. As a result, none of the nearly 400,000 individuals who were deported last year enjoyed any of the constitutional protections afforded to criminal defendants under the Sixth or Eighth Amendments. Among those 400,000 were numerous detained juveniles and mentally ill individuals who, as a result of the civil designation, had no right to appointed counsel. These individuals were thus forced to navigate the labyrinth of immigration law alone. Others were lawful permanent residents who had pled guilty to minor offenses upon the correct advice of counsel that they could not be deported. These individuals later became subject to deportation when Congress retroactively changed the law, unbound by the criminal prohibition against ex post facto laws. The dichotomy between the gravity of the liberty interest at stake in these proceedings – a lifetime of exile from homes and families in the United States – and the relative dearth of procedural protections afforded respondents, has always been intuitively unjust to some. However, over the past twenty years, as immigration and criminal law have become intertwined as never before, the intuitive sense of many has matured into a scholarly movement exploring the criminalization of immigration law. This movement has taken aim at the incoherence of deportation’s civil designation. Until recently, however, there was little reason to think the Supreme Court would wade into the waters of the resurgent debate over the nature of deportation proceedings. In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), however, the Court surprised almost everyone as it went to great length to chronicle the criminalization of immigration law and ultimately concluded that deportation is – uniquely difficult to classify. The immediate impact of the Padilla decision is the critical recognition that criminal defendants have a right to be advised by their attorneys if a plea they are contemplating will result in deportation. However, I argue, that in time Padilla may come to stand for something much more significant in immigration jurisprudence. When we read Padilla in the context of the Supreme Court’s evolving immigration jurisprudence, there is good reason to believe that Padilla is a critical pivot point for the Court. Padilla marks the beginning of a significant reconceptualization of the nature of deportation toward the realization that it is neither truly civil nor criminal. Rather, deportation is different. It is a unique legal animal that lives in the crease between the civil and criminal labels. This article explores the evolving arch of Supreme Court jurisprudence regarding the quasi-criminal nature of deportation proceedings and articulates a principled mechanism by which the scope of respondents’ rights can be defined under this new framework.
“Politicized Places: Explaining Where and When Immigrants Provoke Local Opposition” American Political Science Review, Vol. 104, No. 1, pp. 40-60, 2010 DANIEL HOPKINS, Georgetown University. ABSTRACT: In ethnic and racial terms, America is growing rapidly more diverse. Yet attempts to extend racial threat hypotheses to today’s immigrants have generated inconsistent results. This article develops the politicized places hypothesis, an alternative that focuses on how national and local conditions interact to construe immigrants as threatening. Hostile political reactions to neighboring immigrants are most likely when communities undergo sudden influxes of immigrants and when salient national rhetoric reinforces the threat. Data from several sources, including twelve geocoded surveys from 1992 to 2009, provide consistent support for this approach. Time-series cross-sectional and panel data allow the analysis to exploit exogenous shifts in salient national issues such as the September 11 attacks, reducing the problem of residential self-selection and other threats to validity. The article also tests the hypothesis using new data on local anti-immigrant policies. By highlighting the interaction of local and national conditions, the politicized places hypothesis can explain both individual attitudes and local political outcomes.
“Rethinking Borders, Violence, and Space” JULIE MOSTOV, Drexel University. ABSTRACT: The paper I am proposing draws on my earlier analysis of hard borders, violence, fluid identities and political space. Given our contemporary landscapes of mobility and immobility, failing sovereigns and competing ethnocrats, new global actors, and modes interaction, we need to be rethinking our notions of political association beyond container states and fixed territorial spaces. The practices of fixing identities into differential political statuses and arbitrary geographic borders are particularly dangerous as responses to “crises.” While many pundits suggest that it is the lack of defined or secure borders that encourages violent conflicts, facilitates terror-bent incursions, and tempts traffickers to defy border guards, I argue that it is the proliferation of hard borders (symbolic, legal, and material walls, fences, and frontiers) that incites violence, provides mechanisms for domination, and undermines opportunities for peaceful and sustainable political association. In the face of “hard times,” this is not a utopian argument for world government, but an attempt to rethink the relationship of borders, violence, and space. This paper draws on my earlier interrogation of traditional notions of sovereignty in the context of ongoing processes of fragmentation and integration and my concern that the linkage of citizenship to nationality in this context exposes many individuals to conditions of extreme vulnerability and violence. Using the theme of crises to frame moments of conflict, multiple strains, uncertainty, and vulnerability in symbolic and physical borderlands, the paper will attempt to pose both the dangerous securitizing pressures to close and harden borders and the liberating possibilities of fluidity and malleability, opening and softening of borders. Softening borders undermines the construction of power relations around fixed definitions of difference and institutionalized practices of domination and violence. While the instinct toward closure is often built into narratives of “hard times” and the language of crisis; I hope to offer resistance to this turn through both an analysis of moments of crisis and a re-thinking of borders, violence, and space.
“The New Habeas Revisionism” Harvard Law Review, Vol. 124, 2011 American University, WCL Research Paper No. 2010-29 STEPHEN I. VLADECK, American University – Washington College of Law. ABSTRACT: There is relatively little in the Constitution’s drafting history or ratification debates to illuminate the intended meaning of the Suspension Clause, and what it specifically protects by preserving “the Privilege of the writ of Habeas Corpus” except in cases where habeas is properly suspended. Most jurists and commentators at least seem to agree on the constitutional floor – that, as Justice Stevens put it in 2001, “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” But even that limited point of consensus only begs a separate question: what was the scope of the writ in English law in 1789, the practice from which we presume the Founders meant to borrow? In Habeas Corpus: From England to Empire, Professor Paul Halliday provides a new series of answers to that question, using archival research to survey the scope of English habeas practice during the sixteenth, seventeenth, and eighteenth centuries. Rather than rely upon the published reports of English judicial decisions or the works of contemporaneous treatise writers, Halliday’s work focuses on the writs themselves, extrapolating a series of conclusions based upon comprehensive archival research. To that end, Halliday’s revisionist methodology reveals that many classical accounts of the scope of the writ in pre-revolutionary England (including Blackstone’s) are in fact “whig” histories, superimposing modern and anachronistic understandings of rights and remedies onto a practice that was, in reality, far different. As Halliday explains, the dominant feature of pre-revolutionary habeas was the flexibility and dexterity of the justices in applying the common-law writ; and the true threat to such judicial power was Parliament – not just when it suspended habeas, but, ironically, when it codified the writ, as well. Ultimately, habeas corpus in seventeenth- and eighteenth-century England was about principles, not rules – about power, not rights. No case expressly refuted the rule against controverting the return, and yet the justices consistently flouted it. No case expressly held that the writ could reach anyone who answered to the sovereign, and yet the justices consistently sent it. No case expressly established the flexibility of the remedy that came to characterize habeas practice into the latter half of the eighteenth century, and yet the justices routinely demonstrated it. In the end, Halliday’s book does more than just refute time-honored conceptions of the scope of habeas in England at the Founding; it refutes the way in which we have arrived at those conceptions, proving not just that we have consistently taken the wrong lessons from the wrong sources, but that we have been (and perhaps still are) asking the wrong questions, looking for individual cases to prove what the rules (that must have existed) must have been. Although this review essay uses the Guantanamo detainee cases to both summarize Halliday’s conclusions and explain how they should reorient our understanding of the ambit of the writ in contemporary litigation, it suggests that the true significance of Halliday’s history runs deeper. As useful as these revisionist conclusions should be in identifying the specific scope of the writ “as it existed in 1789,” what they really confirm is the protean dynamism of pre-revolutionary habeas in England. As the essay concludes, tying the Suspension Clause to what was true at the Founding only makes sense if one accepts that the result is a constitutional floor marked by fluid principles, not rigid practices. And although that proposition reveals serious and systematic flaws in how contemporary courts and commentators have approached questions as to the scope and sweep of habeas at the Founding, it remains for future generations, and not historians, to decide if the Constitution does – or should – protect anything more.
“Rejecting Refugees: Homeland Security’s Administration of the One-Year Bar to Asylum” William & Mary Law Review, Vol. 52, 2010 PHILIP G. SCHRAG, Georgetown University – Law Center Email.EDU ANDREW SCHOENHOLTZ, Georgetown University Law Center JAYA RAMJI-NOGALES, Temple University – James E. Beasley School of Law JAMES P. DOMBACH, Georgetown University Law Center. ABSTRACT: Since 1980, the Refugee Act has offered asylum to people who flee to the United States to escape persecution in their homeland. In 1996, however, Congress amended the law to bar asylum – regardless of the merits of the underlying claim – for any applicant who fails to apply within one year of entering the United States, unless the applicant qualifies for one of two exceptions to the rule. In the years since the bar was established, anecdotal reports have suggested that genuine refugees, with strong merits claims to asylum, have been rejected solely because of the deadline. Many scholars and practitioners suspected that this procedural bar had a dramatic effect on the U.S. asylum system. Until now, however, there has been no systematic, empirical study of the effects of the deadline on asylum seekers and the asylum system. The Department of Homeland Security (DHS), which is the first level adjudicator of affirmative applications for asylum, supplied the authors exclusively with a database of asylum claims that has never before been analyzed. This database includes demographic and other characteristics of all principal applicants for asylum before DHS since September 1998 – more than 300,000 cases – and the decision reached in each case. In this article, the authors report, for the very first time, what that database shows about DHS’s application of the one year deadline. They find, among other things, that: • Over the entire time frame studied, DHS determined that nearly a third of all affirmative asylum applicants missed the filing deadline. • In the years immediately after the deadline went into effect (FY 1998-FY 2002), DHS found only 27% of applicants to be late, but after that, DHS determined a significantly higher percentage to be late (35% from FY 2003 through June 8, 2009). • DHS has rejected the applications (finding no applicable exception) in the cases of 59% of those who were determined to have filed late (18% of all affirmative asylum applicants). • Applicants from certain countries such as the Gambia and Sierra Leone are much more disadvantaged by the deadline than applicants from certain other countries, such as Haiti and India. The deadline may particularly impact refugees who, upon arrival, are unable to find a community of emigrants from their home countries who could warn them about its existence. • It is likely that as a result of the deadline, since April 1998 DHS has rejected more than 15,000 asylum applications (involving more than 21,000 refugees) that would otherwise have been granted. The authors conclude that because the costs of the one-year deadline exceed its benefits, it should be repealed, as proposed by several bills that have been introduced in Congress.
“SB 1070: A Review of the Impact on Immigrant Victims of Domestic Violence in Arizona” GLENYS SPENCE, Phoenix School of Law . ABSTRACT: This article argues that the tenor of Arizona Immigration Bill, SB1070, will exacerbate the plight of victims of domestic violence in Arizona. Specifically, the Bill threatens to impinge upon the rights provided to victims under the Violence Against Women Act (VAWA), and has the potential to destabilize a federal scheme that provides rights to these victims. This Bill threatens to nullify well-established federal laws pertaining to the rights and obligations of immigrant victims of domestic violence. Not only does the Bill threaten to erode these laws, and further destabilize an anemic immigration system, the Bill seeps into the international law arena, and has the potential to violate certain human rights treaties, such as the U.N Convention Against Torture (CAT) which are also part of federal law. At its very core is an inherent tyranny. The language contained in this Bill will sever the rights and civil liberties of not just illegal immigrants, but all of us as American citizens. This article argues that the tenor of SB1070 will exert a profound impact on the plight of victims of domestic violence in Arizona. Specifically, the Bill threatens to impinge upon the rights provided to victims under the Violence Against Women Act (VAWA), and has the potential to destabilize a federal scheme that provides certain rights to these victims. Chief among them is the right to be free from deportation. This Bill raises questions of civil liberty issues already cognizable under Federal immigration law and secondarily the rights of VAWA and asylum victims to confidentiality, which the policing embodied in this bill seeks to erode. This article, then, considers the impact of SB170 as it relates to immigrant victims of domestic violence. The impact will have both legal and sociopolitical outcomes.
“National Debates, Local Responses: The Origins of Local Concern About Immigration in the U.K. and the U.S.” British Journal of Political Science, Forthcoming DANIEL HOPKINS, Georgetown University ABSTRACT: Theories of inter-group threat hold that local concentrations of immigrants produce resource competition and thus anti-immigrant attitudes. Variants of these theories are commonly applied to Britain as well as the U.S. Yet the empirical tests have been inconsistent. This comparative paper analyzes geo-coded surveys from both countries to identify when residents’ attitudes are influenced by living near immigrant communities. Using Pew surveys of the U.S. from 2001 and 2006 and the 2005 British Election Study, it illustrates that local contextual effects hinge on national politics. Contextual effects appear primarily when immigration is a nationally salient issue, a finding which explains why past research finds threat in some cases but not others. Seemingly local disputes have national catalysts. The paper also demonstrates how panel data can reduce the selection biases that plague research on local contextual effects.
“Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility – A Case Study” Fordham Law Review, Vol. 78, p. 541, 2009 PETER L. MARKOWITZ, Benjamin N. Cardozo School of Law. ABSTRACT: There is an evolving crisis in the immigration courts and federal courts of appeals caused by the lack of quality representation for immigrants facing deportation. The problem is particularly acute for immigrants who are detained during their removal proceedings. As part of the Study Group on Immigrant Representation (Katzmann study group), the Subcommittee on Enhancing Mechanisms for Service Delivery undertook a case study of the institutional and legal barriers to quality legal representation for immigrants held at the Varick Street Detention Facility in New York City. Through this lens we hope to offer some useful insights into the core factors contributing to the immigration representation crisis, the institutional barriers that aggravate the crisis, and, finally, to propose a series of reforms to address the crisis.
“Rethinking Borders, Violence, and Space” JULIE MOSTOV, Drexel University. ABSTRACT: The paper I am proposing draws on my earlier analysis of hard borders, violence, fluid identities and political space. Given our contemporary landscapes of mobility and immobility, failing sovereigns and competing ethnocrats, new global actors, and modes interaction, we need to be rethinking our notions of political association beyond container states and fixed territorial spaces. The practices of fixing identities into differential political statuses and arbitrary geographic borders are particularly dangerous as responses to “crises.” While many pundits suggest that it is the lack of defined or secure borders that encourages violent conflicts, facilitates terror-bent incursions, and tempts traffickers to defy border guards, I argue that it is the proliferation of hard borders (symbolic, legal, and material walls, fences, and frontiers) that incites violence, provides mechanisms for domination, and undermines opportunities for peaceful and sustainable political association. In the face of “hard times,” this is not a utopian argument for world government, but an attempt to rethink the relationship of borders, violence, and space. This paper draws on my earlier interrogation of traditional notions of sovereignty in the context of ongoing processes of fragmentation and integration and my concern that the linkage of citizenship to nationality in this context exposes many individuals to conditions of extreme vulnerability and violence. Using the theme of crises to frame moments of conflict, multiple strains, uncertainty, and vulnerability in symbolic and physical borderlands, the paper will attempt to pose both the dangerous securitizing pressures to close and harden borders and the liberating possibilities of fluidity and malleability, opening and softening of borders. Softening borders undermines the construction of power relations around fixed definitions of difference and institutionalized practices of domination and violence. While the instinct toward closure is often built into narratives of “hard times” and the language of crisis; I hope to offer resistance to this turn through both an analysis of moments of crisis and a re-thinking of borders, violence, and space.
KJ