New Immigration Articles from SSRN

“The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law” NYU School of Law, Public Law Research Paper No. 10-75 ALINA DAS, New York University School of Law Immigrant Rights Clinic.  ABSTRACT:  For over a century, immigrants have faced adverse immigration consequences if convicted of certain types of offenses in criminal court. Many types of criminal convictions carry severe immigration penalties, including deportation, detention, and the denial of status like asylum or U.S. citizenship. The Supreme Court recently recognized that these penalties are so intimately tied to criminal court adjudications that criminal defense attorneys have a duty to advise noncitizen defendants of the immigration consequences of their guilty pleas in criminal court. Yet there is little clarity as to how one determines whether a particular conviction triggers an immigration penalty. Historically, courts have applied a categorical analysis for assessing the immigration consequences of a criminal conviction. Under a categorical analysis, an immigration official determines the penalties based on an assessment of the statutory definition of the offense, not the factual circumstances of the crime. However, recent Supreme Court, federal court, and agency decisions have ignored this longstanding analysis and have instead examined these issues through the lens of Taylor v. United States, a criminal sentencing case that adopts a categorical analysis in a different context. Distinguishing Taylor and its criminal sentencing rationales, recent decisions have invented a new approach for how past criminal convictions are assessed in the immigration context that now permits a circumstance-specific inquiry into facts beyond the criminal court’s findings in some immigration cases. Under these recent decisions, the immigration consequences of a criminal conviction no longer turn on the criminal court adjudication alone, but may also account for facts that were not proven or pleaded in the criminal court proceeding. This article argues that this shift in analysis is based on a fundamental misunderstanding of the origins of categorical analysis in immigration law and its independent rationales, including its promotion of notice and an opportunity to be heard, uniformity, predictability, efficiency, and judicial review in the administrative agency context. The article further argues that, because of the flaw in the current debate, courts have failed to consider the negative impact that the erosion of categorical analysis has on the functioning of the current immigration and criminal justice systems. The rationales meriting categorical analysis apply with even greater force today than they did when categorical analysis was first articulated nearly a century ago.

“The Human Rights of Non-Citizens: A New Unified Domain? Book Review of David Weissbrodt’s ‘The Human Rights of Non-Citizens’” American Journal of International Law, October 2010 University of Miami Legal Studies Research Paper No. 2010-26 CAROLINE BETTINGER-LOPEZ, University of Miami – School of Law.  BASSINA FARBENBLUM, University of New South Wales (UNSW).  ABSTRACT:  David Weissbrodt, professor of international human rights law at the University of Minnesota and the United Nations Special Rapporteur on the rights of noncitizens from 2000-03, begins The Human Rights of Non-citizens with a provocative thesis: the human rights of noncitizens should be viewed “not as an amalgamation of the rights of various non-citizen subgroups (refugees, asylum seekers, migrant workers, etc.), but rather as a unified domain” (p. 5). Weissbrodt makes a strong case for (1) new international standards governing the rights of all noncitizens, as well as states’ implementation of these rights, and (2) a unified movement to protect all noncitizens. After discussing the content and structure of a number of Weissbrodt’s eloquently written chapters, this review unpacks several aspects of the book’s thesis. All groups of noncitizens are, no doubt, subjected to many of the same social, political, and legal perils associated with being a foreigner in a world defined by nation states and their boundaries. Amalgamating the advocacy strategies and resources of disparate noncitizen groups may therefore sometimes be advantageous. But this is not always the case. On other issues, different groups of noncitizens may obtain greater social and political support (and in turn, great protection of rights) by focusing on their particular, distinct attributes that are likely to attract public sympathy. For example, the recent trend toward the treatment of migration as a law-and-order issue has, in many countries, resulted in the strong social privileging of “legal” noncitizens and the demonizing of “illegal” noncitizens. Similarly, refugees or victims of trafficking have on occasion attracted greater sympathy (and rights-protection) by differentiating themselves from other noncitizens. The review concludes that the Human Rights of Non-citizens provides a useful starting point for thinking about noncitizens’ rights issues in the post-9/11 world — an area of legal scholarship that, like the advocacy community itself, is siloed into the same categories as the diverse groups of noncitizens that populate Weissbrodt’s discussion. But despite its strengths, the book stops short of offering the reader a nuanced analysis of the law or of possible solutions to the most difficult law and policy quandaries related to noncitizens’ human rights in our contemporary world — for example, how to balance national security, policing of migration, and human rights; how to guarantee economic and social rights to noncitizens, both in developed and developing countries, in times of global financial crisis; how to distinguish discrimination and xenophobia from legitimate concerns relating to citizenship and state sovereignty; and, more broadly, the extent to which the international community has collective responsibility for improving country conditions, and thus promoting human rights, in migrant-sending countries in the developing world. The strengths of the book ultimately lie elsewhere: in breaking down the distinctions between noncitizen groups and in challenging the reader to see what is common in the efforts of all such groups to protect and promote their rights. The final version of this article was published in the October 2010 issue of the American Journal of International Law.

“The Persistence of Skin Color Discrimination for Immigrants” Vanderbilt Law and Economics Research Paper No. 10-32 JONI HERSCH, Vanderbilt Law School, Vanderbilt University – Owen Graduate School of Management, Vanderbilt University – College of Arts and Science – Department of Economics.  ABSTRACT:  Under Title VII of the Civil Rights Act of 1964, discrimination in employment on the basis of color is prohibited, and color is a protected basis independent from race. Using data from the spouses of the main respondents to the New Immigrant Survey 2003, this paper shows that immigrants with the lightest skin color earn on average 16 percent to 23 percent more than comparable immigrants with the darkest skin color. These estimates control for years of legal permanent residence in the U.S., education, English language proficiency, occupation in source country, Hispanic or Latino ethnicity, race, country of birth, as well as for extensive current labor market characteristics that may be themselves influenced by discrimination. Furthermore, the skin color penalty does not diminish over time. These results are consistent with persistent skin color discrimination affecting legal immigrants to the United States.

“Criminalizing Immigration: The Social Construction of Borders and National Security” DAVID E. SPIRO, Interntional Studies Association.  ABSTRACT:  Realism, a useful theory for the study of International Relations, is all the more useful when married with Constructivism. Key concepts such as power, borders, and national security are social constructs that require interpretation. This paper examines the social construction of borders in the United States by examining how their enforcement and militarization has changed over time. The rhetoric of threats to national security, which have had little to do with the actual enforcement of borders, demonstrates the dangers of considering security to be an “objective” fact. The questionable deportation of millions of undocumented workers, under the guise of national security policy, demonstrates the dangers of using borders and national security as independent variables without giving heed to how those concepts are constructed.

“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. Chief among them is the right to be free from deportation. 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). 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. The 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.

KJ