New SSRN Immigration Articles

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

“Presidential Pardons and Immigration Law” Stanford Journal of Civil Rights and Civil Liberties, Vol. 6, No. 2, 2010 SAMUEL T. MORISON, Attorney at Law.  ABSTRACT:  Despite a rich history of doctrine and practice defining the contours of the President’s authority under the Pardon Clause, both the federal courts of appeals and the Board of Immigration Appeals remain systematically confused about the immigration consequences of a presidential pardon. Most importantly, there is a widespread consensus that Congress is free to define the circumstances under which any pardon, state or federal, will waive a criminal conviction as a ground of removal, because of its inherent authority over immigration matters. The existing academic literature has not seriously challenged the validity of this conventional view, even though it has no basis in the Supreme Court’s Pardon Clause jurisprudence, which establishes that the President’s exercise of the clemency power is not limited by the generally applicable terms of the existing statutory framework, much less by deliberate attempts at legislative restriction. Moreover, a presidential pardon does not merely relieve the grantee from punishment in the technical constitutional sense, but also removes the collateral disabilities imposed by reason of the commission or conviction of the pardoned offense, including those arising under the immigration laws. Accordingly, a presidential pardon defeats the use of any federal offense as a ground of removal, notwithstanding the contrary terms of the INA’s pardon waiver provision. Finally, because the existing waiver statute subjects federal and state pardon grantees to disparate treatment for immigration purposes, I conclude that the courts should reconsider the equal protection implications of the current pardon waiver regime.

“The Development of Gender within the Particular Social Group Definition Under the United Nations Refugee Convention and United States Immigration Law: Case Studies of Female Asylum Seekers from Cameroon, Eritrea, Iraq and Somalia” Georgetown Immigration Law Review, Vol. 24, No. 2, Winter 2010 TY SHAWN WAHAB TWIBELL.  ABSTRACT:  This article’s main proposition is that women who seek asylum in the United States based on gender do not have sufficient protection. It first discusses the evolution of gender in asylum law and the growing Northern and Southern dichotomy. This includes a discussion of the specific legal protections of refugees and asylees within the UN Refugee Convention and the relatively recent introduction of gender-based asylum in general. The core of this article is the detailed case discussion of female asylum seekers, particularly from Somalia, but also from Cameroon, Eritrea and Iraq. These female asylum seekers’ claims were augmented by their gender in some aspect and their claims were generally accepted. This article discusses how their legal arguments were raised, the context and the outcome. Within each case discussion, the woman’s rights conditions in the respective country are discussed both at the time her case was filed and contemporaneously. The cases discussed herein all involve women, many of whom were elderly. Others were children, including a sixteen-year old girl from Somalia who was smuggled into the United States, but had no family waiting for her. Another involved a refugee mother who paid to smuggle her six-year old son into the U.S. from Somalia. One of the longest running cases, and one based purely on gender, concerns a compassionate and devoted woman from Cameroon, who was beaten and threatened by her in-laws after her husband passed away. Her case has been pending since 2001 and her appeal was granted by the Eighth Circuit in 2008. Other major cases discussed include a brilliant woman from Iraq who filed for asylum only months before the U.S. invasion of Iraq and a sensitive and inexorable woman from Eritrea who trekked most of her life as a refugee from Eritrea. After the case discussion, this article addresses the development of other gender-based asylum cases in the United States. It discusses Northern resistance against refugees in general and the politics of gender-based asylum. As the article concludes, it discusses the cases within the background of the recent findings of a detailed, comprehensive study of asylum adjudication published in 2008 in the Stanford Law Review and the findings of recent Congressional executive oversight reports by the GAO regarding asylum adjudications in 2008. The article concludes that although obtaining gender-based asylum in the United States is possible and the situation is improving in some ways, a problem remains; women do not have sufficient protection. More broadly, the discussion on gender-based asylum and the corresponding human rights conditions in particular countries, discussed in the context of protections afforded in the UN Refugee Convention, illustrate the continued female struggle against oppression globally and within the United States. Interwoven into this article is my essay on the need for greater acceptance of gender-based asylum and arguments against its opponents. America can be a safe-haven for women; but it must go much further to fulfill its status as a leader in protecting women. Currently, women can obtain protection, but as my own experience and wider analysis confirms, it is insufficient; a woman’s ability to seek protection may depend on where she files for asylum and the particular adjudicator or judge assigned. It could also affect an adjudications credibility determination.

“Prosecuting Immigration” Northwestern University Law Review, Vol. 104, No. 4, 2010 UCLA School of Law Research Paper No. 10-30 INGRID V. EAGLY, University of California, Los Angeles (UCLA) – School of Law.  ABSTRACT:  The rise of immigration prosecution as the central feature of the federal criminal justice system challenges conventional understandings of the relationship between the criminal and immigration systems. This Article shows that, in the domain of immigration, the immigration state and criminal state operate as an integrated process in which defendants’ rights and criminal procedural mecha-nisms have been redefined. On a doctrinal level, the integration of immigration and criminal enforcement has meant that rights traditionally accorded criminal defendants – such as Miranda and bail pending trial – are unevenly distributed along alienage lines. On an institutional level, immigration prosecution has supported an alternative federal adjudicatory structure, largely outside the confines of Article III criminal courts, that is defined by quick, mass processing of guilty pleas. Drawing on court rulings, government documents, legislative history, statistical data, and interviews, this Article argues that there are two significant consequences of the federal immigration prosecution regime. First, it incentivizes prosecutors to borrow the tools of civil immigration enforcement to support criminal prosecution, thereby distorting the criminal procedural rules that would otherwise apply. Second, it deputizes criminal prosecutors to act as de facto immigration screeners, thereby threatening the substance and process of immigration law. This Article’s study of the interdependence between the immigration agency and the criminal prosecutor thus reveals a fundamental disruption in one of the central dichotomies in our legal system – the civil/criminal divide. In practice, the immigration agency interacts with criminal process to erode procedural protections afforded criminal defendants, expand criminal law enforcement power beyond the confines of the criminal state, and reorder the aims of the criminal law.

“The Coercion of Trafficked Workers” Iowa Law Review, Vol. 96 Loyola-LA Legal Studies Paper No. 2010-53 KATHLEEN KIM, Loyola Law School Los Angeles.  ABSTRACT:  Theories of coercion exist across multiple disciplines to explicate the ability of one actor, the coercer, to diminish the free will of another, the coercee, in the absence of overt physical force. A valid claim of coercion places legal blame on the coercer or relinquishes the coercee from legal responsibility for a coerced act or omission. Defining the point at which coercion occurs, however, is the conceptually more difficult task. Recently, coercion has emerged as a significant source of analytic concern in a developing area of the law – contemporary involuntary labor or human trafficking. It is in this setting where coercion is explicitly codified as a fundamental legal element in human-trafficking crimes. However, the laws addressing human trafficking continue to struggle with delineating the dimensions of coercion. Legal scholars, moreover, have not yet engaged in a focused exploration of this issue to bring efficacy and substantive meaning to coercion within the human-trafficking framework. This Article examines the empirical and normative scope of coercion in the laws addressing contemporary involuntary labor. Incorporating perspectives from modern philosophy, this Article critiques older standards of coercion within Thirteenth Amendment doctrine and advances a new theory of coercion sensitive to the intricate power dynamics that characterize many human-trafficking cases. Called “situational coercion,” this new paradigm recognizes that instead of experiencing coercion through direct threats of harm from their traffickers, many trafficked workers comply with abusive working conditions due to circumstances that render them vulnerable to the exploitation, such as a lack of legal immigration status and poverty. By more accurately capturing the sociological realities of human trafficking, which victimize workers in subtle ways, the situational coercion framework advances the Thirteenth Amendment’s aim to ensure free labor and protect a broad category of coerced workers.

KJ