New Immigration Articles from SSRN

Here are some new immigration articles from teh Social Science Research Network:

“Executive Deference in U.S. Refugee Law: Internationalist Paths Through and Beyond Chevron” Duke Law Journal, Vol. 60, No. 5, pp. 1059-1122, 2011 UNSW Law Research Paper No. 2011-15 BASSINA FARBENBLUM, University of New South Wales Faculty of Law.  ABSTRACT: When Congress amended U.S. immigration law via the Refugee Act of 1980, it did so with the explicit purpose of bringing U.S. asylum law into conformity with the nation’s international refugee treaty obligations. Nevertheless, U.S. courts interpreting domestic asylum provisions routinely discount international legal norms, labouring under the mistaken perception that the Chevron doctrine requires deference to the executive agency’s interpretation of asylum law regardless of its compatibility with international law. As a result, domestic asylum law has become jurisprudentially unmoored from international refugee law to the serious detriment of asylum seekers. This Article argues that neither Chevron nor the policies underlying it compel the lockstep deference that courts afford the Board of Immigration Appeals’ interpretation of U.S. asylum law. The Article charts two alternate paths by which courts may reject agency statutory interpretations that are inconsistent with international refugee law: a route through Chevron that navigates within existing Supreme Court jurisprudence, and a route beyond Chevron based on the limited applicability of this administrative law doctrine to the asylum-adjudication context. Addressing further impediments to the reconciliation of domestic and international law, the Article demonstrates that courts are indeed capable of applying a coherent interpretive methodology to determine the content of refugee treaty obligations, particularly if engaged by government lawyers committed to reestablishing the international legality of U.S. practice. In seeking to remove a fundamental administrative law obstacle to the implementation of international refugee law, the Article lends impetus to broader scholarly efforts to align U.S. law with this nation’s international human rights obligations. It also provides a framework that enables courts, immigration attorneys, and government policymakers to situate U.S. asylum law in the more rights-protective context that Congress intended.

 “Citizenship and Diaspora: A State Home for Transnational Politics?” POLITICS FROM AFAR: TRANSNATIONAL DIASPORAS AND NETWORKS, Terrance Lyons, Peter Mandaville, eds., Hurst/Columbia University Press, 2011 PETER J. SPIRO, Temple University – James E. Beasley School of Law.  ABSTRACT:  This paper, a revised version of which will appear in Politics from Afar: Transnational Diasporas and Networks (Hurst/Columbia University Press), explores the legal status of citizenship as a vehicle for diaspora and globalized forms of community. The paper focuses on the rise in the acceptance of plural citizenship and the expansion of external citizen rights, especially political rights. Citizenship’s increasing flexibility enhances state capacity to comprehend diaspora, that is, to allow the state to serve as the agent of diaspora community. Because individuals who are, as a matter of social fact, members in diaspora communities can now express and actualize that attachment through the citizenship tie, the state would seem a plausible home to diaspora. The trend towards extending full political rights to nonresident citizens is consistent with this hypothesis. These developments do not necessarily establish citizenship as a sustainable home for diaspora, however. The extension of citizenship rights to diaspora communities may not evidence a strong tie. Little is required of external citizens. In most cases, external citizens who naturalize in their new state of residence maintain their original citizenship as a default. The cost of retaining original citizenship is effectively zero. Electoral participation rates among external citizens are low. There may also be normative issues with the state acting as institutional home of diaspora resulting from the continuing territorial governance authorities of the state. These concerns might be addressed by detaching citizenship from territorial governance, composing a polity to include both internal and external citizen populations, then devolving territorial governance to a sub-entity with respect to which voting participation rights would be limited to resident citizens. But this device would not address homeland interests on the part of external citizens and rising circular migration. Citizenship and the state may thus fall short as institutional vehicles for political diaspora. 

 “Forced Marriage and the Exoticization of Gendered Harms in United States Asylum Law” Columbia Journal of Gender and Law, Vol. 19, No. 3, 2011 JENNI MILLBANK, University of Technology, Sydney – Faculty of Law. CATHERINE DAUVERGNE, UBC Faculty of Law.  ABSTRACT:  While claims of forced marriage or pressure to marry represent only a tiny portion of refugee claims overall, they provide an illuminating sliver reflecting the major recurring themes in gender and sexuality claims from recent decades. Refusal to marry is a flashpoint for expressing non-conformity with expected gender roles for heterosexual women, lesbians and gay men. This paper presents results from our study of 168 refugee decisions from Australia, Canada, the United Kingdom and the United States where part of the claim for refugee protection concerned actual or threatened forced marriage. In the present discussion, we highlight our findings from the cases from the United States while detailed findings regarding the broader international data set are published elsewhere. We find that the United States is far behind Australia, Canada and the United Kingdom in terms of analyzing gender-related persecution. In addition to not finding a single case with a straightforward holding that forced marriage in and of itself could constitute persecution, we also did not find any engagement with international human rights standards. Of the few cases that were successful on a substantive basis, we found that the underlying facts reflect an extreme exoticization of the women involved.

“The Very Uneasy Case Against Remittances: An Ex Ante Perspective” North Carolina Law Review, Vol. 88, No. 5, 2010 Tulane Public Law Research Paper No. 1726075 ADAM FEIBELMAN, Tulane University – Law School. ABSTRACT:  Money that individual migrants send back to their home countries has become a major source of foreign exchange for many developing and emerging economies. These remittances now represent a sizable percentage of the gross domestic product for many states; for some, remittance inflows are larger than all other sources of foreign capital. In recent years, scholars, policy makers, and international financial institutions have tended to view remittance inflows as a net benefit for recipient countries. Given the size of these transfers in the aggregate and their relationship to labor migration, it is essential for policy makers and scholars to continue to critically assess the effects of remittances and remittance policies on workers, the states that receive these remittances, and the states from which these remittances are sent. This Article argues that the existing literature on remittances almost universally underestimates the overall costs and negative effects of remittances and remittance-driven migration by failing to include various costs and harms borne by migrating workers and their families. If these costs were included in efforts to measure the overall impact of remittance flows, it is at least possible that remittances and remittance-driven migration would represent a net loss for some states and their citizens. If the overall impact of remittances is not positive for any particular state, then policy makers in that state may want to consider adopting policies to reduce or limit remittance-driven migration. They might, for example, avoid or scale back managed labor-migration programs. Depending on the particular circumstances of their state, they might also consider policies that reduce workers’ incentives to migrate for the purpose of earning money to remit home, including taxation of remittance flows, currency exchange controls, or liberalization of exchange rate policies. At the very least, if states’ current policies affecting capital inflows are based on a comfortable assumption that remittance inflows are broadly beneficial, this assumption should be reexamined to explicitly account for the costs and harms borne by workers and their families.

KJ