New Immigration Articles from SSRN

“Reason Over Hysteria: Keynote Essay” Loyola University Journal of Public Interest Law, 2011 BILL ONG HING, University of San Francisco – School of Law; Professor Emeritius, UC Davis.  ABSTRACT:  We are a nation of immigrants, but we also are a nation that loves to debate immigration policy, and that debate reflects the battle over how we define who is an American. The anti-immigrant movement in the United States is as strong as ever. Immigrant bashing is popular among politicians, talk radio hosts, private militiamen, and xenophobic grassroots organizations. They take full advantage of the high-tech era in which we live, as they complain about the “illegal alien invasion.” Their common thread is the rhetoric of fear. This hysteria leads to tragic policies that challenge us as a moral society. Immigration and Customs Enforcement (ICE) raids, enormous funding for border enforcement, anti-immigrant ordinances and state laws, and record levels of detention are manifestations of the venom, while immigrants and citizen relatives are forced to suffer. Arizona’s SB 1070 is an example of the hysteria-driven results. The controversial law would make it a state crime for an alien to be in Arizona without carrying the required documents, bar state and local officials from enacting sanctuary laws, and crack down on those sheltering, hiring, and transporting undocumented aliens. The intent of the legislation is to make life miserable for the undocumented in Arizona in hopes of achieving “attrition through enforcement.” Critics charge that the law invites racial profiling and exceeds state authority. In this keynote essay, delivered at Loyola University New Orleans on November 5, 2010, Professor Hing provides an overview of the background on local and state laws that attempt to regulate immigration, how much of the racist attitudes toward immigrants have become institutionalized within the current immigration system, and current enforcement strategies that prey heavily on immigrant workers who are victims of trade policies and globalization. I argue that given an understanding of how our nation’s immigration laws have evolved in the context of globalization we should calm down and stop the anti-immigrant rhetoric. We should gather ourselves and use our collective wisdom to address immigration policy and the need for reform in a thoughtful, reasoned manner.

“Car Stops, Borders, and Profiling: The Hunt for Undocumented (Illegal?) Immigrants in Border Towns” Nebraska Law Review, Vol. 89, June 2011 BRIAN GALLINI, University of Arkansas School of Law.  ELIZABETH YOUNG, University of Arkansas School of Law.  ABSTRACT: The much-discussed Arizona immigration statute, SB 1070, continues an effort – this time at the legislative level – to broaden the discretionary power of law enforcement. Yet, a fascinating question lies at the base of the public’s pervasive criticism of the Act: where have all the critics been? Numerous Supreme Court cases already allow for law enforcement to engage in the very practice – racial and ethnic profiling premised on “reasonable suspicion” – that has incited the emotions of so many citizens nationwide. This Article therefore argues that the Arizona’s SB 1070, while notable for the public response to it, is merely emblematic of a much larger and systemic problem that exists because of the collective core holdings from several Supreme Court Fourth Amendment cases. Indeed, law enforcement stops of persons lawfully present in the United States using an “illegal immigrant” profile have existed since the mid-1970s and will remain permissible regardless of the Act’s ultimate fate. Several Supreme Court cases already bestow upon local law enforcement an inordinate amount of discretionary power both on the street and in an automobile. The combination of that power alongside the immigration consequences for a criminal violation provides law enforcement with a level of power and discretion comparable to that bestowed by the Arizona Act. Thus, although citizens may object to its enactment, one thing is clear: SB 1070 does not violate the Fourth Amendment.

“Life Without Parole: An Immigration Framework Applied to Potentially Indefinite Detention at Guantánamo Bay” New York University Law Review, Forthcoming LAURA J. ARANDES, New York University (NYU) – School of Law.  ABSTRACT: The Supreme Court ruled in Boumediene v. Bush that detainees at Guantánamo Bay have the right to challenge their detention in habeas corpus proceedings and that the courts hearing these claims must have some ability to provide “conditional release.” However, the United States Court of Appeals for the District of Columbia has ruled that if a detainee cannot be released to their country of origin or another country abroad, a court sitting in habeas cannot grant them release into the United States. The court based its determination on the assumption that the Uighurs’ request for release implicated “admission,” the terms and conditions of which are generally considered within the purview of the political branches and inappropriate for judicial review. This Note argues that “parole,” a more flexible mechanism for release into the United States, is not limited by the admission precedent requiring extreme deference. This Note then surveys cases where the judiciary has granted parole as a remedy, and argues that courts grant the remedy primarily in cases of executive misconduct. Thus, courts confronting requests for domestic release from executive detention without legal basis should consider parole as a remedy distinct from admission, one that serves a valuable purpose in maintaining a meaningful check on the Executive.

“Reforming the Good Moral Character Requirement for U.S. Citizenship” Indiana Law Journal, Vol. 87, 2012 KEVIN LAPP, New York University School of Law.  ABSTRACT:  Since 1790, naturalization applicants have been required to prove their good moral character. Traditionally, courts applied a flexible standard that recognized the potential for reform, making full membership possible even for those with a criminal record. This article demonstrates how recent changes in immigration law and the handling of naturalization petitions by the United States Citizenship and Immigration Services (USCIS) have turned the good moral character requirement into a power exclusionary device. Hundreds of permanent statutory bars to a good moral character finding based on criminal conduct have been added, some triggered by misdemeanor convictions. At the same time, USCIS trains naturalization adjudicators to deny applicants on character grounds. Those same adjudicators compound that training by misapplying the law and regulations about good moral character, resulting in wrongful and inexplicable denials on character grounds. This article argues that the current good moral character scheme fails in three fundamental ways. First, drawing on literature about the relationship between naturalization law and integration, it contends that foreclosing citizenship to some permanent residents frustrates social cohesion. Second, by preventing their full political participation, it threatens the integrity of American participatory democracy. Finally, it wrongly denies redemption its proper place in the law by permanently casting individuals as morally corrupt outsiders, a conclusion that, among other things, contradicts criminological research on desistance from crime and emerging trends in the law about fixed character judgments. To address these failures, the article proposes that Congress amend the INA to eliminate or restrict any good moral character bar triggered by criminal convictions and that USCIS ensure that adjudicators apply the law correctly. These reforms would create a naturalization scheme that, at no cost to public safety, promotes social cohesion and advances democracy and equality by making redemptive citizenship possible.

KJ