New Immigration Articles from SSRN

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

“Causing Mischief for Taylor’s Categorical Approach: Applying ‘Legal Imagination’ to Duenas-Alvarez” George Mason Law Review, Forthcoming DOUG KELLER, Georgetown University Law Center Email: douglas.keller@gmail.com This Article examines a recent trend in some circuits to hobble the “categorical approach.” That doctrine finds roots in Taylor v. United States, 495 U.S. 575 (1990), where the Supreme Court selected it to deal with the vexing question of how to determine what someone was previously “convicted of” for purposes of immigration and criminal law. For example, how do you know if someone was previously “convicted of” generic “burglary”? The categorical approach requires courts to answer that question by comparing the elements of the state statute the individual was convicted of (rather than the individual’s actual conduct) with the elements of generic burglary. In Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007), the Supreme Court stated that courts should not use “legal imagination” when using the categorical approach. Thereafter, a circuit split developed over the meaning of the Court’s comment. Some circuits believe that the Court dramatically changed Taylor by requiring courts to determine how a state statute has been applied in practice before holding that its elements do not encompass a qualifying offense. Other circuits believe that the Court was merely warning courts against interpreting the scope of the elements of state statutes in broad, novel ways. This Article argues that these later courts have it right — that the Court did not intend to alter the categorical approach and instead wanted to warn courts against misinterpreting state law. In the course of justifying that conclusion, this Article offers a defense of the much-beleaguered categorical approach — and its peculiar results.

“A Multilayered Jurisdictional Patchwork: Immigration Federalism in the United States” MONICA VARSANYI, City University of New York Email: mvarsanyi@jjay.cuny.edu PAUL G. LEWIS, Arizona State University (ASU); DORIS MARIE PROVINE, affiliation not provided to SSRN; SCOTT DECKER, Arizona State University (ASU).  ABSTRACT:  This paper focuses on the immigration-related demands currently being placed on local police in the United States, and the emergence of what we call a “multilayered jurisdictional patchwork” (MJP) of immigration enforcement. The evolving relationship between layers of government involved in enforcing immigration laws, sometimes dubbed “immigration federalism,” has so far received more attention from legal scholars than from social scientists. Against this backdrop, we report results from nationwide surveys of city police chiefs and county sheriffs and intensive fieldwork in three jurisdictions. The enforcement landscape we describe is complicated by the varying and over-lapping responsibilities of sheriffs and city police, and by the tendency for sheriffs to maintain closer relationships with federal Immigration and Customs Enforcement (ICE) authorities. We highlight the contradictions inherent in this patchwork through case studies of Mesa, Arizona; New Haven, Connecticut; and Raleigh, North Carolina. We conclude by reflecting on the implications of the MJP – for immigrants, for their communities, and for the evolving relationship between levels of government in the federal system.

KJ