New Immigration Articles from SSRN

Here are some great new immigration articles from the Social Science Research Network (www.ssrn.com).  Note that three of them deaal with the hote issue of local regulation of immigration:

A Localist Reading of Local Immigration Regulations" Buffalo Legal Studies Research Paper No. 2008-10 North Carolina Law Review, Vol. 86, 2008 RICK SU, University at Buffalo Law School, SUNY

The conventional account of immigration-related activity at the local level often assumes that the "local" is simply a new battleground in the national immigration debates. This article questions that presumption. Foregrounding the legal rules that define local governments and channels local action, this article argues that the local immigration "crisis" is much less a consequence of federal immigration policy than normally assumed. Rather, it can also be understood as a familiar byproduct of localism: the legal and cultural assumptions that shape how we structure and organize local communities, provide and allocate local services, and define the legal relationship of local, state, and federal governments. From this perspective, local immigration regulations are not unprecedented forays by local governments into uncharted and unfamiliar territory; instead, they reflect a natural extension of how we've traditionally used legal rules to organize our local communities to deal with demographic and socioeconomic diversity and change. Recognizing this not only allows us to develop a more accurate descriptive account of the framework within which localities act with respect to immigration, it also reveals the limitations of national- or federal-oriented immigration proposals and highlights the possibilities of local legal reforms as an alternative.

The Slow Death of Citizenship Rights, King's Law Journal, Vol. 18, No. 1 SATVINDER JUSS, King's College London This article explains how the shift from birthright principle to parentage citizenship, which the 1960's legislation came to epitomize, was bound to lead to difficulties for citizens and state alike. The argument will be advanced that legal machinations in citizenship laws are to date an unedifying spectacle of a departure from what was once a classic principle of law. Indeed, such is the opprobrium that attaches to the event that Kevin Wilson has cautioned the United States against using anti-immigrant sentiment as a basis for migration law policies. The article will re-visit the East African Asians Case, including the events leading up to it, because, as will be argued, the full lessons of this case have still not been entirely learned by governments and lawyers alike. The East African Asians Case became a cause célèbre amongst human rights lawyers, in part because it highlighted how issues of race and culture can distort the policy-making process, destroying a person's legal and civil status in a community. Legal policy on an issue of such fundamental importance should not be distorted in this way. Principle should not be sacrificed to ill-conceived expediency.

Between a Rock and a Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, and Housing Discrimination Vanderbilt Law Review, Vol. 62, No. 1 University of Missouri School of Law Legal Studies Research Paper No. 2008-16 RIGEL CHRISTINE OLIVERI, University of Missouri School of Law In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things. This Article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants. Faced with penalties for renting to unauthorized immigrants, landlords have the clear incentive to screen their tenants' immigration status. However, given the difficulty of ascertaining legal status (and the absence of any reliable mechanism for doing so), landlords are instead likely to resort to short-cuts, such as refusing to rent to "foreign-seeming" people and discriminating based on accent, surname, appearance, or other ethnic markers. As a result, these restrictions are likely to (1) cause landlords to violate the federal Fair Housing Act, which prohibits discrimination on the basis of national origin, and (2) lead to discrimination against all ethnic minority groups whose members look or sound "foreign," regardless of their immigration or citizenship status. In addition to the violations of federal fair housing law that are likely to occur, there are significant public policy arguments against immigration-related housing restrictions. Federal intervention is therefore necessary. Congress must act to prevent municipalities from enacting and enforcing such restrictions. Moreover, Congress must itself resist pressure to enact immigration-related housing restrictions as a matter of national policy. But this is not enough. Historic and current levels of housing discrimination against national origin minorities and immigrants indicate that these groups are already in need of greater protection, yet the law contains significant gaps in coverage. Both alienage and legal status remain permissible bases for discrimination under the Fair Housing Act. As long as this is the case, discrimination against national origin minorities who are citizens and legally present non-citizens is encouraged to continue. Thus, the Fair Housing Act should be amended to contain explicit protection for both alienage and legal status.

"The Private Enforcement of Immigration Laws" Georgetown Law Journal, Vol. 96, No. 3, 2008 HUYEN PHAM, Texas Wesleyan University School of Law In the immigration policy debate, the question of who enforces our immigration laws can be as significant as what those policies are. And on that question, a significant and startling trend in immigration law has emerged: the shifting of enforcement responsibilities once held exclusively by government officers to private parties such as employers, landlords, and public carriers. These laws obligate private parties to ensure that they provide their goods and services only to those with legal immigration status; private parties who fail to do so face civil and criminal penalties. This article maps the expansion of private enforcement laws and weighs their costs and benefits. On the benefit side, private enforcement has strong intuitive appeal. According to advocates, the laws reduce illegal immigration by eliminating the pull factors that draw immigrants here; moreover, this additional enforcement is provided at little cost to our national and local governments. These touted benefits have motivated Congress and local legislatures across the country to consider expanding the obligations of private immigration enforcement to educators, medical care providers, and even charities. But the reality is that private enforcement laws do not make effective immigration policy. Drawing on the nation's 21 year experience with federal employer sanctions, I observe that private enforcement laws have not reduced illegal immigration. Rather, these laws have been plagued by enforcement problems that undermine their effectiveness: enforcer confusion about their legal obligations, fraudulent documents that threaten the verification process, and political ambivalence about enforcement. Moreover, the laws have resulted in substantial discrimination against those who look or sound foreign. The laws have succeeded in conveying a symbolic message of tough immigration policies, but in the final analysis, the real costs of private immigration enforcement outweigh this symbolic benefit and counsel against their use.

KJ