Tuesday, March 30, 2010

New SSRN Immigration Articles

"U.S. Immigration Law and the Traditional Nuclear Conception of Family: Toward a Functional Definition of Family that Protects Children's Fundamental Human Rights" Columbia Human Rights Law Review, Forthcoming. SHANI KING, University of Florida, Levin College of Law.  ABSTRACT:  In this Article, the author exposes how Congress, by failing to protect functional families in the context of immigration law, has failed to follow human rights law in a way that is meaningful to children and that honors its own highly valued principles of family preservation. Although the paramount purpose of U.S. immigration law is not, admittedly, to protect the integrity of family, Congress does explicitly aim to do so in certain circumstances. But even where Congress aims to further family unity, it fails desperately because U.S. immigration law reflects a legal construction that is grounded in the traditional conception of a nuclear family and excludes what the author calls “functional” families: formations which may not satisfy this narrow conception, but satisfy the caretaking needs of children. By exploring current statutes and recent cases in the areas of family-based immigration, cancellation of removal based on family, and the Immigration and Nationality Act’s refugee provisions, the author illustrates that U.S. immigration law fails to recognize functional families and thereby ignores a child’s right to family as provided for by international law. The author also engages in a comprehensive exploration of the Convention on the Rights of the Child and its interpretation, with an eye towards the historical evolution of the definition of family in relevant international instruments, while comprehensively exploring the extension of rights and protections to functional families under international human rights instruments in Europe and the Americas.

"Economic Harm as a Basis for Refugee Status and the Application of Human Rights Law to the Interpretation of Economic Persecution" CRITICAL ISSUES IN INTERNATIONAL REFUGEE LAW: STRATEGIES TOWARD INTERPRETIVE HARMONY, J. Simeon, ed., Cambridge University Press, November 2010 KATE JASTRAM, University of California, Berkeley School of Law.  ABSTRACT:  The 1951 Refugee Convention is so strongly linked in people’s minds to the protection of civil and political rights that refugee status is often referred to as “political asylum.” Yet claims to refugee status based on economic forms of persecution and on persecution for reasons of economic status have long been recognized as falling within the Convention definition. Although refugee judges routinely assess such claims, consensus remains elusive on the extent to which the Convention properly encompasses violations of economic, social or cultural rights. This chapter provides an overview of the standards governing economic persecution claims in order to assess arguments for a more restrictive approach based on the limitations of the Refugee Convention and for a more expansive approach based on developments in socio-economic rights law. It outlines the two tests used to assess economic forms of persecution and surveys their application in recent cases decided in Australia, Canada, New Zealand, the United Kingdom, and the United States. It concludes that notwithstanding the formal difference in standards, in practice most cases are decided by reference to the more stringent of the two tests and queries whether this is an appropriate reading of the Convention. It then critiques two contrasting perspectives on the place of economic claims under the Convention, questioning the wisdom of importing restrictive policy considerations so blatantly into definitional issues, while also suggesting a number of reasons that an economic rights framework may prove particularly challenging for refugee judges. The chapter concludes that the jurisprudential value of a human rights framework for economic persecution claims has yet to be demonstrated.

"'An "Alien" by the Barest of Threads' - The Legality of the Deportation of Long-Term Residents from Australia" Melbourne Univeristy Law Review, Vol. 33, No. 2, 2009 U of Melbourne Legal Studies Research Paper No. 455 MICHELLE FOSTER, Melbourne Law School.  ABSTRACT: The banishment of long-term permanent residents from Australia following criminal conviction is a controversial practice, yet one that has been increasingly employed by the Australian government in recent years. This article assesses the legality of this practice both in terms of domestic and international law. The article first considers the history of both constitutional doctrine and legislative developments in this area, explaining how it is that the Commonwealth can lawfully engage in the deportation of Australian residents who are citizens but for ‘the barest of technicalities’. In the latter half of the article, the analysis turns to consider the international law context to this issue, with particular focus on the extent to which the advent of international human rights law has curtailed states’ plenary power in this arena. The article concludes that the deportation of long-term residents implicates a number of Australia’s key international obligations and thus makes recommendations for urgent reform of the Migration Act 1958 (Cth).

"Regulating Immigration at the State Level: A Focus on Employment" Albany Government Law Review, Vol. 3, No. 1, pp. 218-240, 2010 CAREEN SHANNON, Benjamin N. Cardozo School of Law.  ABSTRACT:  In light of the failure of comprehensive immigration reform at the federal level in recent years and in the face of increasing concern about the impact of illegal immigration on local communities, many state, county, and local lawmakers have enacted their own laws and ordinances aimed at the undocumented population and the entities that employ them. Some laws address the employment of undocumented workers by requiring employers to utilize the federal government's Web-based "E-Verify" employment eligibility verification system to verify the work status of new hires. Others prohibit employers from hiring unauthorized workers and punish noncompliance with the denial of business licenses or contracts for work with a state, county, or municipality. Of course, it is already a violation of federal law to employ undocumented non-citizens, so any penalties for these violations are in addition to penalties already set out under federal law. These state laws raise troubling preemption issues that will only be resolved once the Supreme Court weighs in. Notwithstanding the Obama Administration’s avowed intention to enact legislation to usher in comprehensive immigration reform, there is no sign that the trend toward increased state and local immigration legislation will abate so long as there is a perception that major voids remain in the federal strategy to address illegal immigration. Focusing on employment -- the major magnet attracting undocumented immigrants across our borders -- this article provides an overview of existing state laws that seek to deter the employment of unauthorized immigrant workers and discusses the current status of federal preemption of such laws. These developments must be viewed in the context of the current federal regulatory scheme and federal worksite enforcement trends, as well as the larger history of federal authority over immigration.

"Speaking Across Borders: The Limits and Potential of Transnational Dialogue on Refugee Law in Ireland" Transnational Judicial Dialogue in Refugee Law, Guy Goodwin-Gill, Helene Lambert, eds., Cambridge University Press: 2010 SIOBHAN MULLALLY, University College Cork.  ABSTRACT:   Refugee Law in Ireland has developed rapidly over the last decade. This chapter highlights the extent to which lawyers, judges and policy-makers at the forefront of developing Irish law in this field have benefited from the greater availability of comparative and international law in recent years. As the cases explored in this chapter highlight, refugee law in Ireland is marked by significant transnational judicial dialogue. The adoption of the ECHR Act 2003 has further expanded the scope of this dialogue allowing for increasing reference to the practice of the Strasbourg Court and the UK Courts in matters of fundamental rights. However, it is also clear that the scope of this dialogue, and its potential to contribute to a European consensus on key concepts of refugee law, is limited. Constraining further harmonization of refugee law across EU member states is a common law / civil law divide that has limited the scope of transnational judicial dialogue in Ireland, and in other Member States. This is further compounded by a strict dualist approach to international law adopted by Irish courts. This chapter explores a series of rational and cultural factors that underpin the nature of judicial dialogue on refugee law in Ireland, drawing on selected cases from the superior courts and the published decisions of the Refugee Appeals Tribunal.

  "Immigration as Invasion: Sovereignty, Security, and the Origins of the Federal Immigration Power" Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 45, No. 1, pp. 1-56, Winter 2010 MATTHEW J. LINDSAY, University of Baltimore - School of Law.  ABSTRACT:  This Article offers a new interpretation of the modern federal immigration power. At the end of the nineteenth century, the Supreme Court and Congress fundamentally transformed the federal government’s authority to regulate immigration, from a species of commercial regulation firmly grounded in Congress’ commerce authority, into a power that was unmoored from the Constitution, derived from the nation’s “inherent sovereignty,” and subject to extraordinary judicial deference. This framework, which is commonly referred to as the “plenary power doctrine,” has stood for more than a century as an anomaly within American public law. The principal legal and rhetorical rationale for the plenary power doctrine was and remains the supposition that the regulation of immigration is always inherently related to the conduct of foreign affairs, and, especially, to national security. By situating this radical yet extremely durable doctrinal transformation within its appropriate intellectual and political context, this Article seeks to denaturalize the “national security rationale” for immigration exceptionalism. It argues that the plenary power doctrine was borne of an urgent sense of national peril, the basic terms of which most contemporary policymakers, judges, and scholars would emphatically reject. Although the doctrine made its judicial debut in the Chinese Exclusion Case, its historical origins in fact lie largely beyond Chinese exclusion in a much broader contemporaneous critique of (mostly European) immigration. The late nineteenth-century architects of the plenary power doctrine believed that the unchecked immigration of economically degraded, politically inassimilable, and racially unfit immigrants had created a virtual state of national emergency. In response, the Court fashioned an immigration power adapted not to the regulation of labor, or economic dependency, or crime - issues that, then as now, characterize most immigration lawmaking - but rather to the defense of the nation against foreign aggression. Although the immigrants upon whom this power was exercised were citizens of ostensibly “friendly” nations, policymakers and judges re-imagined them as enemy aliens. Through this process, the Court in effect invented the “immigrant” as a distinct, and distinctly consequential, legal construct.

"Crafting an Amnesty with Traditional Tools: Registration and Cancellation" Harvard Journal on Legislation, Vol. 47, No. 1, pp. 175-208, 2010 RICHARD A. BOSWELL, University of California, Hastings College of the Law.  ABSTRACT:   Immigration amnesty while widely believed to be an anomaly has strong historical precedent, and is found in various provisions of the current immigration law. Large numbers of undocumented persons are currently residing in the United States and amnesty is one way of bringing these people out from under the shadows. This article argues that in order for an amnesty to be effective that it must be both uncomplicated and broad. The article argues further that a careful updating of registry and cancellation of removal, two traditional tools found in U.S. immigration laws offer the best possibility for a successful amnesty program.

"Forced Marriage as a Harm in Domestic and International Law" Modern Law Review, Vol. 73, pp. 57-88, 2010 CATHERINE DAUVERGNE, University of British Columbia - Faculty of Law.  ABSTRACT:  JENNI MILLBANK, University of Technology, Sydney - Faculty of Law Email: jenni.millbank@uts.edu.au This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages both within Europe and elsewhere. We pay particular attention to British initiatives because they are in many ways the most far-reaching and innovative, and thus the contrast with the response of British refugee law is all the more stark.

KJ

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