Monday, November 8, 2010

New Immigration Articles from SSRN

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

"Terrorism, Torture, and Refugee Protection in the United States" Refugee Survey Quarterly, Forthcoming Brooklyn Law School, Legal Studies Paper No. 209 MARYELLEN FULLERTON, Brooklyn Law School.  ABSTRACT:   In recent years the United States Congress has enacted multiple anti-terrorism laws in its efforts to exclude from the country terrorists and those who associate with terrorists or provide them material support. The anti-terrorism provisions, particularly the material support bar, prevent many individuals with a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group from receiving asylum or protection from refoulement. These statutes deny protection to refugees even though there are no reasonable grounds to consider them dangers to the security of the United States, and, accordingly, these legislative provisions violate international refugee law. In apparent recognition that applying the anti-terrorism bars can lead to unjust and illegal results, Executive Branch officials have issued a series of ad hoc waivers of the material support bar. These waivers, though beneficial to the individuals who successfully navigate the waiver procedures, are insufficient to bring the United States into compliance with international refugee law. Another avenue of protection, the non-refoulement obligation of the Convention Against Torture, has also been utilized when the material support bar has threatened to deprive refugees and asylum-seekers of protection under the Refugee Convention and Protocol. This is a welcome outcome for the sub-group of refugees and asylum-seekers who fall with its scope, but the Convention Against Torture also falls far short of affording all asylum-seekers and refugees the non-refoulement protection guaranteed by the Refugee Convention. Without new legislation, such as the proposed 2010 Refugee Protection Act, U.S. anti-terrorism statutes will remain in violation of international refugee law.

"Double Nationality in the EU: An Argument for Tolerance" European Law Journal, Forthcoming DIMITRY KOCHENOV, University of Groningen - Faculty of Law.  ABSTRACT:   Currently the Member States’ nationalities, short of being abolished in the legal sense, mostly serve as access points to the status of EU citizenship. Besides, they provide their owners with a limited number of specific rights in deviation from the general principle of non-discrimination on the basis of nationality and – what is probably more important for the majority of their owners – trigger legalized discrimination in the wholly internal situations. Viewed in this light, the requirement to have only one Member State’s nationality enforced in national law by ten Member States seems totally outdated and misplaced. This paper focuses on the legal analysis of this controversial requirement. This paper, first presented at the bi-annual EUSA conference in Los Angeles in April 2009 is forthcoming in the European Law Journal in 2011.

"Rejecting Refugees: Homeland Security’s Administration of the One-Year Bar to Asylum" William & Mary Law Review, Vol. 52, 2010 PHILIP G. SCHRAG, Georgetown University - Law Center Email: SCHRAG@LAW.GEORGETOWN.EDU ANDREW SCHOENHOLTZ, Georgetown University Law Center Email: schoenha@georgetown.edu JAYA RAMJI-NOGALES, Temple University - James E. Beasley School of Law Email: jaya.ramji-nogales@temple.edu JAMES P. DOMBACH, Georgetown University Law Center Email: jpd64@law.georgetown.edu Since 1980, the Refugee Act has offered asylum to people who flee to the United States to escape persecution in their homeland. In 1996, however, Congress amended the law to bar asylum – regardless of the merits of the underlying claim – for any applicant who fails to apply within one year of entering the United States, unless the applicant qualifies for one of two exceptions to the rule. In the years since the bar was established, anecdotal reports have suggested that genuine refugees, with strong merits claims to asylum, have been rejected solely because of the deadline. Many scholars and practitioners suspected that this procedural bar had a dramatic effect on the U.S. asylum system. Until now, however, there has been no systematic, empirical study of the effects of the deadline on asylum seekers and the asylum system. The Department of Homeland Security (DHS), which is the first level adjudicator of affirmative applications for asylum, supplied the authors exclusively with a database of asylum claims that has never before been analyzed. This database includes demographic and other characteristics of all principal applicants for asylum before DHS since September 1998 – more than 300,000 cases – and the decision reached in each case. In this article, the authors report, for the very first time, what that database shows about DHS’s application of the one year deadline. They find, among other things, that: • Over the entire time frame studied, DHS determined that nearly a third of all affirmative asylum applicants missed the filing deadline. • In the years immediately after the deadline went into effect (FY 1998-FY 2002), DHS found only 27% of applicants to be late, but after that, DHS determined a significantly higher percentage to be late (35% from FY 2003 through June 8, 2009). • DHS has rejected the applications (finding no applicable exception) in the cases of 59% of those who were determined to have filed late (18% of all affirmative asylum applicants). • Applicants from certain countries such as the Gambia and Sierra Leone are much more disadvantaged by the deadline than applicants from certain other countries, such as Haiti and India. The deadline may particularly impact refugees who, upon arrival, are unable to find a community of emigrants from their home countries who could warn them about its existence. • It is likely that as a result of the deadline, since April 1998 DHS has rejected more than 15,000 asylum applications (involving more than 21,000 refugees) that would otherwise have been granted. The authors conclude that because the costs of the one-year deadline exceed its benefits, it should be repealed, as proposed by several bills that have been introduced in Congress.

"Expression by Ordinance: Preemption and Proxy in Local Legislation" LINDSAY C. NASH, Cardozo Law School.  ABSTRACT:  Local laws based on immigration status have prompted heated national debate on federalism and discrimination. A second strain of nuisance-related legislation has emerged in recent years, which often targets these same immigrant communities. This paper examines the hitherto-unstudied correlation between ordinances explicitly related to immigrants and legislation regarding nuisance–as illuminated through primary research into municipal legislation across the nation. Evaluating these laws and the context of their enactment, this research shows when and how nuisance laws target certain populations. Ultimately, this inquiry reveals troubling parallels to previous community responses to disfavored subgroups and the harm resulting from proxy legislation.

KJ

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