New Article: Liz Keyes, Unconventional Refugees, 67 Am. Univ. L. Rev. 1 (2017). Abstract below:
Refugees are a flash point for political divisions in the United States and abroad. The enormous personal, moral, and legal challenges posed by the displacement of refugees around the world reveal the dire inadequacies of our current policies toward refugee protection. Children running to border agents at the U.S. southern border are treated as a security threat to be deterred, instead of a vulnerable population needing some level of protection. The numbers of people seeking safety in the United States, while not objectively high, places further strain on an already under-resourced heavily burdened immigration system, which at the end of the day, offers only partial hope to some of those seeking safety. Simply put, our current laws are simply not designed to offer meaningful protection that fits the contours of new waves of forced migration.
This article breaks open a debate that has been caught between the binaries of protection versus deterrence, and instead asks what framework could effectively serve multiple goals, both short-term protection and long-term deterrence and public safety. To do this, it questions our exclusive focus on the protection afforded by the Refugee Convention, and considers what rights to protection might be owed to “unconventional refugees.”
The Refugee Convention’s principle of non-refoulement (or non-return to the persecuting country) imposes significant duties on receiving nations like the United States, while its implementation requires intensive individualized determinations that create great demands on an overstretched immigration system. Its high value comes from the path it creates for refugees to ultimately access U.S. citizenship, and the value necessarily entails a process of great detail and depth. This article considers whether a complementary form of protection for unconventional refugees is appropriate—protection that is perhaps less valuable, but also less complex to administer and easier for the refugees to access.
The article examines precedents in U.S. immigration laws for such a reimagined form of protection, and examines a series of justifications, both philosophical and pragmatic, for such protection. The world is undeniably experiencing a moment where even the Refugee Convention meets considerable political opposition, so the project of developing a new framework is a long-term one, but it is a project that merits thoughtful consideration starting now. The principle of non-refoulement was once novel, and now constitutes a powerful principle of international law. A new principle for protecting unconventional refugees may also be possible, but only if we begin the task of imagining it.
New [Self-promoting] Op-Ed: Ezra Rosser, An apology to my sons’ Salvadorian caretaker, The Hill, Jan. 8, 2018.
New Report: Jayesh Rathod et al., Extending Temporary Status for El Salvador: Country Conditions and U.S. Legal Requirements, CLALS Working Paper Series No. 17, SSRN, Dec. 21, 2017.
New Article: Claire R. Thomas & Ernie Collette, Unaccompanied and Excluded from Food Security: A Call for the Inclusion of Immigrant Youth Twenty Years after Welfare Reform, 31 Geo. Immigration L. Rev. 197 (2017). Abstract below:
The purpose of this paper is to advocate for immediate access to SNAP (Food Stamps) benefits for immigrant kids applying for and granted Special Immigrant Juvenile Status (SIJS) in both New York State and at the federal level through the historical background of exclusionary immigration policies, an examination of PRWORA, and the application of a case study. First, this paper will briefly discuss the historical background of U.S. immigration policy as exclusionary of certain groups of immigrants, particularly those thought to become a public charge, and the correlation between anti-immigrant sentiment and the passage of laws restricting access to public benefits. Next, this paper will examine the SNAP sections of the PRWORA in great depth, after almost twenty years since its passage and enactment, through the review of pre-PRWORA immigrant eligibility rules and the expansion of post-PRWORA categories since 1996.
Reposting from the AU Latin American Blog:
Trump’s Wall Funding Proposal Violates Conservative Principles
By Ezra Rosser*
More than two years after U.S. presidential candidate Donald Trump first boasted that he would “build a great, great wall on our southern border and … make Mexico pay for that wall,” his main proposal to fund it appears to remain blocking transnational remittances – in contradiction of neoliberal capitalist principles he embraces. In a letter that now-President Trump sent last month to U.S. House and Senate Leaders he said the border wall was necessary to protect “our national security and public safety” because the “porous southern border … is exploited by drug traffickers and criminal cartels.” He was ambiguous, however, about who was going to pay for the wall, simply arguing that the country must “ensure funding for the southern border wall and associated infrastructure.” Trump offered to make a deal to protect the Deferred Action for Childhood Arrivals (DACA) program – the “Dreamers” – only if Congress passed harsh immigration policies and funded the wall.
- Under pressure during the campaign to explain how he would make Mexico pay for the wall, Trump claimed he could hold remittances sent by Mexican immigrants to family members in Mexico hostage until Mexico agreed to pay. President Obama noted at the time that the implications of ending immigrant remittances would be “enormous,” difficult to implement, and likely push more people to leave Mexico for the United States. Senders would likely resort to informal channels, and Trump’s proposed selective taxation of money sent to Mexico would raise legal issues because of the discriminatory nature of such a program.
- Trump has been quietly backing away from his repeated campaign promise to make Mexico pay. When Mexican President Peña Nieto told him in a phone call last January that “my position has been and will continue to be very firm saying that Mexico cannot pay for that wall,” Trump responded with much less bluster. He noted simply that “you cannot say that to the press. The press is going to go with that and I cannot live with that.” This acknowledgement that the issue was largely about political optics suggested that Trump knew that, in the memorable words of former Mexican President Vicente Fox, Mexico was “not going to pay for that f***ing wall.”
Trump has not withdrawn, however, his threat to block remittances. Such a policy would cause hardship for millions; most remittances are spent on basic necessities such as food. But by undermining the free flow of capital, a core feature of our modern globalized world, Trump is also attacking a central component of neoliberal capitalism. Trump also takes positions that reflect anti-globalization and protectionism – such as his characterization of NAFTA as the “the worst trade deal ever signed in the history of our country” and his claim that globalization “left millions of our workers with nothing but poverty and heartache” – but tying capital flows with labor flows would arguably turn the values of the global order on their head.
- The notion that there is an imbalance in the treatment of workers and capital is ordinarily associated with the radical left. Harvard Law Professor Roberto Mangabeira Unger, for example, highlighted this imbalance in his 1998 book, Democracy Realized: The Progressive Alternative, in which he wrote, “The architects of the new world economic order have built a system in which capital and goods can roam the world while labor remains imprisoned in the nation-state or in blocs of relatively homogeneous nation-states.” For Trump and other Republicans, linking remittances and immigration would normally be anathema. If the U.S. Congress decides not to fund the wall, we may discover that taxing cash transfers may be an autocratic strategy that crosses ideological lines.
November 27, 2017
Sonia Nazario, Trumps Cruel Choice: Who Gets to Stay?, New York Times, October 27, 2017. [“The United States is i the throes of a great debate: Do we want – can we afford – to remain a safe haven for people who … are here running for their lives?”]
New Report: Center for Latin American & Latino Studies (CLALS) at
American University et al., Extending Temporary Protected Status for Honduras: Country Conditions and U.S. Legal Requirements (Nov. 2017). Abstract below:
In January 1999, the U.S. government announced the designation of Honduras for Temporary Protected Status (TPS). This designation was premised on the significant disruptions and damage caused by Hurricane Mitch, which had ravaged Honduras in late October 1998. TPS for Honduras has been extended over the years, and the current period of designation is set to expire in early January 2018. In the current political moment, there is concern about whether this TPS designation will be extended once again.
This report provides a background on TPS, and also undertakes a detailed examination of the justifications offered over the years for extending TPS for Honduras. Each of these past extension decisions concluded, as required by the TPS statute, that Honduras is not able to adequately handle the return of its nationals who are residing in the U.S. with TPS. Our analysis reveals that the U.S. government has premised these past extension decisions on six categories of factors: climate and environment; economy; infrastructure; public health; safety and security; and governance.
The report proceeds to assess these same factors in present-day Honduras. Honduras remains extremely vulnerable to natural disasters, which have compromised the country’s infrastructure and stalled recovery efforts. Serious challenges persist for the Honduran economy, including high levels of unemployment and underemployment. Honduras also suffers from a severe shortage of housing, higher-than-average levels of food insecurity, and limited capacity in the health sector. Finally, the security situation in Honduras continues to deteriorate, fueling displacement, and placing strains on a government already weakened by corruption and impunity. These findings compel the conclusion that TPS for Honduras should be extended.
Lee, Jennifer J., Redefining the Legality of Undocumented Work (September 21, 2017). California Law Review, Forthcoming; Temple University Legal Studies Research Paper No. 2017-25. Available at SSRN: https://ssrn.com/abstract=3040872 [Abstract below]
Undocumented workers face a new harsh reality under the Trump administration. Federal law’s prohibition of undocumented work has facilitated exploitation because workers fear being brought to the attention of immigration authorities. The current administration’s aggressive stance towards worksite enforcement will only exacerbate abuses against undocumented workers, such as wage theft, dangerous working conditions, or human trafficking.
Given the current climate, this article explores how states and localities can resist the federal prohibition by legalizing undocumented work. We live in times of resistance, with “sanctuary cities” that refuse to cooperate with federal immigration enforcement. Seizing on this moment, state and local resistance can offer more immediate accountability for addressing the plight of undocumented workers while disrupting the ways in which the federal immigration framework defines the illegality of undocumented work. To start, this article reviews how the incongruence between the lived experiences of undocumented workers and the federal immigration framework creates an underclass of workers. Next, it develops a typology of state and local resistance measures that recognize, protect, or promote undocumented work and considers whether these measures can succeed given concerns about federalism and governmental retaliation.
This article concludes by discussing why state and local resistance is worthwhile. Beyond the palpable benefits of addressing exploitation, state and local resistance can help undocumented workers overcome exclusion by increasing their sense of belonging. Community members too benefit from the strengthening of workers’ rights and the contributions to the local economy. At the same time, such resistance changes social norms and provides a powerful critique of the federal prohibition on undocumented work. Ultimately, this article is the first to examine how state and local resistance focused on undocumented work can lend itself to building social movements that promote immigrant inclusion by redefining the legality of undocumented work.
Muneer I. Ahmad, Beyond Earned Citizenship, 52 Harv. L. Rev 258 (2017). [Abstract Below]
For more than a decade, a single rubric for legalization of the 11 million undocumented people in the United States has dominated every major proposal for comprehensive immigration reform, and continues to do so today: earned citizenship. Introduced as a rhetorical move intended to distinguish such proposals from amnesty, the earned citizenship frame has shaped the substantive
provisions of the legislation by conditioning legalization on the performance of
economic, cultural, and civic metrics. In order to regularize status, earned citizenship
would require undocumented individuals to demonstrate their ongoing societal contributions at multiple intervals over a probationary period of many years, and they would remain subject to deportation for failure to do so. Such a behavioral approach expresses a particular moral basis for legalization and a normative vision of citizenship, and it aspires to place millions of people on a path to citizenship. And yet, despite the centrality of earned citizenship in contemporary immigration debates and the magnitude of its ambition, there has
been virtually no scholarly treatment of its substance, ideology, or normative
claims. While the election of Donald Trump has rendered progressive immigration
reform improbable in the next several years, this is all the more reason to examine the failed logic and structure of recent reform proposals. This Article explores the origins and illuminates the deep structure of earned citizenship, and it critically evaluates its virtues and shortcomings as matters of politics, morality, policy, and law. Although laudable for its inclusionary promise, earned citizenship suffers from serious and previously unaddressed theoretical and conceptual flaws that reinscribe the moral claims of restrictionists, illuminate and imperil our larger understandings of citizenship, and invite consideration of alternative frameworks for legalization. The rightward electoral shift has closed a window for progressive reform for now, but when it is next pried open, a different moral and legal framework for legalization may be required.