Category Archives: Immigration

New Article: Migration as Reparation: Climate Change and the Disruption of Borders

New Article: Carmen G. Gonzalez, Migration as Reparation: Climate Change and the Disruption of Borders, 66 Loyola L. Rev. 2020. Abstract below:

This article examines the legal and moral basis for migration as a form of reparation for the harms inflicted on the states and peoples of the Global South through climate change and through centuries of predatory economic policies. Using Central America migration to the United States as a case study, the article explains that susceptibility to climate change is a function of two variables: exposure and social and economic vulnerability. High-emitting affluent states are disproportionately responsible for Central America’s exposure to climate change due to their historic and current greenhouse gas emissions, their unwillingness to curb these emissions, and their failure to provide adequate adaptation assistance. The United States is responsible for Central America’s social and economic vulnerability due to its history of invasions, coups, military occupations, support for brutal dictatorships, and imposition of damaging economic policies. Climate law scholars have proposed that high-emitting states accept climate-displaced persons into their territory in proportion to each country’s historic contribution to climate change. Migration law scholars have advocated for the admission of so-called “economic migrants” as a form of compensation for the North’s exploitation and domination of the South from the colonial era to the present. This article combines the insights of both group of scholars and argues for migration as a form of reparation for the environmental, social, and economic harms inflicted on the Global South that have undermined its resilience to climate change and have disrupted the lives and livelihoods of its inhabitants. Re-conceptualizing migration as one form of reparation challenges traditional notions of bounded autonomous sovereign states by highlighting the political, ecological, and economic interconnectedness of states and peoples and by calling for policies that recognize this interdependence.

New Article: A Vessel For Discrimination: The Public Charge Standard of Inadmissibility and Deportation

New Article: Anna Shifrin Faber, A Vessel For Discrimination: The Public Charge Standard of Inadmissibility and Deportation, 108 Georgetown Law Review (May 2020).

There are two ways of understanding the public charge framework: interpretation and application. Historical interpretation derives a common principle of a public charge as someone primarily or wholly dependent on the government, usually because of their inability to work. Historical application of public charge shows how it has been co-opted for discriminatory use. This Note demonstrates that public charge should be defined by its common principle, not by its history of discriminatory application.

New Article: Different Paths

New Article: Natsu Taylor Saito, Different Paths, J. L. and Pol. Econ., (2020).

A critical perspective on law and political economy requires an appreciation not only of how race, gender, sexuality, class, national origin, immigrant status, and other aspects of our identities intersect and interact, but also why they do so. Focusing on the United States as a settler colonial state, this essay suggests that the primary markers of identity used to oppress people are themselves the master’s tools, i.e., constructs of the colonial project. Building on the late Stokely Carmichael’s distinction between the paths of the exploited and the colonized, it argues that remediating status-based injustices will require us to go beyond a redistribution of social goods and resources, or even institutional restructuring, to challenge the paradigm that works to define and contain us—the one that propelled Western colonialism and now permeates not only the United States but legal, economic, and political institutions around the world.

New Article: The New Migration Law: Migrants, Refugees and Citizens in an Anxious Age

New Article: Hiroshi Motomura, The New Migration Law: Migrants, Refugees and Citizens in an Anxious Age, 105 Cornell L. Rev. 457 (2020).

Once every generation or so, entire fields of law require a full reset. We need to rethink basic premises, ask new questions, and even recast the role of law itself. This moment has come for the law governing migration. Seasoned observers of immigration and refugee law have developed answers to core questions that emerged a generation ago. But their answers often fail to engage coherently with the daunting challenges posed by migration in this anxious age. To try to do better, I undertake four inquiries. In isolation they may seem familiar, but I combine them here in new ways to find a path forward.

New Article: Preventing Trafficking Through New Global Governance Over Labor Migration

New Article: Janie A. Chuang, Preventing Trafficking Through New Global Governance Over Labor Migration, 36 Ga. St. Univ. L. Rev. 1027 (2020). First paragraph below:

The year 2020 marks the twentieth anniversary of the United Nations (U.N.) Trafficking Protocol—a treaty that established the foundation for global efforts to address the problem of human trafficking. That treaty offered an early framing of the problem as a transnational crime, best addressed through aggressive prosecution of traffickers and international cooperation to that end. Since the Protocol’s adoption, global antitrafficking law and policy have evolved significantly. The once near-exclusive focus on the prosecution prong of the treaty’s “3Ps” approach to trafficking— focused on prosecuting trafficking, protecting trafficked persons, and preventing trafficking—has given way to an increased emphasis on victim protection. Prevention, however, remains the 3Ps’ most neglected prong. Prevention efforts have narrowly focused on public awareness campaigns to warn vulnerable populations, as well as potential consumers of trafficked goods and services, of the risks and many manifestations of human trafficking.

New Article: Connecting Past and Present: Central America’s Forced Migration as an Unfinished Project of Building Just Nations Post-Colonization and Post-Conflict

New Article: Aldana, Raquel E. and Mancilla, Mario René and Mogollón, Luis, Connecting Past and Present: Central America’s Forced Migration as an Unfinished Project of Building Just Nations Post-Colonization and Post-Conflict (May 27, 2020). UC Davis Legal Studies Research Paper Forthcoming. Abstract below:

In this white paper, we aim to explicitly connect today’s Central America’s forced migration phenomena to the broader largely failed project of liberating the people from the Northern Triangle from the terrible grip of failed nations. We do this despite the obvious: neither civil wars nor incredibly ambitious peace processes have been terribly successful to help these nations transition to stronger and just democracies. The risk is great that we will fail to provide viable solutions to the Central American forced migration phenomena. We feel strongly, however, that our frame must embrace the complexity of forced migration’s root causes in the region and at least try to take up the daunting task of offering solutions that aim to innovate while at the same time contextualize a project of building just nations post-colonization and post-conflict that has been going on for more than a century.

We proceed in three parts. First, we provide a framework for understanding the concept of failed nations in Central America, with a particular focus in the Northern Triangle. Second, we provide a brief account of the heroic and monumental post-conflict nation-building efforts in the Northern Triangle, both the gains and unfinished tasks, to contextualize the recommendations that follow in Part III. In part III, we attempt to modernize a vision for building just nations in the Northern Triangle by (1) providing prescriptions that, inter alia, deemphasize, at least in the short term, the role of federal nation states in favor of more decentralized solutions that include local governments and communities (2) include important cross-border solutions that account for the ever present transnational agency of the problems in the region and (3) take up issues, both old and new, through evolving frameworks connecting human rights to sustainable development.

New Article: Immigration Unilateralism and American Ethnonationalism

New Article: Robert L. Tsai, Immigration Unilateralism and American Ethnonationalism, 51 Loy. U. Chi. L. J. 523 (2020). Abstract below:

This essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the 1960s. These efforts at demographic control are being pursued unilaterally, however, without sufficient evidence there is a broad and lasting desire on the part of the people to alter the fundamental values generated during that period. In order to withstand Trumpism’s challenges, we will have to better understand the Immigration and Naturalization Act’s origins as an integral component of the civil rights revolution. When we revisit this history, we learn that this settlement introduced three principles into the immigration context: equality, a presumption of cultural compatibility, and family integrity. These crucial principles must be made part of any judicial evaluation of a president’s policies—especially those conducted unilaterally.

Article: Migration as Decolonization

Article: E. Tendayi Achiume, Migration as Decolonization, 71 Stan. L. Rev. 1509 (2019). Abstract below:

International migration is a defining problem of our time, and central to this problem are the ethical intuitions that dominate thinking on migration and its governance. This Article challenges existing approaches to one particularly contentious form of international migration, as an important first step toward a novel and more ethical way of approaching problems of the movement of people across national borders.

The prevailing doctrine of state sovereignty under international law today is that it entails the right to exclude nonnationals, with only limited exceptions. Whatever the scope of these exceptions, so-called economic migrants—those whose movement is motivated primarily by a desire for a better life—are typically beyond them. Whereas international refugee law and international human rights law impose restrictions on states’ right to exclude nonnationals whose lives are endangered by the risk of certain forms of persecution in their countries of origin, no similar protections exist for economic migrants. International legal theorists have not fundamentally challenged this formulation of state sovereignty, which justifies the assertion of a largely unfettered right to exclude economic migrants.

This Article looks to the history and legacy of the European colonial project to challenge this status quo. It argues for a different theory of sovereignty that makes clear why, in fact, economic migrants of a certain kind have compelling claims to national admission and inclusion in countries that today unethically insist on a right to exclude them. European colonialism entailed the emigration of tens of millions of Europeans and the flow of natural and human resources across the globe, for the benefit of Europe and Europeans. This Article details how global interconnection and political subordination, initiated over the course of this history, generate a theory of sovereignty that obligates former colonial powers to open their borders to former colonial subjects. Insofar as certain forms of international migration today are responsive to political subordination rooted in colonial and neocolonial structures, a different conceptualization of such migration is necessary: one that treats economic migrants as political agents exercising equality rights when they engage in “decolonial” migration.

New Article: Crimmigration—Structural Tools of Settler Colonialism

New Article: Carrie L. Rosenbaum, Crimmigration—Structural Tools of Settler Colonialism, 16 Ohio St. J. Crim. L. 9 (2018). First paragraph of introduction below:

The systems of immigration and criminal law come together in many important ways, one of which being their role in instilling difference and undermining inclusion and integration. In this article, I will begin a discussion examining the concept of integration, simplistically described as inclusion into “American” life, not in the more traversed realm of citizenship, but in the context of crimmigration. I posit that when considering the relationship between those who are formally considered integrated versus other, or outsider, which may or may not overlap with immigration status, the accepted concept of integration is misguided at best. Instead, if the concept of integration is framed as an epistemological tool of settler colonialism, the construction of race provides a more fruitful line of inquiry.

New Article: The Taxation Without Representation of Undocumented Immigrants: Counting Unlawfully Earned Tax Dollars While Intentionally Ignoring Unlawful Presence

New Article: María Fernanda Alfaro, The Taxation Without Representation of Undocumented Immigrants: Counting Unlawfully Earned Tax Dollars While Intentionally Ignoring Unlawful Presence, 21 Scholar: St. Mary’s L. Rev. Race & Soc. Just. 311 (2019).