July 22, 2021

IMMIGRATION, REFUGEE & CITIZENSHIP LAW eJOURNAL Vol. 22, No. 43

Edited by Kevin R. Johnson

Table of Contents

"The Impact of COVID-19 on Immigration Detention"

Fatma E. Marouf, Texas A&M University School of Law

"From Chinese Exclusion to Contemporary Systemic Racism in the Immigration Laws"

Kevin R. Johnson, University of California, Davis - School of Law

"Blue Card as a Method for Regulating Migration Processes in the European Union"

Dmitriy Ivanov, Moscow State Institute of International Relations (MGIMO)
Sofya Zavyalova, Moscow State Institute of International Relations (MGIMO)
Anastasia Trofimova, Moscow State Institute of International Relations (MGIMO)

"Tax Law's Migration"

Shayak Sarkar, University of California, Davis - School of Law

"Film as an Anti-Asylum Technique: International Law, Borders and the Gendering of Refugee Subjectivities"

Sara Dehm, University of Technology Sydney, Faculty of Law
Jordana Silverstein, University of Melbourne

"Is Free Movement of People Subverting Democracy in Europe? A Hirschmanian Hypothesis"

Vesco Paskalev, Brunel University London - Brunel Law School

"‘Love Mounts to the Throne with Law’: Citizenship in Northern Ireland and Seamus Heaney’s Antigone"

David Kenny, Trinity College Dublin School of Law

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"The Impact of COVID-19 on Immigration Detention"  
Frontiers in Human Dynamics, Vol. 2, 2021
Texas A&M University School of Law Legal Studies Research Paper Forthcoming

FATMA E. MAROUF, Texas A&M University School of Law
Email: fatma.marouf@law.tamu.edu

COVID-19 has spread quickly through immigration detention facilities in the United States. As of December 2, 2020, there have been over 7,500 confirmed COVID-19 cases among detained noncitizens. This Article examines why COVID-19 spread rapidly in immigration detention facilities, how it has transformed detention and deportation proceedings, and what can be done to improve the situation for detained noncitizens. Part I identifies key factors that contributed to the rapid spread of COVID-19 in immigration detention. While these factors are not an exhaustive list, they highlight important weaknesses in the immigration detention system. Part II then examines how the pandemic changed the size of the population in detention, the length of detention, and the nature of removal proceedings. In Part III, the Article offers recommendations for mitigating the impact of COVID-19 on detained noncitizens. These recommendations include using more alternatives to detention, curtailing transfers between detention facilities, establishing a better tracking system for medically vulnerable detainees, prioritizing bond hearings and habeas petitions, and including immigration detainees among the groups to be offered COVID-19 vaccine in the initial phase of the vaccination program. The lessons learned from the spread of COVID-19 in immigration detention will hopefully lead to a better response to any future pandemics. In discussing these issues, the Article draws on national data from January 2019 through November 2020 published by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), two agencies within DHS. The main datasets used are detention statistics published by ICE for FY 2019 (Oct. 2018-Sep. 2019), FY 2020 (Oct. 2019-Sep. 2020), and the first two months of FY 2021 (Oct. 2020-Nov. 2020). These datasets include detention statistics about individuals arrested by ICE in the interior of the country, as well as by CBP at or near the border. Additionally, the Article draws on separate data published by CBP regarding the total number of apprehensions at the border based on its immigration authority under Title 8 of the United States Code, as well as the number of expulsions at the border based on its public health authority under Title 42 of the United States Code.

"From Chinese Exclusion to Contemporary Systemic Racism in the Immigration Laws"  
Indiana Law Review, forthcoming 2021
UC Davis Legal Studies Research Paper Forthcoming

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

California today is widely considered to be a staunchly pro-immigrant state. That, however, has not always been the case. In fact, the Golden State in the late 1800s experienced widespread anti-Chinese agitation and frequent violence directed at Chinese immigrants and businesses. Political pressure ultimately pushed Congress to enact the first comprehensive federal immigration laws, the Chinese exclusion laws. This Essay argues that, surprisingly enough, those laws continue to reverberate through U.S. immigration law and its enforcement and allow systemic racism to flourish in the contemporary immigration system.

This Essay specifically analyzes how anti-Chinese activism in a small California mountain town at the tail-end of the nineteenth century led to state-wide, and ultimately national, discriminatory immigration laws. Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of legislation that began in earnest the process of excluding Chinese immigrants—and later immigrants from all of Asia—from the United States. In upholding the Act, the Supreme Court in an extraordinary decision declared that, because Congress possessed “plenary power”—absolute authority—over immigration, the immigration laws were completely immune from review of their constitutionality.

Well more than a century later, the plenary power doctrine lives on. Surviving the revolution of constitutional rights of the twentieth century, the doctrine enabled President Trump, a zealous advocate of tough-on-immigration measures, to pursue the most extreme approach to immigration of any modern president. As the nation attempts to understand how the Trump administration was able to no less than brutally treat immigrants, it is an especially important moment to consider the evolution of the plenary power doctrine, which today permits the treatment of immigrants in ways completely inconsistent with modern constitutional law. Ultimately, the national commitment to remove systemic racism from the nation’s social fabric requires the end of the plenary power doctrine.

"Blue Card as a Method for Regulating Migration Processes in the European Union"  

DMITRIY IVANOV, Moscow State Institute of International Relations (MGIMO)
Email: dmitriy.i.ivanov@mail.ru
SOFYA ZAVYALOVA, Moscow State Institute of International Relations (MGIMO)
ANASTASIA TROFIMOVA, Moscow State Institute of International Relations (MGIMO)

In this article, the authors consider one of the ways to regulate migration processes - the blue card, pay attention to the development process of this institution, its tasks and applicability in practice.

"Tax Law's Migration"  
Boston College Law Review, Forthcoming

SHAYAK SARKAR, University of California, Davis - School of Law
Email: ssarkar@fas.harvard.edu

Tax law has long left poor foreigners in precarity. Despite the Supreme Court striking down nineteenth-century state laws taxing migrants upon entry, the tax system has nonetheless determined who deserved a place, and what sort of place, within our borders. That tradition continues when the tax system’s emergency relief deprives otherwise needy noncitizens, giving migrants a lesser place.

This Article sheds light on this phenomenon—“tax law’s migration”—engaging two underappreciated connections between immigration and tax law. First, I use the term to explain the tax system’s long tradition of policing migrants. From colonial tax incentives for selective migration to joint tax-immigration worksite enforcement, tax law crystallizes financial welcome for some and hostility for others. Immigration status-based inequalities give rise to constitutional litigation constraining, but not extinguishing, tax law’s policing of migrants.

Second, I describe how migration and mobility rights are used to police tax compliance. Tax law now fashions penalties through the revocation of driver’s licenses and passports. A striking contrast emerges from comparing (often-affluent) citizen tax noncompliers with noncitizens. Remaining in the country becomes the penalty for those who may take it for granted but the privilege denied to those who seek little else.

Reckoning with tax law’s migration requires acknowledging the bureaucratization of ethnic and racial animus and the abandonment of economically vulnerable migrants during emergencies. We should be concerned about, rather than reflexively ratify, tax law’s migration.

"Film as an Anti-Asylum Technique: International Law, Borders and the Gendering of Refugee Subjectivities"  
Published in (2020) 29(3) Griffith Law Review

SARA DEHM, University of Technology Sydney, Faculty of Law
Email: sara.dehm@uts.edu.au
JORDANA SILVERSTEIN, University of Melbourne
Email: jordys@unimelb.edu.au

In 2015, the Australian government commissioned a telemovie as part of its strategic communication campaign to deter would-be asylum seekers from travelling to Australia unauthorised by boat. In this article we explore this film as one instance of state practices that seek to control migration at their borders, and a form of state messaging which uses gendered story telling techniques and characterisations to do so. Officially termed ‘public information campaigns’ (PIC) by states or ‘information strategies’ by international organisations such as the UNHCR, the use of such practices has increased in volume, frequency and prominence in recent years. While there has been some academic attention to PICs, to date, the gendered dimensions of these campaigns have remained largely unexamined. In this article, we argue that a feminist analysis of PIC is critical to understanding both how state borders ‘gender’ refugee subjectivities as well as international law’s authorisation of the violence of state borders more generally. By allocating blame and responsibility on individual refugees and their gendered choices, rather than on state actions and state violence, the film reveals how the institution and policing of state borders simultaneously rest upon gendered imaginaries of refugee responsibilitisation and the invisibilisation of state responsibility.

"Is Free Movement of People Subverting Democracy in Europe? A Hirschmanian Hypothesis"  

Stefan Mayr & Andreas Orator (eds.), Populism, Popular Sovereignty, and Public Reason (Central and Eastern European Forum for Legal, Political, and Social Theory Yearbook, Vol. 10), Peter Lang, Forthcoming 2021

VESCO PASKALEV, Brunel University London - Brunel Law School
Email: vesselin.paskalev@eui.eu

Mobility within the EU is normally understood as economic: a flow from poor members from Central and Eastern Europe (CEE) to the wealthier West which recently replaced a similar flow from the poorer South to the North. It is rarely noticed, however, that the same flows represent also movement from lower quality democracies to higher quality ones. If so, it is plausible to expect that this movement, on a scale unseen in Europe since WWII, will have some feedback effect on the quality of democracy too. Indeed, as we know from Albert Hirschman, citizens are facing a perennial dilemma between ‘voice’ and ‘exit’. The other choice they have to make according to him is between investing their time and energy in actions in the public sphere and pursuit of private welfare. By facilitating the exit option on one side and enhancing the opportunities for private prosperity on the other, the Union, for all the great things it provides, may subvert democracy in the member states. This effect may be negligible in most of the ‘old’ member states which have not seen significant outward migration but it should be very strong in the ‘new’ member states in the East.

Thus, the paper aims to initiate the systematic exploration of the relationship between emigration and democratic backsliding which is currently the most characteristic trend in CEE. It begins by an exploration of the dynamics of mobility, participation and private welfare which may (or may not) come into play in the context of European integration and of the free movement of people in particular. This is followed by a brief discussion of the available evidence for the relationship between mobility and political participation – all of it from other contexts. It concludes with an argument that the EU ought to compensate its adverse effect on domestic democracy and (very briefly) discusses the types of measures which could remedy the problem.

"‘Love Mounts to the Throne with Law’: Citizenship in Northern Ireland and Seamus Heaney’s Antigone"  
(2022) Law and Humanities (Forthcoming)

DAVID KENNY, Trinity College Dublin School of Law
Email: david.kenny@tcd.ie

In this paper, I examine disputes about citizenship in Northern Ireland though the lens of poet Seamus Heaney’s 2004 version of Antigone, The Burial at Thebes. Citizenship and identity in Northern Ireland—if people are Irish or British—has been a central issue of the conflict there. The 1998 peace agreement promised to allow people to identify however they wished, and not be forced to adopt an identity they rejected. But recent controversies, including Brexit and a major legal challenge, have shown that the legal concept of citizenship has not been able to fulfil this promise. Sophocles’ Antigone presents a great clash between the authority of the State and deep personal/morality commitments, and the tragedy that result. Heaney’s Antigone casts light on the fundamental clash at the centre of citizenship, and points us toward a flexible, contextual multi-level citizenship as a solution to law’s rigid conception of what a citizen must be.