Immigration Enforcement at the Worksite

120px-us_immigration_and_customs_enforcement_arrestOur recent graduate Ben Crouse has a fascinating new paper on SSRN entitled “Worksite Raids and Immigration Norms: A ‘Sticky’ Problem.”  Drawing on Dan Kahan’s theory of social norms, Ben critiques the government’s use of high-profile worksite raids as a tactic to deter employers from hiring illegal immigrants.  Here is a taste:

The government’s high-profile raids may encourage an anti-enforcement backlash, especially when accompanied by criminal prosecutions of employers and employees alike.  In fact, high-profile raids seem perfectly tailored to amplify anti-enforcement norms.  By coupling employer enforcement measures with large-scale criminal prosecutions and removal of immigrants, the measures arouse the anxieties of the Hispanic population.  By bankrupting large employers, the measures also jeopardize the economic future of the communities that depend on them.

As an alternative to an enforcement strategy built around a small number of high-impact raids, Ben proposes reforms that would result in a larger number of enforcement actions against employers, but with less draconian results for both employers and employees.  He would make it easier for the government to sanction employers who hire illegal immigrants, but also reduce the magnitude of the sanctions in many cases, which should diminish anti-enforcement backlash.

Ben’s paper won the Silver Quill Award earlier this year for being one of the top two students comments published in volume 92 of the Marquette Law Review.

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Supreme Court Determines That Traditional Stay Continues to Be Available to Aliens Appealing from Removal Orders

As I blogged about previously, in January the United States Supreme Court heard oral argument in the case of Nken v. Holder, which raised the question of whether the 1996 amendments to judicial review provisions that removed the automatic stay of deportation pending appeal had replaced the automatic stay with a traditional stay standard or a heightened, extremely restrictive standard, one that almost never would allow a stay.

Today, in a 7-2 opinion authored by Justice Roberts, the Court announced its decision in favor of the alien, determining that the disputed 1996 statutory provision did not take away the appellate courts’ traditional stay power in appeals pending deportation.

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Brave Afghani Women Protest Law Change

Did you see this article in the New York Times this morning, about the 300 women protesting a new law that would give men in the Shiite minority community virtually complete control over the lives of their wives?  The NYT describes the law this way:

The law, approved by both houses of Parliament and signed by President Hamid Karzai, applies to the Shiite minority only, essentially giving clerics authority over intimate matters between women and men. Women here and governments and rights groups abroad have protested three parts of the law especially.

One provision makes it illegal for a woman to resist her husband’s sexual advances. A second provision requires a husband’s permission for a woman to work outside the home or go to school. And a third makes it illegal for a woman to refuse to “make herself up” or “dress up” if that is what her husband wants.

And the protest itself:

The women who protested Wednesday began their demonstration with what appeared to be a deliberately provocative act. They gathered in front of the School of the Last Prophet, a madrassa run by Ayatollah Asif Mohsini, the country’s most powerful Shiite cleric. He and the scholars around him played an important role in the drafting of the new law.

“We are here to campaign for our rights,” one woman said into a loudspeaker. Then the women held their banners aloft and began to chant.

The reaction was immediate. Hundreds of students from the madrassa, most but not all of them men, poured into the streets to confront the demonstrators.

“Death to the enemies of Islam!” the counterdemonstrators cried, encircling the women. “We want Islamic law!”

The women stared ahead and kept walking.

A phalanx of police, some of them women, held the crowds apart.

As a refugee law professor, dramatic confrontations like this one always lead my thoughts back to the legal definition of “refugee,” and the absence of  “gender” among the enumerated categories of persecution.  For instance, the U.S. defines “refugee” as a person “unable or unwilling to return to . . . [his or her home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .” I have considered thearguments, legal and practical, against trying to add “gender” to the Refugee Convention’s definition as a separate ground.  But I think I disagree.  For that reason and so many others, it seems like time to revisit the convention and protocol that established the international definition of “refugee.”

Back to the main point, the courage of these Afghani women is inspiring. And the NYT article suggests that the law change might possibly be halted before becoming enforceable.

Cross-posted at feministlawprofs.

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