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741. The US Congress and decision-making on war: Debates on war powers in the separation of powers system

Author:
Anna Kronlund
Publication Date:
02-2015
Content Type:
Working Paper
Institution:
Finnish Institute of International Affairs
Abstract:
Debates on the war-making powers of the US Congress and the President have been topical of late. President Barack Obama's actions in relation to Libya (2011), Syria (2013), and more recently the "targeted” actions against ISIL in Iraq and Syria, have raised discussions about the powers of the President as the Commander-in-Chief vis-à-vis the powers of Congress. If and when should the President seek congressional authorization for the use of US armed forces? This Working Paper argues that Congress has constitutionally established but contingently manifest powers when it comes to decision-making on war. To examine this, the paper explicates the procedures of congressional involvement in the decision-making process on war and illustrates congressional debates on the war powers between the branches of government. The recent cases of Libya and Syria are examined in more detail to indicate the (aspired) role of Congress. The powers between the branches of government are not static but rather (re)interpreted and (re)defined in different political contexts. War powers are one example to explicate the constitutional powers of the US Congress and the President that are divided, and to examine how these powers are considered and debated. While the debates are considered against the backdrop of the Constitution, the question to consider is how they relate to the political realities and power relations in changing political settings. The Working Paper also explicates the role of Congress in the broader perspective rather than through the legislative record and voting only, even though the members of Congress have particularly emphasized debate (and voting) in the decision-making process. Concepts such as collective judgment, popular sovereignty and separation of powers are used in this context to indicate the role of Congress in this field. The changing nature of war and the concept of war pose new challenges for understanding and defining the powers related to "war making”, and are reflected in the continuing debates concerning the scope and relevancy of the power of Congress (and the President) when it comes to decision-making on the use of US armed forces.
Political Geography:
United States, Iraq, Libya, and Syria

742. Children's Migration to the United States from Mexico and Central America: Evidence from the Mexican and Latin American Migration Projects

Author:
Katharine M. Donato and Blake Sisk
Publication Date:
03-2015
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
In light of rising numbers of unaccompanied minors at the Mexico- US border in 2014, this article examines child migration from Mexico, Guatemala, El Salvador, Costa Rica, and Nicaragua. Using data from the Mexican and Latin American Migration Projects that permit us to go beyond simple descriptive analysis about children apprehended at the border, we investigate the extent to which children from these countries: 1) enter without legal authorization to do so; 2) are more likely to cross the border now than in the past; and 3) are tied to their parents' migration. In theory, if immigration and refugee protections worked well for children and offered them legal pathways to reunify with their families, then we would expect low levels of unauthorized entry and no dramatic shifts over time. However, our examination of child migration shows that it is strongly linked to unauthorized entry, period of entry, and parents' US experience.The findings show that the migration of children is closely linked to their parents' migration history. Although the overall likelihood of a Mexican child making a first US trip is quite low, it is practically non-existent for children whose parents have no US experience. Thus, the increase in child migration from Central America, and the continued high levels of child migration from Mexico result from widespread migration networks and the United States' long-standing reliance on the children's parents as immigrant workers. The findings suggest that these children need protection in the form of family reunification and permanent legal status.
Topic:
Migration
Political Geography:
United States, Central America, and Mexico

743. Beyond DAPA and DACA: Revisiting Legislative Reform in Light of Long-Term Trends in Unauthorized Immigration to the United States

Author:
Donald Kerwin and Robert Warren
Publication Date:
03-2015
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
In December 2014, the Center for Migration Studies of New York (CMS) released a paper that provides new estimates of the US unauthorized resident population (Warren 2014). The paper describes the development of a new dataset which has detailed information about unauthorized residents, derived from data collected in the US Census Bureau's American Community Survey (ACS). The dataset will be useful to scholars, researchers, service-providers, and government officials in crafting, implementing, and evaluating programs that serve noncitizens, including the unauthorized. In addition, the new estimates provide an opportunity to examine the dramatic changes in unauthorized immigration in the past two decades and the assumptions that have shaped US policies and public opinion. The new dataset, recent estimates of the unauthorized (Warren and Warren 2013) and statistics on the noncitizen population from IPUMS-USA (Ruggles et al. 2010) highlight several trends related to the decline in the unauthorized population, particularly from Mexico, and the increasing salience of visa overstays in constituting this population. Some trends defy conventional wisdom and all of them have public policy consequences. In particular, we find that: The unauthorized resident population was about a million lower in 2013 than in 2007. The “Great Recession” was not the principal cause of population decline. Annual arrivals into the unauthorized population increased to more than one million in 2000, then began to drop steadily, and have now reached their lowest levels since the early 1980s From 2000 to 2012, arrivals from Mexico fell by about 80 percent. Between 2010 and 2013, the total unauthorized population from Mexico declined by eight percent. In 2006, the number of arrivals from Mexico fell below the total number of arrivals from all other countries (combined) for the first time. The number who stayed beyond the period authorized by their temporary visas (overstays) exceeded the number who entered across the southern land border without inspection (EWIs) in each year from 2008 to 2012. While the CMS estimates are based on sample data and assumptions that are subject to error, these trends are consistent with the best empirical information available. In November 2014 the Obama Administration announced an unprecedented set of executive action initiatives. At this writing, the Deferred Action for Parental Accountability (DAPA) program and the expanded Deferred Action for Childhood Arrivals (DACA) program, which would provide work authorization and temporary reprieve from removal to eligible persons, have been preliminarily enjoined. The temporary injunction, which the US Department of Justice plans to appeal to the Fifth Circuit Court of Appeals, comes in response to a legal challenge to the two programs by 26 states under Article II, section 3 of the US Constitution which requires the President to “take Care that the Laws be faithfully executed,” and under the Administrative Procedure Act (APA). In addition, the Republican majorities of the 114th Congress have vowed to prevent the implementation of these programs. However, the administration has expressed confidence that it will ultimately prevail in court and in its battle with Congress over these programs. Meanwhile, nongovernmental organizations (NGOs), community-based organizations (CBOs), and others continue to plan intensively for the DAPA and DACA programs, as well as for other executive action initiatives. This paper provides estimates of those who are potentially eligible for DAPA and DACA. However, it also looks beyond DAPA and DACA to make the case for broad legislative reform in light of long-term trends in unauthorized migration to the United States and the unauthorized resident population. In particular, it argues that substantial declines in the unauthorized population—a goal shared by partisans on both sides of the immigration debate—will require reform of the legal immigration system, legalization of a substantial percentage of the unauthorized, and a more effective response to nonimmigrant visa overstays.
Topic:
Immigration
Political Geography:
United States

744. Democratizing Data about Unauthorized Residents in the United States: Estimates and Public-Use Data, 2010 to 2013

Author:
Robert Warren
Publication Date:
03-2015
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
Information about the unauthorized resident population is needed to develop and evaluate US immigration policy, determine the social and economic effects of unauthorized immigration, and assist public and private service providers in carrying out their missions. Until recently, estimates have been available only for selected data points at the national and sometimes the state level. The Center for Migration Studies (CMS) convened a meeting in September 2013 to assess the need for information about the unauthorized resident population. The meeting included leading academics, researchers, non-governmental organizations (NGOs) that serve immigrants, and local, state, and federal government representatives. Based on the recommendations from that meeting, CMS initiated a project to derive estimates of the size and characteristics of the unauthorized population at the national, state, and sub-state levels, and to make the information readily available to a wide cross-section of users. A series of statistical procedures were developed to derive estimates based on microdata collected by the US Census Bureau in the 2010 American Community Survey (ACS). The estimates provide detailed demographic information for unauthorized residents in population units as small as 100,000 persons. Overall, the estimates are consistent with the limited information produced by residual estimation techniques. A primary consideration in constructing the estimates was to protect the privacy of ACS respondents.
Topic:
Immigration
Political Geography:
United States

745. Reconfiguring the Law of Non-Refoulement: Procedural and Substantive Barriers for Those Seeking to Access Surrogate International Human Rights Protection

Author:
Mark R. von Sternberg
Publication Date:
03-2015
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
Both geographic and normative constraints restrict access to surrogate international human rights protection for those seeking a haven from serious human rights abuses. Primary among territorial restrictions has been the fall-out from the US Supreme Court's decision in Sale v. Haitian Council Centers in which the court explicitly ruled that nothing in US statutory law, or in the 1951 Convention on Refugees or its 1967 Protocol, precluded the interdiction of Haitian refugees in international waters and their return to the country of origin without an effective interview on their protection clams. This ruling is in transparent contradiction to the general international law norm of non-refoulement according to modern scholarship and emerging case law. This paper concludes that Sale should be overturned by statute as should related pre-screening practices. A new standard of “jurisdiction” should be adopted which does not depend on territorial access to a signatory state but on whether the state is exercising power in fact. Similar concerns exist with respect to safe third country agreements which often offend the international customary right of the asylum seeker to choose where his or her claim will be filed. This paper argues that the right of choice should be recognized and onward travel and admission to the country of destination allowed. This result is especially called for where return of the alien by the country of first contact raises serious concerns under the law of non-refoulement. Imbalances noted in this paper include those generated by the new terrorism related grounds of inadmissibility in the United States and the summary denial of children's asylum claims flowing from gang violence. Other questions are raised in this paper concerning work authorization and detention of asylum seekers. Access to an employment authorization Journal on Migration and Human Security document for those filing colorable claims should be recognized by statute to render US practice consistent with that of most other states. Release from detention, on the other hand, for asylum seekers has now been broadly recognized by the US Department of Homeland Security where the asylum seeker's identity can be ascertained and the claim is non-frivolous in nature. This approach is largely consistent with international law, although there have been unnecessary delays in implementing it. On the substantive law, the international customary norm of non-refoulment has been expanded considerably through the development of opinio juris by scholars and the practice of states. This paper traces efforts in Europe to develop a law of temporary refuge for those fleeing civil war situations characterized by humanitarian law violations. Similarly, case law under the European Convention of Human Rights has now come to focus on the harm the claimant would suffer as the result of conditions in the country of origin without identifying an explicit agent of serious harm. Related to these developments has been the notion of complementary protection under which relief can be conferred where the alien would suffer serious harm upon return to the home state but not for a Convention reason. These approaches have now received approval in the European Union Asylum Qualification Directive so that international protection may now be conferred either because the alien would suffer serious harm on account of the intensity of human rights violations taking place in the country of origin, or those conditions, taken in conjunction with the claimant's personal situation, support a finding that the claimant would be impacted. This paper argues that this latter standard has now been made a part of the customary norm of non-refoulement and that it should be recognized by statute as a basis for non-return and coupled with status where the new standard can be met. Such a measure would help restore the nation's commitment to human rights and humanitarian concerns.
Topic:
Human Rights, Humanitarian Aid, and Terrorism
Political Geography:
United States

746. Problems Faced by Mexican Asylum Seekers in the United States

Author:
J.Anna Cabot
Publication Date:
03-2015
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
Violence in Mexico rose sharply in response to President Felipe Calderón's military campaign against drug cartels which began in late 2006. As a consequence, the number of Mexicans who have sought asylum in the United States has grown significantly. In 2013, Mexicans made up the second largest group of defensive asylum seekers (those in removal proceedings) in the United States, behind only China (EOIR 2014b). Yet between 2008 and 2013, the grant rate for Mexican asylum seekers in immigration court fell from 23 percent to nine percent (EOIR 2013, 2014b). This paper examines—from the perspective of an attorney who represented Mexican asylum seekers on the US-Mexico border in El Paso, Texas—the reasons for low asylum approval rates for Mexicans despite high levels of violence in and flight from Mexico from 2008 to 2013. It details the obstacles faced by Mexican asylum seekers along the US-Mexico border, including placement in removal proceedings, detention, evidentiary issues, narrow legal standards, and (effectively) judicial notice of country conditions in Mexico. The paper recommends that asylum seekers at the border be placed in affirmative proceedings (before immigration officials), making them eligible for bond. It also proposes increased oversight of immigration judges.
Topic:
Immigration
Political Geography:
United States, China, and Mexico

747. The Intersection of Statelessness and Refugee Protection in US Asylum Policy

Author:
Maryellen Fullerton
Publication Date:
02-2015
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
More than ten million people are stateless today. In a world of nation states, they live on the margins without membership in any state, and, as a consequence, have few enforceable legal rights. Stateless individuals face gaps in protection and in many cases experience persecution that falls within the refugee paradigm. However, US asylum policy does not adequately address the myriad legal problems that confront the stateless, who have been largely invisible in the jurisprudence and academic literature. Two federal appellate court opinions shed new light on the intersection of statelessness and refugee law in the United States. In 2010, Haile v. Holder examined the asylum claim of a young man rendered stateless when the Ethiopian government issued a decree denationalizing ethnic Eritreans. In a 2011 case, Stserba v. Holder, the court reviewed an asylum claim by a woman who became stateless when the Soviet Union collapsed, and the successor state of Estonia enacted citizenship legislation that included a language requirement. This article analyzes the opinions which suggest that state action depriving residents of citizenship on ethnic and other protected grounds warrants a presumption of persecution. This article also identifies additional circumstances in which stateless individuals may have a well-founded fear of persecution that qualifies them for asylum in the United States. In addition, this article notes that although far too many stateless individuals face persecution, not all of them do. Stateless persons who do not fear persecution, however, are also vulnerable. The absence of state protection condemns them to a precarious existence and their inability to obtain passports or other travel documents often prevents their return to states where they formerly resided. The refusal of most states to admit non-citizens frequently keeps stateless persons in limbo. Stateless individuals stranded in the United States live under a supervisory patchwork that serves neither their interests nor those of the United States. Rather than relying on incremental case law developments and inapposite regulatory schemes, the US State Department and the Department of Homeland Security should convene a task force to report on the size and composition of the stateless population in the United States and the need to develop legislative, regulatory, and other policy guidance concerning statelessness claims.
Topic:
Law
Political Geography:
United States

748. There and Back Again: On the Diffusion of Immigration Detention

Author:
Michael T. Flynn
Publication Date:
02-2015
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
From Mexico to the Bahamas, Mauritania to Lebanon, Turkey to Saudi Arabia, South Africa to Indonesia, Malaysia to Thailand, immigration-related detention has become an established policy apparatus that counts on dedicated facilities and burgeoning institutional bureaucracies. Until relatively recently, however, detention appears to have been largely an ad hoc tool, employed mainly by wealthy states in exigent circumstances. This paper uses concepts from diffusion theory to detail the history of key policy events in several important immigration destination countries that led to the spreading of detention practices during the last 30 years and assesses some of the motives that appear to have encouraged this phenomenon. The paper also endeavors to place the United States at the center of this story because its policy decisions appear to have played an important role in encouraging the process of policy innovation, imitation, and imposition that has helped give rise to today's global immigration detention phenomenon. Nevertheless, many US offshore practices have not received nearly the same attention as those of other important destination countries. More broadly, in telling this story, this paper seeks to flesh out some of the larger policy implications of the externalization of immigration control regimes. Just as offshore interdiction and detention schemes raise important questions about custody, accountability, and sovereignty, they should also spur questions over where responsibility for the wellbeing of migrants begins and ends.
Topic:
Sovereignty
Political Geography:
United States, Indonesia, Turkey, South Africa, Saudi Arabia, Lebanon, Mexico, and Mauritania

749. "Enemy Territory": Immigration Enforcement in the US-Mexico Borderlands

Author:
Walter A. Ewing
Publication Date:
02-2015
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
For the last two decades, the guiding strategy of immigration enforcement along the US-Mexico border has been “prevention through deterrence,” or stopping unauthorized immigrants from entering the country rather than apprehending those who have already crossed the border. “Prevention through deterrence” has entailed a massive concentration of enforcement personnel and resources along the border and at ports of entry. It has also led to the detention and removal of increasing numbers of unauthorized immigrants and far greater use of “expedited removal.” As gauged by the doubling in size of the unauthorized immigrant population over the same period, “prevention through deterrence” has not been a successful enforcement strategy. Moreover, it has funneled more migrants to their death in the deserts and mountains of the southwest as they (and smugglers) resort to increasingly dangerous routes to evade border enforcement. In addition, there has been public concern over ethnic profiling and the use of extraordinary authority by Border Patrol agents to conduct arbitrary searches within 100 miles of the border. Despite these problems, the federal government continues to spend billions of dollars each year on the “prevention through deterrence” strategy. A first step in overcoming the deficiencies of this border enforcement strategy is to strengthen accountability within the Border Patrol, so that allegations of excessive force and abuse are investigated and adjudicated promptly and appropriately. The culture of the Border Patrol must be transformed to foster respect for rights. More broadly, the mission of the Border Patrol should be to capture dangerous individuals and to disrupt the operations of the transnational criminal organizations that traffic people, drugs, guns, and money. In addition, providing more pathways to legal entry through immigration reform would enhance border security by attenuating the flow of unauthorized immigrants within which dangerous criminals or terrorists can hide. Finally, the US government should pursue economic policies to promote development in Mexico and Central American countries in order to address the underlying causes of migration.
Topic:
Immigration
Political Geography:
United States and Mexico

750. International Migration, US Immigration Law and Civil Society: From the Pre-Colonial Era to the 113th Congress (Edited by Leonir Mario Chiarello and Donald Kerwin, Scalabrini International Migration Network, 2014)

Author:
Breana George
Publication Date:
02-2015
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
With the passage of immigration reform legislation stalled in the House of Representatives, President Obama announced on June 30, 2014 that he was prepared to exercise executive authority on immigration if Congress had not acted by the end of the August recess. In early September, however the administration indicated that it would not move forward with issuing an immigration directive until after the November midterm elections due to polarization over the issue (Shear 2014). The administration argued that prolonging the time frame to act would allow the President to unveil a bolder and more sustainable policy to provide administrative relief to unauthorized immigrants (ibid.)
Topic:
Immigration and Reform
Political Geography:
United States