Criminalization and the Politics of Migration in Brazil

In May 2017, the government of Brazil enacted a new immigration law, replacing a statute introduced in 1980 during the country’s military dictatorship with progressive legislation that advances human rights principles and adopts innovative approaches to migration management. One of the most notable features of the new law is its explicit rejection of the criminalization of migration, and its promotion of efforts to regularize undocumented migrants. Although the law itself is new, the values embedded in the law reflect recent trends in Brazilian immigration policy, which has embraced legalization, and has generally resisted the use of criminal law to punish unauthorized migration. Indeed, in Brazil, an initial unlawful entry does not carry criminal consequences, and at the level of society, public discourse and policy debates display minimal concern regarding this act. This posture is especially intriguing, given Brazil’s otherwise aggressive focus on criminality and incarceration.This paper seeks to understand the circumstances that have led to this non-embrace of the criminalization of migration, and in particular, the scarce use of criminal law tools to punish and deter unlawful entry and related acts. The paper explores how a combination of historical factors, present-day conditions, and political forces have largely suppressed practices that dominate in the United States and in parts of Europe. Contemporary Brazilian immigration policies have generally adopted norms of forgiveness and integration — values buoyed by broader geopolitical interests that the Brazilian government has pursued in recent times. Additional factors unique to Brazil undergird the current approach, including Brazil’s history of immigration, current migration flows, and criminal justice priorities. The paper concludes with some cautionary notes, suggesting that the disavowal of criminalization in Brazil may be ephemeral in Brazil’s volatile political climate, and may mask other conditions that create structural vulnerability for noncitizens in the country

Transformative Immigration Lawyering

Movement actors have long sought expansive reforms in U.S. immigration law, but two deep-seated tendencies are obstructing those efforts: incrementalism and path dependence. This Essay recommends that law clinics counter these forces by setting ambitious goals for structural change and by equipping students with knowledge and skills needed for transformative lawyering

Further Considerations: Immigrant Entrepreneurs - Contributions and Challenges

An overview of the contributions made by immigrant entrepreneurs in the United States, and the challenges they face.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1260/thumbnail.jp

The Transformative Potential of Attorney Bilingualism

In contemporary U.S. law practice, attorney bilingualism is increasingly valued, primarily because it allows lawyers to work more efficiently and to pursue a broader range of professional opportunities. This purely functionalist conceptualization of attorney bilingualism, however, ignores the surprising ways in which multilingualism can enhance a lawyer’s professional work and can strengthen and reshape relationships among actors in the U.S. legal milieu. Drawing upon research from psychology, linguistics, and other disciplines, this Article advances a theory of the transformative potential of attorney bilingualism. Looking first to the development of lawyers themselves, the Article posits that attorneys who operate bilingually may, over time, enjoy cognitive advantages such as enhanced creative thinking and problem-solving abilities, a more analytical orientation to language, and greater communicative sensitivity. Moreover, the existence of lawyers who are fully immersed in the bilingual practice of law will transform and invigorate interactions between attorneys and limited English proficient (LEP) clients and, more broadly, among attorneys, the parties to a proceeding, and legal decision makers. Although many U.S. lawyers possess non-English language ability, few are equipped with the complement of knowledge, skills, and values needed to utilize that language ability effectively in a professional setting. Therefore, the Article also calls upon the legal profession to adopt a more rigorous approach to bilingual training and instruction and outlines a set of competencies that underlie effective bilingual lawyering. These competencies relate broadly to cross-cultural interactions, knowledge of foreign legal systems, specialized and versatile language ability, and verbal and nonverbal communication skills

Riding the Wave: Uplifting Labor Organizations Through Immigration Reform

In recent years, labor unions in the United States have embraced the immigrants’ rights movement, cognizant that the very future of organized labor depends on its ability to attract immigrant workers and integrate them into union ranks. At the same time, the immigrants’ rights movement has been lauded for its successful organizing models, often drawing upon the vitality and ingenuity of immigrant-based worker centers, which themselves have emerged as alternatives to traditional labor unions. And while the labor and immigrants’ rights movements have engaged in some fruitful collaborations, their mutual support has failed to radically reshape the trajectory of either cause. In this Article, I argue that the ongoing legislative debates around immigration reform provide a unique opportunity to reimagine and revitalize traditional organized labor and to strengthen newer, immigrant-centered worker organizations. In my view, this can be accomplished by positioning unions and worker organizations as key actors in immigration processes (for both temporary and permanent immigration) and in any likely legalization initiative. Their specific roles might include sponsoring or indirectly supporting certain visa applications, facilitating the portability of employment-related visas from one employer to another, offering training opportunities to meet immigration requirements, assisting with legalization applications, leading immigrant integration initiatives, and more. Apart from the instrumental objective of attracting immigrants to the ranks of unions and worker organizations, this set of proposals will position these institutions as sites where the virtues of leadership, democratic participation, and civic engagement can be forged in new Americans. Indeed, these virtues coincide with the founding values of most U.S. labor unions; to the extent some unions have strayed from these values, the proposals provide an external imperative to reorient and rebrand unions as core civil society institutions. Moreover, immigrant worker centers have already become known for their focus on leadership development, democratic decision making, and civic education, and are therefore uniquely positioned to play this role. This convergence of utilitarian and transcendent objectives, in the current sociopolitical moment, justifies a special position for unions and worker organizations in the U.S. immigration system

Fleeing the Land of the Free

This Essay is the first scholarly intervention, from any discipline, to examine the number and nature of asylum claims made by U.S. citizens, and to explore the broader implications of this phenomenon. While the United States continues to be a preeminent destination for persons seeking humanitarian protection, U.S. citizens have fled the country in significant numbers, filing approximately 14,000 asylum claims since 2000. By formally seeking refuge elsewhere, these applicants have calculated that the risks of remaining in the United States outweigh the bundle of rights that accompany U.S. citizenship. Given the United States’ recent flirtation with authoritarianism, and the widening fissures in the nation’s social fabric, a closer study of asylum seeking is warranted—and indeed, prudent—should future political conditions generate a larger exodus of U.S. citizens. This Essay opens with a quantitative overview of claims, drawing on data from the United Nations High Commissioner for Refugees and from countries that are the U.S. citizen asylum seekers’ destinations. Following that statistical summary, this Essay presents a typology of claims that U.S. citizens have lodged, extracting from public sources the applicants’ motivations for seeking asylum and how foreign government authorities have received those claims. Among the classes of U.S. citizens who have sought protection overseas are war resisters, political dissidents, whistleblowers, fugitives, members of minority groups, domestic violence survivors, and the U.S. citizen children of noncitizen parents. This Essay concludes by exploring the relevance of this trend to scholarly debates about asylum adjudication, international relations, forced migration, and citizenship

Crimmigration Creep: Reframing Executive Action on Immigration

In this Essay, I seek to build upon existing scholarship relating to DACA and DAPA, by offering an alternate lens through which to examine the programs. Specifically, I argue that DACA and DAPA, by naming and entrenching the “significant misdemeanor” bar to eligibility, contribute to a concerning expansion of “crimmigration law.” To be sure, neither program exists in codified law; nevertheless, the eligibility bars under DACA and DAPA are poised to wreak doctrinal havoc by upending the way particular criminal conduct is treated in the U.S. immigration system. In some respects, the DACA and DAPA bars are more stringent than existing criminal removal grounds, while in other ways they are more lax. Moreover, the executive branch’s deployment, sua sponte, of a new crimmigration category, represents a notable change in how the branches of government have related to one another in enacting and enforcing crime-related provisions in immigration law. In this respect, DACA and DAPA offer insight into how the plenary immigration power is shared as between the political branches

Riding the Wave: Uplifting Labor Organizations Through Immigration Reform

In recent years, labor unions in the United States have embraced the immigrants’ rights movement, cognizant that the very future of organized labor depends on its ability to attract immigrant workers and integrate them into union ranks. At the same time, the immigrants’ rights movement has been lauded for its successful organizing models, often drawing upon the vitality and ingenuity of immigrant-based worker centers, which themselves have emerged as alternatives to traditional labor unions. And while the labor and immigrants’ rights movements have engaged in some fruitful collaborations, their mutual support has failed to radically reshape the trajectory of either cause. In this Article, I argue that the ongoing legislative debates around immigration reform provide a unique opportunity to reimagine and revitalize traditional organized labor and to strengthen newer, immigrant-centered worker organizations. In my view, this can be accomplished by positioning unions and worker organizations as key actors in immigration processes (for both temporary and permanent immigration) and in any likely legalization initiative. Their specific roles might include sponsoring or indirectly supporting certain visa applications, facilitating the portability of employment-related visas from one employer to another, offering training opportunities to meet immigration requirements, assisting with legalization applications, leading immigrant integration initiatives, and more. Apart from the instrumental objective of attracting immigrants to the ranks of unions and worker organizations, this set of proposals will position these institutions as sites where the virtues of leadership, democratic participation, and civic engagement can be forged in new Americans. Indeed, these virtues coincide with the founding values of most U.S. labor unions; to the extent some unions have strayed from these values, the proposals provide an external imperative to reorient and rebrand unions as core civil society institutions. Moreover, immigrant worker centers have already become known for their focus on leadership development, democratic decision making, and civic education, and are therefore uniquely positioned to play this role. This convergence of utilitarian and transcendent objectives, in the current sociopolitical moment, justifies a special position for unions and worker organizations in the U.S. immigration system