Coloniality of Immigration Law and the False Dichotomies of Dunki and the Right Way

The gradual development of European Union (EU) immigration and asylum law has been characterized by two related, ongoing tensions: the conflict between EU competence in this field and national sovereignty, and the friction between immigration control and the protection of human rights. The EU's approach to resolving the two key tensions in this area are assessed by examining the four key subjects addressed by immigration law: visas and border controls, irregular migration, legal migration, and asylum. The European Union has been more active in the fields of visas and border controls than in any other area of immigration and asylum law owing to the early development of a legal framework, originally in the form of the Schengen Convention. As for irregular migration, the European Union's initial piecemeal approach has been supplemented by the adoption of the fairly comprehensive Returns Directive.

Immigration Law and Management in Greece: Towards an Exodus from Underdevelopment and a Comprehensive Immigration Policy

Introduction by series editors. Preface. A: Immigration into the European Union. I. European Immigration Law as an integral part of a European Internal Market. II. Migration to Geographically and Economically Favourable States. III. Migration as a Social and Economic Factor. IV. Enlargement and Migration. B: Immigration, Visa and Asylum Policy in an Area of Freedom, Security and Justice: Title IV of the Treaty establishing the European Community and the Communitarization of the Schengen Acquis. I. The Cautious Approach of Title IV ECT to Supranationalization. II. The Framework of Community Action under Human Rights and the Geneva Convention. III. The Background of Communitarization: The Insufficiencies of Maastricht's Legal Framework for Immigration and Asylum Policies. IV. From Maastricht to Amsterdam: Changes and Questions of Transition. V. Structural Aspects of the New Legal Framework. VI. The Basic Structure of Title IV Competencies. VII. Communitarization of the Schengen Acquis. VIII. Re-Adoption of Maastricht Third Pillar Instruments Under Title IV Competencies. IX. Procedural Issues. X. The Scope of Legislative Powers under Title IV. XI. Institutional Provisions. XII. Opt-out and Opt-in Provisions. XIII. Extra-Title IV Legal Bases of Community Action. XIV. Outlook: Policy Questions Related to Further Supranationalization. C: Immigration Law - Entry and Sojourn. 1. The Need to Develop a Coherent System of European Immigration Law. II. Crossing External and Internal Borders. III. Illegal Immigration and Anti-trafficking measures. IV. Third-Country Nationals Privileged with respect to the Exercise of Market Freedoms by EU Citizens. V. Privileged Third-Country Nationals: Treatment in Association Agreements. VI. Non-Privileged Third-Country Nationals. VII. Free Movement of Third-Country Nationals within the European Union? VIII. Prevention of Discrimination and Racism. D: Social Rights of Third-Country Nationals. I. The Relevance of Human and Social Rights within the Treaties and the Concept of a Charter of Fundamental Human Rights. II. Social Rights in Articles 138, 139 and 141 ECT. III. Third-Country Nationals under the Current EC Provisions and the Proposed Extension of the Personal Scope of Application of Social Security Regulations. IV. Social Rights within the Council of Europe. E: Refugees and Asylum Seekers. I. Introduction. II. Harmonization of the Criteria for Recognition as a Political Refugee. III. Asylum Procedure under the Dublin and Schengen Conventions. IV. Harmonization of Minimum Standards on the Reception of Asylum Seekers. V. Harmonization of the Rules of the Member States on Temporary Protection, De Facto Protection and Humanitarian Residence Permits Burden-Sharing. VI. Asylum Procedure. F: Termination of Residence, Expulsion, Deportation and Return. I. Description of the Problem. II. Common Principles on Expulsion. III. Common European Return Policy. IV. The International Law Framework. V. Outlook.

This chapter argues that the United States plays a crucial role—via immigration law, politics, and procedures—in shaping how foreign marriage migrants express intimacy and move across borders as potential citizens rather than second-class subjects. It contends that romantic love is a compulsory sentiment for migrants to prove their potential for modern citizenship. Women's practices of citizenship and self-making as subjects in love, and thus as innocent and pliable, are necessary to projecting their sexual labor as moral and their bodies as productive rather than a risk to the nation. Immigration policies perpetuate deeply engrained values of neoliberalism through laws that scrutinize “risky” foreign marriage migrants. The chapter analyzes immigration and naturalization laws that have historically protected rights and citizenship obligations through marriage—a crucial element to understanding how the scrutiny of foreign marriages, and the cybermarriage industry in particular, emerges in immigration debates.

Legacies of Colonial History: Region, Religion and Violence in Postcolonial Gujarat Yogesh Chandrani This dissertation takes the routine marginalization and erasure of Muslim presence in the contemporary social and political life of the western Indian state of Gujarat as an entry point into a genealogy of Gujarati regionalism. Through a historical anthropology of the reconfiguration of the modern idea of Gujarat, I argue that violence against religious minorities is an effect of both secular nation-building and of religious nationalist mobilization. Given this entanglement, I suggest that we rethink the oppositional relationship between religion and the secular in analyzing violence against Muslims in contemporary Gujarat. The modern idea of Gujarat, I further argue, cannot be grasped without taking into consideration how local conceptions of region and of religion were fundamentally altered by colonial power. In particular, I suggest that the construction of Islam as inessential and external to the idea of Gujarat is a legacy bequeathed by colonialism and its forms of knowledge. The transmutation of Gujarati Muslims into strangers, in other words, occurred simultaneously with the articulation of the modern idea of Gujarat in the nineteenth and twentieth centuries. I focus in particular on the role of nineteenth-century regional history-writing, in which the foundational role of Islam was de-emphasized, in what I call the making of a regional tradition. By highlighting the colonial genealogy of contemporary discourses of Gujaratni asmita (pride in Gujarat), in which Hindu and Gujarati are posited as identical with each other, I argue that colonialism was one of its conditions of possibility. One result of this simultaneous reconfiguration of religion and region, I argue, is that it is becoming increasingly difficult to inhabit a Hindu religious identity that is not at the same time articulated in opposition to a Muslim Other in Gujarat. Another consequence is that it is becoming increasingly difficult, if not impossible, for Muslims to represent themselves or advocate for their rights as Muslim and as Gujarati. How the reconfiguration of a Gujarati regional identity is imbricated with transformations in conceptions of religion is part of what this dissertation seeks to think about. Furthermore, I argue that the marginalization of Muslims in Gujarat cannot be understood through an exclusive focus on organized violence or on the Hindu nationalist movement. While recent studies on Gujarat have focused mainly on the pogrom of 2002 to think about the role of the Hindu nationalist movement in orchestrating mass violence against Muslims in contemporary Gujarat, I argue that the pogrom of 2002 is but one part of a broader spectrum of violence and exclusion that permeates the body of the state and society. In addition, I suggest that one of the conditions of possibility for such violence is the sedimentation of a conception of Gujaratiness as identical with Hinduness that cuts across the religious/secular divide. Instead of focusing exclusively on the violence of the Hindu nationalist movement, I explore this process of sedimentation as it manifests itself in the intersecting logics of urban planning, heritage preservation, and neoliberal development in contemporary Gujarat. Through an analysis of the contemporary reorganization and partitioning of the city of Ahmedabad along religious lines, I show how it is continuous with colonial and nationalist urban planning practices of the early twentieth century. Using ethnographic examples, I also argue that the contemporary secular nationalist discourse of heritage preservation is both complicit in the marginalization of Muslims and continuous with practices of urban planning and preservation that were articulated in the late colonial period. Finally, my dissertation demonstrates the enabling nature of neoliberal logics in the organization of violence against Muslims in Gujarat and argues that antiMuslim violence and prejudice are enabled by and intertwined with narratives about the promises of capital and progress. Combining historical and ethnographic methods, this dissertation seeks to contribute to an anthropology of colonialism, nationalism, religion, secularism and violence in South Asia that is attentive to the continuities and discontinuities that are constitutive of the postcolonial present we inhabit. By historicizing contemporary debates and assumptions about Muslims in Gujarat and describing some of the genealogies that have contributed to their sedimentation, I hope to have argued that colonial legacies have enduring effects in the present and that the question posed by colonial forms of knowledge and representation is not merely epistemological or historiographical but also a political one. Written as a history of the present, this dissertation is motivated by a desire to imagine a future in which Hindu/Gujarati and Muslim are no longer conceptualized as oppositional categories; in which Gujarati Muslims are able to represent themselves as Muslims and in their own (varied) terms; and where Hindus are no longer invited and incited to inhabit a subjectivity that depends on making Muslims strangers to Gujarat.

Throughout American history, the government has used U.S. citizenship and immigration law to protect privileged groups from less privileged ones, using citizenship as a “legitimate” proxy for otherwise invidious, and often unconstitutional, discrimination on the basis of race. While racial discrimination is rarely legally acceptable today, profiling on the basis of citizenship is still largely unchecked, and has in fact arguably increased in the wake of the September 11 terror attacks on the United States. In this thoughtful examination of the intersection between American immigration and constitutional law, Victor C. Romero draws our attention to a “constitutional immigration law paradox” that reserves certain rights for U.S. citizens only, while simultaneously purporting to treat all people fairly under constitutional law regardless of citizenship. As a naturalized Filipino American, Romero brings an outsider's perspective to Alienated, forcing us to look at constitutional immigration law from the vantage point of people whose citizenship status is murky (either legally or from the viewpoint of other citizens and lawmakers), including foreign-born adoptees, undocumented immigrants, tourists, foreign students, and same-gender bi-national partners. Romero endorses an equality-based reading of the Constitution and advocates a new theoretical and practical approach that protects the individual rights of non-citizens without sacrificing their personhood.

Controlling migration in the world's largest archipelago brings various challenges to Indonesian authorities that differ from other countries. The difficulties become even more complicated since Indonesia has been known as the most favorite transit country for people who want to migrate to Australia due to its strategic geographical location, which is situated between the continents of Asia and Australia and between the Pacific and Indian oceans. Following this, the decision of choosing the mechanism of criminal law to deal with irregular migration from the start leads Indonesia to its acknowledgment as a country who is vulnerable to the trend of crimmigration. The criminalization of immigration-related conducts, the authorization of investigative power to the immigration officers, and the implementation of the 'selective policy' in the very first Immigration Law (Law No. 9/1992) justify the underlying situation in Indonesia. This condition is even harsher when Indonesia joined the fight against people smuggling since the new law concerning immigration (Law No. 6/2011) also increase criminal sanctions for immigration-related offenses. Nonetheless, this punitive approach stands as a symbolic strategy, which is barely enforced by the Indonesian authorities and it serves nothing than responding the problems with erroneous actions. By doing this, the Indonesian government has shown its weaknesses and inabilities to control crime problems to an acceptable level.

State Against the Migrant Child:US Government Systems and Legal Processes in Dealing with Undocumented Youth Catherine Appleton (bio) Boehm, Deborah A., and Susan J. Terrio, editors. Illegal Encounters: The Effect of Detention and Deportation on Young People. NYU P, 2019. pp. $30.00 pb. ISBN 9781479861071. At a time when millions of people, including children, are fleeing from poverty, violence, and mortal danger, Deborah A. Boehm and Susan J. Terrio's Illegal Encounters: The Effect of Detention and Deportation on Young People adds to a global conversation about issues to do with migrant and refugee children. Donald Trump came to power in the US, promising, when so many are desperately seeking safety, to build a wall to stop illegal immigration from Central and South America to the North. This book clearly outlines the metaphorical wall of inhumane policies and laws that impact the lives of migrant young people in the US, highlighting the clear national mission to keep immigrants out or send them back to where they theoretically came from. Illegal Encounters features personal stories that describe how harsh immigration laws mean that families are separated in the deportation of young people, even though some have spent the majority of their lives in the US. Other stories focus on children who witness and suffer the deportation of other unauthorized family members. The tight immigration laws and policies in the US come from a long legacy of national "ideas about race, imperialism, and state power" (6); thus, the government holds much weight in restricting and controlling who is allowed into the country. Currently, the Trump administration has given increased power to immigration authorities by reducing immigrant protections and expanding concepts of "illegality" by blurring the difference between immigration and criminal law (6). The impact on migrant children has been profound, as detailed in Boehm and Terrio's comprehensive anthology. The Illegal Encounters anthology addresses "young people's interactions or encounters with the different legal systems that regulate immigration" (2). The writings come from experts, who describe the complex range [End Page 340] of circumstances that make up this young, powerless migrant category and identify the challenges that these children face. In the US in 2018, of the "11 million unauthorized migrants living in the country, more than 2.5 million" are young people (8). Some undocumented children come into the US illegally with their parents, while almost a quarter of a million come alone. The book offers a multidisciplinary perspective to add to a growing immigration debate. Contributions come from a mix of academics, practitioners, as well as migrant youth, building an alarming picture of the ways youth are mistreated in a system that encourages them to remain vulnerable and outside the American legal system. The scholars include academics from anthropology, education, sociology, and legal studies, while other contributions come from practitioners who work directly with young people, including social workers, attorneys, and judges. Importantly, the collection is unique in the way that the voices of young people are prioritized to highlight their personal experiences with the immigration process: all authors include quotations, stories, or details from interviews with migrant youth. For instance, the introduction begins with accounts of personal experiences and ends with a quote from a fifteen-year-old Colombian who questions Donald Trump's campaign to make America great again: "I would tell him that if America was not great, no one would want to come here. And I wouldn't be here" (14). The legal systems of control that can apprehend, detain, and deport undocumented youth are strongly biased against them, resulting in many children remaining unauthorized and living on the social fringes. To probe the power imbalances of this system, the book is structured around three stages of government control, labelled in the book as, "in, through, and out" (5). These themes divide the book into three parts, and each has equal weight, consisting of three chapters and two short essays. The collection begins with "Part I – In: Confronting Enforcement, Detention, and Deportation" (15) and describes how youth enter in the government systems when they come into the country. They confront rough laws in the process of moving through, discussed in "Part II – Through: Navigating...

This essay identifies four areas of immigration law in which pressing First Amendment claims play a prominent and dominant role. The first area involves denial of admission or deportation based on pure or symbolic speech. At various times, Congress has enacted grounds of inadmissibility and deportability that squarely fall within the purview of the First Amendment. The second area involves so-called retaliatory deportations, when the government initiates or accelerates removal proceedings against a noncitizen who is in violation of immigration laws allegedly for the non-citizen’s activism, protest activity, or other First Amendment speech or expressive conduct. The third area involves First Amendment-based challenges to a provision of federal immigration law that prohibits even the encouragement of illegal immigration – an issue that has reached the U.S. Supreme Court. The fourth area concerns immigration issues arising in the ability or lack thereof to participate meaningfully in the electoral process.

United States immigration law and policy is one the most controversial issues of our day, and perhaps no location has come under more scrutiny for the way it has attempted to deal with the problem of undocumented immigration than the State of Arizona. Though Arizona recently became notorious for its “papers please” law, SB 1070, the American Southwest has long been a bastion of discriminatory race-based law and policy – immigration and otherwise – directed toward Latinos, American Indians, African-Americans, and other non-White racial and ethnic minorities. While largely ignored by both legal and American historians, the so-called “Jim Crow Southwest” nonetheless persisted throughout the nineteenth and much of the twentieth century in both the Arizona Territory and the State of Arizona, forming the basis for, and giving shape to, laws meant to exclude and limit the participation of non-White persons in Southwestern society.The State of Arizona, the last of the forty-eight contiguous States to be admitted to the Union, marked its 100th year of statehood on February 14, 2012. A few months later, on June 25, 2012, the United States Supreme Court issued its landmark decision in United States v. Arizona, striking down the majority of Arizona’s aggressive state immigration enforcement law, S.B. 1070, as preempted by federal law. This Article discusses recent developments in Arizona immigration law and policy. By providing an overview of the history of race-based exclusion laws and policies in the Arizona Territory and the State of Arizona, it argues that Arizona’s modern anti-immigrant laws and policies are merely the newest incarnation of the State’s long history of discriminatory laws against racial and ethnic minorities, particularly Latinos and American Indians. In attempting to trace the genesis of racial animus toward non-Whites in the Southwest, Part I provides a historical overview of the Arizona Territory in the nineteenth century, including the development of the New Mexico Territory, the Confederate Territory of Arizona, and the impact of slavery and other race-based discrimination and exclusion laws in the Southwest. Part II discusses twentieth century race and immigration based policies in the Jim Crow Southwest that restricted and segregated the civil rights of non-Whites in the areas of marriage, education, and voting. Part III discusses the continuing legacy of the Jim Crow Southwest on the development of modern immigration law and policy in Arizona, and in particular, the aftermath of S.B. 1070’s passage in April 2010, Arizona’s subsequent rise as “ground zero” for state and local enforcement of immigration law in the United States, and the Supreme Court’s decisions in United States v. Arizona in 2012 and Arizona v. Inter-Tribal Council of Arizona in 2013. Finally, the article concludes by summarizing how the historical evidence presented in this paper rebuts the claim that only in recent years has Arizona begun to “drown[] in a sea of extremism” and become “the mecca for prejudice and bigotry,” and argues that Arizona has a long history of race-based exclusion laws and intolerance toward racial and ethnic minorities that has only now begun to garner attention on the national stage.

The NLRA Rock and the IRCA Hard Place: The NLRB's Entry into Immigration Issues

Reviewed by: Performance, Identity, and Immigration Law: A Theatre of Undocumentedness by Gad Guterman Christopher Goodson PERFORMANCE, IDENTITY, AND IMMIGRATION LAW: A THEATRE OF UNDOCUMENTEDNESS. By Gad Guterman. New York: Palgrave Macmillan, 2014; pp. 248. In this well-researched study, Gad Guterman examines how the growing repertory of theatrical representations of undocumented immigrants “can bring those forced into spaces of nonexistence out of the shadows and, in so doing, mitigate the violence characteristic to those spaces” (4). For Guterman, this repertory has received scant attention, and, given the “screaming rhetoric” within the immigration debate, he seeks to answer the question, “How does theatre participate in making undocumentedness visible?” (10, 4). Avoiding an analytical structure based on nationality or ethnicity and instead foregrounding questions of movement, labor, and family, Guterman inventively titles his chapters with headings from the Immigration and Nationality Act of 1965. He thereby unifies the plays through a legalistic framework, highlighting both the shifting frontier of undocumentedness and evolving US policy. Guterman concludes his first section by examining US immigration law, from the Chinese Exclusion Act of 1882 to Arizona State Bill 1070. In chapter 2, Guterman borrows Diana Taylor’s concept of the repeatable “scenario” and offers the “border scenario,” examining Genny Lim’s Paper Angels, which depicts Chinese immigrants at California’s Angel Island Immigration Detention Center, and Culture Clash’s Bordertown, a comedic take on Mexico/US border issues (34). For Guterman, both plays highlight the frailty and ambivalence of US law, as well as the border’s inherent theatricality. The plays, each depicting entry attempts into the United States, “expose the role that performance plays in maneuvering border interactions” (41). Guterman’s methodology is not limited to close readings of the texts, as he draws from both archival video and live performance. The live body is essential for him because not only does an actor’s ability to “cross-document” challenge an audience’s understanding of legal labels of identity, but real-world “performances of credibility” are integral to the immigrant experience, whether crossing the border or taking a citizen’s entrance exam (47, 41). Although Guterman applauds the intention of such plays, he ends his chapter with an incisive materialist analysis that shows how the work risks being de-historicized by a push to fit into ethnic cubbyholes. He uses chapter 3 to spotlight plays that exhibit the skewed power dynamics and unsustainable situations faced by domestic workers while at the same time provoking his readers to consider theatre-making’s deep entanglement with the exploitive practices that rely upon undocumented labor. While Guterman commends Lisa Loomer’s Living Out, Milcha Sánchez-Scott’s Latina, and Octavio Solis’s Lydia for their sympathetic depictions of female laborers at odds with the isolating conditions of domestic work, he also uncovers what he feels to be the ineffectiveness of the plays’ flattened and essentialized characters. Guterman strongly questions how the productions of these plays, imbricated in a capitalist system of labor exploitation (that is, the practices of their corporate sponsors and un-credited theatre custodians), offer any real remedy to those in undocumentedness. Suggesting that the plays perpetuate clichéd images of immigrants within a political economy of theatre that excludes those for whom it claims to advocate, Guterman provocatively suggests that the plays result in the practice of what he calls “undocumentedface,” a kind of questionable ventriloquism in which “the undocumented are representable and represented but not present” (93). Guterman’s next chapter skillfully examines the characters within Teatro de la Esperanza’s La Victima, Janet Noble’s Away Alone, and Guillermo Reyes’s Deporting the Divas to expose how US immigration law imposes meaning and value on various relationships, especially in regard to the upholding of heterosexual normativity. For the undocumented characters in these plays, whether in a multigenerational Mexican American family, in the surrogate families of the Irish diaspora, or in the twice-marginalized space of homosexual immigrants in California, the precarious state of legal nonexistence impedes their ability to maintain personal relationships. Although the plays ostensibly challenge the hypocrisies within US law, for Guterman, they often reinforce the compulsory heteronormativity that (in the real world) satisfies immigration authorities. In an...

This article investigates the power relation between the political anatomy of the Black soul and non-somatic expressions of white supremacy-based violence. Utilizing Michel Foucault’s theories of discipline and punishment in conjunction with Johan Galtung’s theory of structural violence, I posit that the exercise of state-sanctioned discipline and punishment in furtherance of white supremacy constitutes racialized structural violence. Thus, this article contributes to the current public discourse concerning the role white supremacy plays in America by establishing a new construct that can be used to dissect the nature of racial oppression. Furthermore, this article analyzes the genesis and construction of racialized structural violence in American foreign policy and immigration law using America’s response to the Haitian Revolution as a case study. When combined, akin to discipline, American foreign policy and immigration law is a white supremacy-oriented, complex bundle of power technologies designed to evoke docility from Black and Brown nations. Both allow America to engage in dissociative white supremacy. Over time, America’s “right” and power to discipline and punish Black and Brown nations has been normalized as a rational function of our global society.

This paper explores the critical intersection of language policy and immigration law, analyzing how language requirements and practices influence immigrant integration, social mobility, and legal inclusion. Historically, language has functioned both as a mechanism of assimilation and a tool of exclusion, particularly in U.S. immigration frameworks where English has been privileged as a gatekeeping tool in naturalization and citizenship processes. Drawing comparisons with countries like Canada and Australia, the study reveals varying degrees of accommodation or restriction in host country language policies. It also examines the legal, educational, and socio-economic consequences faced by immigrants with limited English proficiency (LEP). Through case studies and legal analysis, the paper highlights how language policies reflect deeper ideological commitments to national identity, and how inclusive language strategies can promote civic participation, social cohesion, and economic integration. Ultimately, the research calls for a reassessment of language mandates in immigration systems, advocating for more inclusive and pluralistic language policies in increasingly multilingual societies. Keywords: Language policy, immigration law, integration, limited English proficiency (LEP), bilingualism, naturalization, multiculturalism.

The paper tackles a widely discussed but still rather under-researched area of asylum and immigration law, more precisely its procedural aspects and its interactions within the public administration and administrative judiciary. It contributes to the debate about the Europeanization of public administration within the specific context of asylum and immigration law.The purpose of the paper is to examine the influence of European Union law on the legal regulation of administrative and judicial review of decisions rendered in asylum and immigration procedures.The research is based on an in-depth analysis of the dynamics of amendments and the motivation of national legislation while adopting new procedural rules in the above-mentioned areas on the case of the Czech Republic (based on the description and analysis of the legal regulation, explanatory memoranda and the case law, supplemented with certain comparative aspects). The procedural autonomy principle gets increasingly limited by other principles, namely the effectiveness principle and the principle of effective judicial protection. The paper therefore focuses on the margin of appreciation left to the national legislator: it determines whether the principle of procedural autonomy keeps the real relevancy while harmonising the asylum and immigration law and what is the influence of tensions between the aforementioned principles.The research shows that the legislator still maintains quite a wide degree of margin of appreciation in the administrative and judicial review of asylum and immigration decisions (apart from the visa procedures). However, a broadening of the interpretation of the effective judicial protection principle as provided by Article 47 of the Charter of Fundamental Rights of the EU decreases the scope of procedural autonomy and has the potential to influence not only individual legal remedy, but also the system of administrative or judicial remedies as such. Besides the overall findings related to the influence of European Union law on the review in asylum and immigration procedures, the article tackles numerous practical implications of amendments based in European Union law and practical challenges for the administrative and judicial review in concerned area of law.The paper provides a reaction to tensions coming from the need to find the balance between the obligation to provide an effective remedy and between the autonomy of Member States and their attempts to preserve national procedural traditions and specificities within the system of administrative and judicial review. It is original by its overall view on the problematic of remedies in asylum and immigration law and by a new perspective of interactions between national legislation and European Union law. Although the research is limited to the case study of the Czech Republic, certain aspects apply to other Member States with similarities within their system of administrative and judicial review.