By Evan J. Criddle

For generations, the United States has grappled with high levels of illegal immigration across the U.S.-Mexico border. This Article offers a novel theoretical framework to explain why legal order remains elusive at the border. Drawing inspiration from Lon Fuller’s “interactional view of law,” I argue that immigration law cannot attract compliance unless it is general, public, prospective, clear, consistent, and stable; obedience with its rules is feasible; and the law’s enforcement is congruent with the rules as enacted. The flagrant violation of any one of these principles could frustrate the development of a functional legal order. Remarkably, U.S. immigration law violates all of these principles in its treatment of asylum seekers. As the number of asylum seekers pursuing entry to the United States has risen sharply in recent years, these legality deficits have become increasingly salient. No wonder, then, that even the most aggressive deterrent measures — from mass prosecution to family separation to the construction of steel border walls — have failed to solve the United States’ border crisis. The United States faces an urgent dilemma: it may preserve the Immigration and Nationality Act (“INA”) in its current form, denying protection to too many forced migrants and reserving broad discretion to the Executive Branch, or it may establish a functional legal order at the border. It cannot have both.

If lawmakers were serious about establishing legal order at the border, there are measures they could take to strengthen the immigration system’s structural integrity. They could eliminate the Attorney General’s discretionary authority over asylum. They could clarify ambiguities in the INA to promote greater consistency, stability, and congruence in immigration adjudication and enforcement. They could extend protection to all forced migrants who face a serious risk of death, torture, rape, or other serious harm abroad, including victims of gang violence and gender-based violence. In short, they could enact laws that asylum seekers could rationally obey. To the extent that lawmakers are unwilling to take these steps, it is fair to question their commitment to establishing a functional legal order at the border.

UC Davis Law Review, Vol. 53; 2003.

By UNODC

Trafficking in persons is a serious crime and a violation of human rights that severely impacts the lives of its victims and undermines the security and well-being of societies as a whole. As the 2020 UNODC Global Report on Trafficking in Persons confirms, trafficking in persons is widespread around the world. Whilst the crime is mostly registered as a domestic phenomenon, it also has a transnational nature, where countries can be a country of origin, transit or destination, and sometimes all three at once. Given its magnitude, quantification of the crime can be difficult, particularly given that it also affects most industries and sectors and is connected to other forms of organised crime. For this reason, solutions to address the crime can neither be isolated nor merely involving governments. The complexity of trafficking in persons requires a holistic, coordinated and multi-stakeholder effort that spans geographies and sectors. Public agencies’ interventions require a multi- agency approach, but in addition the private sector must actively engage in this fight.

Examples of how public-private partnerships can be effective in sustaining these efforts are multi- pronged. For instance, private sector companies have at their disposal a wide range of technological tools that can be used to support governments’ anti-trafficking efforts. Private companies have the capacity to identify and address cases of trafficking and exploitation in their supply chain. In that regard, the public sector might acquire new skills and additional knowledge on sustainable procurement processes, how companies identify and manage risks and the multiple forms that trafficking can take. Finally, public-private partnerships can significantly facilitate investigations to trace the financial gains or organised criminal activities such as those involving trafficking in persons.

Vienna: UNODC, 2021. 124p.

Edited by Richard C.M. Mole

Europe is a popular destination for LGBTQ people seeking to escape discrimination and persecution. Yet, while European institutions have done much to promote the legal equality of sexual minorities and a number of states pride themselves on their acceptance of sexual diversity, the image of European tolerance and the reality faced by LGBTQ migrants and asylum seekers are often quite different. To engage with these conflicting discourses, Queer Migration and Asylum in Europe brings together scholars from politics, sociology, urban studies, anthropology and law to analyse how and why queer individuals migrate to or seek asylum in Europe, as well as the legal, social and political frameworks they are forced to navigate to feel at home or to regularise their status in the destination societies. The subjects covered include LGBTQ Latino migrants’ relationship with queer and diasporic spaces in London; diasporic consciousness of queer Polish, Russian and Brazilian migrants in Berlin; the role of the Council of Europe in shaping legal and policy frameworks relating to queer migration and asylum; the challenges facing bisexual asylum seekers; queer asylum and homonationalism in the Netherlands; and the role of space, faith and LGBTQ organisations in Germany, Italy, the UK and France in supporting queer asylum seekers.

London: UCL Press, 2021. 279p.

Edited by Nancy Nicol, Adrian Jjuuko, Richard Lusimbo, Nick J. Mulé, Susan Ursel, Amar Wahab and Phyllis Waugh  

Envisioning Global LGBT Human Rights: (Neo)colonialism, Neoliberalism, Resistance and Hope is an outcome of a five-year international collaboration among partners that share a common legacy of British colonial laws that criminalise same-sex intimacy and gender identity/expression. The project sought to facilitate learning from each other and to create outcomes that would advance knowledge and social justice. The project was unique, combining research and writing with participatory documentary filmmaking. This visionary politics infuses the pages of the anthology. The chapters are bursting with invaluable first hand insights from leading activists at the forefront of some of the most fiercely fought battlegrounds of contemporary sexual politics in India, the Caribbean and Africa. As well, authors from Canada, Botswana and Kenya examine key turning points in the advancement of SOGI issues at the United Nations, and provide critical insights on LGBT asylum in Canada. Authors also speak to a need to reorient and decolonise queer studies, and turn a critical gaze northwards from the Global South. It is a book for activists and academics in a range of disciplines from postcolonial and sexualities studies to filmmaking, as well as for policy-makers and practitioners committed to envisioning, and working for, a better future.

London: University of London Press, 2018. 462p.

Edited by Veronica Federico • Simone Baglioni

This open access book discusses how, and to what extent, the legal and institutional regimes and the socio-cultural environments of a range of European countries (the Czech Republic, Denmark, Finland, Greece, Italy, Switzerland and the UK), in the framework of EU laws and policies, have a beneficial or negative impact on the effective capacity of these countries to integrate migrants, refugees and asylum seekers into their labour markets. The analysis builds on the understanding of socio-cultural, institutional and legal factors as “barriers” or “enablers”; elements that may facilitate or obstruct the integration processes. The book examines the two dimensions of integration being access to the labour market (which, translated into a rights language means the right to work) with its corollaries (recognition of qualifications, vocational training, etc.), and non-discriminatory working conditions (which, translated into a rights language means right to both formal and substantial equality) and its corollaries of benefits and duties deriving from joining the labour market. It thereby offers a novel approach to labour market integration and migration/asylum issues given its focus on legal aspects, which includes most recent policy changes and legal decisions (including litigation cases). The robust, evidence-based and comparative research illustrated in the book provides academics and students, but also practitioners and policy makers, with up to date knowledge that will likely impact positively on policy changes needed to better address integration conundrums.

Cham: Springer Nature/Imiscoe, 2021. 264p.

Edited by Carmelo Danisi • Moira Dustin • Nuno Ferreira Nina Held

This two-volume open-access book offers a theoretically and empirically-grounded portrayal of the experiences of people claiming international protection in Europe on the basis of their sexual orientation or gender identity (SOGI). It shows how European asylum systems might and should treat asylum claims based on people’s SOGI in a fairer, more humane way. Through a combined comparative, interdisciplinary (socio-legal), human rights, feminist, queer and intersectional approach, this book examines not only the legal experiences of people claiming asylum on grounds of their SOGI, but also their social experiences outside the asylum decision-making framework. The authors analyse how SOGI-related claims are adjudicated in different European frameworks (European Union, Council of Europe, Germany, Italy and UK) and offer detailed recommendations to adequately address the intersectional experiences of individuals seeking asylum. This unique approach ensures that the book is of interest not only to researchers in migration and refugee studies, law and wider academic communities, but also to policy makers and practitioners in the field of SOGI asylum.

Cham: Springer Nature/Imiscoe, 2021. 497p.

Edited by Marina Gržinić

Border Thinking: Disassembling Histories of Racialized Violence aims to question and provide answers to current border issues in Europe. Central to this investigation is a refugee crisis that is primarily a crisis of global Western capitalism and its components: modernization, nationalism, structural racism, dispossession, and social, political, and economic violence. In this volume, these notions and conditions are connected with the concept of borders, which seems to have disappeared as a function of the global neoliberal economy but is palpably reappearing again and again through deportations, segregations, and war. How can we think about these relations in an open way, beyond borders? Is it possible to develop border thinking for a radical transformation, as a means to revolutionize the state of things? To do this, we must reconsider what is possible for the social and the political as well as for art and culture.

Berlin: Sternberg Press, 2018. 307p.

Edited by Birgit Glorius • Jeroen Doomernik  

This open access book describes how the numerous arrivals of asylum seekers since 2015 shaped reception and integration processes in Europe. It addresses the structuration of asylum and reception systems, and spaces and places of reception on European, national, regional and local level. It also analyses perceptions and discourses on asylum and refugees, their evolvement and the consequences for policy development. Furthermore, it examines practices and policy developments in the field of refugee reception and integration. The volume shows and explains a variety of refugee reception and integration strategies and practices as specific outcome of multilevel governance processes in Europe. By addressing and contextualizing those multiple experiences of asylum seeker reception, the book is a valuable contribution to the literature on migration and integration, societal development and political culture in Europe.

Cham, SWIT: IMISCOE/Springer Open, 2020. 268p.

Edited by Tatiana Bazzichelli

The courageous acts of whistleblowing that inspired the world over the past few years have changed our perception of surveillance and control in today's information society. But what are the wider effects of whistleblowing as an act of dissent on politics, society, and the arts? How does it contribute to new courses of action, digital tools, and contents? This urgent intervention based on the work of Berlin's Disruption Network Lab examines this growing phenomenon, offering interdisciplinary pathways to empower the public by investigating whistleblowing as a developing political practice that has the ability to provoke change from within.

Bielefeld: transcript Verlag, 2021. 377p.

By Michelle Castañeda 

Michelle Castañeda lays bare the criminalization of race enacted every day in U.S. immigration courts and detention centers in order to reimagine alternatives to the deportation regimes.

Durham, NC: Duke University Press, 2023. 199p.

Edited by Anna Mratschkowski

Asylum and refugees in Europe – who can fix a broken system? In times of increasing waves of migration, collective bodies and their cooperation networks are of particular importance to the European asylum system. But who are those actors and what is their contribution to effecting a change in the situation of those seeking refuge in Europe? While the Common European Asylum System introduced standardised regulations for all EU-member states, the real situation in each country differs greatly from those official declarations, even leading to a humanitarian crisis at times. Using the theory of neo-institutionalism, current data from expert interviews, and website and document analyses from Italy, Spain, Greece, Cyprus, Malta and Germany, this study answers those questions. It illustrates how and if this gap between talk and action can be narrowed, how asylum-related organisations and their networks function and how far they contribute to this process.

Germany: Nomos Verlagsgesellschaft mbH & Co. KG 2017. 225p,

By Bryan L. Sykes, Meghan Ballard, Andrea Giuffre, Rebecca Goodsell, Daniela Kaiser, Vicente Celestino Mata, Justin Sola

Research on punishment and inequality finds that people with criminal records routinely avoid systems of surveillance. Yet scholarship on monetary sanctions shows that many people experiencing poverty with criminal legal system debt are also involved with the state in other domains of social life. How can these literatures be resolved? In this article, we posit that past research can be reconciled through a focus on financial double-dealing—disparate and contradictory economic entanglements that redistribute welfare resources from individuals to the criminal legal system and its institutional affiliates. Drawing on nationally representative survey data, as well as unique data collected on people with monetary sanctions in seven states, we find that individuals and families receiving cash and noncash public assistance are significantly more likely to owe monetary sanctions and are less likely to pay them. We discuss the implications of multiple-system involvement for ongoing surveillance.

RSF: The Russell Sage Foundation Journal of the Social Sciences January 2022, 8 (1) 148-178

By Amairini Sanchez, Michele Cadigan, Dayo Abels-Sullivan, Bryan L. Sykes

 Research on crimmigration—the intersection where criminal and immigration law meet—shows that immigrants are increasingly punished and deported as a consequence of a criminal conviction. We investigate how immigration status shapes the imposition of monetary sanctions. By drawing on interview and court observational data from four states, we demonstrate that the legal opaqueness at the intersection of the crimmigration system often results in crimmigration sanctions—enhanced financial and nonfinancial penalties that are the result of an undocumented immigrant’s liminal legality. Findings show that immigrants are financially exploited through gaps in criminal and immigration law that allow for crimmigration sanctions in the form of bail predation and the exchange of higher financial penalties for reduced or no jail time, lessening an undocumented immigrant’s risk of deportation. The implications of these practices for due process are discussed in detail 

: The Russell Sage Foundation Journal of the Social Sciences January 2022, 8 (2) 76-97;

By The Criminal Justice Alliance

  This study seeks to expand on the limited evidence published to date on the experiences of Black, Asian and minority ethnic women prisoners3 (Buncy and Ahmed, 2014; Cox and Sacks-Jones, 2017; Prison Reform Trust, 2017). It aims to better understand and amplify the diverse experiences of Black, Asian and minority ethnic prisoners, including Gypsy, Roma and Traveller people, as well as foreign nationals, across the women’s prison estate in England. This report recognises that the survey respondents are not a homogenous group. They encompass various identities and ethnicities, resulting in a range of lived experiences, both between and within groups. The discrimination experienced by Black, Asian and minority ethnic prisoners held in women’s establishments is multi-layered, with intersectional identities: ethnicity, race, religion, social class, sexual orientation, nationality and gender. Intersectionality recognises that, as individuals are made up of several identities, they may experience multiple interwoven prejudices. For example, women may experience gendered discrimination, and women from minoritised communities could simultaneously face additional forms of discrimination. The findings in this report were gathered by interviewing and surveying individuals within the project’s scope. It presents their perception of (un)fair treatment and the extent to which the prison meets their cultural needs. It provides further detail on incidents of discrimination and the establishment’s response. It addresses the language barriers faced by those whose first language is not English. It also provides examples of positive practice and suggestions for future activities that raise awareness of cultural practices and celebrate religious traditions.  

London: The Criminal Justice Alliance, 2022. 84p.

By  Amal Ali and Hannah Pittaway  

  This ground-breaking project centres on the lived experiences of Black, Asian and minority ethnic women in prison, and comes at a time when there is increased attention on race and gender inequality in the criminal justice system, but the combination of these issues rarely receives any government attention. We received over 300 survey responses from women in prison, prison staff and IMBs, improving our understanding of the double disadvantage that women from minority ethnic backgrounds face. We are very grateful to the women with lived experience who co-designed the survey and all those in custody for their honesty and openness when completing it. Their accounts of direct and indirect racism and poor treatment are shocking and distressing. Even more upsetting is their sense of fatalism - they see it as part of their everyday lives. The women lack confidence in the complaints system, do not trust that they will be treated fairly and are often unaware of how the IMB can help. The impact of the pandemic has made this worse. There is an urgent need to address these issues nationally and locally. IMBs play an important role given their day-to-day presence in prisons. Community scrutiny is a vital tool to hold criminal justice agencies to account. The CJA has focused on improving community scrutiny for several years looking at police powers, police custody and now prison custody. We consistently see the same themes: the need for better and more consistent data collection and analysis, more effective equalities training and support, and for community volunteers to be more representative of the populations in the criminal justice system. The recommendations in these reports map out sensible steps Her Majesty’s Prison and Probation Service (HMPPS), the Ministry of Justice (MoJ) and IMBs can take to make positive change and I hope to see them being implemented with haste.    

London: Criminal Justice Alliance, 2022. 38p.

By Aidan Mcquade, Juliana Rexha and Anila Trimi  

  This study is based upon the review of 45 cases of potential victims of child trafficking - 31 girls and 14 boys. The data was collected by Child Protection Workers (CPWs) during the period 2016- 2019. The selected period coincides with the Organization of Security and Co-operation in Europe (OSCE) Presence in Albania work to support Albanian institutions to address child trafficking through a child protection framework. Of the 45 cases examined, 39 had been identified by authorities as potential victims of child trafficking. These cases suggest that trafficking for sexual exploitation, particularly through work in Albania’s nightclubs and entertainment industry, is a principal trafficking risk for girls, and trafficking for forced begging and criminal activity is a principal trafficking risk for boys. While third parties are often involved in this trafficking, there are some instances identified where trafficking is being facilitated or tolerated by the child’s parents. The majority of the cases examined in this study – 41 out of 45 – had no international aspect to them. Rather they represented risks of child trafficking or exploitation wholly within the borders of Albania. This indicates the need for law reform in Albania to recognise trafficking as a domestic as well as an international phenomenon. The study also finds significant evidence of coordination of state actors responsible for child protection in initial response to the identified cases: a multi-stakeholder approach on case management was undertaken in 41 out of 45 cases. However, the study also found significant problems regarding the case management. For example, of the 39 cases identified as potential cases of child trafficking only one was formally and conclusively identified as child trafficking. Furthermore, in 11 cases the exploitation continued even after the identification of the child as a potential victim of trafficking. Of these 11 cases, eight were cases of girls being sexually exploited, hence left in the hands of their traffickers in spite of the identified risks. Such egregious failures may be a result of systemic gender bias, a matter that requires further research and, if necessary, urgent solution. In other words this study found a lack of explicit decision making regarding trafficking identification, lack of follow up of criminal investigations, and worrying lapses in provision of sufficiently robust child protection measures. Furthermore, this study found a poor standard of record keeping and reporting. Hence, these findings indicate that there is still a considerable need for the strengthening of child protection systems in Albania, particularly in co-ordination and follow-up on child trafficking cases.

Vienna, Austria: OSCE (Organization for Security and Co-operation in Europe, Presence in Albania, 2020. 40p.

By The 

Organization for Security and Co-operation in Europe (OSCE),  Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings

This paper explores the intersections between human trafficking and terrorism by analysing activities of terrorist groups through the lens of trafficking in human beings. Through a critical analysis of legal and policy regimes, the paper provides a comparative study of two crimes – human trafficking and terrorism – based on a series of illustrative examples collected from throughout the OSCE region. The outcome is a set of targeted recommendations to challenge the trafficking practices of terrorist groups by leveraging existing preventative and protective mechanisms in the anti-trafficking field. The intent of these recommendations is to support participating States in preventing the crime of trafficking by terrorist groups, hold the perpetrators fully accountable and protect victims.

Vienna, Austria:  OSCE, 2021. 72p.

By The 

Organization for Security and Co-operation in Europe (OSCE),  Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings

Identifying an adult or child as a victim of trafficking is the first stage of protecting them. In many countries, being identified as a trafficking victim is the gateway to services and support specific to trafficking victims, rather than services and support specific to, for example, refugees or children. The primary purpose of identification is not to gather evidence from potential witnesses or victims of crime, nor to collect data about the number of people who have been trafficked. It is to trigger a State’s obligation to provide protection, including all forms of assistance.
This assistance should not be conditional on victims’ co-operation with the criminal justice system. It should instead offer them a path toward recovery, rehabilitation and restoration of their rights. Indeed, such assistance increases the likelihood of victims regaining their agency and participating in all aspects of society, including criminal proceedings, with the goal of bringing their traffickers to justice.

Currently, in the majority of OSCE participating States, individuals can only be formally identified as victims of trafficking in human beings within the criminal justice system, usually by law enforcement. A recent OSCE report1 indicates that in approximately half of the OSCE participating States (29), only officials associated with law enforcement can designate a person as a trafficking victim. Moreover, in eight participating States only law enforcement can refer them to support services.

Vienna, Austria: OSCE, 2023. 40p,.

By The Organization for Security and Co-operation in Europe (OSCE),  Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings

The report provides an analysis of how technology-facilitated trafficking in human beings has been approached from the perspective of policy and legislation across the OSCE participating States. While looking primarily at the accelerating shift toward government-led responses, the report also examines the policies and practices adopted by the private sector and civil society organizations. In addition, the report offers recommendations for policy and legislative responses by OSCE participating States to the misuse of technology to exploit victims.

Vienna, Austria: OSCE, 2022. 69p.

By Iris Chang

NY. Penguin. 1997. 314p.

In December 1937, one of the most horrific atrocities in the long annals of wartime barbarity occurred. The Japanese army swept into the ancient city of Nanking (what was then the capital of China), and within weeks, more than 300,000 Chinese civilians and soldiers were systematically raped, tortured, and murdered. In this seminal work, Iris Chang, whose own grandparents barely escaped the massacre, tells this history from three perspectives: that of the Japanese soldiers, that of the Chinese, and that of a group of Westerners who refused to abandon the city and created a safety zone, which saved almost 300,000 Chinese.

Drawing on extensive interviews with survivors and documents brought to light for the first time, Iris Chang's classic book is the definitive history of this horrifying episode.