Epilogue: My Fulbright Life Podcast and the New Reform of the LO 4/2000

As I sit here writing the epilogue to my experience in Spain, I have to first apologize for delaying putting up my episode of the "My Fulbright Life" podcast series published by the International Institute of Education. The process of writing a thesis, a short paper on the impact of the cases I've been analyzing on the development of immigration legislation, and finding a job has diverted my attention from realizing that IIE published this episode in October. I've now rectified the problem and you can now download and listen to the podcast through this link or look up "My Fulbright Life" on iTunes and download my interview to your podcast library.

The interview, which was carried out in May, covers my research, my interest in participating in the program, and advice for future applicants. Although I am now listening to this interview as a Fulbright alum in the States, the perspectives that I offer in the interview have not changed; I feel that I would give similar answers and replies if the host would have asked me the same questions a month, a week, or a day ago. That said, I feel the interview captures a sense of engagement in my work that has changed since I have returned to the US. After all, I was in the middle of preparing for the immigration conference in June, finishing interviews, finding important articles on my research topic, and planning trips to cities in Spain and Europe. Without that mental reference point, I do not feel that the interview could have evoked the focus and intensity that made my last months in Spain so productive and memorable at an academic and personal level. It certainly brings a smile to my face, even if I my performance on tape seems a little incoherent.

The interview aside, this post, which functions as an epilogue to my experiences in Spain, will focus on two things: the newest immigration law the LO 2/2009, which incorporates the decisions of the Tribunal Constitucional that overturns the provisions of the LO 8/2000 and my recent work on my research.

During the last months of my time in Spain, I began to grow more critical of the Spanish Government's efforts to reform the LO 4/2000 for a variety of reasons. Although I supported the government's efforts to incorporate the Tribunal Constitucional's decision in STC 236/2007 et al, the interviews that I carried out as well as my reading of various analysis of the drafts of the new law have made it clear that the Spanish Government has used this law to restrict of other rights of immigrants as a means to address the nation's economic problems. As the law's Exposition of Motivation notes, the Government seeks to “legally channel the migratory flows in such a manner that the [flows] are adjusted to our capacity to take in [immigrants] and the real demands of our labor market." The law also cites the Government’s obligation to adopt EU directives related to the expulsion of irregular immigrants, especially Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. Citing these reasons, the reform introduced the following measures:

• The reform extends the number of days an irregular immigrant can stay in detention centres for these individuals from 40 days to 60 days in order to respect the contents of EU Directive 2008/115/EC.

• The law allows the parent of a regularized immigrant to migrate to Spain only when they have reached the age of 65. The LO 4/2000 and its subsequent reforms did not place an age limit on this component of the right to family reunion.

• The reform also affects an immigrant’s access to education. The text states: “foreign residents over the age of 18 have the right to access post-obligatory levels of education, the obtainment of corresponding qualifications, and to the public system of scholarships in the same conditions as Spaniards." The reforms also do not explicitly state that an immigrant has access to infantile education.

• The law also stipulates that an irregular immigrant must re-file a petition with a given Court in administrative proceedings to access free legal assistance, even in situations where the State has deported the individual. In these instances, the individual must file with a Spanish consular office to exercise this right.

While I could devote an entire blog post to the critiques of these regulations, I want to quickly note the constitutional problems with the last two measures. Among other things, the provisions regulating the right to non-obligatory education and the right to free legal assistance create unequal conditions of exercise between Spaniards and immigrants. Given that the Tribunal Constitucional explicitly stated that legislators cannot create unequal conditions for the exercise of these rights between Spaniards and non-Spaniards, the law essentially undermines the Court's mandate by restricting the fundamental rights of immigrants. It is measures like these that have prompted El País, the nation's leading newspaper, to produce an editorial that labeled the law as the product of the political willingness to make "compatible a leftist discourse … with initiatives of the opposite mark."

The contents of this law and its complex relationship with the judicial antecedents in STC 236/2007 has formed the focus of my work since I returned from Spain. Specifically, I have been working on a thesis that uses the work of Gerald Rosenberg, a Political Science Professor at the University of Chicago (and an alum of the Fulbright Visiting Professor program), to analyze how Spanish legislators and the Tribunal Constitucional shape the capacity of the other to influence the regulation of the rights of immigrants.

The paper's central argument is a variation of my criticism of the new law: the LO 2/2009 demonstrates that the political will of Spanish legislators impacts their willingness to restrain or facilitate the Constitutional Court’s ability to shape the regulation of the rights of irregular immigrants beyond its judicial mandates. While legislators have fulfilled the Court’s mandate to overturn the provisions of the LO 8/2000 that regulate fundamental rights such as the right to association to all immigrants in Spain, the aforementioned political and economic "concerns" have muted legislators’ support for leveraging the Court’s authority to expand the rights of irregular immigrants. Instead, these factors have prompted the Spanish Government to produce the measures that I outlined earlier in this post. In this sense, the Court’s ability to expand the rights of immigrants beyond its judicial mandates rests heavily on the legislators’ decision to treat the regulation of these rights as a means to advance the Spanish Government’s political and economic goals.

Obviously this paper will continue to evolve as I work with my advisers to edit and revise its arguments over the next few months. It has been a very long process -- I started writing parts of this paper in January -- but I have found it to be fulfilling since it allows me to capture a year's worth of work in roughly 18 pages of arguments, references, an abstract, and a clever title to boot. While the end goal of this process is publishing the paper in an academic journal or presenting it at a conference, it is this fact -- my satisfaction with the writing process -- that confirms the obvious: the Fulbright experience wasn't simply a wonderful opportunity to travel; it was also an excellent opportunity to conduct interesting research. Hopefully the end product will reflect this sentiment.

Aside from writing this paper, I am preparing for my return to Washington, DC after receiving an offer to work for the Federal Trade Commission as a Paralegal with the Bureau of Competition. While it remains to be seen how my second stint in DC will shape me as a person, I feel content knowing that Spain is only an ocean away from Washington. To be sure, this little fact may not provide an extended respite from the daily grind of working in the District; last time I checked, reminiscing about the past does not allow one to finish their document review assignments or come up with ideas for a new blog. Nevertheless, it will give me a few moments to reengage with my the sense of enchantment that touched every day of my year abroad. With that in mind, I wish everyone a happy and peaceful 2010 and thank you all for reading this blog over the last year and a half!