Digital Commons Network^™

The Rising Bar For Persecution In Asylum Cases Involving Sexual And Reproductive Harm, Fatma Marouf

Fatma Marouf

This Article argues that there is a rising bar for establishing persecution in U.S. asylum cases involving sexual and reproductive' harm. Analyzing recent cases, the Article shows that adjudicators tend to apply a higher standard for physical harm in these types of cases and largely overlook nonphysical harm, including psychological suffering and the intangible harm caused by deprivation of equality, autonomy, and privacy. The Article focuses specifically on two types of cases where these patterns appear: (1) female genital mutilation (FGM); and (2) involuntary insertion of an intrauterine device (IUD). Regarding FGM, the Article discusses an emerging dispute as to …

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

Fatma Marouf

Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn …

Book Note: Reviewing "Tortured Confessions", Fatma E. Marouf

Fatma Marouf

Review Extract:

Tortured Confessions presents an innovative perspective on the relationship between torture and propaganda. While much has been written about the way propaganda spurs and sanctifies torture by demonizing "the enemy," few have explored the way torture itself is used to create propaganda. Abrahamian's work explores how the primary purpose of torture in Iran has been to extract ideological recantations from prisoners.

A Particularly Serious Exception To The Categorical Approach, Fatma E. Marouf

Fatma Marouf

A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet, the Board of Immigration Appeals has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examination of the elements with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offenses are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious crime determination to promote …

Alternatives To Immigration Detention, Fatma E. Marouf

Fatma Marouf

The United States places over 440,000 people each year in immigration detention, far more than any other country in the world. This Article argues that there are compelling humanitarian and financial reasons to utilize more alternatives to detention. It examines the strengths and limitations of existing alternatives, including the need to develop more community-based case management programs and to rely less on electronic monitoring. The Article then sets forth several legal arguments under the Constitution, Rehabilitation Act, and international human rights law for requiring greater consideration of alternatives to detention.

Alienage Classifications And The Denial Of Health Care To Dreamers, Fatma E. Marouf

Fatma Marouf

In the Affordable Care Act (“ACA”), passed in 2010, Congress provided that only “lawfully present” individuals could obtain insurance through the Marketplaces established under the Act. Congress left it to the Department of Health and Human Services (“HHS”) to define who is “lawfully present.” Initially, HHS included all individuals with deferred action status, which is an authorized period of stay but not a legal status. After President Obama announced a new policy of Deferred Action for Childhood Arrivals (“DACA”) in June 2012, however, HHS amended its regulation specifically to exclude DACA recipients from the definition of “lawfully present.” The revised …

Regrouping America: Immigration Policies And The Reduction Of Prejudice, Fatma E. Marouf

Fatma Marouf

Since concerns about cohesion based on race and based on immigration tend to go hand in hand, immigration scholars have long noted the need to take them seriously. This Article contributes to an emerging body of scholarship related to the integration of immigrants by examining how current immigration policies deepen or diminish social divides and presenting a framework for analyzing proposed immigration reforms in terms of their impact on social cohesion. Specifically, the Article draws on social psychological research regarding the relationship between social categorization and intergroup relations to propose a method for analyzing how immigration reforms might impact intergroup …

The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf

Fatma Marouf

U.S. asylum law is based on a domestic statute that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum pro- visions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. This Article highlights this significant omission and urges courts to examine the interpretations of other States Parties to the Protocol in asylum cases. Using as an example the current debate over …

Socio-Economic Rights And Refugee Status:Deepening The Dialogue Between Human Rights And Refugee Law, Fatma E. Marouf, Deborah Anker

Fatma Marouf

reviewing Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (2007)

Setting A Minimum Standard Of Care In Clinical Trials: Human Rights Law And Bioethics As Complementary Frameworks, Fatma E. Marouf, Bryn S. Esplin

Fatma Marouf

For the past few decades, there has been intense debate in bioethics about the standard of care that should be provided in clinical trials conducted in developing countries. Some interpret the Declaration of Helsinki to mean that control groups should receive the best intervention available worldwide, while others interpret this and other international guidelines to mean the best local standard of care. Questions of justice are particularly relevant where limited resources mean that the local standard of care is no care at all. Introducing human rights law into this complex and longstanding debate adds a new and important perspective. Through …

The Hunt For Noncitizen Voters, Fatma Marouf

Fatma Marouf

Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states-Tennessee, Kansas, and Alabama-have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act.2 Two other states-Florida and Colorado-have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. …

The Emerging Importance Of "Social Visibility" In Defining A "Particular Social Group" And Its Potential Impact On Asylum Claims Related To Sexual Orientation And Gender, Fatma E. Marouf

Fatma Marouf

An emerging issue in U.S. asylum claims based on "membership in a particular social group" is the relevance of social visibility in determining whether such a group exists. Of the five protected grounds for asylum, "membership in a particular social group" has always generated the most debate. Until recently, however, neither the Board of Immigration Appeals (BIA) nor the federal courts focused on "social visibility" in defining this term. The dominant view of the international community, rooted in the BIA's seminal decision in Acosta, defines a "particular social group" based solely on the existence of an "immutable" characteristic," one …

The Rising Bar For Persecution In Asylum Cases Involving Sexual And Reproductive Harm, Fatma E. Marouf

Fatma Marouf

This Article argues that there is a rising bar for establishing persecution in U.S. asylum cases involving sexual and reproductive' harm. Analyzing recent cases, the Article shows that adjudicators tend to apply a higher standard for physical harm in these types of cases and largely overlook nonphysical harm, including psychological suffering and the intangible harm caused by deprivation of equality, autonomy, and privacy. The Article focuses specifically on two types of cases where these patterns appear: (1)female genital mutilation (FGM); and (2) involuntary insertion of an intrauterine device (IUD). Regarding FGM, the Article discusses an emerging dispute as to whether …

The Unconstitutional Use Of Restraints In Removal Proceedings, Fatma E. Marouf

Fatma Marouf

Although ICE's shackling practices vary across the country, in at least some jurisdictions ICE has exercised its authority under the 1988 Memorandum to indiscriminately shackle all detainees. The exact extent of this practice is unknown, but recent litigation suggests that it is not uncommon. In fact, such litigation indicates that ICE has indiscriminately shackled detainees even in courtrooms located outside of detention facilities, such as the San Francisco Immigration Court. Consequently, detained noncitizens frequently appear in immigration court looking like criminals, wearing orange jumpsuits, handcuffs, leg irons, and belly chains, even though there has been no individualized determination that they …

Wrogful Death: Oklahoma Supreme Court Replaces Viability Standard With "Live Birth" Standard, Fatma Marouf

Fatma Marouf

Since the United States Supreme Court decision of Roe v. Wade, the line of viability for human fetuses has been consistently pushed back to earlier and earlier gestational ages. Granting "person" status to a nonviable fetus, even if only for purposes of the wrongful death statute, as the Oklahoma Supreme Court did in Nealis v. Baird, represents an important expansion of fetal rights. Although the court explicitly limited its decision to nonviable fetuses born alive, Judge Opala conceded that much of his opinion could apply equally to stillborn fetuses. The court's decision in Nealis raises important questions about …

Incompetent But Deportable: The Case For A Right To Mental Competence In Removal Proceedings, Fatma E. Marouf

Fatma Marouf

Important strides are currently being made towards increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding like removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial of incompetent …

Holding The World Bank Accountable For The Leakage Of Funds From Africa’S Health Sector, Fatma E. Marouf

Fatma Marouf

This article explores the accountability of international financial institutions (IFIs), such as the World Bank, for human rights violations related to the massive leakage of funds from sub-Saharan Africa’s health sector. The article begins by summarizing the quantitative results of Public Expenditure Tracking Surveys performed in six African countries, all showing disturbingly high levels of leakage in the health sector. It then addresses the inadequacy of good governance and anticorruption programs in remedying this problem. After explaining how the World Bank’s Inspection Panel may serve as an accountability mechanism for addressing the leakage of funds, discussing violations of specific Bank …

Buying Time: False Assumptions About Abusive Appeals, Michael Kagan, Fatma Marouf, Rebecca Gill

Fatma Marouf

The federal government has expressed fear that immigrants abuse the appellate process to delay their deportations by filing meritless petitions for review with the federal courts. Some courts have responded to these concerns by imposing stricter standards for issuing stays of removal, so that the government can more easily deport petitioners even while their appeals remain pending. The risk with this approach is that immigrants who ultimately prevail may be erroneously deported. What is often overlooked is that the potential for abuse is really a function of time, with longer appeals posing a greater threat to immigration enforcement. This study …

Assumed Sane, Fatma Marouf

Fatma Marouf

In 2014, the Board of Immigration Appeals (BIA) held in Matter of G-G-S-that a noncitizen’s mental health status at the time of an offense is irrelevant to determining whether the offense is a “particularly serious crime” for immigration purposes. Since a “particularly serious crime” is a bar to asylum and withholding of removal, it can result in a noncitizen’s deportation to a country where he or she faces a serious risk of persecution. In deciding that immigration judges “are constrained by how mental health issues were addressed as part of the criminal proceedings,” the BIA failed to recognize the …

Implicit Bias And Immigration Courts, Fatma E. Marouf

Fatma Marouf

This Article highlights the importance of implicit bias in immigration adjudication. After tracing the evolution of prejudice in our immigration laws from explicit "old-fashioned" prejudice to more subtle forms of "modem" and "aversive" prejudice, the Article argues that the specific conditions under which immigration judges decide cases render them especially prone to the influence of implicit bias. Specifically, it examines how factors such as immigration judges' lack of independence, limited opportunity for deliberate thinking, low motivation, and the low risk of judicial review all allow implicit bias to drive decision-making. The Article then recommends certain reforms, both simple and complex, …

Justice On The Fly: The Danger Of Errant Deportations, Fatma Marouf, Michael Kagan, Rebecca Gill

Fatma Marouf

The government may deport an immigrant appealing a deportation order in federal court even before the court rules on the case, unless the court issues a stay of removal. In its 2009 decision in Nken v. Holder, the Supreme Court clarified that the legal standard for stays of removal is the same test courts use for preliminary injunctions. Yet Justice Kennedy expressed frustration that the Court had little data to inform its decision. The Court will likely need to revisit this issue, as doubts cloud the meaning of Nken’s main holdings, in part because the government misled the …

Deported To Die? Applying The Categorical Approach To The "Particularly Serious Crime" Bar, Fatma Marouf

Fatma Marouf

Immigrants Unshackled: The Unconstitutional Use Of Indiscriminate Restraints, Fatma Marouf

Fatma Marouf