Law Commons^™

Revisiting Immutability: Competing Frameworks For Adjudicating Asylum Claims Based On Membership In A Particular Social Group, Talia Shiff

University of Michigan Journal of Law Reform

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and …

Series Editor's Preface, James C. Hathaway

Other Publications

Could we – should we – think differently about the ways in which refugees are assisted and protected? Is it possible to turn traditional thinking on its head by seeing refugees not as the objects of protection and assistance, but instead as the architects and managers of solutions?

Assigning Protection: Can Refugee Rights And State Preferences Be Reconciled?, James C. Hathaway

Articles

The theoretically global responsibility to protect refugees is today heavily skewed, with just ten countries – predominantly very poor – hosting more than half of the world’s refugee population. Refugee protection has moreover become tantamount to warehousing for most refugees, with roughly half of the world’s refugees stuck in “protracted refugee situations” for decades with their lives on hold. Both concerns – the unprincipled allocation of responsibility based on accidents of geography and the desperate need for greater attention to resettlement as a core protection response – cry out for a global, managed system to protect refugees.

Critiquing Matter Of A-B-: An Uncertain Future In Asylum Proceedings For Women Fleeing Intimate Partner Violence, Theresa A. Vogel

University of Michigan Journal of Law Reform

The #MeToo movement has brought renewed attention to the impact of gender inequality on our society’s ability to provide protection to women from physical and sexual violence, including intimate partner violence. Despite advances in legal protections and increased resources to prevent, prosecute, and bring an end to intimate partner violence, in the absence of true efforts to combat gender inequality as a whole, intimate partner violence will continue to pervade our society. The discussion of gender inequality’s impact on the treatment of intimate partner violence must expand beyond the violence that occurs in the United States to gender inequality’s impact …

Doors To Safety: Exit West, Refugee Resettlement, And The Right To Asylum, Betsy L. Fisher

Michigan Law Review

Review of Mohsin Hamid's Exit West.

Justice In Syria: Individual Criminal Liability For Highest Officials In The Assad Regime, Seema Kassab

Michigan Journal of International Law

Seven years have passed since revolution broke out in Syria in March of 2011. During those six years, hundreds of thousands of Syrians lost their lives, millions of Syrians were internally displaced or left the country seeking refuge, and a beautiful and diverse country was hijacked and terrorized by civil war. Every day in Syria, people are detained, tortured, raped, and killed. Attacks on homes, hospitals, markets, and schools are common occurrences. At this stage of the conflict, there is little doubt that it is the most horrific and dire humanitarian crisis since World War II. The conflict began as …

The Michigan Guidelines On Refugee Freedom Of Movement

Michigan Journal of International Law

Despite the clear legal foundation of refugee freedom of movement at international law, states are also committed to the deterrence of human smuggling and trafficking, to the maintenance of effective general border controls, to safeguarding the critical interests of receiving communities, and to effectuating safe and dignified repatriation when refugee status comes to an end. Legal obligations to respect refugee freedom of movement therefore co-exist with, and must be reconciled to, other important commitments.

Why Guidance From The Supreme Court Is Required In Redefining The Particular Social Group Definition In Refugee Law, Liliya Paraketsova

University of Michigan Journal of Law Reform

One of the most debated topics in refugee law has been the meaning of particular social group (PSG)—one of the five categories used to claim refugee status. In 2006, the Board of Immigration Appeals (BIA) adopted a narrower PSG definition. Since that adoption, a circuit split has persisted over the meaning of PSG. Two circuits in particular have continually refused to adopt this definition—even when the BIA attempted to revise the definition in response to their criticism. This Note proposes a reform that would include a compromise between the two current definitions of PSG by rejecting the BIA’s particularity requirement …

Special Feature: Eighth Colloquium On Challenges In International Refugee Law, James C. Hathaway

Michigan Journal of International Law

It is our hope that, as in the case of earlier Michigan Guidelines on the International Protection of Refugees, these unanimously agreed standards will inspire a thoughtful and principled debate among scholars, officials, and judicial and other refugee law decision-makers committed to the legally accurate and contextually sound application of international refugee law norms.

Refugees And The Right To Freedom Of Movement: From Flight To Return, Marjoleine Zieck

Michigan Journal of International Law

This background study focuses on the right to freedom of movement of refugees. It reviews the law pertaining to this freedom from the perspective of the spatial journey of refugees. This focus on the law means that extralegal considerations will not be taken into consideration. The analysis will not proceed from any perceived need for limits that should be accepted as “a product of realism about the strains that migration, especially high-volume migration or sudden influxes, can bring to a society.”

Reconciling Expectations With Reality: The Real Id Act's Corroboration Exception For Otherwise Credible Asylum Applicants, Alexandra Lane Reed

Michigan Law Review

The international community finds itself today in the throes of the largest refugee crisis since World War II. As millions of refugees continue to flee violence and persecution at home, the immediate concern is humanitarian, but in the long-term, the important question becomes: What are our obligations to those who cannot return home? U.S. asylum law is designed not only to offer shelter to legitimate refugees, but also to protect the country from those who seek asylum under false pretenses. Lawmakers and policymakers have struggled to calibrate corroboration requirements for asylum claims with the reality that many legitimate asylum seekers …

Should We Presume State Protection?, James C. Hathaway, Audrey Macklin

Articles

Professors Hathaway and Macklin debate the legality of the “presumption of state protection” that the Supreme Court of Canada established as a matter of Canadian refugee law in the Ward decision. Professor Hathaway argues that this presumption should be rejected because it lacks a sound empirical basis and because it conflicts with the relatively low evidentiary threshold set by the Refugee Convention’s “well-founded fear” standard. Professor Macklin contends that the Ward presumption does not in and of itself impose an unduly onerous burden on claimants, and that much of the damage wrought by the presumption comes instead from misinterpretation and …

Non-Refoulement In A World Of Cooperative Deterrence, Thomas Gammeltoft-Hansen, James C. Hathaway

Articles

Developed states have what might charitably be called a schizophrenic attitude towards international refugee law. Determined to remain formally engaged with refugee law and yet unwavering in their commitment to avoid assuming their fair share of practical responsibilities under that regime, wealthier countries have embraced the politics of non-entrée, comprising efforts to keep refugees away from their territories but without formally resiling from treaty obligations. As the early generation of non-entrée practices — visa controls and carrier sanctions, the establishment of “international zones,” and high seas deterrence — have proved increasingly vulnerable to practical and legal challenges, new forms of …

Food Deprivation: A Basis For Refugee Status?, James C. Hathaway

Articles

It is commonplace to speak of those in flight from famine, or otherwise migrating in search of food, as “refugees.” Over the past decade alone, millions of persons have abandoned their homes in countries such as North Korea, Sudan, Ethiopia, Congo, and Somalia, hoping that by moving they could find the nourishment needed to survive. In a colloquial sense, these people are refugees: they are on the move not by choice, but rather because their own desperation compels them to pursue a survival strategy away from the desperation confronting their home communities.

The question addressed here is whether persons in …

An Insurmountable Obstacle: Denying Deference To The Bia’S Social Visibility Requirement, Kathleen Kersh

Michigan Journal of Race and Law

In the last fifteen years, the Board of Immigration Appeals has imposed a requirement that persons seeking asylum based on membership in a particular social group must establish that the social group is “socially visible” throughout society. This Comment argues that the social visibility requirement should be denied administrative deference on several grounds. The requirement should be denied Chevron deference because Congress’s intent behind the Refugee Act of 1980 is clear and unambiguous and, alternatively, the requirement is an impermissible interpretation of the statute. The requirement is also arbitrary and capricious under the Administrative Procedures Act. This Comment argues that …

The Michigan Guidelines On The Exclusion Of International Criminals

Michigan Journal of International Law

With a view to promoting a shared understanding of the proper approach to Article 1(F)(a) exclusion from refugee status, we have engaged in sustained collaborative study and reflection on relevant norms and state practice. Our research was debated and refined at the Sixth Colloquium on Challenges in International Refugee Law, convened in March 2013 by the University of Michigan’s Program in Refugee and Asylum Law. These Guidelines are the product of that endeavor, and reflect the consensus of Colloquium participants on how decision makers can best ensure the application of Article 1(F)(a) in a manner that conforms to international legal …

Sixth Colloquium On Challenges In International Refugee Law: Introduction, James C. Hathaway

Michigan Journal of International Law

The goal of the Sixth Colloquium on Challenges in International Refugee Law was to develop a principled and workable framework to guide the process of considering the exclusion from refugee status of persons believed to have committed international crimes.

Principled Exclusion: A Revised Approach To Article1(F)(A) Of The Refugee Convention, Jennifer Bond

Michigan Journal of International Law

The focus of this contribution is Article 1(F)(a), a section of the exclusion clause that has increased in both use and profile in recent years. Article 1(F)(a) applies to individuals who may be implicated in crimes against peace (more commonly known today as crimes of aggression), war crimes, or crimes against humanity as such crimes are defined in relevant international instruments. Where a decision maker finds that “there are serious reasons for considering that” an asylum seeker has committed one of these acts, the remainder of the Refugee Convention does not apply, and any protections to which the claimant would …

Discretionary (In)Justice: The Exercise Of Discretion In Claims For Asylum, Kate Aschenbrenner

University of Michigan Journal of Law Reform

Section 208(a) of the Immigration and Nationality Act provides that asylum may be granted to an applicant who meets the definition of a refugee-that is, someone who has been persecuted or has a well-founded fear of future persecution in her own country on account of race, religion, nationality, political opinion, or membership in a particular social group. Asylum is a discretionary form of relief which means that the United States government is not required to grant asylum to every refugee within the United States but instead may decide whether or not to do so. This Article sets out in Part …

Queer Cases Make Bad Law, James C. Hathaway, Jason Pobjoy

Articles

The Refugee Convention, now adopted by 147 states, is the primary instrument governing refugee status under international law. The Convention sets a binding and nonamendable definition of which persons are entitled to recognition as refugees, and thus to enjoy the surrogate or substitute national protection of an asylum state. The core of the article 1A(2) definition provides that a refugee is a person who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group.” A person is thus a refugee, and entitled to the non-refoulement and other protections …

Refugees And Asylum, James C. Hathaway

Book Chapters

During the late nineteenth and early twentieth centuries, European governments enacted a series of immigration laws under which international migration was constrained in order to maximise advantage for States. These new, largely selfinterested laws clashed with the enormity of a series of major population displacements within Europe, including the flight of more than a million Russians between 1917 and 1922, and the exodus during the early 1920s of hundreds of thousands of Armenians from Turkey. The social crisis brought on by the de facto immigration of so many refugees - present without authorisation in countries where they enjoyed no protection …

E.U. Accountability To International Law: The Case Of Asylum, James C. Hathaway

Articles

In one of his later published works, Eric Stein wrote that "[a]s modern administrative state, transparency in the Union is essential not only to inform member state parliaments and electorates, but also to help form an all-European debate and public opinion that are required to sustain advanced integration."' In his usual prescient way, Professor Stein captured the dilemma of the European Union as it has shifted from an amalgam of states seeking consensus in a largely behind-closed-doors way to what many would see as an emerging federal state. With its undoubted ability to project power, will the European Union effectively …

Welcoming Women: Recent Changes In U.S. Asylum Law, Jillian Blake

Michigan Law Review First Impressions

The Statue of Liberty, which has been called the "Mother of Exiles," stands as a reminder of one of the foundational ideals of U.S. immigration policy-providing refuge to the vulnerable. Women worldwide have new reason to believe in this promise, because victims of domestic violence may now have a better chance of being granted asylum in a U.S. immigration court.

Left Out In The Cold: Trafficking Victims, Gender, And Misinterpretation Of The Refugee Convention's "Nexus" Requirement, Martina Pomeroy

Michigan Journal of Gender & Law

Victims of human trafficking who seek international protection in their country of destination face a steep uphill battle. Special visa programs designed to regularize their status are often riddled with conditions that make them inaccessible to all but a very few victims. Despite widespread international agreement that the manifold harms inflicted upon the majority of trafficked persons generally rise to the level of persecution, and therefore that victims should be eligible to apply for asylum, many national courts misinterpret international refugee law standards and routinely deny refugee status to deserving applicants. Courts often refuse to recognize persecution on the basis …

Fifth Colloquium On Challenges In International Refugee Law. The Michigan Guidelines On The Right To Work., Penelope Mathew

Michigan Journal of International Law

An Explanatory Note covering the Fifth Michigan Colloquium on Challenges in International Refugee Law and the Right to Work.

The Michigan Guidelines On The Right To Work

Michigan Journal of International Law

The right to work is fundamental to human dignity. It is central to survival and development of the human personality. According to the International Labour Organization (ILO), decent work "sums up the aspirations of people in their working lives-for opportunity and income; rights, voice and recognition ..." Work is interrelated, interdependent with, and indivisible from the rights to life, equality, the highest attainable standard of physical and mental health, an adequate standard of living, the right to social security and/or social assistance, freedom of movement, freedom of association, and the rights to privacy and family life, among others.

Leveraging Asylum, James C. Hathaway

Articles

I believe that the analysis underlying the leveraged right to asylum is conceptually flawed. As I will show, there is no duty of non-refoulement that binds all states as a matter of customary international law and it is not the case that all persons entitled to claim protection against refoulement of some kind are ipso facto entitled to refugee rights. These claims are unsound precisely because the critical bedrock of a real international legal obligation-namely, the consent of states evinced by either formal commitments or legally relevant actions -does not yet exist.

Revisiting Germany's Residenzpflicht In Light Of Modern E.U. Asylum Law, Paul Mcdonough

Michigan Journal of International Law

This Note explores whether the E.C. treaties, nonetheless, provide the European Court of Justice (ECJ) sufficient competence to use the Reception Directive as a vehicle to assess the Residenzpflicht in relation to the Refugee Convention. It concludes that, through the Residenzpflicht, Germany denies refugees lawfully present their Convention right to free movement within its territory, and that the ECJ can order the restoration of this right.

Untold Stories: Gender-Related Persecution And Asylum In South Africa, Lindsay M. Harris

Michigan Journal of Gender & Law

This Article explains the particular difficulties that female asylum seekers and survivors of gender-related persecution face, reaffirming the need for the practical and sensitive application of international and domestic gender guidelines. Extensive research into client files and interviews with key decision makers prove that, despite scholarship suggesting that women may be advantaged in asylum proceedings, a focus on gender is still needed in the South African context. While there are undoubtedly problematic elements of the 1998 Refugees Act warranting its revision, the addition of gender as an additional category under the refugee definition, as proposed by the recent Refugees Amendment …

Human Security And The Rights Of Refugees: Transcending Territorial And Disciplinary Borders, Alice Edwards

Michigan Journal of International Law

This Essay examines the concept of human security through the lens of refugee protection. In particular, the author asks whether the concept of human security could add anything to the international protection regime for refugees and asylum seekers under international law. Before international lawyers can reject the notion of human security on the basis of its non-legal, and therefore nonbinding, character, it is necessary to examine the gaps in the existing legal framework, into which policy discourse, including security discourse, may step in as an important player.