Human Rights Law Commons^™

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …

Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero

Faculty Scholarship

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as …

We Are All Here To Stay? Indigeneity, Migration, And ‘Decolonizing’ The Treaty Right To Be Here, Amar Bhatia

Articles & Book Chapters

This article examines issues of transnational migration in the settler-colonial context of Canada. First, I review some of the recent debates about foregrounding Indigeneity and decolonization in anti-racist thought and work, especially in relation to critical and anti-racist approaches to migration. The article then moves from this debate to the question of ‘our right to be here’, the relationship of this right to the treaties, and how migrant rights and treaty relations perspectives might interact in a context that must be informed by Indigenous laws and legal traditions.

While You Were Eating: The Unspoken Human Cost Of Putting Food On Our Tables, Darci Jenkins, Miguel Keberlein Gutierrez

Public Interest Law Reporter

No abstract provided.

A Proposed Overhaul Of The State Department's Summer Work Travel Program To Prevent Labor Violations And Human Trafficking, Margaret O'Donoghue

Public Interest Law Reporter

No abstract provided.

Migrant Smuggling: Canada's Response To A Global Criminal Enterprise, Benjamin Perrin

All Faculty Publications

Migrant smuggling is a dangerous, sometimes deadly, criminal activity. Failing to respond effectively to migrant smuggling and deter it will risk emboldening those who engage in this illicit enterprise, which generates proceeds for organized crime and criminal networks, funds terrorism and facilitates clandestine terrorist travel, endangers the lives and safety of smuggled migrants, undermines border security, and undermines the integrity and fairness of immigration systems. Introduced in the Canadian House of Commons in June 2011, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (Bill C-4) includes proposed amendments to the Immigration and Refugee Protection Act that would enhance …

How The Charter Has Failed Non-Citizens In Canada – Reviewing Thirty Years Of Supreme Court Of Canada Jurisprudence, Catherine Dauvergne

All Faculty Publications

This paper presents a study of all of the Supreme Court of Canada’s Charter-era jurisprudence addressing the rights of non-citizens. It traces the jurisprudential evolution from early decisions strongly supportive of non-citizens’ rights claims, to more recent rulings where non-citizens’ rights claims are rejected, sidelined or even ignored. Patterns in decision making are discernible and the decline in protections for non-citizens follows logically enough from a series of interpretive stances made relatively early on. There is evidence here of what I have termed ‘Charter hubris.’ This is a leading factor in explaining the current state of affairs, which works alongside …

Bordering On Failure: Canada-U.S. Border Policy And The Politics Of Refugee Exclusion, Efrat Arbel, Alletta Brenner

All Faculty Publications

In June 2012, the Canadian government ushered in sweeping reforms to Canada’s refugee system. These reforms brought debates about Canadian refugee protection to the forefront of legal and political discourse. In advancing these reforms, the Canadian government has asserted that Canada’s refugee system is among the most generous and compassionate in the world. Canada’s doors, the Canadian government has stated, remain open to legitimate refugees. This report evaluates these claims by examining the U.S.-Canada Safe Third Country Agreement and border measures implemented under the rubric of the Multiple Borders Strategy, and analyzing their effects on asylum seekers. A detailed examination …

Shifting Borders And The Boundaries Of Rights: Examining The Safe Third Country Agreement Between Canada And The United States, Efrat Arbel

All Faculty Publications

This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada-US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional …

Arizona’S Senate Bill 1070: A Case Study On State-Sponsored Immigration Policy, Ryan Murphy

Master's Theses

This study assesses the origins of Arizona’s state-sponsored immigration policy. It attempts to identify the social dynamics within Arizona that contributed to the overwhelming public support for SB 1070. Since it has been two years after the law was passed, this analysis determines what impact the law has had thus far within the state. Finally, it postulates the future of Arizona’s immigration policy.

Targeting Demand: A New Approach To Curbing Human Trafficking In The United States, Morgan Brown

Law Student Publications

Part I of this paper will provide a general framework for understanding human trafficking in the United States by laying out basic statistics relevant to human trafficking, describing the basic economic model under which the business of human trafficking should be understood, and discussing the major legislative approaches the United States has taken to curtail the increase in human trafficking in the country in the past ten years. Part II will then analyze the shortcomings of this approach and the successes of unique efforts to combat trafficking in Sweden. Part III recommends an approach the United States should take moving …

Seeking Asylum For Former Child Soldiers And Victims Of Human Trafficking, Tina Javaherian

Pepperdine Law Review

No abstract provided.

Women And Girls Fleeing Conflict: Gender And The Interpretation And Application Of The 1951 Refugee Convention, Valerie Oosterveld

Law Publications

No abstract provided.

Profiling And Immigration, Aaron Haas

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

An End To The Violence: Justifying Gender As A "Particular Social Group", Suzanne Sidun

Pepperdine Law Review

No abstract provided.

Human Trafficking Post 9/11 Policy And Practice Beyond Cutting The Tail Off The Snake, Alexandra Caitlin Rice

Graduate Program in International Studies Theses & Dissertations

The U.S. Department of State estimates that 600,000 to 800,000 victims are trafficked across international borders each year, approximately 14,500 to 17,500 of which are trafficked into the United States. The Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) was created to combat human trafficking in the country, and as a result created the T-visa to provide immigration relief to non-citizen victims of trafficking. In this work I analyze U.S. government efforts to combat trafficking in the twelve years following implementation of the VTVPA. I expand my analysis beyond T-visa distribution data to incorporate interviews with high-level government …

The Fate Of "Unremovable" Aliens Before And After September 11, 2001: The Supreme Court's Presumptive Six-Month Limit To Post-Removal-Period Detention, Megan Peitzke

Pepperdine Law Review

No abstract provided.

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 …

S-Comm: Shattering Communities, Hannah Weinstein

Cardozo Public Law, Policy & Ethics Journal

The note argues that the Secure Communities program, initiated by the Department of Homeland Security (DHS) in 2008, operates unlawfully under the Administrative Procedure Act (APA) and raises significant constitutional concerns. By bypassing notice-and-comment requirements and failing to address public concerns, the program has led to racial profiling, pretextual arrests, and widespread detention of noncriminal individuals, undermining its stated goals and eroding community trust in law enforcement. The analysis calls for immediate cessation of the program and congressional funding due to its legal violations and harmful consequences.

We Don't Need To See Them Cry: Eliminating The Subjective Apprehension Element Of The Well-Founded Fear Analysis For Child Refugee Applicants, Bridgette A. Carr

Pepperdine Law Review

This article addresses a barrier to effective protection faced by child refugee applicants. Currently all refugee applicants, including infants, are required to satisfy two elements of well-founded fear. All applicants must prove that they face an objective risk of persecution and that they subjectively fear this risk. But children often cannot exhibit the subject apprehension element of the test. As a result, UNHCR, and the U.S and Canadian governments issued guidelines that encourage decision makers to accept other evidence to prove a child's subjective apprehension when the child is unable to exhibit fear. However, this approach does not go far …

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 …

Editor's Note, Alfred C. Aman, Micah J. Nichols

Indiana Journal of Global Legal Studies

Globalization and Migration Symposium, Indiana University Maurer School of Law, Bloomington, Indiana, April 7-8, 2011

International Human Rights In Canadian Immigration Law - The Case Of The Immigration And Refugee Board Of Canada, Catherine Dauvergne

Indiana Journal of Global Legal Studies

This article analyzes the use of international human rights in the decision making of Canada's Immigration and Refugee Board. At the center of the analysis is a data set including all the publically available decisions of the Board since the introduction of the 2002 Immigration and Refugee Protection Act. This data set has been coded for varying degrees of engagement with international human rights law, and the results are presented and scrutinized. At the broadest level, the results are disappointing for migrant advocates as international law is relied on in an infinitesimally small number of decisions.

Globalization and Migration Symposium, …

Human Rights And The Elusive Universal Subject: Immigration Detention Under International Human Rights And Eu Law, Cathryn Costello

Indiana Journal of Global Legal Studies

The right to liberty is ubiquitous in human rights instruments, in essence protecting all individuals from arbitrary arrest and detention. Yet, in practice, immigration detention is increasingly routine, even automatic, across Europe. Asylum seekers in particular have been targeted for detention. While international human rights law limits detention, its protections against immigration detention are weaker than in other contexts, as the state's immigration control prerogatives are given sway. In spite of the overlapping authority of international and regional human rights bodies, the caselaw in this field is diverse. Focusing on the U.N. Human Rights Committee, the European Court of Human …

When Federal And State Systems Converge: Foreign National Human Trafficking Victims Within Juvenile And Family Courts, Bridgette A. Carr

Articles

This article highlights the concerns facing foreign national children who are both victims of human trafficking and under the jurisdiction of juvenile and family courts. Human trafficking is modern day slavery in which individuals, including children, are compelled into service and exploited. Foreign national human trafficking victims in juvenile and family court systems must navigate both the state system and a complex federal immigration system. This article explains the federal benefits available to these children and identifies the best practice approaches for juvenile and family court systems to increase identification of and support for foreign national child trafficking victims.jfcj_1073

Human Rights In The United States: Legal Aid Alleges That Denying Access To Migrant Labor Camps Is A Violation Of The Human Right To Access Justice, Reena Shah, Lauren Bartlett

All Faculty Scholarship

It is estimated that there are more than 86 million migrant workers worldwide, the vast majority of whom suffer poor living and working conditions. In the United States, more than 3 million migrant farmworkers, including at least 100,000 children, are estimated to labor in fields every year, many of whom lack access to justice, earn sub-living wages, and exist in dehumanizing circumstances. Farmworkers are among the most exploited and vulnerable populations in the United States; yet, distressingly, they are also the least protected by U.S. law and law enforcement.

Legal aid advocates in the United States attempt to raise awareness …

Developing The Substantive Best Interests Of Child Migrants: A Call For Action, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

This Article attempts to accomplish two goals. First, it provides an overview of what is known and unknown about international child migrants. While this Conference will focus to some degree on child migrants in the United States, this Article shows how significant this phenomenon is around the world. Therefore, this Article provides data and points out the research gaps surrounding this issue.

Equally significant is the lack of legal and policy tools available for governments to respond well and in accordance with the Convention on the Rights of the Child ("CRC") to the children themselves. First, informed by social science …

"U" Stands For Underutilization: The U Visa's Vulnerability For Underuse In The Sex Trafficking Context, Erin Bistricer

Cardozo Journal of Equal Rights & Social Justice

The U Visa, established in 2000 under the Violence Against Women Act (VAWA) reauthorization, was designed to provide legal status to victims of certain crimes, including sex trafficking, without fear of deportation. However, its implementation has been hindered by significant challenges, including delayed regulations, confusion among applicants, and reliance on law enforcement cooperation, which can be a barrier for traumatized victims. While the U Visa offers more flexibility than the T Visa by covering a broader range of crimes and requiring a lower standard of proof, its effectiveness is limited by factors such as annual caps, inadequate state anti-trafficking laws, …

Tensions In Rhetoric And Reality At The Intersection Of Work And Immigration, Jennifer Gordon

Faculty Scholarship

No abstract provided.

People First: The Cuban Travel Ban, Wet Foot-Dry Foot And Why The Executive Branch Can And Should Begin Normalizing Cuba Policy, Jarrett Barrios

Connecticut Public Interest Law Journal

No abstract provided.