Human Rights Law Commons^™

The Past As Present, Unlearned Lessons And The (Non-) Utility Of International Law, Susan M. Akram

Faculty Scholarship

The contemporary moment provides an acute illustration of the dangers of historical amnesia—as if the Trump Administration’s policies of exclusion, extremist nationalism, and presidential imperialism were singular to ‘now,’ and entirely reversible in the next election. This Article argues to the contrary; that we have been down this road before, and the current crisis in immigration and refugee policies is the inevitable development of trends of racism, including anti-Arab, anti-Muslim racism and xenophobia, that have only become normalized by the populist resurgence of Trumpism. If this premise is correct—that we are experiencing a culmination of a historical trajectory—what lessons from …

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.

Finding A Home In America: Cardozo Law Screening Of Refuge “Hombres Nuevos”, Kathryn O. Greenberg Immigration Justice Clinic, Cardozo Outlaw

2018–2019 Flyers

Promotional flyer for a Cardozo School of Law screening of Hombres Nuevos, episode six of the AT&T original series REFUGE. The episode tells the story of Luis Mancheno, a former Cardozo Law instructor and immigration attorney, who fled persecution in Ecuador and now advocates for the rights of LGBTQ+ asylum seekers in the U.S. The event included a screening and a Q&A moderated by Professor Kate Shaw, and was co-hosted by the Immigration Justice Clinic and OUTLaw.

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 …

A Life Absolutely Bare? A Reflection On Resistance By Irregular Refugees Against Fingerprinting As State Biopolitical Control In The European Union, Ziang Zhou

Claremont-UC Undergraduate Research Conference on the European Union

In a legally transitory category, irregular refugees- experience a double precariousness. They risk their lives to travel across treacherous seas to Europe for a better life. However, upon the long-awaited embarkation on the European land, they are exposed once again to the precariousness of the asylum application. They are “powerless”, “with no rights” and “to be sacrificed” as Giorgio Agamben and Hannah Arendt suggested in their respective understanding of a “bare life”, la nuda vita. In light of the administrative difficulties in managing asylum application, the European Union introduced the “Dublin Agreement”, which stipulates mandatory biometric data collection for …

The Consideration Of Male Victims Of Sexual Violence As A Subset Of The Particular Social Group “Homosexual” In Adjudicating Asylum Claims, Christiana Desrosiers

Pace International Law Review

This Article analyzes the difficulties African male victims of sexual violence experience when seeking asylum in homophobic host countries and the lack of attention they receive from international and national governments and organizations. It concludes by recommending that male victims of sexual violence be able to seek asylum in host countries due to lack of medical care that they receive in their countries on account of imputed homosexual status.

Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel

Michigan Journal of Race and Law

Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the Supreme Court determined …

Involuntary Sterilization Among Hiv-Positive Garifuna Women From Honduras Seeking Asylum In The United States: Two Case Reports, Holly G. Atkinson, Deborah Ottenheimer

Publications and Research

Voluntary sterilization is one of the most widely used forms of contraception by women worldwide; however, involuntary sterilization is considered a violation of multiple human rights and grounds for asylum in the United States. Women have been disproportionately affected by this practice. We report two cases of involuntary sterilization in HIV-positive Garifuna women from Honduras who sought asylum in America and were medically evaluated at the request of their attorneys. Key lessons can be drawn from these cases with regard to the importance of medical evaluations in establishing persecution. These include the need for a detailed account of the events …

Sky Is The Limit: Protecting Unaccompanied Minors By Not Subjecting Them To Numerical Limitations, Deborah Gonzalez

Law Faculty Scholarship

No abstract provided.

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.”

Administrative Chaos: Responding To Child Refugees - U.S. Immigration Process In Crisis, Lenni Benson

Articles & Chapters

The Immigration court is the wrong forum to consider the protection needs of migrant children. Worse still, our multiple agencies that adjudicate parts of children’s cases combined with the rapidly shifting policies are causing administrative chaos for the children and the system.

Sessions’ New Asylum Posture & Lgbtq Refugees, Arthur S. Leonard

Other Publications

No abstract provided.

Faith-Based Approaches To Asylum: New Appeals To Accountability? Using Faith-Based Principles As Soft Law, Jinan Bastaki

Biennial Conference: The Social Practice of Human Rights

Can a faith-based approach encourage states to provide greater protection for those seeking refuge and asylum? In response to the fleeing of Syrian refugees to Turkey, Turkish President Recep Tayyip Erdogan stated numerous times that the Turkish were the anṣār — an Arabic word loosely translated as ‘supporters’ or ‘champions’ — of the Syrian refugees, making the reference to the people of the city of Medina who offered refuge and a home to Prophet Muhammad and his followers fleeing the persecution of Mecca.

The reference to the anṣār of Muhammad gives the impression that Turkey’s act of welcoming …

Examining The Board Of Immigration Appeals' Social Visibility Requirement For Victims Of Gang Violence Seeking Asylum, Elyse B. Wilkinson

Maine Law Review

Since the late 1990s, Latin America has been plagued by gang violence. The increasingly organized and progressively larger gangs are known as the Mara Salvatrucha 13 (MS-13) and the 18th Street Gang (collectively referred to as the “Mara” in this Comment). These gangs are ubiquitous within certain Latin American countries and pose a serious threat to the economic and social stability of the region. The targets of the Mara are mostly youth between the ages of fifteen and eighteen (but as young as eight), women, and those who decry the gang's violence. Resistance to the Mara has resulted in death …

50 Years Was Too Long To Wait: The Syrian Refugee Crisis Has Highlighted The Need For A Second Optional Protocol To The 1951 Convention Relating To The Status Of Refugees, Yvonne S. Brakel, Rachel E. Kester, Samantha L. Potter

University of Arkansas at Little Rock Law Review

No abstract provided.

The Path Of Most Resistance: Resisting Gang Recruitment As A Political Opinion In Central America’S Join-Or-Die Gang Culture, Ericka Welsh

Pepperdine Law Review

In recent years, increasing numbers of asylum-seekers from Honduras, Guatemala, and El Salvador crossed into the United States, fleeing gang violence that has driven homicide rates to record levels. These countries, known collectively as the “Northern Triangle,” now make up one of the most violent regions in the world. Transcending petty crime, gangs control entire communities in the Northern Triangle where they operate as de facto governments beyond law enforcement’s control. Gangs practice forced recruitment in these communities, creating a join-or-die gang culture where resisting recruitment is tantamount to opposition. Opposition, in turn, is met with brutal retaliation. The young …

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

Faculty Scholarship

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 …

Immigrating While Trans: The Disproportionate Impact Of The Prostitution Ground Of Inadmissibility And Other Provisions Of The Immigration And Nationality Act On Transgender Women, Luis Medina

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Judge Posner's Road Map For Convention Against Torture Claims When Central American Governments Cannot Protect Citizens Against Gang Violence, Steven H. Schulman

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

A-R-C-G- Is Not The Solution For Domestic Violence Victims, Lizbeth Chow

Catholic University Law Review

For over fifteen years, U.S. immigration authorities and courts have grappled with the idea of domestic violence as a basis for asylum. But in 2014, the Board of Immigration Appeals (BIA) issued a decision indicating that victims of domestic violence may qualify for asylum. This Comment assesses the BIA’s decision and concludes that it is ultimately ineffective. This Comment further suggests that the only practical solution is for Congress to intervene. This Comment first provides a brief historical overview of asylum law to help elucidate the purpose of asylum law. It also provides an in-depth review of the elements needed …

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 …

The Shibboleth Of Discretion: The Discretion, Identity, And Persecution Paradigm In American And Australian Lgbt Asylum Claims, Heather Kolinsky

UF Law Faculty Publications

Part II of this paper will examine and compare how the LGBT asylum process has evolved—specifically vis-à-vis identity and discretion—in the United States and Australia, which can help highlight some of the issues driven by improper application of Western essentialist LGBT definitions on asylum claims. Part II will also analyze the concepts of refugee and asylum law internationally, as well as the concerns of the gay international community with respect to asylum law globally. Parts III and IV will review the asylum process for LGBT asylum applicants in the United States and Australia, respectively—with a focus on identity, discretion, and …

A Global Solution To A Global Refugee Crisis, James C. Hathaway

Articles

The author argues that the time is right to change the way that refugee law is implemented. Specifically, Hathaway advocates a shift towards a managed and collectivized approach to the implementation of refugee protection obligations. He contends that while the obligations under the Convention remain sound, the mechanisms for implementing those obligations are flawed in ways that too often lead States to act against their own values and interests, and which produce needless suffering amongst refugees. The author concludes with a five-point plan to revitalize the Refugee Convention.

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

Michigan Journal of International Law

Refugee status at international law requires more than demonstration of a risk of being persecuted. Unless the risk faced by an applicant is causally connected to one of five specified attributes – his or her race, religion, nationality, membership of a particular social group, or political opinion – the claim to be a refugee must fail. Because the drafters of the Refugee Convention believed that the world’s asylum capacity was insufficient to accommodate all those at risk of being persecuted, they opted to confine the class of refugees to persons whose predicament stems from who they are, or what they …

Limiting Deterrence: Judicial Resistance To Detention Of Asylum-Seekers In Israel And The United States, Michael Kagan

Scholarly Works

Governments have advanced the argument that asylum-seekers may be detained in order to deter other would-­be asylum­-seekers from coming. But in recent litigation in the United States and Israel, this justification for mass detention met with significant resistance from courts. This Essay looks at the way the American and Israeli courts dealt with the proposed deterrence rationale for asylum-seeker detention. It suggests that general deterrence raises three sequential questions:

1. Is deterrence ever legitimate as a stand alone justification for depriving people of liberty?

2. If deterrence is sometimes legitimate, is it valid as a general matter in migration control, …

The Michigan Guidelines On Risk For Reasons Of Political Opinion

Michigan Journal of International Law

The Convention relating to the Status of Refugees (“Convention”) recognizes as refugees those who, owing to a well-founded fear of being persecuted on the basis of inter alia “political opinion,” are unable or unwilling to avail themselves of the protection of their home country

No Country For Some Men?: Statelessness In The United States And Lessons From The European Union, Lia G. Melikian

Georgia Journal of International & Comparative Law

No abstract provided.

Understanding Disability Under The Convention On The Rights Of Persons With Disabilities And Its Impact On International Refugee And Asylum Law, Vandana Peterson

Georgia Journal of International & Comparative Law

No abstract provided.

A Presumption Of Disclosure: Towards Greater Transparency In Asylum Proceedings, Rose Linton

Seattle University Law Review

Every day, Asylum Officers (AOs) and Immigration Judges (IJs) hear cases to determine if the asylum seeker has a genuine claim to protection under the Refugee Act, which prohibits returning a refugee to a country where her life or freedom is threatened due to race, religion, political opinion, nationality, or membership in a particular social group. AOs and IJs are aware that their decision may mean life or death for an asylum seeker. They are also aware that false claims are “distressingly common,” that unscrupulous attorneys and unauthorized practitioners of immigration law have perpetrated fraudulent asylum schemes, and that granting …