Immigration Law Commons^™

Human Rights Of Migrants: The Dawn Of A New Era?, Ryszard Cholewinski

International Migrants Bill of Rights Symposium

The purpose of this article is to highlight a number of key legal and policy developments which have occurred since the turn of the twenty-first century and to reflect on how these have and may advance the protection of the human rights of migrants. This article is optimistic and forward-looking in tenor, although the generally positive developments discussed do not necessarily mean that abuses of migrants and violations of their rights are no longer taking place. Nonetheless, if ten years of relatively intense activity can be viewed as a sound measure of progress, there is some cause for optimism that …

International Migrants Bill Of Rights, Georgetown University Law Center, International Migrants Bill Of Rights Initiative

Georgetown Law Student Series

The International Migrants Bill of Rights (hereinafter IMBR) is the result of a two-year collaboration between students at the American University in Cairo, Georgetown University Law Center, and Hebrew University in Jerusalem. The IMBR is a dynamic blueprint for the protection of the rights of migrants, drawing from all areas of international law, including treaty law, customary international law, areas of State practice and best practices. The IMBR posits a group of rights that are “universal, interdependent and interrelated,” and that populate the continuum from hard to hortatory. Yet even as the result projects a framework for migrants’ rights that …

Rejecting Refugees: Homeland Security's Administration Of The One-Year Bar To Asylum, Andrew I. Schoenholtz, Philip G. Schrag, Jaya Ramji-Nogales, James P. Dombach

Georgetown Law Faculty Publications and Other Works

Since 1980, the Refugee Act has offered asylum to people who flee to the United States to escape persecution in their homeland. In 1996, however, Congress amended the law to bar asylum – regardless of the merit of the underlying claim – for any applicant who fails to apply within one year of entering the United States, unless the applicant qualifies for one of two exceptions to the rule.

In the years since the bar was established, anecdotal reports have suggested that genuine refugees, with strong merits claims to asylum, have been rejected solely because of the deadline. Many scholars …

“To Remand, Or Not To Remand”: Ventura’S Ordinary Remand Rule And The Evolving Jurisprudence Of Futility, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

It is a foundational principle of administrative law that a reviewing court should not dispose of a petition for review or appeal on grounds not relied upon by the agency, and should not reach issues in the first instance not addressed administratively. In such circumstances, there is a strong presumption that the reviewing court should remand the case to the agency for further proceedings rather than reach out to decide the disputed issues. The United States Supreme Court explicitly extended operation of the “ordinary remand rule” to the immigration context in its 2002 decision in INS v. Ventura. Notwithstanding subsequent …

Asylum In A Different Voice: Judging Immigration Claims And Gender, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

An extensive statistical study of disparities in asylum adjudication throughout the United States reveals gross disparities in rates of asylum grants by region of country, experience of adjudicators, prior employment, and other factors. One of the most robust findings was one of gender disparities in adjudication rates. If the adjudicator of claims for asylum was female there was a 44% greater likelihood that asylum would be granted. This chapter in the book reporting these findings reflects on this significant finding of gender differences in judging and discusses, in light of the author's prior work on gender differences in lawyering, whether …

Improving Immigration Adjudications Through Competent Counsel, Andrew I. Schoenholtz, Hamutal Bernstein

Georgetown Law Faculty Publications and Other Works

The immigration adjudication system in the United States is in serious need of reform. While much attention has focused on one of the principal adjudicators, the Immigration Judges, recent research conducted by Philip Schrag, Jaya Ramji-Nogales, and Andrew Schoenholtz has shown that policymakers and adjudicators should be examining all levels of decision making. This includes not only decisions at the Immigration Court level but also at the Asylum Office, the Board of Immigration Appeals and the Circuit Courts. In Refugee Roulette: Disparities in Asylum Adjudication, the authors found a troubling degree of inconsistency at all levels that track individual …

Refugee Roulette: Disparities In Asylum Adjudication, Andrew I. Schoenholtz, Jaya Ramji-Nogales, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This study analyzes databases of merits decisions from all four levels of the asylum adjudication process: 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4215 decisions of the U.S. Courts of Appeal during 2004 and 2005. The analysis reveals significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country. In many cases, the most important moment in an asylum …

The Idea Of Humanity: Human Rights And Immigrants' Rights, David Cole

Georgetown Law Faculty Publications and Other Works

This essay asks whether international human rights arguments are likely to be effective in advancing immigrants' rights in the United States. There are certainly reasons to be pessimistic. Despite its history as a nation of immigrants and the ever-increasing diversity of its populace, the United States remains a deeply parochial and nationalist culture. International human rights arguments are often seen as the advocates' last refuge. In the absence of an international forum that can hold the United States accountable, and in the face of Congressional directives that the international human rights treaties it has ratified are not self-executing, international human …

Alien Gang Removal Act Of 2005: Hearing Before The H. Comm. On The Judiciary, 109th Cong., June 28, 2005 (Statement Of David D. Cole, Prof. Of Law, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

Oversight Of The Usa Patriot Act: Hearing Before The S. Comm. On The Judiciary, 109th Cong., Apr. 5, May 10, 2005 (Statement Of David D. Cole, Prof. Of Law, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

Refugee Protection In The United States Post-September 11, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

The U.S. refugee resettlement program, was the first refugee protection casualty of the terrorist attacks. American officials perceived resettlement as being particularly vulnerable to security problems. That was not the case with the other major U.S. refugee protection program, the asylum system. That system was effectively revamped in 1995 to address a variety of abuses, in part connected to individuals involved in the 1993 World Trade Center bombing. Yet, even though official attention did not focus on asylum, subtle, significant changes have occurred. This article delineates and assesses these changes by closely examining data and developments at all levels of …

Aiding Terrorists: Hearing Before The S. Comm. On The Judiciary, 108th Cong., May 5, 2004 (Statement Of David D. Cole, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

Arthur C. Helton 1949-2003, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

Through his advocacy, teaching and scholarship, Arthur Helton enabled some of the most vulnerable people on earth, as well as those who work to advance their rights, to ensure that governments strive to live up to their legal and moral obligations to protect and assist the displaced.

Their Liberties, Our Security: Democracy And Double Standards, David Cole

Georgetown Law Faculty Publications and Other Works

Some maintain that a "double standard" for citizens and noncitizens is perfectly justified. The attacks of September 11 were perpetrated by nineteen Arab noncitizens, and we have reason to believe that other Arab noncitizens are associated with the attackers and will seek to attack again. Citizens, it is said, are presumptively loyal; noncitizens are not. Thus, it is not irrational to focus on Arab noncitizens. Moreover, on a normative level, if citizens and noncitizens were treated identically, citizenship itself might be rendered meaningless. The very essence of war involves the drawing of lines in the sand between citizens of our …

The State Of Asylum Representation: Ideas For Change, Andrew I. Schoenholtz, Jonathan Jacobs

Georgetown Law Faculty Publications and Other Works

The plight of refugees-those who flee persecution-touches a chord with Americans, who have supported both a substantial overseas resettlement program and a fair system for asylum seekers. U.S. laws provide a seemingly full opportunity for asylum applicants to explain their fear or actual experience of persecution. In fact, the U.S. offers an extensive process of interviews, hearings, and appeals to ensure that bona fide refugees are not sent back to their persecutors. The substantive law, too, has been developed considerably through administrative and judicial precedents. But how meaningful is a process that, no matter how extensive and developed, leaves asylum …

Terrorizing Immigrants In The Name Of Fighting Terrorism, David Cole

Georgetown Law Faculty Publications and Other Works

It is often said that civil liberties are the first casualties of war. It may be more accurate to say that immigrants' civil liberties are the first to go. In the wake of the devastating terrorist attacks of September 11, we all feel vulnerable in ways that we have never felt before, and many have argued that we may need to sacrifice our liberty in order to purchase security. In fact, however, what we have done is to sacrifice the liberties of some-immigrants, and especially Arab and Muslim immigrants-for the purported security of the rest of us. This double standard …

In Aid Of Removal: Due Process Limits On Immigration Detention, David Cole

Georgetown Law Faculty Publications and Other Works

In this Article, I seek to demonstrate the radical consequences that taking due process seriously would have for immigration detention as currently practiced. Part I lays out the general principles that apply to civil preventive detention, which establish that substantive due process is violated without an individualized showing after a fair adversarial hearing that there is something to prevent, namely danger to the community or flight. Part II applies this general framework to immigration detention. It first demonstrates, by a review of Supreme Court decisions, that the Court has applied the same due process principles to immigration detention that it …

Brief Amici Curiae Of Legal Historians Listed Herein In Support Of Respondent, I.N.S. V. St. Cyr, No. 00-767 (U.S. Mar. 27, 2001), ., James Oldham

U.S. Supreme Court Briefs

No abstract provided.

Secret Trials, David Cole

Georgetown Law Faculty Publications and Other Works

Today, U.S. immigration authorities use secret evidence to lock up immigrants in deportation proceedings, to exclude aliens at the border, and to oppose applications for "relief from deportation," including asylum.

Secrecy, Guilt By Association, And The Terrorist Profile, David Cole

Georgetown Law Faculty Publications and Other Works

In this essay, I will argue that the use of secret procedures and guilt by association in immigration trials is not only unconstitutional but counterproductive. I will begin with a case study, then discuss in turn the practices of secret evidence and guilt by association, and finally conclude with a consideration of how these two tactics perpetuate invidious stereotypes about Arabs and Muslims.

Secret Evidence Repeal Act Of 1999, Part 2: Hearing Before The H. Comm. On The Judiciary, 106th Cong., May 23, 2000 (Statement Of David D. Cole, Prof. Of Law, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

Asylum In Practice: Successes, Failures, And The Challenges Ahead, Susan Martin, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

The Workshop on Refugee and Asylum Policy in Practice in Europe and North America was organized to facilitate a transatlantic dialogue aimed at understanding just how well these asylum systems are balancing the dual goals. The Workshop was convened by the Institute for the Study of International Migration (ISIM) of Georgetown University and the Center for the Study of Immigration, Integration and Citizenship Policies (CEPIC) of the Centre Nationale de Recherche Scientifique, with the support of the German Marshall Fund of the United States. It was held on July 1-3, 1999, at Oxford University.

The workshop examined key issues …

Report On The Workshop On Refugee And Asylum Policy In Practice In Europe And North America, Randall Hansen, Susan Martin, Andrew I. Schoenholtz, Patrick Weil

Georgetown Law Faculty Publications and Other Works

Western nations have struggled to accomplish the dual goals of refugee and asylum policies: (1) identifying and protecting Convention refugees as well as those fleeing civil conflict; and (2) controlling for abuse. The Workshop on Refugee and Asylum Policy in Practice in Europe and North America was organized to facilitate a transatlantic dialogue to explore just how well these asylum systems are balancing the dual goals. The workshop exa!llined key elements of the U.S. and European asylum systems: decision making on claims, deterrence of abuse, independent review, return of rejected asylum seekers, scope of the refugee concept, social rights and …

Secret Evidence Repeal Act Of 1999, Part 1: Hearing Before The H. Comm. On The Judiciary, 106th Cong., Feb. 10, 2000 (Statement Of David D. Cole, Prof. Of Law, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

Beyond The Supreme Court: A Modest Plea To Improve Our Asylum System, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

Moderating a session at the Workshop on the Supreme Court and Immigration and Refugee Law at the Georgetown University Law Center, Peter Spiro asked just how important the Supreme Court really is to refugee and immigration law. Unfortunately, the Supreme Court has actively interpreted the Refugee Convention and Protocol, and its decisions have had an adverse affect on important protection issues. James Hathaway knows this well. Yet his article focuses on the two Supreme Court decisions that most practitioners and scholars agree have not translated into serious protection problems in the United States or abroad.

Temporary Protection: Towards A New Regional And Domestic Framework, Susan Martin, Andrew I. Schoenholtz, Deborah Waller Meyers

Georgetown Law Faculty Publications and Other Works

During the past thirty-five years, the United States has seen the direct influx of thousands of individuals leaving politically unstable countries. While some seeking entry have proved themselves to be refugees and obtained permanent protection in the United States, far more, including a large number of people fleeing civil war, natural disasters, or comparable forms of upheaval in their home countries, have failed to demonstrate that they would be targets of persecution. Yet, their return to their home countries has been complicated by the very circumstances that led to their flight: conflict, violence, and repression. Over time, the United States …

The Summary Affirmance Proposal Of The Board Of Immigration Appeals, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

The Board of Immigration Appeals is on the verge of making a tragic mistake, trading away a key element of fair adjudication--the written opinion--for the sake of what it hopes will be greater administrative efficiency. The cost of eliminating written adjudication is too great, and the Board has given no indication that it has sufficiently canvassed less drastic alternatives.

The Board of Immigration Appeals (the "Board") is the primary appellate body for immigration law. The "staple" of its work is to decide appeals from decisions of Immigration Judges in removal proceedings, though it also hears appeals in several other categories, …

Unaccompanied Children In I.N.S. Detention, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

It is important to note that children who end up in INS detention centers in the United States are not criminal detainees, but rather, administrative detainees. That is, they are not being held because they are accused or convicted of crimes. They are being held for two reasons only. First, the INS holds them in order to ensure their presence at immigration proceedings. They fear that if they let a child out, into foster care for instance, that child might not appear at any subsequent hearings or proceedings. Second, the government is legally required to look after these children in …

The Summary Affirmance Proposal Of The Board Of Immigration Appeals, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

The Board of Immigration Appeals is on the verge of making a tragic mistake, trading away a key element of fair adjudication-the written opinion-for the sake of what it hopes will be greater administrative efficiency. The cost of eliminating written adjudication is too great, and the Board has given no indication that it has sufficiently canvassed less drastic alternatives.

The Board of Immigration Appeals (the "Board") is the primary appellate body for immigration law. The "staple" of its work is to decide appeals from decisions of Immigration Judges in removal proceedings, though it also hears appeals in several other categories, …

Skeptical Scrutiny Of Plenary Power: Judicial And Executive Branch Decision Making In Miller V Albright, Cornelia T. Pillard, T. Alexander Aleinikoff

Georgetown Law Faculty Publications and Other Works

In 1996, just a few months after the United States successfully urged the Supreme Court in United States v. Virginia to invalidate as sex-discriminatory the male-only admissions policy at the Virginia Military Institute, the District of Columbia Circuit in Miller v. Albright upheld a federal law that used an express, sex-based distinction. Section 309(a) of the Immigration and Nationality Act (INA) makes it harder for male U.S. citizens than for female citizens to convey their citizenship to their children if those children were born abroad out of wedlock and the other parent was not a U.S. citizen. Notwithstanding the United …