International Humanitarian Law Commons^™

Enter At Your Own Risk: Criminalizing Asylum-Seekers, Thomas M. Mcdonnell, Vanessa H. Merton

Elisabeth Haub School of Law Faculty Publications

In nearly three years in office, President Donald J. Trump’s war against immigrants and the foreign-born seems only to have intensified. Through a series of Executive Branch actions and policies rather than legislation, the Trump Administration has targeted immigrants and visitors from Muslim-majority countries, imposed quotas on and drastically reduced the independence of Immigration Court Judges, cut the number of refugees admitted by more than 80%, cancelled DACA (Deferred Action for Childhood Arrivals), and stationed Immigration Customs and Enforcement (“ICE”) agents at state courtrooms to arrest unauthorized immigrants, intimidating them from participating as witnesses and litigants. Although initially saying that …

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 …

Zhu And Chen Revisited: An Update On The Ecj’S Jurisprudence On The Derivative Rights Of Third-Party Nationals, David H. King

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

'Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills

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

Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed White supremacist reaction to the nation’s first Black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore the roots …

North Korean Defectors In South Korea And Asylum Seekers In The United States: A Comparison, Emma Poorman

Northwestern Journal of Human Rights

North Korean defectors are considered citizens of South Korea under the South Korean Constitution, while others that flee violence gain the legal status of “refugee.” North Korean defectors, who attempt to escape one of the worst human rights crises in the world, find themselves in a unique situation. What benefits does this status have? How are refugees typically treated abroad, such as in the United States? This Comment will explore this unique status, how it differs from refugee status in the United States, and the challenges North Korean defectors face in South Korea.

A Credible Fear: The Politics Of Gang Violence In The Northern Triangle, Jane E. Dowd

Dissertations, Theses, and Capstone Projects

This thesis will create an argument for how the victims of gang violence from the Northern Triangle nations of El Salvador, Guatemala, and Honduras qualify for asylum in the United States based on a well-founded fear of persecution. An analysis of the legal framework of the asylum system in the United States, profiles of the two largest gangs in the Northern Triangle the Mara Salvatrucha and Barrio 18, a profile of the asylum seekers arriving at the United States border, the criminal activity that the gangs engage in, and the way that this activity is political in nature will form …

Becoming Unconventional: Constricting The 'Particular Social Group' Ground For Asylum, Fatma Marouf

Faculty Scholarship

Part I of this Article provides a brief background about the evolution of the PSG ground in the United States and how it has become increasingly complicated and constricted over time. Part II discusses several ways that recent administrative decisions have imposed uniquely strict requirements for PSG-based asylum claims, both procedurally and substantively. Namely, the recent decision of the Board of Immigration Appeals ("BIA") in Matter of W-Y-C- & H-O-B- creates two new procedural restrictions. First, it imposes an exceedingly strict pleading standard in PSG cases by requiring "exact delineation" of the PSG. Second, Matter of W-Y-Cprohibits asylum seekers 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.

A Step Too Far: Matter Of A-B-, "Particular Social Group," And Chevron, Jaclyn Kelley-Widmer, Hillary Rich

Cornell Journal of Law and Public Policy

Every day, thousands of Central American asylum seekers, many fleeing persecution from domestic abusers and gangs, attempt to seek refuge in the United States. To receive asylum, those escaping such violence typically must show membership in a "particulars social group." In Matter of A-B-, issued in June 2018, then-Attorney General Jefferson B. Sessions III attempted to destroy the viability of domestic-violence-related particular social groups altogether. As we demonstrate in this Article, this far-reaching decision should not receive Chevron deference from reviewing courts.

A-B- is concerning both for its potentially calamitous effect on individuals fleeing domestic and gang violence and for …

Barriers To Due Process For Indigent Asylum Seekers In Immigration Detention, Cindy S. Woods

Mitchell Hamline Law Review

No abstract provided.

Withholding Protection, Lindsay M. Harris

Journal Articles

In June 2018, President Trump wrote a pair of tweets en route to his golf course, calling for “no Judges or Court Cases” at our border and swift deportation of immigrants, essentially without due process. While immigrant advocates were quick to explain the myriad constitutional problems with this proposal, elements of Trump’s dream are already a reality. This Article reveals how a single Customs and Border Protection officer can short-circuit the checks and balances prescribed by U.S. and international law to protect refugees from being returned to harm, and cast a long shadow over a future, meritorious asylum claim. In …

Defining Detention: The Intervention Of The European Court Of Human Rights In The Detention Of Involuntary Migrants, Anita Sinha

Scholarly Articles in Law Reviews & Journals

This Article examines the European Court of Human Rights' intervention in the detention of involuntary migrants. It analyzes the use of "carceral migration control" in response to a migration "crisis," and argues that the actual crisis in the region is one of politics and policies rather than the magnitude of migration. It explores the consequences of a crisis moniker for migration, including shortsighted migration policies, entrenched caricatures of migrants as threatening, and excessive emphasis on punitive rather than humanitarian responses. Responding to migration as a crisis has led states in Europe and elsewhere to shift the movement of people across …

The Price Is Rights: Getting The United Arab Emirates Up To International Speed In The Labor Law Department, Janae C. Cummings

Brooklyn Journal of International Law

Despite a rapidly growing economy and a tremendous accumulation of wealth, the United Arab Emirates has facilitated many human rights abuses against migrant workers from impoverished countries throughout the world. The UAE’s system of recruitment, payment and living conditions put already vulnerable populations in considerably worse economic conditions by exploiting their labor and creating significant barriers to challenging the unjust employment system. After being sold on the idea that migrating to the UAE would bring a semblance of economic advancement, many migrants find themselves in inhumane working conditions and debt from having to pay excessive amounts of money to recruitment …

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 Search For Protection For Stateless Refugees In The Middle East: Palestinians And Kurds In Lebanon And Jordan, Susan M. Akram

Faculty Scholarship

Most Arab countries have not ratified the 1951 Refugee Convention/1967 Protocol or the 1954 Convention on the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness has no ratifications in the Middle East. While regional conventions dealing with refugees in the Arab world have been developed, they have been honoured primarily in the breach. Further, many Arab countries do not have domestic laws governing the status of refugees or stateless persons per se, but have applied ad hoc policies to the waves of refugees that have entered and stayed – some for decades – in …

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.

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

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

Abstract forthcoming

Re-Victimization And The Asylum Process: Jimenez Ferreira V. Lynch: Re-Assessing The Weight Placed On Credible Fear Interviews In Determining Credibility, Alana Mosley

Minnesota Journal of Law & Inequality

No abstract provided.

Due Process And The Right To Legal Counsel For Unaccompanied Minors, Marielos G. Ramos

Dissertations, Theses, and Capstone Projects

Unaccompanied minors arriving to the United States fleeing violence and seeking protection are apprehended, detained in facilities, and placed in removal proceedings in accordance with U.S. immigration laws. Like adults, these children have to appear in immigration court to fight deportation and must apply for any form of legal relief for which they may be eligible. However, removal proceedings work as a civil and not a criminal process, and immigration laws have established that while noncitizens have the right to an attorney, they are not entitled to legal counsel at the government’s expense. This thesis examines how the denial of …

Fulfilling U.S. Commitment To Refugee Resettlement: Protecting Refugees, Preserving National Security, & Building The U.S. Economy Through Refugee Admissions, Harvard Immigration And Refugee Clinical Program

Texas A&M Law Review

At a time when the U.S. refugee admissions program is under serious threat and the world’s displaced population is at its highest, this Report sets forth extensive recommendations regarding the United States’ role in protecting vulnerable refugees and compliance with its commitments under domestic and international law that together safeguard people fleeing persecution and fearing return to torture. The Report also identifies key national security reasons for supporting and enhancing the refugee program in keeping with U.S. foreign policy priorities. Additionally, the Report provides an in-depth discussion of the robust, multistep security-assessment mechanisms already in place for screening refugees; offers …

Corporate Liability For Human Rights Violations: The Future Of The Alien Tort Claims Act, Milena Sterio

Law Faculty Articles and Essays

This paper addresses complex legal issues in light of and in the context of Jesner v. Arab Bank, a case involving the scope of corporate liability for human rights abuses under the Alien Tort Claims Act (ATCA). Part I provides a brief overview of the Jesner case. Part II outlines the case Kiobel v. Royal Dutch Petroleum Co. and its holding. Part III discusses Kiobel's shortcomings, including the vagueness of its "touch and concern" test and its failure to specify which law—international or domestic—applies to the issue of corporate liability under the ATCA. Part IV then proposes other …

Finding The Forum That Fits: Child Immigrants And Fair Process, Lenni Benson

Roger Williams University Law Review

No abstract provided.

The End Of Special Treatment For Cubans In The U.S. Immigration System: Consequences And Solutions For Cubans With Final Orders Of Removal, Lindsay Daniels

Dickinson Law Review (2017-Present)

In January 2016, former President Obama announced the end of the “Wet-Foot, Dry-Foot” Policy, which granted special immigration benefits to Cuban migrants. As part of the agreement to end this policy, the Cuban government agreed to take back its citizens with final orders of removal for criminal convictions, an action that it had refused to take for decades. This Comment will begin by exploring past and present immigration policies between the United States and Cuba, including recent developments like the normalization of relations and the impact of President Trump’s immigration policies.

This Comment will then explore possible avenues of relief …

Borders, Bans, And Courts In The European Union, Maryellen Fullerton

Roger Williams University Law Review

No abstract provided.

Truth Or Dare: A Framework For Analyzing Credibility In Children Seeking Asylum, Karen Smeda

Cornell Law Library Prize for Exemplary Student Research Papers

U.S. border agents detained at least 52,000 unaccompanied minors from only four Central American countries—Mexico, Guatemala, El Salvador, and Honduras—in 2014, while 95,000 unaccompanied children sought asylum in Europe in 2015. Given the ongoing turmoil in various parts of the world, these numbers will likely rise. Children are narrowly escaping their native countries. With little help available from legal counsel and little time to gather supporting evidence, more children are relying on the gamble of a positive credibility assessment in an asylum application.

The stakes are high—either a new life in the United States, or probable fatality at home if …

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.

Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson

VA Engage Journal

The immigration legal system exists as a function of the executive branch rather than the judicial branch, and many of the constitutional rights guaranteed in a judicial court do not continue into the immigration legal sphere. Noncitizen defendants in the immigration court system are not guaranteed the same due process rights or right to appointed counsel as United States citizens, which severely limits their chance of a successful outcome. Moreover, while many noncitizens await their trials in these courts, they are often placed in one of the 234 immigration detention facilities across the nation, which further exacerbates the direness of …

Operation Sojourner: The Government Infiltration Of The Sanctuary Movement In The 1980s And Its Legacy On The Modern Central American Refugee Crisis, Kristina M. Campbell

Journal Articles

This Article will discuss “Operation Sojourner,” the federal government’s covert infiltration, and subsequent criminal prosecution, of persons involved in the Sanctuary Movement in the 1980s, as well as its impact on the modern Sanctuary Movement in Arizona and the Southwest occurring in response to the current Central American refugee crisis. Section I will provide an overview of the Sanctuary Movement in the 1980s, and the general religious beliefs and philosophies of those involved in the movement. Section II will discuss the genesis of Operation Sojourner by the former Immigration and Nationality Service (INS) in the early 1980s, and the criminal …

War/Crimes And The Limits Of The Doctrine Of Sources, Steven R. Ratner

Book Chapters

International humanitarian law (IHL) and international criminal law (ICL) are the product of lawmaking processes that are not captured in the black-letter doctrine of sources under which Article 38 of the ICJ Statute is the rule of recognition for international law. Despite efforts by certain institutional players and scholars to place these two regimes squarely within Article 38, both remain distinct in terms of how actors determine whether a purported rule is a legal rule. These distinctions constitute a challenge to the idea of a unified rule of recognition and argue instead for looking for indicators (not rules) about a …

Response To Professor Holper's Article, "Redefining 'Particularly Serious Crimes' In Refugee Law", Fatma Marouf

Faculty Scholarship

An individual who faces a significant risk of persecution in her home country is barred from asylum in the United States if she is convicted of a “particularly serious crime” (“PSC”). Despite the grave consequences of such a conviction, there is relatively little scholarship exploring how a PSC should be defined. The term, which comes from the UN Refugee Convention, was incorporated into the Immigration and Nationality Act in 1980.

Professor Holper’s article, Redefining “Particularly Serious Crimes” in Refugee Law, makes an important contribution to the literature by showing how the historical trajectory of the PSC definition mirrors the “severity …