Aspen, Paris, Barcelona, Vail!: International Law Issues in Immigration Cases

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1 Aspen, Paris, Barcelona, Vail!: International Law Issues in Immigration Cases Dagmar Butte (DL), Portland, OR Grace Meng, New York, NY Anna W. Shavers, Lincoln, NE Public International Law 101 Public International Law consists of Primary Treaties Rules of Customary Law General Principles of Law Subsidiary Case Law Scholarly Writings Treaties and Conventions Multilateral or Bi-Lateral Is it Law Yet? sign, ratify, enter into force, reservation, domestic implementation Vienna Convention on the Law of Treaties Pacta Sunt Servanda Ordinary Meaning Traveaux Preparatories Post Conclusion Practice and Implementation

2 Customary Law State Practice Opinio Juris Custom From Treaties Pre-Emption General Principles Of general application Recognized in different types of legal systems Examples include estoppel, force majeure, duress, necessity Case Law & Scholars No stare decisis Scholars must be highly qualified Helps in determining what the law is Where does the UN G.A. fit in?

3 Jus Cogens What is It Universal and Fundamental Is it a Magic Bullet? Pre-Emption Private Right of Action International Courts Why Immigrant Stories Matter: the Human Rights Case for Family Unity, Proportionality, and Fairness in Deportation

4 International Covenant on Civil and Political Rights Signed 1977, ratified 1992 "Existing U.S. Law generally complies with the covenant; hence, implementing legislation is not contemplated. S. Exec. Rep. No , at 19 (1992) Specific Rights Right to be Free from Arbitrary and Indefinite Detention Art. 9 Proportionality Right to Raise Defenses to Deportation Art. 13 Right to Remedies for Victims Arts. 2, 3, 6, 7, 14, 16, 26 Right to Family Unity Arts. 17 (1), 23 Right to a Private Life Art. 17 Interpretations of These Rights by International Courts Decisions are not binding on U.S. adjudicators, but should be considered persuasive in determining U.S. obligations UN Human Rights Committee Decides cases under ICCPR European Court of Human Rights The UN HRC finds European Court interpretations of Art. 8 of European Convention persuasive when interpreting similar provisions in ICCPR

5 UN Human Rights Committee Cases Family unity imposes limits on a states power to deport Winata v. Australia (2001) Indonesian parents overstayed visa in Australia for 14 years 13-year-old son was an Australian citizen Strong family ties to Australia and impact on son led HRC to rule deportation would be an arbitrary interference with the family under Art. 17 and 23 of the ICCPR, and failure to provide necessary measures to protect a minor under Art. 24. Madaferri v. Australia (2004) Italian married to Australian and 4 Australian children Ruled deportable for prior minor criminal convictions in Italy The State interest outweighed by positive equities, lack of children s cultural/linguistic ties to Italy and the age of the crimes. European Court of Human Rights Cases State s interference in petitioner s private life must be justified and proportionate to State s interest. C v. Belgium (1996) Petitioner s private life included real social ties in Belgium, such as education. Ultimately ruled his serious crime outweighed countervailing factors, but only after a hearing that weighed his right to a private life against his crime. Boultif v. Switzerland (2001) Algerian national would be separated from his Swiss wife if deported for a criminal conviction. Court held countries should weigh several factors: the nature and seriousness of the offense; length of stay in the host country; rehabilitation; spousal relationships; existence of children; and potential difficulties family members would face in relocating. But Can International Human Rights Arguments Win in the U.S.? The Bad: Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) Alien Tort Statute case finding that although the [ICCPR] does bind the U.S. as a matter of international law, the U.S. ratified the Covenant on the express understanding that it was not selfexecuting and so did not itself create obligations enforceable in the federal courts. The Good: Lawrence v. Texas cited European Court of Human Rights decisions. Atkins v. Virginia and Roper v. Simmons used international and foreign law developments to find death penalty for juveniles and those with mental retardation is cruel and unusual punishment.

6 Direct Challenges to Clear Statutory Language in Immigration Cases Have Failed Cancellation of Removal Payne-Barahona v. Gonzales, 474 F.3d 1, 3-4 (1st Cir. 2007), challenging ineligibility for relief due to conviction for an aggravated felony, based on ICCPR and CRC Oliva v. US DOJ, 433 F.3d 229, 235 (2nd Cir. 2005), challenging 10-year residency requirement, based on the CRC Flores-Nova v. Atty Gen, 2011 U.S. App. LEXIS (3d Cir. 2011), challenging continuous physical presence requirement, based on a decision of the Inter-American Commission on Human Rights and the CRC Padilla-Padilla v. Gonzales, 463 F.3d 972 (9th Cir. 2006), challenging 10-year residency requirement, based on UDHR and ICCPR Direct Challenges to Clear Statutory Language in Immigration Cases Have Failed 212(h) Guaylupo-Moya v. Gonzales, 423 F.3d 121 (2 nd Cir. 2005), challenging ineligibility for waiver due to conviction for an aggravated felony, criticizing Beharry v. Reno, 183 F. Supp. 2d 584 (E.D.N.Y. 2002) Courts Generally Hold These International Treaties: Do not have the force of domestic law Have not been ratified If ratified, are not self-executing Do not create enforceable rights or lack standing Are superseded by the last-in-time rule when U.S. statute is unambiguous

7 But indirect challenges arguing that international law provides guidance in interpreting ambiguous statutes have won Indefinite detention after order of removal Ma v. Ashcroft, 257 F.3d 1095, 1114 (9 th Cir. 2001), finding that when there is no likelihood of removal in the reasonably foreseeable future, government has no authority to hold for more than a reasonable time beyond the normal 90 days for removal. The court found persuasive the argument that such an interpretation would avoid violating international law under Charming Betsy, namely Art. 9 of the ICCPR prohibiting arbitrary arrest and detention Habeas relief available under CAT and FARRA Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003), finding that district courts have habeas jurisdiction over CAT claims because FARRA did not explicitly repeal habeas for CAT claims Why Raise Human Rights Arguments? Speak the same language as advocates in other countries, and immigration is increasingly a global issue requiring a global perspective Contribute to the growing U.S. movement toward globalization and international human rights Frame applications for relief in the language of rights, rather than discretion Opportunities to Raise Human Rights Arguments In administrative proceedings and federal litigation: The exceptional and unusual/extreme hardship standards in cancellation of removal and waiver applications should be interpreted by IJs and USCIS to require a full balancing of the respondent and family s interests in remaining in the U.S. against the government s interest in deporting the respondent Applications for deferred action, motions to reopen a grant would be in keeping with international human rights principles Possibly use for defining persecution in asylum cases

8 What Else Can Be Done Other forms of advocacy Testimony before Congress, state and local governmental entities Documentation projects Press Community organizing Additional Resources CLINIC, Using International Law in US Immigration Cases: David Cole, The Idea of Humanity: Human Rights and Immigrants Rights, 37 Colum. Human Rights L. Rev. 627 (2006). Human Rights Watch, Forced Apart: Families Separated and Immigrants Harmed by US Deportation Policy (2007), available at Human Rights Watch, Tough, Fair and Practical: A Human Rights Framework for Immigration Reform in the United States (2010), available at practical-0 Using Convention Obligations to Win Victim Cases

9 Using International Law to Inform Decisions Which law? Interpretations by International Bodies Foreign Court Decisions Treaties to Which the U.S. is a Party Absence of a Treaty Use of International Law? Binding, persuasive, or rhetorical Asylum A person who has physically entered the country where they seek protection and qualifies as a Refugee - who is outside any country of such person s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion (emphasis added). INA 101 (a)(42) Based on Convention Relating to the Status of Refugees, 28 July 1951, U.N. Doc. A/CONF.2/108, 189 U.N.T.S. 150 (entered into force 22 April 1951); Protocol Relating to the Status of Refugees, 1 Nov. 1967, 19 U.S.T (entered into force 4 Oct. 1967) (U.S. acceded 1 Nov. 1968). Humanitarian Asylum Asylum compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution, 8 CFR (b)(1)(iii)(A) or if he or she can establish a reasonable possibility that he or she may suffer other serious harm upon removal 8 CFR (b)(1)(iii)(B).

10 Other Victim Related Migration Trafficking T Visas; INA 101(a)(15)(T) Victims of Certain Crimes U Visas; INA 101(a)(15)(U) Torture, rape, kidnapping, domestic abuse Forced Marriages Child Marriages International Law and Trafficking 1904 International Agreement for the Suppression of White Slave Traffic 1910 International Convention for Suppression of White Slave Traffic 1921 International Convention for the Suppression of Traffic in Women and Children 1926 Slavery Convention and 1956 Supplement 1933 International Convention on the Suppression of Traffic in Women of Full Age 1948 Universal Declaration of Human Rights 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 1975 Convention on the Elimination of All Forms of Discrimination against Women 1989 Convention on the Rights of the Child 2000 Convention Against Transnational Organized Crime Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children Protocol against the Smuggling of Migrants by Land, Sea, and Air Domestic Law for Immigration Status T and U Visas Victims of Trafficking and Violence Protection Act (VTVPA) (including the Battered Immigrant Women s Protection Act (2000) and Trafficking Victims Protection Reauthorization Act (TVPRA) (2008)) Limits the number of visas available each year Limit on T visa adjustments each year Forced Marriages; Child Marriages

11 Trafficking Defined U.N. Trafficking Protocol, Article 3(a) Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, or deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. -developed within the UN Crime Commission Exploitation Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs Elements of Trafficking (1) an action: recruitment, transportation, transfer, harboring or receipt of person (2) by means of: threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving of payments or benefits to achieve consent of a person having control over another (3) for the purpose of exploitation: e.g., the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labor or services, slavery or slavery-like practices, servitude, removal of organs.

12 International Issues and Trafficking Smuggling vs. Trafficking Trafficking Protocol persons do not have the right to choose to be trafficked, or for their children to be trafficked if the person was smuggled, then kept as a forced laborer, this can constitute trafficking Forced Marriage Relevant Provisions Article 16(2) of the Universal Declaration of Human Rights, affirms that marriage shall be entered into only with the free and full consent of the intending spouses Article 23 of the ICCPR provides that, no marriage shall be entered into without the free and full consent of the intending spouses Article 10(1) of the ICESC States the right to consensual marriage Article 16 of CEDAW forbids forced marriage

13 U.N. Convention Against Transnational Organized Crime Requires states to criminalize organized criminal activity, money laundering, and public sector corruption Purposes of the Protocol (Art. 2): to prevent and combat transnational trafficking in persons, esp. women and children to protect and assist victims of trafficking to promote cooperation among States Parties to meet above objectives to permit victims to remain in the destination country, -temporarily or permanently Recent Developments U.N. Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002) Crime Convention and Trafficking Protocol entered into force at the end of 2003 United Nations Global Initiative to Fight Human Trafficking 2007 Conduct Constituting Persecution To Establish an Asylum Claim Define the Harm Suffered as Persecution Rely on International Materials such as the UNHCR Gender Guidelines and decisions in other countries See, e.g., Gao v. Gonzales, 440 F.3d 62, 66 (2d Cir. 2006) (noting DHS concession that forced marriage is a form of abuse that rises to the level of persecution ), vacated on other grounds by Keisler v. Gao, 552 U.S. 801 (2007)

14 Asylum Claims Are Not Superseded Nothing in the Trafficking Protocol shall affect the rights, obligations, and responsibilities of States and individuals under international law, including international humanitarian law, international human rights law, and in particular, [refugee law] and the principle of non-refoulement. Trafficking Protocol, at Article 14(1), Saving Clause Relief in the Alternative Asylum Withholding CAT Convention Against Torture Obstacles Argument that there is no relevance of non-u. S. law to issues presented in U.S. courts even if some laws have been enacted as a direct result of the U.S. entering into international treaties See, e.g., Transcript of Scalia-Breyer Debate on Foreign Law January

15 Obstacles Different interpretations by signatories to treaties can lead to the rejection of international guidelines See, e.g., Castellano-Chacon v. INS, 341 F.3d 533, 548 (6th Cir. 2003) noting that the Supreme Court of Canada and the High Court of Australia had adopted different requirements for establishing membership in a particular social group as basis for rejecting UNHCR guidelines Obstacles Evidence of laws against trafficking, forced marriages, or child marriages in the home country and effective enforcement. See, e.g., Burbiene v. Holder, 568 F.3d 251 (5th Cir.2009) Pointers Supplementing the application with a brief Cases granting relief under similar circumstances Differentiating the cases that denied relief Citing cases that specifically relied on international law Using an expert on the substance of the claim, as well as the applicability of international law

16 Pointers Initiation of other lawsuits based on international obligations Criminal Civil Resources United Nations Convention Against Transnational Organized Crime, U.N. Doc. A/RES/55/25 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the U.N. Convention Against Transnational Organized Crime, U.N. Doc. A/55/383 Human Rights Standards for the Treatment of Trafficking Persons ards.pdf Recommended Principles and Guidelines on Human Rights and Human Trafficking, U.N. Doc. E/2002/68/Add.1 Resources The Annotated Guide to the Complete U.N. Trafficking Protocol, Jordan, Ann, Global Rights (2002) Guide to Establishing the Asylum Eligibility of Victims of Human Trafficking and Forced Marriage. Human Rights USA (2011) stablishing_asylum_eligibility.pdf Kim Thuy Seelinger, "Forced Marriage and Asylum: Perceiving the Invisible Harm Visible," Columbia Human Rights Law Review, Vol. 42, No. 1, Fall 2010.

17 Questions & Answers