Immigration
Cases

Overview: How Can International Materials Help?
• Identify U.S. international legal obligations
• Highlight the fundamental nature of these rights and the seriousness of violating them
• Highlight the disproportionality between the U.S. government’s interest in the action and the individual’s interest in protecting these rights
• Highlight the seriousness of these forms of harm and importance of protecting victims
• Definitions: o E.g., trafficking; violence against women; refugee

Overview: How Can International Materials Help?
• The point: o These cases involve basic rights and raise grave issues of worldwide significance; must be carefully considered o Not necessarily arguing for the creation of a new standard; just highlighting the consequences of erroneous or inadequate decision

RELEVANT HUMAN RIGHTS LAW

Immigration & Human Rights Treaties
• Think broadly
• Go beyond just the principles specific to immigrant’s rights, trafficking, etc.
• Rights intertwine – violation of one may lead to violation of others

Immigration & Human Rights Treaties
• Non-discrimination/equal rights
• Family rights; children’s rights
• Right to life; freedom from violence/torture
• Freedom from trafficking and/or slavery
• Protection for victims of crimes
• Right to seek asylum/non-refoulement
• Right to fair hearing/access to justice
• Freedom from arbitrary deprivation of liberty

Immigration & Human Rights Treaties
• Non-discrimination o Differential treatment or unequal access to justice o Any decision/action influenced by a protected ground o Example: Failures to give credible fear interviews to individuals of particular nationalities o Consider other sections of handbook

Immigration & Human Rights Treaties
• Family/children’s rights o Keeping family together or reuniting o Includes right to start a family, marry o Special provisions for children o Examples:
 Removal or detention of individual with family ties in
U.S.
 Denial of adjustment to individual with family ties in
U.S.
 Heightened when children involved

Immigration & Human Rights Treaties
• Right to life; freedom from violence/torture o Relevant to refugees as well as individuals facing threat to life or safety in U.S.
 Private perpetrator, as in U visa context
 U.S. government, as in denial of medical care in detention o Think broadly about what constitutes torture

Immigration & Human Rights Treaties
• Freedom from trafficking and/or slavery o T visa or asylum cases o Can be helpful in proving occurrence of trafficking in less clear-cut cases o Anti-slavery language can add greater weight to case when relevant

Immigration & Human Rights Treaties
• Protection for victims o Trafficking cases; U visa; VAWA; some asylum o Particularly when there are threats of retaliation o Can work in tandem with non-refoulement principal

Immigration & Human Rights Treaties
• Right to seek asylum/non-refoulement o Obviously relevant in asylum cases o Also in expedited removal cases, etc. when no opportunity to make asylum claim given o Motion to reopen where fear of persecution has arisen after conclusion of proceedings o Motion to reopen based on ineffective assistance in asylum case

Immigration & Human Rights Treaties
• Right to fair hearing/access to justice o Decisions in hearings where individual not represented o Situations where individual unlawfully denied hearing o Ineffective assistance of counsel

Immigration & Human Rights Treaties
• Freedom from arbitrary deprivation of liberty o Bond motions, parole requests, etc.
o Can be combined with family rights when relevant o Also look for overlap with non-discrimination issues

U.S. Court Cases
• Different ways to use o Similar facts and issues o Same issue but different fact pattern o Different facts and different issue

U.S. Court Cases
• Different ways to use o Similar facts and issues
 Same as any on-point case law
 Also same uses below o Same issue but different fact pattern o Different facts and different issue

U.S. Court Cases
• Different ways to use o Same issue but different fact pattern
 Argue that same logic applies to your situation
• Rranci v. Att’y Gen. – CATOC can help interpret U.S. law and victims’ rights in other cases
 Use to define issues
• Mohammed v. Gonzales – establishing persecution or social group
• Matter of C-Y-Z- – defining right to family life

U.S. Court Cases
• Different ways to use o Different facts and different issue
 International principles and obligations can still inform interpretation of Constitution or other domestic law
 Example: Cardoza-Fonseca v. INS
• Congress intended U.S. law to comply with Refugee
Convention
• UNHCR materials can be persuasive in U.S. courts

RELEVANT HUMAN RIGHTS LAW

International Case Law
• Use to: o Highlight severity of the issue o Help define these rights, illustrate relevance to the cases o Argue for judicial recognition of these rights o Argue that government’s interests and individual’s rights must be balanced o Help define elements of cases, such as persecution, hardship, etc.
o Call attention to international consensus or international obligations

International Case Law
• Highlights – o Common themes:
 States must balance their interest against the individual’s family rights - Effects on family rights shouldn’t be disproportionate to the state’s interest
 Treaty rights informing interpretation of domestic law o Importance of protecting crime victims o Rape = serious rights violation o Right to fair hearing in non-criminal cases; right to counsel in non-criminal cases

RELEVANT HUMAN RIGHTS LAW

Foreign Case Law
• Uses: o Similar to international law o Show that principles and strategies successfully used o Handbook cases:
 Discrimination
 Family Rights
 Asylum
• Proving harm constitutes persecution
• Establishing a valid social group

Foreign Case Law
• Uses: o Discrimination
 Invalidating policies that discriminate based on immigration status/citizenship or race/ethnicity
 Includes national security measures and border control policies

Foreign Case Law
• Uses: o Right to Family Life
 Importance of considering family rights in immigration decisions
 Includes rights of respondent as well as his/her family, especially children
 Immigration control is legitimate interest, but must be balanced against infringement of rights

Foreign Case Law
• Uses: o Asylum
 Proving harm constitutes persecution
• Link between DV and systemic gender-based discrimination
• State failure to protect women can raise DV to level of persecution
• DV as torture
• Trafficking or retaliation by traffickers can constitute persecution

Foreign Case Law
• Uses: o Asylum
 Establishing a valid social group
• Authority for gender-based social groups
• Past experience of being trafficked, raped, or involved in sex work as social group characteristic

RELEVANT HUMAN RIGHTS LAW

• Lend further support to judicial materials
• Provide treaty interpretations by the bodies charged with monitoring those treaties
• Provide expert analysis of treaty compliance issues
• Provide more detailed definitions of the rights at issue o Including how rights apply in immigration context
• Authority for asylum arguments

USING HUMAN RIGHTS PRINCIPLES

TYPES OF ADVOCACY
• Immigration Law o Removal proceedings and appeals o USCIS petitions/applications; appeals o Advocacy with ICE or CBP
• Federal suits o Civil rights/constitutional challenges o Habeas Corpus, Mandamus
• Local Advocacy

TYPES OF ADVOCACY
• Local Advocacy o Example: Philadelphia City Council Resolution

TYPES OF ADVOCACY
• Philadelphia City Council Resolution o Feb. 14, 2013 – adopted set of recommendations on
Comprehensive Immigration Reform to 113 th Congress o Highlighted human dignity of all residents, importance of protecting right of families to stay together, and importance of guaranteeing fundamental rights of everyone without discrimination o “hereby urges the 113th Congress to enact comprehensive immigration reform as outlined in this resolution that keeps families together, upholds our values as a nation, promotes economic growth, and creates a fair immigration system guided by respect for the human rights of all persons…”

USING HUMAN RIGHTS PRINCIPLES

BUILDING AN ARGUMENT
• Hook – justify use by tying to domestic law o The domestic law was based on international law o Government has already used these materials or principles in interpreting domestic law before o Idea is already a principle of domestic law o Can build layered references

BUILDING AN ARGUMENT
• Example: Refugee/Asylum Law o Domestic laws based on ratified treaties
 Convention Relating to the Status of Refugees
 Convention Against Torture o Congressional record makes this explicit
 Laws passed to bring U.S. into compliance
 Makes these treaties directly relevant

BUILDING AN ARGUMENT
• Example: Refugee/Asylum Law o Congressional record makes this explicit – makes these treaties directly relevant o Also a hook for considering other international materials
 Interpretations of relevant U.N. bodies – UNHCR and
Comm. Against Torture
 Jurisprudence of sister signatories
 Regional treaties/cases based on the U.N. treaties

BUILDING AN ARGUMENT
• Hook o Implementing legislation for treaty o Congressional record for statute at issue o Domestic case law recognizing relevant rights or materials o Executive Branch Statements o U.S. Constitution

BUILDING AN ARGUMENT
• Getting started o Identify the potential human rights issues o Identify which materials may be relevant o Think about a possible “hook”

BUILDING AN ARGUMENT
• Getting started o Also think about what your goal is in using international law and human rights principles o Different possibilities
 Provide additional support to domestic law
 Help interpret new, ambiguous or conflicting domestic law
 Help analyze situation that does not perfectly fit under existing laws
 Challenge existing law

BUILDING AN ARGUMENT
• Laying out argument o Start with “hook” if possible o For example: Congress passed legislation to implement the Convention Against Torture without reservation to Article 3, and the Congressional record further evidences Congress’ intent to fully implement the Convention’s non-refoulement principal.

BUILDING AN ARGUMENT
• Laying out argument o Start with “hook” if possible o For example: Similarly to the European Court of
Human Rights [or any other court], U.S. federal courts have recognized that the government’s interest in immigration enforcement should be balanced against the severity of the violation of a respondent’s family rights.

Laying Out Argument
• Also think about other domestic links o Ways to tie the relevant rights to Constitutional rights o Case law using human rights-type arguments o Example: Plyler v. Doe
 Highlights importance of applying Constitutional rights without regard to immigration status
 Analogize to international materials expressing same principal o May be way to introduce argument, or just to support it throughout

Laying Out Argument
• Define the rights at issue o Be expansive
 Example: Right to seek asylum also tied up with rights to life, security, freedom from torture, etc.
o Start with ratified treaties when possible
 For example: The ICCPR guarantees the right to protection against arbitrary interference with one’s privacy, family, and home.
o In some cases, may need to start with non-binding materials to frame the argument accurately

Laying Out Argument
• Non-binding materials o Defining rights
 For example: VAW and persecution/torture
 Violence against women is often fueled by systemic discrimination against women, and in turn societal discrimination can entrench systemic gender-based violence. State failure of protection both perpetuates the problem and results from systemic discrimination.
 Unable/unwilling to control; acquiescence to torture
 DEVAW; CEDAW Committee; IACHR

Laying Out Argument
• State what you are asking for o Must have decided how you are using international law
 Are you merely using it as additional support for domestic law?
 Do you want to emphasize the international obligations to get a decision you think you might not get otherwise?

Laying Out Argument
• State what you are asking for o Additional support for domestic law
 May want to de-emphasize the international materials somewhat
 So your ask may just be:

Laying Out Argument
• State what you are asking for o Additional support for domestic law
 May want to de-emphasize the international materials somewhat
 So your ask may just be: Grant asylum
• Approve visa; grant appeal; grant cancellation of removal, etc.

Laying Out Argument
• State what you are asking for o Emphasize international principles in tough case
 Probably want to highlight U.S. obligations or international consensus
 So your ask may be:

Laying Out Argument
• State what you are asking for o Emphasize international principles in tough case
 Probably want to highlight U.S. obligations or international consensus
 So your ask may be: Court must weigh respondent’s/spouse’s right to protection of family life as part of hardship determination

Laying Out Argument
• State what you are asking for o Emphasize international principles in tough case
 Probably want to highlight U.S. obligations or international consensus
 So your ask may be: Obligation to protect the fundamental rights of everyone without discrimination requires ICE to provide CFI to client despite existing expedited removal order.
• (Failure to provide CFI was based on nationality)

Laying Out Argument
• Calm the judge’s concerns o Link to domestic jurisprudence if possible
 Shows that what you are asking for is not outrageous, radical, unprecedented

Laying Out Argument
• Calm the judge’s concerns o If no domestic jurisprudence
 Show that it is consistent with other domestic materials or policy on your issue
• Executive Branch materials, for example
 Give example of relevant international or foreign jurisprudence
• Shows that your approach has worked elsewhere

Laying Out Argument
• Consistency with other domestic materials o Example: The State Department has emphasized the importance of protecting trafficking victims, which includes protecting their fundamental rights, and that failing to do so undermines the overall enforcement of anti-trafficking law and contributes to the perpetuation of trafficking. U.S. Dep’t of State, 2013
Trafficking in Persons Report, at 9.
o Ties to CATOC, Trafficking Protocol, and non-binding trafficking-related materials

Laying Out Argument
• Analogizing to domestic materials on other issues o Example: Roper v. Simmons
 Supreme Court looked at “the overwhelming weight of international opinion” in analyzing the Constitutionality of the death penalty for juveniles
 States that international materials and practice are instructive for interpreting Constitution, even if not controlling
 Cite as justification for considering international materials and taking widespread international trends seriously

Laying Out Argument
• Justifying use of foreign jurisprudence o Interpreting ratified treaties
 Air France v. Saks, 470 U.S. 392, 404 (1985) (finding the
"opinions of our sister signatories to be entitled to considerable weight") (internal quotation marks omitted)
 Olympic Airways v. Husain, 540 U.S. 644, 660 (2004)
(Scalia, J., dissenting) ("We can, and should, look to decisions of other signatories when we interpret treaty provisions. Foreign constructions are evidence of the original shared understanding of the contracting parties.“)

Laying Out Argument
• Justifying use of foreign jurisprudence o Interpreting non-ratified or non-binding obligations
 Still helpful to show trends
 Can help more fully define or illustrate rights found in binding treaties
 Can show these strategies can work in practice
 Still relevant to determining if a principle is one of customary international law or a jus cogens norm

Laying Out Argument
• Jus cogens norm o Example: The principle of non-discrimination is a jus
cogens norm. This is evidenced by its widespread acceptance worldwide and its centrality to the entire scheme of international human rights law, as well as the domestic law of many nations. See Advisory
Opinion on Juridical Condition and Rights of the
Undocumented Migrants, Inter-Am Ct. H.R., OC-18/03
(Ser. A) No. 18, ¶101 (2003), R v. Secretary of State for
the Home Department ex parte Quila & Anor, [2011]
UKSC 45 (Eng. 2011).

Laying Out Argument
• Know your audience o Has your judge or court recognized international human rights principles or materials previously?
o If yes: may be able to take stronger approach

Laying Out Argument
• Know your audience o Has your judge or court recognized international human rights principles or materials previously?
o If no: judgment call
 May want to de-emphasize international materials, use only as support for domestic law-based arguments
 May want to test waters
• use alternative arguments
• push an international argument for which there is existing domestic support

Laying Out Argument
• What’s at stake?
o Core fundamental rights:
 Rights to life, security, non-discrimination, privacy/family/home o Failure of government policy