“Impossible”
Immigration Cases
How Human Rights Tools Can
Help
CLINIC & ISIM (July 29, 2008)
Introductions/Warm-Up
What do we do to help immigrant families?
 How have you used human rights tools?
 What do you think of these tools?
[Add in here a more detailed overview of
what the training will cover.]

2
What is the Human Rights
Promoters Project?



Joint project of Georgetown University Center for
the Study of International Migration (ISIM) and
Catholic Legal Immigration Network, Inc.
(CLINIC)
Directed by an Advisory Board consisting of
CLINIC affiliate staff, human rights practitioners,
and academics
Supported by a generous grant from the U.S.
Human Rights Fund
3
Objectives of the Human Rights
Promoters Project
To assist you to help your clients through
bringing human rights norms to the
attention of decision-makers and policymakers
 Help you participate in the international
movement of human rights advocates

4
Methods of the Human Rights
Promoters Project

•
•
•
•
Human Rights Promoters Project:
researches human rights norms
designs practical human rights training
designs tools to help you use human rights
creates community of advocates using
human rights to empower and assist
immigrants
5
Why Use International Human
Rights Law?
It’s our role as lawyers and legal workers
to develop the law for the benefit of our
clients
 Human rights works! U.S. courts have
begun to use this law to inform their
decisions

6
[Add M. Ensor Human Rights Approach
Slides here: below is KS summary]






Beyond charity (moving from human needs)
Adds clarity (establishes who rights holders and
duty bearers are)
Adds consistency and universality
Lets advocates speak the same language
across borders
Establishes benchmarks and indicators of
success
Has the concept of remedies associated with it
7
Participating in the International
Human Rights Movement
Your contribution is vital!
 Many other sources, including:
(1) Post-Deportation Human Rights Project at
Boston College
http://www.bc.edu/centers/humanrights/projects/de
portation/resourcesat.html
(2) Columbia University Center for the Study of
Human Rights: http://hrcolumbia.org/

8
Today’s Objectives
Begin learning how to apply international
human rights law to immigration
advocacy:
(1) For case representation
(2) For non-litigation activities, such as
reporting, testifying & organizing
9
Training’s Case Representation
Focus
Immigration cases where family ties play a
role under U.S. statutes
 Where immigration officials or Immigration
Judges exercise discretion
 Focus on how human rights laws and
norms can inform discretionary decisions

10
Training’s Case Representation
Focus (cont’d)
Concentration on non-LPR cancellation,
waivers
 We will use case examples
 We will not discuss litigating in
international fora

11
[Insert new material here]
Successful Australian case illustration
--Discuss facts
--Say what HR Cmte held
--Give preview of U.S. court argument
 Insert Rex’s Flow Chart on building a legal
argument here

12
What Is International Human Rights
Law?



International law generally governs rights of
States (countries) vs. other States
Ancient origin of protections of individual rights:
agreements/procedures protecting travelers in
foreign countries and on high seas
“Humanitarian intervention” in 19th/early 20th
centuries (some legitimate; some as a rationale
for invading others’ territory)
13
What is International Human Rights
Law (cont’d)
World War II sparks modern development:
-- punishment of Nazi and other war
criminals: made it clear that individuals
have obligations under inter’l law
-- desire to prevent similar atrocities leads to
establishment of U.N. and a series of
inter’l human rights agreements

14
What is International Human Rights
Law? (cont’d)
US made major contribution to development of
human rights law after World War II:
-- Many U.S. lawyers participated in prosecution of
Nazis/devel. individual responsibility theories
-- Encouraged by Pres. Franklin Roosevelt’s “Four
Freedoms” speech & support of United Nations
-- Eleanor Roosevelt chaired commission that
drafted Universal Declaration of Human Rights

15
Sources of Human Rights Law
(Overview)
Universal Declaration of Human Rights
 Treaties (or “Conventions”)
 Customary International Law

16
Universal Declaration of Human
Rights

Not a treaty – an authoritative
interpretation or definition of rights under
the United Nations Charter
17
Treaties or Conventions



Treaty = an agreement governed by
international law, usually between States or
between States and international organizations
Conventions/protocols are types of treaties
Example of treaty to which U.S. has acceded:
United Nations 1967 Protocol on the Status of
Refugees = basis for Refugee Act of 1980
governing refugee and asylee status
18
What is the Effect of a Treaty in
U.S. Law?
Co-equal with a federal statute (later in
time prevails)
 Superior to conflicting state law

19
When Does a Treaty Become Law
in the United States?
(1)
(2)
(3)
(4)
Executive signs
Senate consent
Consent deposited with treaty body
Usually requires implementing legislation by
Congress: Signing a Treaty does not generally
make the Treaty enforceable in a U.S. Court
unless Congress says it does
20
Issue of Implementing Legislation
in United States
U.S. Treaties almost always considered
non-self-executing
 Non-self-executing treaties require
implementing legislation unless Congress
specifies otherwise
 Example: 1967 U.N. Refugee Protocol
implemented by Refugee Act of 1980

21
Types of Treaties or Conventions
Global or International Treaties: govern
issues between a number of States (or
States/Intergovernmental Organizations)
--Example: 1967 Convention on the Status
of Refugees
--Includes Regional Treaties, such as the
American Convention on Human Rights

22
Types of Treaties or Conventions
(cont’d)

Bilateral Treaties: Govern issues between
two States, or between a State and an
Intergovernmental Organization
23
Who Interprets Treaties?
Treaty-established bodies:
--Example: U.N. Human Rights Committee
--Expand on fact that adjudicators are made by
these treaties??

National governments:
--through legislation
--through jurisprudence

24
Interpretations of Right to Family Life:
Adjudicators Whose Decisions We Will
Discuss
U.N. Human Rights Committee (interprets
global agreement: International
Convention on Civil and Political Rights)
 European Court of Human Rights
(interprets regional agreement: European
Convention on Human Rights)

25
Nature of these Adjudicators
Their decisions not binding on U.S.
 Their decisions are persuasive guidance
about U.S. obligations on “the right to
respect for family life” under U.S. law

26
Human Rights Adjudicator # 1
U.N. Human Rights Committee
-- 18 members
-- Sits in Geneva and New York
-- Adjudicates cases under the International
Convention on Civil and Political Rights
(“ICCPR”) = global Convention
-- Arts. 17, 23 of ICCPR = Right to Respect for
Family Life

27

Add one slide here on how to get to U.N.
Committee (adherence, exhaustion of
domestic remedies, etc.) – or include this
in outline or introductory memo instead.
28
Human Rights Adjudicator # 2
European Court of Human Rights
-- 49-member body
--Sits in Strasbourg, France

29
European Court of Human Rights (con’t)
--Adjudicates cases under the European
Convention on Human Rights (regional
Convention)
--Art. 8 of European Convention = Right to
Respect for Family Life

30

Add one slide here about how to get to the
European Court (adherence, exhaustion of
domestic remedies, etc. – or put this in
outline or in introductory memo).
31
Decisions by Treaty-Established
Bodies
(1)
(2)
Only binding if the State party agrees to
be bound (U.S. does not agree to be
bound by Treaty bodies)
Decisions of these bodies may be
persuasive interpretations of the Treaty
or Convention even for States that have
not agreed to be bound
32
Customary International Law

“Practices and beliefs that are so vital and
intrinsic a part of a social and economic
system that they are treated as if they
were laws.” – Black’s Law Dictionary 162
(17th ed. 1996)
33
Customary International Law and
Human Rights
Includes “a consistent pattern of gross
violations of internationally recognized
human rights”
 Very limited scope: Probably only
genocide, torture, slavery, prolonged
arbitrary detention

34
Using Human Rights in a U.S. Setting
(#1): Treaties the U.S. Has Joined
Interpret based on:
(1) U.S. implementing legislation
(2) U.S. jurisprudence (decisions of federal
and state courts; other adjudicators)
(3) Jurisprudence of global or regional
bodies (as persuasive authority; not
binding)
35
Using Human Rights in a U.S. Setting (#1):
Treaties the U.S. Has Joined (cont’d)
(3) Jurisprudence of other nations (also not
binding)
(4) Analogize from interpretations of similar
language in other treaties that the U.S.
has not joined
--Example: U.N. Human Rights Committee
uses European Court decisions by
analogy
36
Enforcing U.S.-Ratified Treaties
in Domestic Courts

Supremacy Clause

Self-executing vs. Non-self-executing
treaties
37
Self-Executing vs. Non-SelfExecuting (“NSE”) Treaties
Original Foster v. Neilson definition

Self-executing treaties can be directly enforced by
the courts

Treaties that are not self-executing (“NSE”) require
implementing legislation to be judicially enforced
 But treaties have been designated NSE for different
reasons:
38
Two interpretations
What it means when a treaty is NSE
1.
The treaty is not judicially
enforceable
2.
The treaty does not create a private
cause of action
39
Interpreting the ICCPR’s
NSE declaration (1)

“…articles 1 through 27 of the Covenant
are not self-executing”

Interpretation by lower courts: ICCPRbased claims denied because…
1. The claimant “lacks standing;”
2. The treaty is “not judicially enforceable;” or
3. The treaty does not create privately
enforceable rights, or is not the law of the land.
40
Interpreting the ICCPR’s
NSE declaration (2)
Empirically
the case law shows
1. No judicial consensus
2. Courts often confuse different possible
meanings of non-self-execution or use
them interchangeably within the same
opinion
41
Interpreting the ICCPR’s
NSE declaration (3)
Legislative history as interpretive guide

“…the Covenant will not create a private cause
of action in U.S. courts”

“…existing U.S. law generally complies with the
Covenant; hence, implementing legislation is not
contemplated.”

Non-frivolous argument that provisions of
the Covenant can be raised defensively
42
Treaties and Statutory
Construction

Charming Betsy canon of statutory
construction

Last-in-time rule requires clear legislative
intent to supersede provisions of a ratified
treaty
43
Using Human Rights in a U.S. Setting
(#2): Treaties the U.S. Has Not Joined
By analogy on language: to interpret
similar language in domestic law
--Example: “Best interests of the child”
 By analogy on subject matter: to show
growing international consensus on a
particular issue
--Example: Conv. on the Rights of the Child

44
BREAK
45



[Add new slide here – Rex’s diagram of
arguments – as transition/explanation of the
legal analysis that follows]
Stress: this is merely one example of how hr law
can be used – we chose it bec it’s at the core of
your work and it’s a good starting point
Rex: “This may be the first time you’ve thought
about family life = a right.”
46
Right to Respect for Family Life
Objectives of this section:
 To use human rights concept of “right to
respect for family life” in litigation,
documentation, testimony, and other
advocacy
47
Right to Respect for Family Life
Litigation objective: Be able to argue
how U.S. obligations to implement “right to
respect for family life” should inform
Immigration Judge and CIS discretionary
decisions on:
--Exceptional and extremely unusual
hardship or extreme hardship
--In cancellation, waiver applications

48
What Is the Right to Respect for
Family Life?

“The family is the natural and fundamental
group unit of society and is entitled to
protection by society and the state.” -Universal Declaration of Human Rights,
Art. 16(3)
49
What Is the Right to Respect for
Family Life? (cont’d)
Right also is explicitly recognized in numerous
international human rights agreements, including:
--Inter’l Convention on Civil and Political Rights, Arts. 17,
23 (global) Give URL for treaty here?
--Inter’l Convention on Economic, Social & Cultural Rights,
Art. 10(1) (global)
--Convention on the Rights of the Child, Preamble (global)
--European Convention on Human Rights, Art. 8 (regional)
Give URL for treaty here?
--American Convention on Human Rights, Art. 17 (regional)

50
Who Are Protected Individuals?
Decision-makers’ approach is flexible and
fact-based
--Focus on strength of actual emotional ties
between family members
--Some other ties also important (such as
economic dependence)

51
Who Are Protected Individuals?
In case decisions, close family predominates:
--Parent-child (particularly if child born in wedlock)
--Parent-adult child (if economic or other
dependence)
--Maybe other blood relatives if very close
(grandparents)

52
[Transition]

Say here that we are now moving from the
concepts of right to respect for family life
into INTERPRETATION, first by Human
Rights Committee and then by European
Court.
53
Family Life Cases Decided Under
ICCPR
U.N. Human Rights Committee decides
cases under Arts. 17 and 23 of the ICCPR
 Terms of ICCPR are binding on U.S.
 HR Committee decisions not binding on
U.S. adjudicators, but should be
considered persuasive in determining U.S.
obligations

54
“Right to Family Life” in ICCPR
ICCPR (Art. 17)
“1. No one shall be subjected to arbitrary or unlawful interference with
his privacy, family, home or correspondence …
“2. Everyone has the right to the protection of the law against such
interference …”
ICCPR (Art. 23)
“1. The family is the natural and fundamental group unit of society and
is entitled to protection by society and the State.”
Compare European Convention
55
Human Rights Committee Analysis
of Right to Respect for Family Life
(1) Does family life exist?
(2) Is the State’s act an “interference”?
(Committee usually decides “yes”)
If so:
(3) Was the interference “arbitrary”?
56
HR Committee Negative-Duty
(Removal) Cases
Winata v. Australia (2001)
--Indonesian overstay parents; 14 years’ residence
in Australia
--13-yr-old Australian son: schooling all in
Australia; no cultural ties to Indonesia
--Committee balances equities and holds that
removal would violate family’s right to family life
under ICCPR

57
HR Committee Negative Duty
(Removal) Cases
Madaferri v. Australia (2004)
--Italian w/several minor convictions in Italy
overstays tourist visa; marries and has 4
children in Australia; they live together 14 years
--Children have no cultural or linguistic ties to Italy
--Father denied spousal visa due to crimes
--Committee balances equities; holds for petitioner
saying State interest weak given age of crimes;
crimes outside of Australia, children’s lack of
cultural or linguistic ties to Italy

58
European Court of Human Rights
Add a line of transition and some additional
explanation here??
Q: Why discuss Eur. Ct. cases when European
Convention does not apply to U.S.?
A: U.N. Human Rights Committee finds Eur. Ct.
interpretation of Art. 8 of European Convention
persuasive when H.R. Committee interprets the
similar provisions in Arts. 17 and 23 of ICCPR.
ICCPR does apply to the U.S.
59
European Convention Art. 8
“(1) Everyone has the right to respect for his
private and family life . . .
“(2) There shall be no interference by a
public authority with the exercise of this
right except such as is in accordance with
the law and is necessary in a democratic
society.”
60
European Court Analysis of Right
to Respect for Family Life
(1)
(2)
(3)
Does family life exist?
Is State action an “interference”? (in
these cases, European Court almost
always concludes that it is)
Note possibly – here and/or above – that
right doesn’t ONLY apply to immigration
cases
61
European Court Analysis of Right
to Respect for Family Life (cont’d)
(3) [Balancing test]: Was government action
justified as:
--in accordance with law?
--necessary in a democratic society?
--in the interests of such concerns as
national security or public safety?
62
European Court Case Decisions

Right to respect for family life more readily
found by European Court in “negative
duty” (removal) cases than in “positive
duty” (admission/or exclusion??) cases
63
European Court: Negative Duty
(Removal) Cases
Berrehab v. Netherlands (1988)
--long-time resident of Netherlands; divorced
from Dutch wife
--long-resident in Netherlands; denied
renewal of residence permit after divorce
--removal to Morocco would separate him
from daughter

64
European Court: Negative Duty
(Removal) Cases (cont’d)
Berrehab v. Netherlands (cont’d)
Court holds for petitioner, finding:
(1) Family life exists
(2) Deportation would interfere with family life
(3) Action was in accordance with law and met
legitimate aim (protecting labor market), but
not necessary in a democratic society

65
European Court: Positive Duty
(Admission) Cases
Abdulaziz v. U.K. (1985)
--immigrants granted residence while single;
when they married, their husbands were
denied entry
Court holds against petitioners, finding:
(1) Family life existed, but it was established
after petitioners immigrated

66
European Court: Positive Duty
(Admission) Cases (cont’d)
Abdulaziz v. U.K. (1985) (cont’d)
(2) When they married, petitioners knew husbands
could be denied admission;
(3) Art. 8 does not protect the right to choose
residency, when it means requiring State to
accept new residents;
(4) No real obstacle to petitioners and their
husbands settling in their home countries

67
[Summary:] Right to Respect for
Family Life: Balancing the Equities
Decision-makers find “family life” exists
when actual relationship close (but not
well-tested outside parent-child
framework)
 Decision-makers generally find that
domestic immigration enforcement actions
interfere with right to family life

68
Right to Respect for Family Life:
Balancing the Equities (cont’d)

Most important balancing factor is whether
State’s interference in petitioner’s family
life is justified and proportionate to State’s
interest
69
[ Transition]

[And now we’ll talk about using it in the
U.S.]
70
ICCPR Right to Family Life: Enforcing it
in U.S. Immigration Cases
Objective:
To encourage IJs and USCIS to use ICCPR
to inform their decision-making for cases
where:
(1) Benefit rests on a family relationship, and
(2) Decisions are at least partly discretionary
--Examples: cancellation; certain waivers
71
ICCPR Right to Family Life: Enforcing it
in Immigration Cases (cont’d)
In this section, we will cover applying ICCPR
to:
(1) Non-LPR Cancellation of Removal
(2) 212(i) waiver
(3) 212(h) waiver
72
Non-LPR Cancellation of Removal:
Statutory Requirements
Cancellation of Removal: INA 240A(b)
(1) 10 years’ physical presence
(2) Good moral character for 10 years
(3) Removal would result in exceptional and
extremely unusual hardship to spouse, parent,
or child, who is a United States citizen or lawful
permanent resident
--This hardship test is focus of our ICCPR analysis

73
Cancellation: BIA Has Set Very
Stringent Hardship Standard
Matter of Recinas (BIA 2002): Exceptional/ extremely
unusual hardship found where:
-- Respondent (R) has 4 USC children & 2 other children;
children raised in U.S.; know little Spanish
-- Children entirely dependent upon mother who runs her
own business (father absent and being deported)
-- No close family in Mex. (R’s parents are LPRs in US, 5
siblings are USCs). R and children close to U.S. family
-- R has 14 years’ residence in U.S. and little hope to
immigrate if removed

74
Cancellation: ICCPR Argument
(Summary)
(1)
(2)
(3)
Hardship determination must be made
according to all U.S. law, including treaties
ICCPR requires a full and reasonable
balancing test for hardship
Once balancing test in place, IJ decision
should be informed by H.R. Committee
decisions under ICCPR (and also decisions
under analogous treaties, such as European
Court cases under European Convention)
75
(1)
(2)




[Comment from July training: the distinction between direct and
indirect challenge needs to be made clearer here in the following
four slides. Maybe do a graphic depiction side-by-side of two
arguments]
“We’ll now talk about direct and indirect challenges.”
Direct: Say here that “the purpose of the direct challenge is to
prove that the exceptional and extremely unusual standard
violates U.S. law because treaty law is part of U.S. law”
Indirect: Say here that “indirect challenge asserts that the
extreme/exceptional standard should be implemented in
accordance with inter’l law
Then walk through argument both direct and indirect. Use graphic.
Use same process when discussing waivers.
76
Cancellation: ICCPR Argument:
“Direct” Challenge to Statute
(A) U.S. is a party to the ICCPR (entered into
force 1992)
(B) Congress is presumed to have legislated in a
manner consistent with international law
--Argue: Cancellation law enacted later in time
(1996) does not repeal ICCPR norm because
no clear intent to do so in the 1996 statute
--Courts must construe statute not to conflict with
treaty where it’s possible to do so Mention
Charming Betsey here
77
Cancellation: ICCPR Argument:
“Direct” Challenge (cont’d)
(C) DIRECT CHALLENGE:
(1) Conflict between ICCPR and cancellation hardship
standard can’t be reconciled, because
-- U.S. law assumes State’s interest; does not balance with
petitioner’s interest as ICCPR requires; or
-- BIA does implicitly balance equities, but applicant must
meet a far higher cumulative standard than permitted
under ICCPR; therefore,
(2) Cancellation statute is unlawful under ICCPR and
cannot be enforced
78
Cancellation: ICCPR Argument:
“Indirect” Challenge to Statute
(A) U.S. is a party to the ICCPR (entered into
force 1992)
(B) Congress is presumed to have legislated in a
manner consistent with international law
--Argue: Cancellation law enacted later in time
(1996) does not repeal ICCPR norm because
no clear intent to do so
--Courts must construe statute not to conflict with
treaty where it’s possible to do so
79
Cancellation: ICCPR Argument:
“Indirect” Challenge to Statute (cont’d)
(C) INDIRECT CHALLENGE: Decisionmakers should reconcile Cancellation
statute to conform to ICCPR obligations by
performing a full balancing of
individual’s/family’s interest in member
remaining vs. U.S. government’s interest
in member being deported
80
What Should IJ Ask When Analyzing
Cancellation Under Arts. 17 & 23 of
ICCPR?
(1) Has applicant shown family life?
-- Spouse, parent, child
-- (Maybe others?)
(2) Do relatives have status in the U.S.?
-- USC or LPR
-- (Maybe other status?)
81
What Should IJ Ask When Analyzing
Cancellation Under Art. 17 of ICCPR?
(cont’d)
(3) Hardship Analysis: Do interests of
noncitizen in remaining outweigh interests
of U.S. gov’t in deporting?
-- Under ICCPR, standard cannot be so high
that a single or a few negative factors
outweigh a stronger showing of positives
-- Use Winata, Madaferri (and other similar)
cases to inform this discretionary decision
82
Cancellation and ICCPR: Small
Group Exercise
83
WAIVERS
[See slide # 77 on introducing direct and
indirect challenges. Use graphic.]
 Assume that the 212(i) and 212(h) waivers
here will be substituted with other waivers
identified by the project as being more
promising

84
212(i) Waiver
212(i) waives fraud or misrepresentation
under INA section 212(a)(6)(C)(i):
-- “Any alien who, by fraud or willfully
misrepresenting a material fact, seeks to
procure (or has sought to procure or has
procured) a visa, other documentation, or
admission into the United States or other
benefit under this Act is inadmissible.”

85
212(i) Waiver (cont’d)
Waiver requires showing of “extreme hardship”
to:
-- U.S. citizen or LPR spouse or parent
-- (Hardship to child does not count)
 (Person who would suffer hardship need not be
the petitioner)
 USCIS (or IJ) has discretion to decide whether
required hardship is shown

86
“Extreme Hardship”
BIA interpretation of factors included in
“extreme hardship” determination: Matter
of Anderson, 16 I. & N. Dec. 596 (1978)
(1) Noncitizen’s age
(2) Length of residence in the U.S.
(3) Family members in U.S. and abroad;
their immigration or citizenship status
87
“Extreme Hardship” (cont’d)
Matter of Anderson factors (cont’d):
(4) Health, and is there medical care in home
country
(5) Financial impact of departure from U.S.
(6) Other possible means of immigrating
(7) History of immigration violations
(8) Position in community
(9) Economic/political factors in home country

88
“Extreme Hardship” (cont’d)
Matter of Anderson factors (cont’d):
(10) Linguistic/cultural factors that make
getting work difficult in home country
(11) Other factors re: home country
(12) Any other factors in U.S. or abroad

89
212(i) Waiver: ICCPR Model
Challenge: (Direct Challenge)
Example: situation where hardship is to
child (not spouse or parent)
(1) The U.S. has joined the ICCPR. Art. 17
recognizes the right to respect for family
life
(2) Congress is presumed to have legislated
in a manner consistent with international
law
90
212(i) Waiver: ICCPR Model
Challenge: (Direct Challenge) (cont’d)
(3) Applicant has established family life in the U.S.
with his USC daughter
(4) Government interference with applicant’s right
to family life cannot be arbitrary under ICCPR
Art. 17
(5) Statute is arbitrary on its face because it does
not provide an opportunity for decision-maker
to consider hardship to applicant’s daughter
91
212(i) Waiver: ICCPR Model
Challenge: (Direct Challenge) (cont’d)
(6) 212(i) statute is therefore unlawful under
ICCPR Art. 17.
(7) To cure this problem, U.S. CIS must consider
the waiver application (see Beharry v. Reno,
183 F. Supp. 2d 584, 595 (E.D.N.Y. 2002)) and
balance:
-- hardships to applicant’s USC daughter if waiver
not granted, vs.
-- government’s interest in denying the waiver
92
212(i) Waiver: ICCPR Model
Challenge: (Direct Challenge) (cont’d)
(8) Under ICCPR, standard applied to applicant
cannot be so high that a single or a few negative
factors outweigh positive factors
(9) Use Human Rights Committee cases or other
decisions to inform decision
(10) Note, however, important cautions!
(Consult before filing a direct challenge!)
--Non-self-executing issue
--Last-in-time issue
93
212(h) Waiver
Waiver under INA Section 212(h):
Waives:
(1) Crime of moral turpitude
(2) Multiple criminal convictions
(3) Single offense of simple possession of
30 grams or less of marijuana
(4) Prostitution and commercialized vice

94
212(h) Waiver (cont’d)
212(h) does not waive:
-- Controlled substance violations, except
one offense of simple possession of 30
grams or less of marijuana, NOR
-- Trafficking in controlled substance or
persons, NOR
-- Murder or torture

95
212(h) Waiver (cont’d)

(1)
(2)
(3)
Our focus: waiver under 212(h)(1)(B):
alien is spouse, parent, son, or daughter of
USC or LPR
extreme hardship would result to USC or LPR
spouse, parent, son, or daughter if waiver not
granted
U.S.CIS (or IJ) has discretion to determine
eligibility for waiver, including whether hardship
shown
96
212(h) Waiver: ICCPR Model
Challenge: (Direct Challenge)
Example: Situation where applicant for waiver
has USC wife and son, but 2 marijuana simple
possession convictions
(1) The U.S. has joined the ICCPR. Art. 17
recognizes the right to respect for family life
(2) Congress is presumed to have legislated in a
manner consistent with international law

97
212(h) Waiver: ICCPR Model
Challenge: (Direct Challenge) (cont’d)
(3) Applicant has established family life in the U.S.
with his USC son and wife
(4) Government interference with applicant’s right
to family life cannot be arbitrary under ICCPR
Art. 17
(5) Statute is arbitrary on its face because it does
not provide an opportunity for decision-maker to
consider hardship to applicant’s son and wife if
he cannot immigrate (because he has more than
1 simple possession conviction)
98
212(h) Waiver: ICCPR Model
Challenge: (Direct Challenge) (cont’d)
(6) 212(h) statute is therefore unlawful under
ICCPR Art. 17.
(7) To cure this problem, U.S. CIS must consider
the waiver application (see Beharry v. Reno at p.
595) and balance all equities, including:
-- hardships to applicant’s USC son and wife if
waiver not granted and he can’t immigrate, and
-- age of crimes and seriousness of crimes, vs.
-- government’s interest in preventing applicant
from immigrating
99
212(h) Waiver: ICCPR Model
Challenge: (Direct Challenge) (cont’d)
(7) Under ICCPR, standard applied to applicant
cannot be so high that a single or a few negative
factors outweigh positive factors
(8) U.S. CIS should use Human Rights Committee
and similar decisions when analyzing applicant’s
situation
(9) Note, however, important cautions! (Consult
before filing a direct challenge!)
--Non-self-executing issue
--Last-in-time issue
100
Waivers and ICCPR: Small-Group
Exercise
101
Conclusion on Litigation: Open
Issues
Many open issues, including:
-- Can you challenge under ICCPR when applicant
does not have child/spouse/ parent who would
be affected?
-- What if child/spouse/parent is asylee or has
deferral of removal (some other “indefinite”
status) instead of LPR or USC status?
--SIGNIFICANT direct challenge issues described
above (non-self-executing; last-in-time)

102
Conclusion on Litigation: Pointers
Consult with others: is this the right case?
 Preserve these legal issues at the CIS
application or IJ level for appeal
 Prepare and brief carefully
 Consider enlisting help on appeals
 Share your results with others so we can
all learn together

103

[Note: current thought (Aug. 08) is to
eliminate non-litigation advocacy piece
from this training – the following slides are
those from the July 2008 training on these
topics in case it’s included]
104
Human Rights Law and NonLitigation Advocacy
Documenting/Reporting/Community
organizing:
--Example:
Border Network for Human Rights: A
Testimonial Report: The Status of Human
and Civil Rights at the Border 2007 (Dec.
2007)

105
Human Rights Law and NonLitigation Advocacy (cont’d)
Testimony before local, state, or federal
government entities
 “Shadow reports” to inter’l bodies
 Community meetings/rights presentations
 Press work
 Grant proposals
 Other: _______________

106
Human Rights Law and NonLitigation Advocacy (cont’d)

Gonzalez family exercise
107
Ideas for Future Collaboration
108
Training Evaluation
109