Using International Human Rights Principles in Domestic Advocacy Immigration Cases.

Using International Human Rights Principles in Domestic Advocacy

ImmigrationCases

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

TREATIES

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


• 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


• Non-discrimination o Differential treatment or unequal access to justiceo Any decision/action influenced by a protected groundo Example: Failures to give credible fear interviews to

individuals of particular nationalities o Consider other sections of handbook


• Family/children’s rightso Keeping family together or reunitingo Includes right to start a family, marryo Special provisions for childreno 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


• Right to life; freedom from violence/tortureo 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


• Freedom from trafficking and/or slaveryo T visa or asylum cases o Can be helpful in proving occurrence of trafficking in

less clear-cut caseso Anti-slavery language can add greater weight to case

when relevant


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


• Right to seek asylum/non-refoulemento Obviously relevant in asylum cases o Also in expedited removal cases, etc. when no

opportunity to make asylum claim giveno Motion to reopen where fear of persecution has

arisen after conclusion of proceedings o Motion to reopen based on ineffective assistance in

asylum case


• Right to fair hearing/access to justiceo Decisions in hearings where individual not

representedo Situations where individual unlawfully denied hearingo Ineffective assistance of counsel


• Freedom from arbitrary deprivation of libertyo Bond motions, parole requests, etc.o Can be combined with family rights when relevanto Also look for overlap with non-discrimination issues

U.S. COURT CASES


U.S. Court Cases

• Different ways to useo Similar facts and issueso Same issue but different fact patterno Different facts and different issue

U.S. Court Cases

• Different ways to useo Similar facts and issues

Same as any on-point case law Also same uses below

o Same issue but different fact patterno Different facts and different issue

U.S. Court Cases

• Different ways to useo 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 useo 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

INTERNATIONAL CASE LAW


International Case Law

• Use to: o Highlight severity of the issueo Help define these rights, illustrate relevance to the caseso Argue for judicial recognition of these rightso Argue that government’s interests and individual’s rights

must be balancedo 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 lawo Importance of protecting crime victimso Rape = serious rights violation o Right to fair hearing in non-criminal cases; right to

counsel in non-criminal cases

FOREIGN CASE LAW


Foreign Case Law

• Uses: o Similar to international lawo Show that principles and strategies successfully usedo 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

OTHER INTERNATIONAL MATERIALS


Other International Materials

• 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

issueo Including how rights apply in immigration context

• Authority for asylum arguments

USING HUMAN RIGHTS PRINCIPLES

TYPES OF ADVOCACY

TYPES OF ADVOCACY

• Immigration Law o Removal proceedings and appealso USCIS petitions/applications; appealso Advocacy with ICE or CBP

• Federal suitso Civil rights/constitutional challengeso Habeas Corpus, Mandamus

• Local Advocacy

TYPES OF ADVOCACY

• Local Advocacy o Example: Philadelphia City Council Resolution

TYPES OF ADVOCACY

• Philadelphia City Council Resolutiono Feb. 14, 2013 – adopted set of recommendations on

Comprehensive Immigration Reform to 113th Congresso 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…”

http://www2.nbc4i.com/topics/types/organization/tags/congress/

USING HUMAN RIGHTS PRINCIPLES

BUILDING AN ARGUMENT


• Hook – justify use by tying to domestic lawo The domestic law was based on international lawo Government has already used these materials or

principles in interpreting domestic law beforeo Idea is already a principle of domestic law o Can build layered references


• Example: Refugee/Asylum Lawo 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


• Example: Refugee/Asylum Lawo Congressional record makes this explicit – makes

these treaties directly relevanto 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


• Hooko Implementing legislation for treatyo Congressional record for statute at issue o Domestic case law recognizing relevant rights or

materials o Executive Branch Statementso U.S. Constitution


• Getting startedo Identify the potential human rights issueso Identify which materials may be relevanto Think about a possible “hook”


• Getting startedo Also think about what your goal is in using

international law and human rights principleso 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


• Laying out argumento Start with “hook” if possibleo 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.


• Laying out argumento Start with “hook” if possibleo 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 linkso Ways to tie the relevant rights to Constitutional rightso Case law using human rights-type argumentso 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 issueo 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 materialso 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 foro 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 foro 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 foro 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 foro Emphasize international principles in tough case

Probably want to highlight U.S. obligations or international consensus

So your ask may be:

Laying Out Argument



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



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 concernso 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 concernso 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 materialso 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 issueso 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 jurisprudenceo 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 jurisprudenceo 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 normo 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 audienceo 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 audienceo 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

Using International Human Rights Principles in Domestic Advocacy Immigration Cases.

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