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Author: Jaya Ramji-Nogales

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Undocumented Migrants and the Failures of Universal Individualism

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. But a closer look at international human rights law reveals that it is extremely limited in its protections of the undocumented.  My draft article, Undocumented Migrants and the Failures of Universal Individualism, takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues the protections available to undocumented migrants international human rights law, which are far fewer than often assumed. The paper demonstrates through a detailed analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by stepping away from human rights law and offering a radically new approach to protecting undocumented migrants and other vulnerable populations.

This paper advances one of the first serious critiques of international human rights law. Though legal scholars have presented critical perspectives on domestic law for over thirty years, few academics have applied these critical methods to international law. The dearth of critical scholarship on international human rights law in particular is striking.   This draft article begins to fill that gap by exploring the politics and power interests that underlie international human rights law. It describes the limitations of the universal individualist approach to human rights, highlighting the ways in which false universalisms can obscure dominant power structures.

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Snowden’s asylum case: Be careful what you ask for

According to recwhistleent news reports, Edward Snowden, the whistleblower who leaked documents revealing the scope of the National Security Agency’s surveillance program, has applied for political asylum in at least twenty-one countries.  Though his applications have not been made public, Snowden has received at least three offers of asylum: from Bolivia, Nicaragua, and Venezuela.  The proffered grounds for these asylum grants have varied from Bolivian President Evo Morales, who presented it as a “fair protest” for preventing his presidential airplane from entering the airspace of several European countries; to Venezuelan President Nicolas Maduro, who saw a need to protect “the young American” against “persecution from the empire“; to Nicaraguan President Daniel Ortega, who remained vague on the details.

None of these explanations bears much relation to international refugee law, which, though rarely an arm’s length from politics, does require some rigorous legal analysis.  To be fair, each country has the right to grant asylum based on their own domestic law, which may be more generous than international refugee law standards.  (Though the terms “asylum” and “refugee status” are often used interchangeably, in the United States, the former technically refers to domestic law and the latter to international law.)  But given the legitimacy that the international legal standards might afford a claim like Snowden’s, it’s worth attempting a more thorough analysis of his asylum claim.

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Debating Human Rights History

In 2010, Samuel Moyn published “The Last Utopia: Human Rights in History“, a book that provoked its readers to critically engage with questions about when human rights emerged as an agenda on the international political scene.  Moyn’s suggestion that this was a strikingly recent development (dating to 1977) raised deeper questions about the politics underlying human rights and its successes in displacing alternate utopian visions.  Last year, Moyn published a book review of Jenny Martinez‘s “The Slave Trade and the Origins of International Human Rights Law” and Kathryn Sikkink‘s “The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics“, criticizing both books for insufficiently acknowledging the limitations of international human rights law as an avenue for social and political reform.

This month’s Harvard Law Review contains two new and worthwhile contributions to the debate.  Philip Alston begins with a review of Jenny Martinez’s book, noting the importance of determining the origins of today’s human rights system as well as the lack of consensus around the answer to that question.   Alston notes the ways in which Martinez’s book contradicts Moyn’s thesis, situating each author within a typography of histoslave traderiographical debates.   He critiques both, noting that they present different definitions of human rights that carry buried analytical assumptions, and suggests that a meaningful history should recognize that human rights is a polycentric enterprise.  In other words, historians of human rights must examine ideas, social movements, legal traditions, and institutions in order to understand where human rights came from and where it is headed.

Jenny Martinez responds to Alston’s review, presenting a more nuanced view of her causal arguments than her critics, and taking on Moyn in the process.   She agrees with Alston that human rights is polycentric, and suggests that Moyn’s definition of human rights leaves out important aspects of the larger picture.  Martinez defends herself against claims that a pro-human rights bias infuses her work, and argues that an accurate account of human rights prior to 1977 is crucial in understanding the role of international law today and drawing lessons for current legal institutions.

The books and articles are worth reading for the rich factual analysis alone.  But there’s more to human rights history than that.  This is one of the most provocative debates in recent years about the analytical framework through which we understand human rights.  As Alston notes, “[t]here is a struggle for the soul of the human rights movement, and it is being waged in large part through the proxy of genealogy.”

(hat tip to Jacob Katz Cogan, whose wonderful International Law Reporter alerted me to the Alston and Martinez articles; cross-posted on IntLawGrrls)

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A Reminder of Our Comment Policy

You can always find our comment policy on the menu at the top of the page, but at times it bears repeating:

We welcome thoughtful and respectful comments to our posts, but we don’t welcome all comments. We view comment threads as a forum for civil intelligent discussion. We therefore reserve the right to edit or delete comments or ban commenters. Although we welcome strong disagreement, we don’t welcome name calling, rudeness, insults, privacy invasions, defamation, or crude remarks. Since our aim is for a discussion that is civil and intelligent, we may delete comments that strike us as stupid, that don’t contribute to the debate, or that are shrill and not in the spirit of reasoned discourse. We will also delete irrelevant comments, and we will ban sock puppets. We may give warnings to problem commenters or in problematic threads. Our judgment on whether to delete a comment or ban a commenter is final. Please feel free to disagree with us, and to disagree strongly, but be respectful of us and others. If you don’t like the tone and tenor of the discussions we want to foster here, then there are plenty of other places in the blogosphere for you to go.

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The Turner Symposium: Coming Soon!

No one knows what the Supreme Court will do in Turner v. Rogers, but its decision will likely shape our understanding of access to justice going forward.  The issue before the Court is whether an indigent person has a constitutional right to counsel in a civil contempt proceeding that could lead to incarceration for willful failure to pay child support.  The Court has many options.  It could establish a categorical civil right to counsel, require judges to consider the need for counsel in every case, or determine that states providing counsel in these situations need not do so as a matter of federal law.  It could decide that trial judges have specific responsibilities to assist persons without counsel, with implications possibly extending to many classes of cases.  Perhaps it could even alter in some way our understanding of the right to counsel recognized in Gideon v. Wainwright.  In light of the possibilities and their implications, Concurring Opinions will sponsor The Turner Symposium, an on-line analysis by experts in the field interpreting the decision in real time — as soon as the opinion comes down.  Two experts in residence will moderate:  Richard Zorza, expert in self-represented litigation and blogger at Access to Justice, and David Udell, Director of the National Center for Access to Justice.  The list of participants is after the leap:

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Randomization, Intake Systems, and Triage

Thanks to Jim and Cassandra for their carefully constructed study of the impact of an offer from the Harvard Legal Aid Bureau for representation before the Massachusetts Division of Unemployment Assistance, and to all of the participants in the symposium for their thoughtful contributions.  What Difference Representation? continues to provoke much thought, and as others have noted, will have a great impact on the access to justice debate.  I’d like to focus on the last question posed in the paper — where do we go from here? — and tie this in with questions about triage raised by Richard Zorza and questions about intake processes raised by Margaret Monsell.   The discussion below is informed by my experience as a legal service provider in the asylum system, a legal arena that the authors note is  strikingly different from the unemployment benefits appeals process described in the article.

My first point is that intake processes vary significantly between different service providers offering representation in similar and different areas of the law.  In my experience selecting cases for the asylum clinics at Georgetown and Yale, for example, we declined only cases that were frivolous, and at least some intake folks (yours truly included) preferred to select the more difficult cases, believing that high-quality student representation could make the most difference in these cases.  Surely other legal services providers select for the cases that are most likely to win, under different theories about the most effective use of resources.  WDR does not discuss which approach HLAB takes in normal practice (that is, outside the randomization study).  On page twenty, the study states that information on financial eligibility and “certain additional facts regarding the caller and the case”  are put to the vote of HLAB’s intake committee.  On what grounds does this committee vote to accept or reject a case?  In other words, does HLAB normally seek the hard cases, the more straightforward cases, some combination, or does it not take the merits into account at all?

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Rejecting Refugees

The New York Times today reports on my most recent co-authored empirical study of the U.S. asylum system, Rejecting Refugees: Homeland Security’s Administration of the One-Year Bar to Asylum, forthcoming in the William and Mary Law Review. As the title suggests, this article focuses on asylum law’s one-year filing deadline, which was created by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Scholars and practitioners have long expressed concern that refugees have been denied asylum due solely for failure to apply within a year of entry, and fear that the bar has had a significant impact on the U.S. asylum system. Our article is the first systematic empirical study of the effects of the deadline on asylum seekers and the asylum system.
We focus on decision-making by the Department of Homeland Security, which adjudicates most applications for asylum in the first instance. The findings are troubling. Most notably, it is likely that since the one-year bar came into effect, in April 1998, through June 2009, DHS rejected on the deadline more than 15,000 asylum applications (affecting more than 21,000 refugees) that would otherwise have been granted.
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Where, Oh Where Shall They Sue?

When I was a young law firm associate, we had tobacco, diet drugs, and Jeep rollovers.  These big money-making mass tort cases were known for sucking the life out of young attorneys, who could spend years of their lives in windowless rooms conducting document review tasks that could be performed by highly paid monkeys.  Next year’s class of monkeys will have a whole new nemesis: the Gulf oil spill litigation.

With over 200 federal civil lawsuits already filed, today’s Wall Street Journal outlines the battle shaping up among lawyers over where these cases will be heard, and most importantly, who will hear them.  Arguments on potential consolidation will be heard in one hour next week before a panel of seven judges in Boise, Idaho.  Pay attention, young associates!!  These decisions could determine your future residence, even if you thought you were signing onto a law firm so that you could live in New York.

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A Well-Founded Fear of School?

Tuesday’s Washington Post discusses an intriguing asylum case: an immigration judge in Memphis granted asylum to a German couple who fled their homeland to avoid its mandatory schooling policy.  Uwe Romeike, along with his wife and five chilren, are evangelical Christians who had decided to homeschool their children both because they believed the public school curriculum to be “against Christian values” and because their children faced violence, bullying, and peer pressure in public schools.  The Romeikes took their children out of school in their home state of Baden-Wuerttemberg in 2006, and paid fines of approximately $10,000 over 2 years for doing so.  That state constitution requires that children attend public or private schools; parents who refuse to comply can face fines or even jail time, or in severe cases, Germany’s highest appellate court ruled that social service officials could remove children from their parents.

There are so many interesting angles to the decision that it’s hard to know where to start.  Some might question whether the ability to choose how to school one’s child is a fundamental human right that should be protected by asylum law.  The German consul for the Southeast U.S. noted that “German parents have a wide range of educational options for their children.”  Should the Romeikes be sent back to Germany on the assumption that they could find a religious school that provided instruction acceptable to their value system?  Under U.S. asylum law, if internal relocation is an option to avoid persecution, applicants must move within their own country to find safety before coming to the United States.  The Romeikes had the option not only of relocating within Germany but also, as citizens of the European Union, of living and working in any member state (some of which allow home schooling and others of which surely offer affordable education that accords with evangelical religious values).

The involvement of the German consul also raises questions about the appropriateness of immigration court as a messenger in foreign affairs.  Romeike’s lawyer said that he took on the case in part because he hoped to influence public opinion in Germany, while the consul defended the law as a policy decision that “ensures a high standard of learning for all children.”  Should our immigration courts be questioning the policy judgments of solidly democratic nations with robust and procedurally fair legal systems?  Asylum has for many years been used as a political tool, for better or for worse, but this seems one step too far.  In any case, I’m interested in readers’ thoughts — are the Romeikes modern-day pilgrims, or is this just another misguided decision by our dysfunctional immigration courts?