“Impossible” Immigration Cases

1. “Impossible” Immigration Cases How Human Rights Tools Can Help CLINIC & ISIM (July 29, 2008)

2. 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.]

3. 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

4. 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 policy-makers • Help you participate in the international movement of human rights advocates

5. 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

6. 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

7. [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

8. 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/deportation/resourcesat.html (2) Columbia University Center for the Study of Human Rights: http://hrcolumbia.org/

9. 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

10. 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

11. 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

12. [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

13. 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)

14. 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

15. 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

16. Sources of Human Rights Law (Overview) • Universal Declaration of Human Rights • Treaties (or “Conventions”) • Customary International Law

17. Universal Declaration of Human Rights • Not a treaty – an authoritative interpretation or definition of rights under the United Nations Charter

18. 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

19. 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

20. When Does a Treaty Become Law in the United States? • 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

21. 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

22. 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

23. Types of Treaties or Conventions (cont’d) • Bilateral Treaties: Govern issues between two States, or between a State and an Intergovernmental Organization

24. 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

25. 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)

26. 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

27. 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

28. 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.

29. Human Rights Adjudicator # 2 • European Court of Human Rights -- 49-member body --Sits in Strasbourg, France

30. 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

31. 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).

32. Decisions by Treaty-Established Bodies • 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

33. 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)

34. 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

35. Using Human Rights in a U.S. Setting (#1): Treaties the U.S. Has Joined Interpret based on: • U.S. implementing legislation • U.S. jurisprudence (decisions of federal and state courts; other adjudicators) • Jurisprudence of global or regional bodies (as persuasive authority; not binding)

36. 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

37. Enforcing U.S.-Ratified Treaties in Domestic Courts • Supremacy Clause • Self-executing vs. Non-self-executing treaties

38. Self-Executing vs. Non-Self-Executing (“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:

39. Two interpretations What it means when a treaty is NSE • The treaty is not judicially enforceable • The treaty does not create a private cause of action

40. Interpreting the ICCPR’sNSE declaration (1) • “…articles 1 through 27 of the Covenant are not self-executing” • Interpretation by lower courts: ICCPR-based 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.

41. Interpreting the ICCPR’sNSE 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

42. Interpreting the ICCPR’sNSE 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

43. Treaties and Statutory Construction • Charming Betsy canon of statutory construction • Last-in-timerule requires clear legislative intent to supersede provisions of a ratified treaty

44. 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

45. BREAK

46. [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.”

47. 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

48. 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

49. 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)

50. 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)