SCOTUS should grant cert in Castro. Judicial review of Trump’s immigration detention regime depends on it

cambria-fence

60 miles outside Philadelphia, on a bucolic country road in Berks County, PA, sits a brick building with a fenced-in yard fronting a line of trees. To look at it, you would never guess this place is the epicenter of the coming battles over judicial review of immigration detention in the United States.

Today the Supreme Court is conferencing to decide whether to grant a writ of certiorari in the case of Castro v. Department of Homeland Security.

Of the two dozen families who are the plaintiffs in Castro, about half have been released. But 14 families remain at Berks. They fled gender-based violence and threats to their lives in their home countries and sought asylum in the United States. After deeply flawed credible fear interviews and rubber-stamp affirmations by an immigration judge, they have languished in legal limbo for the past year and a half.

The Third Circuit decided that these families had no access to habeas corpus, the ability to seek judicial review of one’s detention – a basic right dating back to English common law. The Third Circuit’s reasoning was that these families had entered “surreptitiously” and were apprehended “near the border,” ergo they had no constitutional right to challenge their detention.

That’s plainly wrong. Even Guantánamo detainees, as law professor Steve Vladeck has pointed out over at Just Security, have been given more right to judicial review than the Berks families.

Vladeck called the ruling “deeply troubling” and pointed out that “it is now so much more important for the Supreme Court to grant certiorari in Castro–and reverse the Third Circuit. Reasonable minds may well disagree about the limits of immigration law, and the extent to which the Executive Order (and other U.S. immigration policies) run afoul of the Constitution. But the courts have to be the institution to settle those disputes; under Castro, the Executive Branch’s actions could theoretically be immune from such review… .”

Over at the Insightful Immigration Blog, David Isaacson writes:

The purpose of the Suspension Clause is to ensure that the government can be held to account in court when it detains someone, whether that someone is a suspected terrorist or a woman fleeing persecution with her child. The Third Circuit panel in Castro denied the petitioners in the case that Constitutionally guaranteed ability to demonstrate that they were being held pursuant to an erroneous application or interpretation of the law. We can hope, however, that … the Supreme Court on certiorari, may restore it to them.

Signing on as amici in Castro are no less eminent legal scholars than Chemerinsky, who literally wrote the book on constitutional law; the American Bar Association; and IntLawGrrls’ own editor Jaya Ramji-Nogales and contributors Lindsay M. Harris and Sarah Paoletti, who conclude: “Particularly given that the procedural and substantive protections provided to asylum claimants are consistently flouted or ignored, safeguarding Petitioners’ access to habeas corpus is of exceptional importance.”

Since last fall, I’ve been working with the Berks families and their attorneys as a legal advocate. Berks may be fine for a short-term stay but to be stuck there for 600 days is a living nightmare. This week NBC published an in-depth investigative article on the facility. If you haven’t read it yet, please do.

I’d really like to let the families speak for themselves, but cameras aren’t allowed in Berks, nor is access to social media.

Here’s America’s sweetheart Tom Hanks recently discussing the Castro plaintiffs with lead attorney Lee Gelernt of the ACLU. The card made for him by the Berks kids says simply, “We want to be free.”

Finally, please watch this 9-year-old girl who was detained in Berks but freed in December after “only” a year. This is her heartfelt message on behalf of the families who still remain:

For the sake not only of the Castro plaintiffs, but all those who are and will be caught up in Trump’s expanded detention regime, let’s hope SCOTUS is listening.

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Introducing Beth Goldblatt

beth goldblatt-5(4)It’s our great pleasure today to introduce Beth Goldblatt as an IntLawGrrls contributor. Beth is an Associate Professor in the Faculty of Law at the University of Technology Sydney. She is a Visiting Fellow of the Australian Human Rights Centre in the Faculty of Law at the University of New South Wales and an Honorary Senior Research Fellow of the Faculty of Law at the University of the Witwatersrand. Beth received her PhD from the University of New South Wales and her LLM from the University of the Witwatersrand.

Beth has been involved in research, advocacy, litigation, law reform, policy work and teaching in South Africa and Australia. Her work focuses on feminist legal theory and gender, family law, equality and discrimination, comparative constitutional law, transitional justice, disability, and human rights with a focus on economic and social rights and the right to social security in particular. She has co-edited Women’s Social and Economic Rights (2011, Juta) with Kirsty McLean and Women’s Rights to Social Security and Social Protection (2014, Hart) with Lucie Lamarche. She co-authored ‘Gender Equality and Human Rights’ with Sandra Fredman, a background paper for UN Women’s Progress of the World’s Women Report, 2015-2016.

Her first post will discuss her newest book, Developing the Right to Social Security – A Gender Perspective (2016, Routledge). Heartfelt welcome!

Introducing Tequila Brooks

T Brooks Photo It’s our great pleasure today to introduce Tequila Brooks as an IntLawGrrls contributor. Tequila is an attorney and international employment policy specialist in Washington, DC. She is pursuing a Ph.D. in International Trade and Working Women’s Rights at Tilburg University in the Netherlands. She has an LL.M. in International Labor and Social Security Law from Tilburg University, an LL.M. in International and Comparative Law from the George Washington University in Washington, DC, a Certificate in International Human Rights Law from Oxford University and a J.D. from the University of New Mexico School of Law.

Tequila served as Labor Law Advisor with the North American Commission for Labor Cooperation from 1999 to 2004 and is co-author of NAFTA and the NAALC: Twenty Years of North American Trade-Labour Linkage (Lance Compa and Tequila Brooks, Wolters Kluwer 2015). Her forthcoming article in the Comparative Labor Law & Policy Journal discusses how and whether labor provisions in U.S. and Canadian free trade agreements can be used to improve working women’s lives.

Her first post will assess an idea posited by the International Finance Corporation (IFC) that export processing zones can be used as vehicles for women’s economic empowerment. Heartfelt welcome!

Introducing Bérénice K. Schramm

Bérénice K._SchrammIt’s our great pleasure today to introduce Bérénice K. Schramm as an IntLawGrrls contributor. Bérénice is a Swiss National Science Foundation Postdoctoral Fellow. Currently based at SOAS’ Centre for Gender Studies (London, UK), she will soon move to the Centre d’études sur le droit international et la mondialisation at UQÀM (Montreal, Canada). As an epistemologist of law, her research focuses on postcolonial feminist approaches to interpretation and teaching in international law, two areas where concrete and human-driven changes can take place.

Prior to this, Bérénice earned her PhD in international law from the Graduate Institute of International Studies and Development (IHEID, Geneva) and also worked as a junior lawyer at the ILO Administrative Tribunal. Perfectly bilingual, she carries research both in English and French, trying to bridge and cross-fertilize postcolonial feminist analysis in international law in both linguistic and cultural areas. As part of her attempt to contribute and promote critical, and in particular, postcolonial feminist research in international law in French, still lagging by contrast to its state of development in the English-speaking world, she has taken an active part in founding and now coordinating OLYMPE, the first research network and program for francophone feminist approaches to international law.

Her first posts will introduce the OLYMPE network and its first collective publication. Heartfelt welcome!

Welcoming back Indira Rosenthal

Indira RosenthalIt’s our great pleasure today to welcome Indira Rosenthal back to IntLawGrrls. Indira is an Australian lawyer working in the fields of gender and international human rights, humanitarian and criminal law. She has worked with international NGOs, including Human Rights Watch and Amnesty International, and as a government lawyer and a legal adviser on human rights to parliament. She was an adviser on gender, human rights and international justice to Amnesty International’s International Secretariat from 2011-2015.

As well as her work on gender and international justice, Indira works on issues of access to justice for women and people with disabilities. Her first post will discuss a new commentary on protections against sexual and gender-based violence under the Geneva Conventions. Heartfelt welcome!

Welcoming back Jennifer Moore

Students with JennyIt’s our great pleasure today to welcome back Jennifer Moore as an IntLawGrrls contributor. Jennifer is Professor of Law at the University of New Mexico, where she teaches courses in International Law, Human Rights Law, Transitional Justice, and Refugee & Asylum Law. Her scholarship focuses on the protection of civilians and displaced persons in armed conflict, human rights and development, and transitional justice.

Jennifer’s most recent monograph is entitled Humanitarian Law in Action within Africa (Oxford University Press, 2012), in which she explores the various ways in which humanitarian and human rights law serve as tools of conflict resolution and transitional justice in countries emerging from protracted civil wars. The book includes case studies on civil war and post-conflict transition in Uganda, Sierra Leone and Burundi. She also co-authored (with Musalo & Boswell) the law school casebook, Refugee Law and Policy: A Comparative and International Approach (Carolina Academic Press, 4th Ed. 2011).

Prior to joining the UNM law faculty in 1995, Jennifer worked for the U.N. High Commissioner for Refugees, as an associate protection officer in Conakry, Guinea and in Washington, D.C. In 2002-03, she was in Tanzania on a Fulbright Scholarship, where she taught international law at the University of Dar es Salaam in Tanzania. Jennifer received her Bachelor of Arts from Amherst College in 1983, and her Juris Doctorate from Harvard Law School in 1987. Her first post on the current blog will discuss community healing in Uganda and Sierra Leone. Heartfelt welcome (back)!

Introducing Angie McCarthy

AngieMcCarthyheadshotIt’s our great pleasure today to introduce Angie McCarthy as an IntLawGrrls contributor. Angie is the Program Coordinator for the Women and the Law Program at American University Washington College of Law (WCL) where she works alongside university faculty and staff to integrate gender into all aspects of legal education and supports grant-funded projects that connect the WCL community with the legal needs and concerns of women and LGBTI persons.

Prior to joining the Washington College of Law, Angie was a Graduate Fellow at Peace Brigades International-USA where she supported field projects engaged in protective accompaniment of human rights defenders in Colombia, Guatemala and Indonesia, and conducted outreach and training activities aimed at increasing awareness of the fields of human rights and peace and conflict resolution in the U.S. She has also worked and volunteered with several women’s organizations both domestically and abroad, including the NGO Committee on the Status of Women at the United Nations and the New Women’s Movement in South Africa. Angie holds a JD from American University Washington College of Law and an MPhil in International Peace Studies from Trinity College (Dublin, Ireland). Her current research interests include the intersections between environmental justice and reproductive justice, the criminalization of abortion and pregnancy outcomes, and the prevention of violence against Native American women. Recent publication: “State Obligations to Protect the Lives and Health of Women After Abortion or Miscarriage,” Human Rights Brief, Volume 21, Issue 2 (2014).

Her first post will look at ways of addressing the gender imbalance on international courts. Heartfelt welcome!