Migrant Worker Women Advancing Gender Equity through the USMCA

Men only, 1835 years old. 

In 2021, seeing a job posting with those words is startling. Shocking even. But more than a year into a world-changing pandemic that has pushed millions of women out of paid work, U.S. employers continue to discriminate against women, posting ads like that one. To evade legal consequences, U.S. businesses discriminate in Mexico, hiring men to work in the United States with temporary H-2 guestworker visas while turning women away. Other U.S. businesses discriminate by hiring women but channeling them into lower-paying jobs with poorer conditions than those they hire men for. Although the U.S. government knows that H-2 employers discriminate against women, it has done little to stop them. 

For more than fifteen years, since I founded Centro de los Derechos del Migrante, Inc. (CDM)—the first transnational workers’ rights organization based in Mexico and the United States—I have heard from women in Mexico about patterns of abuse in the U.S. H-2 programs. Migrant women have courageously spoken out about blatant discrimination in H-2 recruitment and hiring, sexual harassment and other violence against women at work, unfair pay, and unlawful working conditions. Women report discrimination in industries ranging from Maryland’s blue crab processors to fruit and vegetable sorting. Sex discrimination persists in H-2 labor supply chains even though U.S. law prohibits employers and labor recruiters from discriminating against women. Laws prohibiting discrimination protect all women who work in the United States, even if businesses hire them outside of the country.

Today, migrant women continue the fight for gender justice. In March, in honor of Women’s History Month, CDM and workers’ rights organizations across North America joined migrant women in filing the first viable state-to-state complaint under the new United States-Mexico-Canada trade agreement (USMCA). The USMCA’s labor chapter, Article 23, requires the United States to enforce its anti-discrimination laws, including Title VII of the Civil Rights Act of 1964. In failing to root out discrimination in H-2 recruiting, hiring, and employment and neglecting to ensure gender equity in the program, the United States is violating Article 23. 

In the complaint, we collectively make three demands:

  1. The U.S. government must end sex discrimination in the H-2 guestworker programs once and for all.
  2. The government must ensure that all workers have access to Legal Services Corporation-funded civil legal services. (Without lawyers working in solidarity with them, it is nearly impossible for migrant women to access justice through U.S. courts.)
  3. The government must investigate discrimination complaints from women in the H-2 program under Title VII of the Civil Rights Act, rather than ignoring or summarily dismissing them.

And to increase pressure on the Administration, we are filing a supplemental complaint with Professor Sarah Paoletti, a Practice Professor of Law and the Director of the Transnational Legal Clinic at the University of Pennsylvania School of Law. The supplement will address the U.S. government’s obligations under the ILO and international human rights law to end discrimination in the H-2 program.

We have reasons to be hopeful that the USMCA can serve as a tool to improve access to transnational justice for migrant workers. Unlike NAFTA—the old trade agreement with its toothless labor side accord—the USMCA has a mechanism for migrant workers and their advocates to push governments to comply with labor and employment laws—or face sanctions. Concretely, this means that the U.S. government may face sanctions if it maintains the status quo and ignores the grave abuses that the petitioners report in the H-2 program. It means that the U.S. Equal Employment Opportunity Commission must end its practice of failing to investigate and meaningfully respond to migrant women’s discrimination complaints. And it means that the U.S. Departments of Labor and Homeland Security must stop allowing H-2 employers to discriminate without consequences. In receiving and reviewing our petition, the governments are legally responsible for showing us that they meant what they said about protecting migrant workers’ and women’s rights when they signed the agreement. 

The historic process for the migrant women petitioners began in Mexico, where we filed the USMCA complaint with the Mexican government. Mexico formally accepted the complaint and is now investigating discrimination and other abuses in the agricultural and protein processing industries, the industries in which the petitioners work. Earlier this month, Mexico asked the United States to honor its obligations under the USMCA and invited cooperation in doing so. And now the Biden-Harris Administration has the opportunity to make good on the promise of the USMCA and proactively address the urgent issues we raise in the complaint.

For too long, U.S. businesses have used the H-2 programs to bypass our civil rights and labor laws. Left without government oversight, H-2 employers have enacted their sexist, racist, and ageist ideas about the kinds of workers who maximize profitability. Sex discrimination in the H-2 program harms not only migrant women from Mexico but also U.S.-based workers. 

Over the next year, as we rebuild the U.S. economy for a sustainable and equitable recovery, justice for migrant women must be at the fore of the government’s labor and employment policies and practices. And next Women’s History Month, we look forward to celebrating meaningful, sustainable reforms in the H-2 program that will end discrimination against migrant women and promote access to justice. 

We would be grateful for your support in standing with migrant worker women to fight against discrimination. Please email me (rachel@cdmigrante.org) to join the supplemental complaint on the U.S. government’s obligations under the ILO or to submit an amicus in support of migrant worker women. 

Violence, Justice, Equity: Reflections on International Women’s Day

On this International Women’s Day (IWD), the official UN theme for 2021 is “women in leadership: achieving an equal future in a COVID-19 world.” The elimination of discrimination and violence against women and girls are targets of the Millennium Development Goals and the UN Agenda 2030, which emphasizes inclusivity in its Sustainable Development Goals (SDGs), including gender equality and the empowerment of all females in Goal 5. Goal 10 aims to reduce gender and socioeconomic inequalities globally, including through the elimination of discrimination, violence, exploitation, forced marriage, and female genital mutilation.

Dating back to the first celebration in 1909 in the United States, IWD is rooted in socialist women’s leadership in struggles for labor and economic justice, such as the 8-hour workday and limits on women’s and children’s labor; political justice, such as suffrage and liberation from fascism and autocracy; a refusal to sacrifice husbands and children to wars; and breaking down false barriers between “public” and “private” life that conceal the important roles of mothers and wives. Women’s efforts against poverty and violence have also been consistent IWD themes, including the structural violence of female subordination—“a tolerance of violence against women and children” and being “subjected to a life of sub-humanity for the sheer fact alone that they were born female,” as noted on IWD 2012.

To imagine a gender-equitable future from this historical moment in 2021 requires reckoning with how women and girls have been faring. For instance, since the start of the pandemic in the US women—disproportionately women of color—have left the work force at four times the rate of men, reversing previous gains. One of the more well-known outcomes of the COVID-19 pandemic is the escalation of domestic violence and sexual and gender-based violence (SGBV), triggered by prolonged social isolation, household tension in close quarters, and increasing strains on individuals and families due to deteriorating health, socio-economic, and/or political conditions. The “Forever Wars” and other conflicts around the world have also raged on during the pandemic, adding to the world’s refugee crisis in which 75-80% of displaced persons are women and children. Trauma is understandably a common preoccupation of our time.

Working at the intersection of human rights and trauma mental health, I have spent the last year writing about SGBV and trauma-informed approaches to interviewing female survivors for purposes of investigating human rights violations such as genocide, crimes against humanity, war crimes, and mass detention of people seeking refuge from violence and poverty. Among multiple things competing for our attention, mine has been focused intensely on militarism, conflict-related SGBV, impunity, and feminist activism amidst growing societal & global inequities and increasing violence in many forms—criminal, sexual, domestic, and political—during the pandemic. In the ongoing and escalating struggle for gender justice, urgent attention to violence remains important. Among the types of violence and harm SGBV stands out for several reasons. It is the only serious crime for which many justice systems require victims to prove lack of consent to the harm inflicted. Across diverse legal systems, redress for SGBV is difficult to attain due to attribution of blame and complicity to victims/survivors as well as impunity for perpetrators. SGBV has also historically been the least punished offense committed during wartime.

In the long history of international feminist activism, it is only recently that women’s efforts led to the recognition of conflict-related SGBV as a war crime against the long-standing idea that sexual violence against women, girls, men, and boys is an expected military reward or byproduct of war. Women’s campaigning for redress of this injustice, through UN human rights and women’s rights conferences and particularly since the 1990s International Tribunals for Rwanda and the Former Yugoslavia, resulted in its designation as a crime against humanity. “From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime,” said Judge Pillay of the International Criminal Tribunal for Rwanda (later, the UN High Commissioner for Human Rights).

However, all forms of SGBV persist, supported by strong ideological underpinnings: state-supported violence, militarized masculinity, and victim-blaming alongside perpetrator impunity. These thrive in a broader context of social, economic, civil, and political inequities. SGBV is founded on sexist beliefs and compounded by other structural inequalities in the context of globalized discourses of militarized masculinity that merge sex and violence, and which are amplified through warfare. The globally pervasive threat of SGBV reduces the quality of life for targeted persons—disproportionately women, girls, and gender non-conforming persons—and is particularly acute in hyper-masculinist institutions in which sexual assault rates are often highest, such as in militaries. Conflict-related SGBV inflicts collective trauma by systematically targeting individual bodies in furtherance of broader social harms such as the mass displacement, dispossession, and extermination of entire neighborhoods and communities. Female survivors of conflict-related SGBV have reported feelings of complete insecurity and multiple losses: bodily integrity, health, loss of family and their livelihoods, disorientation and lack of belonging, profound dispossession of their personal identity, and marginalization.

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Born into Statelessness: Unintended Consequences of the End of Birthright Citizenship

In October 2018, in response to growing Central and South American migrant population fleeing violence and approaching the United States, President Trump made a drastic statement that he would seek to end jus soli, or birthright citizenship, through an Executive Order. Lindsey Graham, a Republican Senator from South Carolina, lauded the President’s statement, and indicated that he intended to introduce legislation to the same effect. If successful, this new citizenship law could have a devastating impact on children born in the United States to Central and South American individuals, leaving thousands of them stateless.

As a matter of international law, states are free to determine who is or is not a national of their country without interference from the international community or international law, except in the case of stateless persons. The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are the two primary international instruments guiding the rights of individuals and the actions of states with regard to nationality. Many international instruments affirm the right an individual has to nationality. Specifically, the 1954 Convention defines a stateless person as someone “who is not considered as a national by any State under operation of its law.” The 1961 Convention requires that states grant nationality to those born on their territory who otherwise would be stateless, and prohibits states from withdrawing nationality from an individual when that individual would then be rendered stateless. Accordingly, under international law, the United States government is free to end, or further restrict, birthright citizenship but only in accordance with the provisions in the 1961 Convention.

Issues arise in practice when the domestic laws of nations conflict, leaving individuals in situations of de facto statelessness. According to the Pew Research Center, about 250,000 children were born in the United States to non-citizen immigrant parents in 2014, with many born to parents who lacked legal status. Because of the domestic laws of the countries from which these immigrants originate, children born to immigrant parents in the United States may lack citizenship of their state of origin. They would therefore be rendered stateless if the United States were to curtail birthright citizenship, in contravention of the 1961 Convention.

For example, the law of Brazil stipulates that individuals born abroad to a Brazilian parent are eligible to acquire citizenship after becoming an adult only if their parent registered their birth with the Brazilian authorities or if they returned to live in Brazil as a child. If the individual is not registered or does not reside in Brazil before the age of majority, he or she is not entitled to Brazilian citizenship, regardless of the nationality of his or her parents. As of 2014, there were approximately 336,000 Brazilian immigrants in the United States.

There are several issues with these requirements of affirmative action on the part of the parents or child. First, to register a child with the authorities of their own birth country, parents must first demonstrate their own citizenship, which may prove problematic. Parents could do this by showing a passport, birth certificate, or identity card. However, these individuals may have fled their homes quickly without such documents, and would therefore risk being unable to register their children even if they desired to do so.

Second, even if the child of Brazilian parents wished to acquire Brazilian citizenship, the decision is entirely in the hands of his or her parents. His or her parents must be the ones to register the child’s birth with the relevant authorities; no other adult is eligible to do this and the child himself cannot make himself known to authorities later in order to qualify for citizenship. If this is not done, the child must return to reside Brazil before the age of majority. For most children, this is a decision entirely out of their control.

Therefore, should the U.S. end birthright citizenship, children born in the U.S. of Brazilian parents would be at risk of de facto statelessness by no fault of their own. This example is meant to be illustrative, though not exhaustive. Many groups of immigrants in the United States would be forced into similarly precarious positions. The domestic laws of many Central and South American countries require parents located out of the country to register their children’s births with the national authorities in order for them to be eligible for citizenship. There are many reasons why parents fleeing violence, persecution, and economic crises may not wish to register the birth of their children. Whatever the reason, innocent children without a choice would suffer as a result of this change of law. Without careful consideration of the potential impact of this change to US birthright law, many children residing in the United States would be rendered de facto stateless and vulnerable as a result.  

John Bolton is right (sort of)—the ICC should not be able to prosecute Americans. How US law has major gaps in domestic accountability for war crimes.

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US National Security Advisor John Bolton. Photo Credit Gage Skidmore.

It has long been known that US National Security Advisor John Bolton is no fan of the International Criminal Court (ICC). But today marked a dramatic step up in his rhetoric, ahead of the ICC’s decision about an investigation into possible war crimes and crimes against humanity in Afghanistan. Despite the fact than any ICC investigation will probably focus on the Taliban, the US is worried that American troops stationed in the country may be vulnerable to prosecution.

Ahead of the ICC’s announcement, Bolton claimed that the US will “ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.” (However, it seems unclear if the President actually has the legal authority to do this.)

John Bolton is right about one thing: the ICC should not be able to prosecute Americans for war crimes or crimes against humanity. The fact that the ICC can reveals huge gaps in the American domestic legal system’s ability to hold citizens and foreign nations residing in the US accountable for mass atrocities.

Bolton’s pronouncements to the contrary, the ICC only has jurisdiction over crimes included in its statute committed by citizens or in the territory of states party to the Rome Statute. That is why the ICC only theoretically has jurisdiction over Americans for crimes committed in Afghanistan (and not, for instance, Yemen). Furthermore, the ICC is a court of last resort. The principle of complementarity means that the ICC can only prosecute individuals if other states are unwilling or unable to prosecute them first.

Despite Bolton’s claim that his opposition to the ICC is to protect American service members, US military personnel are arguably more protected from ICC prosecution by the principle of complementarity than other American civilians. The US military’s court martial system is generally ‘willing and able’ to hold service members accountable for war crimes and crimes against humanity. However, there is a huge gap in the American legal systems’ ability to hold American civilians and foreign nationals residing in the United States accountable for crimes against humanity and war crimes committed abroad.

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Applying the death penalty to drug dealers is never ‘appropriate’. It violates international law.

On Wednesday, March 21, Attorney General Jeff Sessions issued a memo implementing President Trump’s plan to “get tough” on the opioid epidemic: the death penalty for drug dealers. Session’s memo “strongly encourage[s]” prosecutors to seek the death penalty in drug cases “when appropriate.” While this strategy comes as no surprise from a president who has lauded Philippine President Duterte’s approach to drug policy, it’s not “appropriate”. And it violates international law.

Lots of ink has been spilled arguing that Trump’s proposal will violate the Constitution, drive drug use underground, benefit large-scale drug dealers, and grind the federal judicial system to a halt. Less has been said about the international legal implications of the proposal.

Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, limits the application of capital punishment to the “most serious crimes.” The UN Human Rights Committee emphasizes that this category must be “read restrictively,” and the Economic and Social Council of the UN cautions that its “scope should not go beyond intentional crimes with lethal or extremely grave consequences.” Further clarifying the category, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions explained that the death penalty can only be imposed when “there was an intention to kill which resulted in the loss of life.”

According to Harm Reduction International (HRI), 33 of the 55 states that retain the death penalty apply it to drug-related offenses. These statistics, it might surprise you, already count the United States as one of those 33 countries. Though the United States has never executed anyone under the provision, 18 U.S.C. §3591(b) authorizes the death penalty for trafficking in large quantities of drugs and remains in force according to the Cornell Center on the Death Penalty Worldwide.

This might be less surprising when one realizes that the United States reserved the right “to impose capital punishment on any person [. . .] duly convicted under existing or future laws” when it joined the ICCPR. This reservation does not give the U.S. the right or ability, however, to opt out of existing customary international law. And that is precisely how international human rights lawyers and scholars increasingly view the abolition of the death penalty, particularly for drug-related offenses. Giving credence to this view, of the 33 countries that retain the death penalty for drug offenses, 17 of them have never executed anyone pursuant to those laws.

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Working women and evolving labor standards in U.S. and Canadian free trade agreements

My forthcoming article in the Comparative Labor Law & Policy Journal discusses and compares the evolution of labor standards in U.S. and Canadian free trade agreements (FTAs) since 2000.  It then assesses their usefulness as tools to improve IMG_0646working women’s rights.

With few exceptions, all U.S. and Canadian free trade agreements have included labor provisions since 1994.  They also contain procedures for members of the public to file petitions that trading partners have not met their labor obligations under FTAs.

After 2000, the governments of Canada and the U.S. both incorporated the 1998 ILO Declaration on Fundamental Principles and Rights at Work as the guiding standard for labor rights in free trade agreements.  The four core labor standards in the ILO Declaration are (1) abolition of child labor; (2) elimination of discrimination in the workplace and occupation; (3) elimination of all forms of forced or compulsory labor; and (4) freedom of association and the effective recognition of the right to collective bargaining.

My article examines the outcomes of a number of recent cases filed under the labor provisions of U.S. FTAs, including the U.S.-Bahrain FTA, U.S.-Peru FTA and the U.S.-Central America-Dominican Republic FTA (CAFTA-DR).   The article also compares civil society advocacy efforts in Canada and the U.S. related to the negotiation of free trade with Colombia and discusses the implementation of a Labor Rights Action Plan (LAP) between the U.S. and Colombia as a pre-condition for Colombia’s entrance into the U.S.-Colombia FTA.

A definite evolution is observed in the investigative methods, problem-solving techniques and types of remedies adopted in reports issued by the U.S. Department of Labor (USDOL) in response to public petitions filed under FTA labor provisions during the Obama Administration (2009-2016).  In addition to making fulfillment of certain labor standards commitments a pre-condition to formal entry of trade relations between U.S. and Colombia, USDOL (a) called on one trading partner to pass legislation prohibiting discrimination in the workplace (Bahrain); (b) worked with another trading partner to develop a method for denying export permits to companies that did not comply with labor court orders (Guatemala); and (c) timed the issuance of labor administration and/or elimination of child labor grants with the issuance of reports (Honduras, Dominican Republic).  USDOL also increased its capacity for addressing threats of violence against trade unionists in the territory of U.S. trade partners (Colombia).

Despite evidence of improvement in USDOL’s administration of labor petitions under FTAs since it first started receiving petitions in 1994, definitional shortcomings in U.S. FTA labor provisions weaken their utility as advocacy tools for workers as a whole and women in particular.

One problem is that only 75% of the ILO Declaration is incorporated into the definitions sections of the U.S.-Jordan FTA and CAFTA-DR.  Both agreements fail to specifically include equal pay for equal work for women and men and the elimination of workplace discrimination in the Definitions section for purposes of international dispute resolution.  This leads to textual uncertainty as to whether discrimination on the basis of sex or other grounds is covered.  As a result, gender-related claims in an omnibus petition filed about labor law and administration in Honduras were ignored in a 2015 USDOL report under the CAFTA-DR.  Ironically, comparison of the 2012 Honduras CAFTA-DR case with the 1997 Pregnancy Testing in Mexico case shows that the NAFTA has been a better advocacy tool for working women that the more modern CAFTA-DR.

Definitional shortcomings in post-NAFTA U.S. FTAs are not limited to incomplete incorporation of the 1998 ILO Declaration.  After 2000, U.S. FTA labor provisions limit the definition of “labor law” as applied to the United States to laws passed by the U.S. Congress.  This definition excludes all U.S. state labor laws, which cover compensation for workplace injuries, govern the time and manner of payment of wages, and guarantee trade union rights to state and local government employees.  My article shows how two 2012 reports released by the Government of Mexico about U.S. failure to comply with NAFTA labor obligations may have played a role in the U.S. decision to narrow the scope of the definition of U.S. labor law in FTAs.

In contrast, there is no such textual or definitional uncertainty in the labor provisions in post-NAFTA Canadian FTAs, which explicitly cover workplace discrimination and equal pay for women and men – as well as compensation for workplace injuries.  Canada currently has FTAs with labor provisions with Chile, Costa Rica, Peru, Colombia, Jordan, Panama, Honduras, South Korea and the European Union.  Canada also has Labor Cooperation MOUs with Brazil, Argentina and China.

The article shows how women’s rights advocates have creatively utilized FTA labor provisions as advocacy tools with mixed results  The most successful gender petitions focus solely on gender discrimination rather than burying gender claims in broader petitions.  Because of definitional shortcomings in U.S. FTAs, however, women’s rights advocates should consider filing labor petitions under Canadian FTAs in addition to or rather than U.S. FTAs.  Not only are the definitional provisions stronger, the petition procedures are very similar and Canada has stronger Equal Pay laws and culture.

Recently, Canada established itself as a leader on women’s issues by advocating for a gender chapter in the 2017 re-negotiation of NAFTA.  Mexico expressed support for the idea of a gender chapter, but observers opine that the U.S. would never agree to binding gender-related provisions in a renegotiated NAFTA – despite the fact that a non-binding 2012 U.S.-Mexico Memorandum of Understanding on Women’s Economic Empowerment is already in place.

As Mark Aspinwall rightfully pointed out in his August 2017 Forbes Op Ed, effective application of FTA labor and environmental provisions is heavily dependent on political will.  Even with strong political will backed by critical human and financial resources, the Obama administration’s free trade and labor agenda had some mis-steps and imperfect outcomes.  There is much work to be done to maintain the gains and momentum achieved.  Unfortunately, the current administration is already off to a bad start.  Congress has already called upon the Trump administration to ensure that U.S. trade partners Colombia, Dominican Republic, Guatemala, Honduras and Peru fulfill their commitments under ongoing labor action plans related to petitions filed under FTA labor provisions.  In addition to a lack of political will to address labor violations among trading partners, the current administration has not allocated sufficient human and financial resources to USDOL’s Bureau of International Labor Affairs to properly perform its duties.  In their September 19, 2017 letter to Trump adminstration officials, ranking Democratic members of the House and Senate called on USTR, USDOL and USDoS to fill five positions key to enforcement of FTA labor provisions.  Lack of political will and inadequate resource allocation risks slowing or stopping the evolution made by the last administration in the enforcement and application of labor provisions in free trade agreements.

On the Job! [Helton Fellowship]

On the Job! compiles interesting vacancy notices, as follows:
ASIL

 Applications are welcome from recent or current law graduates for the position of Helton Fellow.  The holder of this position receives funded contributions from ASIL members, interest groups, and private foundations to pursue field work and research on significant issues involving international law, human rights, humanitarian affairs, and related areas. Deadline is Monday, January 15, 2018; details here https://www.asil.org/about/helton-fellowship-program.

U.S. Government Sued Over Illegally Turning Away Asylum Seekers

Today several groups filed suit against the U.S. government’s Department of Homeland Security and the Customs and Border Protection (CBP) agency for turning away asylum seekers, contrary to domestic and international law.

Along the U.S.-Mexico border, asylum seekers arrived from all over the world to present themselves to CBP to ask for protection. The right to seek asylum is enshrined in Article 33 of the United Nations Convention on the Status of Refugees, which came into being in 1951 and was expanded by the 1967 Protocol. The United States signed the Protocol in 1968, enacting domestic law to implement the international agreement in 1980.  The U.S. is thus bound by the terms of the Protocol and the Convention itself, including, critically, the principle of non-refoulement — non-return of individuals to a place where they would  face persecution on account of one of the five protected grounds.

In recent years, however, CBP has been routinely turning away vulnerable asylum seekers, forcing them to return to Mexico without allowing them to pursue their right to claim asylum.  This illegal practice has worsened as CBP officers became emboldened following the election and inauguration of Donald Trump as U.S. President. Indeed, in January 2017, several groups filed a complaint with the Department of Homeland Security’s Offices of Civil Rights and Civil Liberties and Inspector General, alleging systemic abuses at the border. In March, the U.S. government failed to even show up to defend their practices before the Inter-American Commission for Human Rights, a session which included testimony from multiple groups on the illegal turning away of asylum seekers at the border.

To challenge the unlawful practice of turning away asylum seekers, today the American Immigration Council, the Center for Constitutional Rights, and Latham & Watkins LLP filed suit in federal court in California’s Central District. The plaintiffs are Al Otro Lado, a “national, direct legal services organization serving indigent deportees, migrants, and refugees in Tijuana, Mexico” and six of their clients. The lawsuit alleges that DHS and CBP have violated asylum seeker’s rights to seek protection, along with their due process rights under the Fifth Amendment to the U.S. Constitution, and violations of international law.

The plaintiffs’ stories are all too familiar to asylum lawyers based in the U.S. Personally, I Co-Direct the Immigration and Human Rights Clinic at the University of the District of Columbia’s David A. Clarke School of Law. Our current clients include several mothers fleeing violence in Central America who eventually made it into the U.S. after being illegally turned away. We work with survivors of extreme domestic violence and persecution at the hands of transnational criminal organizations, known as “maras,” were turned away at the border by officials with statements such as “There’s no asylum for people from Honduras…” or “You can’t get asylum because you’re scared of your husband.” These statements are patently false, of course, and the precedential Board of Immigration Appeals decision, Matter of A-R-C-G-made clear that individuals fleeing domestic abuse can meet the asylum definition.

As Karolina Walters of the American Immigration Council summarizes from the Complaint today, on their blog, “[o]ther examples of the tactics used by CBP officers against asylum seekers, include:

  • Misrepresenting that visas are required to cross at a POE or that asylum seekers must obtain a “ticket” from a Mexican government agency before they will be allowed to enter the United States to seek asylum;
  • Yelling profanities at an asylum-seeking mother and her 5-year-old son, throwing her to the ground, and forcefully pressing her cheek into the pavement; and
  • Coercing asylum seekers into recanting their fear on video and into withdrawing their applications for admission to the United States.”

The Washington Post quotes legal fellow, Katie Shepherd, also with the American Immigration Council  “‘[CBP officers are] getting very creative; we keep hearing new ways they’re turning people away. . . ‘If a single asylum seeker is denied in a day, that’s one too many.’”

It is, of course, a sad state of affairs that a lawsuit to protect the rights of asylum seekers is necessary. We can only hope that the Court will hold the government to account and the government will honor their legal obligations to protect refugees.

 

A Double Standard for White Terrorists

Almost immediately after it emerged that a white supremacist had stabbed three men who were trying to prevent him from attacking Muslim women in a Portland train, killing two of them, efforts at mitigation began.

“We don’t know if he’s got mental health issues,” Sgt. Pete Simpson said in the first public statement about the May 26 incident. Added the perpetrator’s childhood friend, “All I have to say is I hope this brings attention to the need for mental health facilities and more outreach.” His mother struck a similarly apologetic note: “He’s always been spouting anti-establishment stuff but he’s a nice person.”

Inevitably, those close to the perpetrator tried to explain away the hate that drove this crime. Yet what this individual did was fundamentally a political act, and in a country where politicians are increasingly wary of condemning racially motivated violence. In his trial for the Charleston shooting, another white racist, Dylann Roof, made clear the real motives for his crime: “I don’t want anybody to think I did it because I have some kind of mental problem. I wanted to increase racial tension.”

An act of terror by a self-identifying Muslim would never have been treated as apologetically as have the Portland stabbings and the Charleston massacre. Compare these reactions to those following the Boston Marathon bombing and the San Bernardino massacre. Why the double standard? Why do we excuse the racist hate that led the Portland stabbings and the Charleston shootings?

Among the most frightening aspects of the Portland stabbings is that the perpetrator, Jeremy Joseph Christian, 35, was long known to police and others as someone who endorsed murderous acts. To his Facebook followers, Christian’s willingness to kill innocent people should come as no surprise. But the authorities turned a blind eye to the threats that fill Christian’s public posts.

As his Facebook posts demonstrate, Christian made numerous appearances at white supremacist rallies in recent months. He was a well-known member of the Portland community, not an outsider, an alien, or an immigrant. He delighted in his own notoriety, noting in one post how a local reporter called him “the Lizard King.”

On May 9, Christian wrote on his Facebook page (still online as of this writing): “I want a job in Norway cutting off the heads of people that Circumcize [sic] Babies….Like if you agree!!!” More than two dozen of Christian’s Facebook followers signified their approval. One vowed to set up a fund to support “Americas newest hero Jeremy Joseph Christian.”

Christian began verbally attacking two women on a train, one of whom was wearing a hijab. Police said he “began yelling various remarks that would best be characterized as hate speech toward a variety of ethnicities and religions.” When three men tried to intervene, he stabbed them. Two of them—Ricky John Best of Happy Valley, Oregon, 53, and Taliesin Myrddin Namkai Meche of Southeast Portland, 23—died from their injuries.

At a court appearance this week, Christian was defiant, saying, “You call it terrorism, I call it patriotism!”


Had Christian been deploying the rhetoric of ISIS on Facebook, he would have been under FBI surveillance. Why, then, are white supremacists allowed to threaten violence against innocents while authorities look the other way? Why are people still willing to make excuses when expressions of racist hate turn into racist action?

In stark contrast, Egyptian-American Tarek Mehanna was sentenced to seventeen years in prison exclusively on the basis of his association with jihadist ideology, and not for any specific act of violence. But whereas Mehanna was immediately incarcerated for his support of violence, Christian’s threats have been ignored, or tolerated, by the authorities. Like many white supremacists, the perpetrator of the Portland stabbings was regarded prior to his murders as merely a nuisance by authorities.

Like Christian, Mehanna supported an ideology that is associated with violence. Both ideologies must be condemned. Yet the point here is that Mehanna was imprisoned for his views, while white supremacists like Christian are all too often tolerated until blood is spilled.

The fight against racism is a battle that cannot be abdicated to others. It has poisoned this country and will continue to do so until white racism is taken as seriously as the terror that clothes itself in Islamic rhetoric.

I passed much of my adolescence on Portland’s streets. I attended poetry readings in Portland cafes and volunteered in soup kitchens, and hanging out in Powell’s, the country’s biggest bookstore. The violence of the past few days does not represent the Portland I know. However, it does represent a plausible future for a country increasingly driven by an ideology that must be actively resisted rather than silently condoned.

 

Cross-posted from The Progressive

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.