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

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Impossible immigration cases

Impossible Immigration Cases

How Human Rights Tools Can Help

CLINIC & ISIM (July 29, 2008)


Introductions warm up

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.]


What is the human rights promoters project

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


Objectives of the human rights promoters project

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


Methods of the human rights promoters project

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


Why use international human rights law

Why Use International Human Rights Law?

  • Its 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


Add m ensor human rights approach slides here below is ks summary

[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


Participating in the international human rights movement

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/


Today s objectives

Todays 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


Training s case representation focus

Trainings 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


Training s case representation focus cont d

Trainings Case Representation Focus (contd)

  • Concentration on non-LPR cancellation, waivers

  • We will use case examples

  • We will not discuss litigating in international fora


Insert new material here

[Insert new material here]

  • Successful Australian case illustration

    --Discuss facts

    --Say what HR Cmte held

    --Give preview of U.S. court argument

  • Insert Rexs Flow Chart on building a legal argument here


What is international human rights law

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)


What is international human rights law cont d

What is International Human Rights Law (contd)

  • World War II sparks modern development:

    -- punishment of Nazi and other war criminals: made it clear that individuals have obligations under interl law

    -- desire to prevent similar atrocities leads to establishment of U.N. and a series of interl human rights agreements


What is international human rights law cont d1

What is International Human Rights Law? (contd)

  • 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 Roosevelts Four Freedoms speech & support of United Nations

    -- Eleanor Roosevelt chaired commission that drafted Universal Declaration of Human Rights


Sources of human rights law overview

Sources of Human Rights Law (Overview)

  • Universal Declaration of Human Rights

  • Treaties (or Conventions)

  • Customary International Law


Universal declaration of human rights

Universal Declaration of Human Rights

  • Not a treaty an authoritative interpretation or definition of rights under the United Nations Charter


Treaties or conventions

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


What is the effect of a treaty in u s law

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


When does a treaty become law in the united states

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


Issue of implementing legislation in united states

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


Types of treaties or conventions

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


Types of treaties or conventions cont d

Types of Treaties or Conventions (contd)

  • Bilateral Treaties: Govern issues between two States, or between a State and an Intergovernmental Organization


Who interprets treaties

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


Interpretations of right to family life adjudicators whose decisions we will discuss

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)


Nature of these adjudicators

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


Human rights adjudicator 1

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


Impossible immigration cases

  • 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.


Human rights adjudicator 2

Human Rights Adjudicator # 2

  • European Court of Human Rights

    -- 49-member body

    --Sits in Strasbourg, France


Impossible immigration cases

  • European Court of Human Rights (cont)

    --Adjudicates cases under the European Convention on Human Rights (regional Convention)

    --Art. 8 of European Convention = Right to Respect for Family Life


Impossible immigration cases

  • 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).


Decisions by treaty established bodies

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


Customary international law

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. Blacks Law Dictionary 162 (17th ed. 1996)


Customary international law and human rights

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


Using human rights in a u s setting 1 treaties the u s has joined

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)


Using human rights in a u s setting 1 treaties the u s has joined cont d

Using Human Rights in a U.S. Setting (#1): Treaties the U.S. Has Joined (contd)

(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


Enforcing u s ratified treaties in domestic courts

Enforcing U.S.-Ratified Treaties in Domestic Courts

  • Supremacy Clause

  • Self-executing vs. Non-self-executing treaties


Self executing vs non self executing nse treaties

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:


Two interpretations

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


Interpreting the iccpr s nse declaration 1

Interpreting the ICCPRsNSE 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.


Interpreting the iccpr s nse declaration 2

Interpreting the ICCPRsNSE 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


Interpreting the iccpr s nse declaration 3

Interpreting the ICCPRsNSE 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


Treaties and statutory construction

Treaties and Statutory Construction

  • Charming Betsy canon of statutory construction

  • Last-in-timerule requires clear legislative intent to supersede provisions of a ratified treaty


Using human rights in a u s setting 2 treaties the u s has not joined

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


Break

BREAK


Impossible immigration cases

  • [Add new slide here Rexs 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 its at the core of your work and its a good starting point

  • Rex: This may be the first time youve thought about family life = a right.


Right to respect for family life

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


Right to respect for family life1

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


What is the right to respect for family life

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)


What is the right to respect for family life cont d

What Is the Right to Respect for Family Life? (contd)

  • Right also is explicitly recognized in numerous international human rights agreements, including:

    --Interl Convention on Civil and Political Rights, Arts. 17, 23 (global) Give URL for treaty here?

    --Interl 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)


Who are protected individuals

Who Are Protected Individuals?

  • Decision-makers approach is flexible and fact-based

    --Focus on strength of actual emotional ties between family members

    --Some other ties also important (such as economic dependence)


Who are protected individuals1

Who Are Protected Individuals?

  • In case decisions, close family predominates:

    --Parent-child (particularly if child born in wedlock)

    --Parent-adult child (if economic or other dependence)

    --Maybe other blood relatives if very close (grandparents)


Transition

[Transition]

  • Say here that we are now moving from the concepts of right to respect for family life into INTERPRETATION, first by Human Rights Committee and then by European Court.


Family life cases decided under iccpr

Family Life Cases Decided Under ICCPR

  • U.N. Human Rights Committee decides cases under Arts. 17 and 23 of the ICCPR

  • Terms of ICCPR are binding on U.S.

  • HR Committee decisions not binding on U.S. adjudicators, but should be considered persuasive in determining U.S. obligations


Right to family life in iccpr

Right to Family Life in ICCPR

ICCPR (Art. 17)

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence

2. Everyone has the right to the protection of the law against such interference

ICCPR (Art. 23)

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Compare European Convention


Human rights committee analysis of right to respect for family life

Human Rights Committee Analysis of Right to Respect for Family Life

(1) Does family life exist?

(2) Is the States act an interference? (Committee usually decides yes)

If so:

(3) Was the interference arbitrary?


Hr committee negative duty removal cases

HR Committee Negative-Duty (Removal) Cases

  • Winata v. Australia (2001)

    --Indonesian overstay parents; 14 years residence in Australia

    --13-yr-old Australian son: schooling all in Australia; no cultural ties to Indonesia

    --Committee balances equities and holds that removal would violate familys right to family life under ICCPR


Hr committee negative duty removal cases1

HR Committee Negative Duty (Removal) Cases

  • Madaferri v. Australia (2004)

    --Italian w/several minor convictions in Italy overstays tourist visa; marries and has 4 children in Australia; they live together 14 years

    --Children have no cultural or linguistic ties to Italy

    --Father denied spousal visa due to crimes

    --Committee balances equities; holds for petitioner saying State interest weak given age of crimes; crimes outside of Australia, childrens lack of cultural or linguistic ties to Italy


European court of human rights

European Court of Human Rights

Add a line of transition and some additional explanation here??

Q: Why discuss Eur. Ct. cases when European Convention does not apply to U.S.?

A: U.N. Human Rights Committee finds Eur. Ct. interpretation of Art. 8 of European Convention persuasive when H.R. Committee interprets the similar provisions in Arts. 17 and 23 of ICCPR. ICCPR doesapply to the U.S.


European convention art 8

European Convention Art. 8

(1) Everyone has the right to respect for his private and family life . . .

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society.


European court analysis of right to respect for family life

European Court Analysis of Right to Respect for Family Life

  • Does family life exist?

  • Is State action an interference? (in these cases, European Court almost always concludes that it is)

  • Note possibly here and/or above that right doesnt ONLY apply to immigration cases


European court analysis of right to respect for family life cont d

European Court Analysis of Right to Respect for Family Life (contd)

(3) [Balancing test]: Was government action justified as:

--in accordance with law?

--necessary in a democratic society?

--in the interests of such concerns as national security or public safety?


European court case decisions

European Court Case Decisions

  • Right to respect for family life more readily found by European Court in negative duty (removal) cases than in positive duty (admission/or exclusion??) cases


European court negative duty removal cases

European Court: Negative Duty (Removal) Cases

  • Berrehab v. Netherlands (1988)

    --long-time resident of Netherlands; divorced from Dutch wife

    --long-resident in Netherlands; denied renewal of residence permit after divorce

    --removal to Morocco would separate him from daughter


European court negative duty removal cases cont d

European Court: Negative Duty (Removal) Cases (contd)

  • Berrehab v. Netherlands (contd)

    Court holds for petitioner, finding:

  • Family life exists

  • Deportation would interfere with family life

  • Action was in accordance with law and met legitimate aim (protecting labor market), but not necessary in a democratic society


European court positive duty admission cases

European Court: Positive Duty (Admission) Cases

  • Abdulaziz v. U.K. (1985)

    --immigrants granted residence while single; when they married, their husbands were denied entry

    Court holds against petitioners, finding:

    (1) Family life existed, but it was established after petitioners immigrated


European court positive duty admission cases cont d

European Court: Positive Duty (Admission) Cases (contd)

  • Abdulaziz v. U.K. (1985) (contd)

    (2) When they married, petitioners knew husbands could be denied admission;

    (3) Art. 8 does not protect the right to choose residency, when it means requiring State to accept new residents;

    (4) No real obstacle to petitioners and their husbands settling in their home countries


Summary right to respect for family life balancing the equities

[Summary:] Right to Respect for Family Life: Balancing the Equities

  • Decision-makers find family life exists when actual relationship close (but not well-tested outside parent-child framework)

  • Decision-makers generally find that domestic immigration enforcement actions interfere with right to family life


Right to respect for family life balancing the equities cont d

Right to Respect for Family Life: Balancing the Equities (contd)

  • Most important balancing factor is whether States interference in petitioners family life is justified and proportionate to States interest


Transition1

[ Transition]

  • [And now well talk about using it in the U.S.]


Iccpr right to family life enforcing it in u s immigration cases

ICCPR Right to Family Life: Enforcing it in U.S. Immigration Cases

Objective:

To encourage IJs and USCIS to use ICCPR to inform their decision-making for cases where:

(1) Benefit rests on a family relationship, and

(2) Decisions are at least partly discretionary

--Examples: cancellation; certain waivers


Iccpr right to family life enforcing it in immigration cases cont d

ICCPR Right to Family Life: Enforcing it in Immigration Cases (contd)

In this section, we will cover applying ICCPR to:

  • Non-LPR Cancellation of Removal

  • 212(i) waiver

  • 212(h) waiver


Non lpr cancellation of removal statutory requirements

Non-LPR Cancellation of Removal: Statutory Requirements

  • Cancellation of Removal: INA 240A(b)

  • 10 years physical presence

  • Good moral character for 10 years

  • Removal would result in exceptional and extremely unusual hardship to spouse, parent, or child, who is a United States citizen or lawful permanent resident

    --This hardship test is focus of our ICCPR analysis


Cancellation bia has set very stringent hardship standard

Cancellation: BIA Has Set Very Stringent Hardship Standard

  • Matter of Recinas (BIA 2002): Exceptional/ extremely unusual hardship found where:

    -- Respondent (R) has 4 USC children & 2 other children; children raised in U.S.; know little Spanish

    -- Children entirely dependent upon mother who runs her own business (father absent and being deported)

    -- No close family in Mex. (Rs parents are LPRs in US, 5 siblings are USCs). R and children close to U.S. family

    -- R has 14 years residence in U.S. and little hope to immigrate if removed


Cancellation iccpr argument summary

Cancellation: ICCPR Argument (Summary)

  • Hardship determination must be made according to all U.S. law, including treaties

  • ICCPR requires a full and reasonable balancing test for hardship

  • Once balancing test in place, IJ decision should be informed by H.R. Committee decisions under ICCPR (and also decisions under analogous treaties, such as European Court cases under European Convention)


Impossible immigration cases

  • [Comment from July training: the distinction between direct and indirect challenge needs to be made clearer here in the following four slides. Maybe do a graphic depiction side-by-side of two arguments]

  • Well now talk about direct and indirect challenges.

  • Direct: Say here that the purpose of the direct challenge is to prove that the exceptional and extremely unusual standard violates U.S. law because treaty law is part of U.S. law

  • Indirect: Say here that indirect challenge asserts that the extreme/exceptional standard should be implemented in accordance with interl law

  • Then walk through argument both direct and indirect. Use graphic.

  • Use same process when discussing waivers.


Cancellation iccpr argument direct challenge to statute

Cancellation: ICCPR Argument: Direct Challenge to Statute

(A) U.S. is a party to the ICCPR (entered into force 1992)

(B) Congress is presumed to have legislated in a manner consistent with international law

--Argue: Cancellation law enacted later in time (1996) does not repeal ICCPR norm because no clear intent to do so in the 1996 statute

--Courts must construe statute not to conflict with treaty where its possible to do so Mention Charming Betsey here


Cancellation iccpr argument direct challenge cont d

Cancellation: ICCPR Argument: Direct Challenge (contd)

(C) DIRECT CHALLENGE:

(1) Conflict between ICCPR and cancellation hardship standard cant be reconciled, because

-- U.S. law assumes States interest; does not balance with petitioners interest as ICCPR requires; or

-- BIA does implicitly balance equities, but applicant must meet a far higher cumulative standard than permitted under ICCPR; therefore,

(2) Cancellation statute is unlawful under ICCPR and cannot be enforced


Cancellation iccpr argument indirect challenge to statute

Cancellation: ICCPR Argument: Indirect Challenge to Statute

(A) U.S. is a party to the ICCPR (entered into force 1992)

(B) Congress is presumed to have legislated in a manner consistent with international law

--Argue: Cancellation law enacted later in time (1996) does not repeal ICCPR norm because no clear intent to do so

--Courts must construe statute not to conflict with treaty where its possible to do so


Cancellation iccpr argument indirect challenge to statute cont d

Cancellation: ICCPR Argument: Indirect Challenge to Statute (contd)

(C) INDIRECT CHALLENGE: Decision-makers should reconcile Cancellation statute to conform to ICCPR obligations by performing a full balancing of individuals/familys interest in member remaining vs. U.S. governments interest in member being deported


What should ij ask when analyzing cancellation under arts 17 23 of iccpr

What Should IJ Ask When Analyzing Cancellation Under Arts. 17 & 23 of ICCPR?

(1) Has applicant shown family life?

-- Spouse, parent, child

-- (Maybe others?)

(2) Do relatives have status in the U.S.?

-- USC or LPR

-- (Maybe other status?)


What should ij ask when analyzing cancellation under art 17 of iccpr cont d

What Should IJ Ask When Analyzing Cancellation Under Art. 17 of ICCPR? (contd)

(3) Hardship Analysis: Do interests of noncitizen in remaining outweigh interests of U.S. govt in deporting?

-- Under ICCPR, standard cannot be so high that a single or a few negative factors outweigh a stronger showing of positives

-- Use Winata, Madaferri (and other similar) cases to inform this discretionary decision


Cancellation and iccpr small group exercise

Cancellation and ICCPR: Small Group Exercise


Waivers

WAIVERS

  • [See slide # 77 on introducing direct and indirect challenges. Use graphic.]

  • Assume that the 212(i) and 212(h) waivers here will be substituted with other waivers identified by the project as being more promising


212 i waiver

212(i) Waiver

  • 212(i) waives fraud or misrepresentation under INA section 212(a)(6)(C)(i):

    -- Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit under this Act is inadmissible.


212 i waiver cont d

212(i) Waiver (contd)

  • Waiver requires showing of extreme hardship to:

    -- U.S. citizen or LPR spouse or parent

    -- (Hardship to child does not count)

  • (Person who would suffer hardship need not be the petitioner)

  • USCIS (or IJ) has discretion to decide whether required hardship is shown


Extreme hardship

Extreme Hardship

BIA interpretation of factors included in extreme hardship determination: Matter of Anderson, 16 I. & N. Dec. 596 (1978)

  • Noncitizens age

  • Length of residence in the U.S.

  • Family members in U.S. and abroad; their immigration or citizenship status


Extreme hardship cont d

Extreme Hardship (contd)

  • Matter of Anderson factors (contd):

    (4) Health, and is there medical care in home country

    (5) Financial impact of departure from U.S.

    (6) Other possible means of immigrating

    (7) History of immigration violations

    (8) Position in community

    (9) Economic/political factors in home country


Extreme hardship cont d1

Extreme Hardship (contd)

  • Matter of Anderson factors (contd):

    (10) Linguistic/cultural factors that make getting work difficult in home country

    (11) Other factors re: home country

    (12) Any other factors in U.S. or abroad


212 i waiver iccpr model challenge direct challenge

212(i) Waiver: ICCPR Model Challenge: (Direct Challenge)

Example: situation where hardship is to child (not spouse or parent)

(1) The U.S. has joined the ICCPR. Art. 17 recognizes the right to respect for family life

(2) Congress is presumed to have legislated in a manner consistent with international law


212 i waiver iccpr model challenge direct challenge cont d

212(i) Waiver: ICCPR Model Challenge: (Direct Challenge) (contd)

(3) Applicant has established family life in the U.S. with his USC daughter

(4) Government interference with applicants right to family life cannot be arbitrary under ICCPR Art. 17

(5) Statute is arbitrary on its face because it does not provide an opportunity for decision-maker to consider hardship to applicants daughter


212 i waiver iccpr model challenge direct challenge cont d1

212(i) Waiver: ICCPR Model Challenge: (Direct Challenge) (contd)

(6) 212(i) statute is therefore unlawful under ICCPR Art. 17.

(7) To cure this problem, U.S. CIS must consider the waiver application (see Beharry v. Reno, 183 F. Supp. 2d 584, 595 (E.D.N.Y. 2002)) and balance:

-- hardships to applicants USC daughter if waiver not granted, vs.

-- governments interest in denying the waiver


212 i waiver iccpr model challenge direct challenge cont d2

212(i) Waiver: ICCPR Model Challenge: (Direct Challenge) (contd)

(8) Under ICCPR, standard applied to applicant cannot be so high that a single or a few negative factors outweigh positive factors

(9) Use Human Rights Committee cases or other decisions to inform decision

(10) Note, however, important cautions! (Consult before filing a direct challenge!)

--Non-self-executing issue

--Last-in-time issue


212 h waiver

212(h) Waiver

  • Waiver under INA Section 212(h):

    Waives:

    (1) Crime of moral turpitude

    (2) Multiple criminal convictions

    (3) Single offense of simple possession of 30 grams or less of marijuana

    (4) Prostitution and commercialized vice


212 h waiver cont d

212(h) Waiver (contd)

  • 212(h) does not waive:

    -- Controlled substance violations, except one offense of simple possession of 30 grams or less of marijuana, NOR

    -- Trafficking in controlled substance or persons, NOR

    -- Murder or torture


212 h waiver cont d1

212(h) Waiver (contd)

  • Our focus: waiver under 212(h)(1)(B):

  • alien is spouse, parent, son, or daughter of USC or LPR

  • extreme hardship would result to USC or LPR spouse, parent, son, or daughter if waiver not granted

  • U.S.CIS (or IJ) has discretion to determine eligibility for waiver, including whether hardship shown


212 h waiver iccpr model challenge direct challenge

212(h) Waiver: ICCPR Model Challenge: (Direct Challenge)

  • Example: Situation where applicant for waiver has USC wife and son, but 2 marijuana simple possession convictions

    (1) The U.S. has joined the ICCPR. Art. 17 recognizes the right to respect for family life

    (2) Congress is presumed to have legislated in a manner consistent with international law


212 h waiver iccpr model challenge direct challenge cont d

212(h) Waiver: ICCPR Model Challenge: (Direct Challenge) (contd)

(3) Applicant has established family life in the U.S. with his USC son and wife

(4) Government interference with applicants right to family life cannot be arbitrary under ICCPR Art. 17

(5) Statute is arbitrary on its face because it does not provide an opportunity for decision-maker to consider hardship to applicants son and wife if he cannot immigrate (because he has more than 1 simple possession conviction)


212 h waiver iccpr model challenge direct challenge cont d1

212(h) Waiver: ICCPR Model Challenge: (Direct Challenge) (contd)

(6) 212(h) statute is therefore unlawful under ICCPR Art. 17.

(7) To cure this problem, U.S. CIS must consider the waiver application (see Beharry v. Reno at p. 595) and balance all equities, including:

-- hardships to applicants USC son and wife if waiver not granted and he cant immigrate, and

--age of crimes and seriousness of crimes, vs.

-- governments interest in preventing applicant from immigrating


212 h waiver iccpr model challenge direct challenge cont d2

212(h) Waiver: ICCPR Model Challenge: (Direct Challenge) (contd)

(7) Under ICCPR, standard applied to applicant cannot be so high that a single or a few negative factors outweigh positive factors

(8) U.S. CIS should use Human Rights Committee and similar decisions when analyzing applicants situation

(9) Note, however, important cautions! (Consult before filing a direct challenge!)

--Non-self-executing issue

--Last-in-time issue


Waivers and iccpr small group exercise

Waivers and ICCPR: Small-Group Exercise


Conclusion on litigation open issues

Conclusion on Litigation: Open Issues

  • Many open issues, including:

    -- Can you challenge under ICCPR when applicant does not have child/spouse/ parent who would be affected?

    -- What if child/spouse/parent is asylee or has deferral of removal (some other indefinite status) instead of LPR or USC status?

    --SIGNIFICANT direct challenge issues described above (non-self-executing; last-in-time)


Conclusion on litigation pointers

Conclusion on Litigation: Pointers

  • Consult with others: is this the right case?

  • Preserve these legal issues at the CIS application or IJ level for appeal

  • Prepare and brief carefully

  • Consider enlisting help on appeals

  • Share your results with others so we can all learn together


Impossible immigration cases

  • [Note: current thought (Aug. 08) is to eliminate non-litigation advocacy piece from this training the following slides are those from the July 2008 training on these topics in case its included]


Human rights law and non litigation advocacy

Human Rights Law and Non-Litigation Advocacy

  • Documenting/Reporting/Community organizing:

    --Example:

    Border Network for Human Rights: A Testimonial Report: The Status of Human and Civil Rights at the Border 2007 (Dec. 2007)


Human rights law and non litigation advocacy cont d

Human Rights Law and Non-Litigation Advocacy (contd)

  • Testimony before local, state, or federal government entities

  • Shadow reports to interl bodies

  • Community meetings/rights presentations

  • Press work

  • Grant proposals

  • Other: _______________


Human rights law and non litigation advocacy cont d1

Human Rights Law and Non-Litigation Advocacy (contd)

  • Gonzalez family exercise


Ideas for future collaboration

Ideas for Future Collaboration


Training evaluation

Training Evaluation


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