Monday, June 29, 2015
With its decision last week in King v. Burwell, the Supreme Court kept the Affordable Care Act in the news and on the books. On the Insightful Immigration Blog, Cyrus Mehta discusses noncitizen eligibility for coverage under the Affordable Care Act.
Sunday, June 28, 2015
Bobby Jindal looking pensive or confused, you pick!
For a variety of reasons, I have been avoiding any mention on this blog of the latest entrant in the 2016 Presidential race. The American Immigration Council has done a report on where Louisiana Republican Governor Bobby Jindal, the 13th presidential candidate to formally enter the 2016 presidential race, stands on immigration.
Jindal is the third declared 2016 presidential candidate that is the son of immigrants – the two others being Senators Mario Rubio and Ted Cruz. In his announcement speech, Jindal embraced his own immigrant heritage. A look into his rhetoric and policy positions on key pieces of immigration reform legislation reveals some thoughtful, but missequenced solutions on immigration, as well as a general misunderstanding of executive authority and the nation’s humanitarian obligations to asylum-seekers.
The National Basketball Association draft was last week. As ImmigrationProf blog has highlighted, the NBA has increasingly gone international. The draft reflected thius and Satnam Singh became the first basketball player from India to be drafted by an NBA team. The Dallas Mavericks selected the 7-foot-2-inch, 19-year-old with the 52nd pick in the draft.
Here are the details about Singh. Although Canadian-born Sim Bhullar became the NBA's first player of Indian descent last year, Singh would be the first player actually born on the subcontinent to make the league.
Singh was born in a village in Punjab with just 700 inhabitants. They nicknamed him "Chhotu" -- Punjab for "Little One." There were no basketball courts there -- his dad's wheat farm is 4 miles from the nearest paved road -- so he was sent off to a basketball academy at age 12.
ESPN reports that three of first seven players drafted are international players. The Orlando Magic took Mario Hezonja (Croatia) with the fifth pick after the New York Knicks took Kristaps Porzingis (Latvia) at No. 4. The Denver Nuggets made it three international players when they took Emmanuel Mudiay (Congo) with the seventh selection. The only year there were more international players taken in the top 10 was 2011 (four players). With the 26th pick, the San Antonio Spurs took Nikola Milutinov (Serbia). The Spurs have drafted nine international players in the last 10 years, the most by any team.
Saturday, June 27, 2015
Latinos in the United States encompass a broad range of racial, socioeconomic, and sociopolitical identities. Originating from the Caribbean, Spain, Central and South America, and Mexico, they have unique justice concerns. The ethnic group includes U.S. citizens, authorized resident aliens, and undocumented aliens, a group that has been a constant partner in the Latino legal landscape for over a century. This book addresses the development and rapid growth of the Latino population in the United States and how race-based discrimination, hate crimes, and other prejudicial attitudes, some of which have been codified via public policy, have grown in response. Salinas explores the degrading practice of racial profiling, an approach used by both federal and state law enforcement agents; the abuse in immigration enforcement; and the use of deadly force against immigrants. The author also discusses the barriers Latinos encounter as they wend their way through the court system. While all minorities face the barrier of racially based jury strikes, bilingual Latinos deal with additional concerns, since limited-English-proficient defendants depend on interpreters to understand the trial process. As a nation rich in ethnic and racial backgrounds, the United States, Salinas argues, should better strive to serve its principles of justice.
California has been at the forefront of recent state and local efforts to promote immigrant integration through the so-called "California package" (see this Los Angeles Times op/ed), an alternative to the approaches to immigration enforcement pursued by Arizona, Alabama, and other states and localities.
The International Business Times reports on the latest interesting development out of California. An initiative to give residency permits to undocumented immigrants living in California is gaining momentum. Backers of the measure are gearing up to begin collecting signatures to get the proposal before voters in 2016. The California Immigration Reform Act would require permit holders to pay state income taxes and bar the state from using public funds to aid federal immigration enforcement. Initiative supporters have until December 21 to get the required 365,880 signatures from registered California voters to put the initiative on the 2016 ballot.
The permits would establish an official arrival date in the country and give immigrants a tax identification number to allow them to attend school or apply for jobs. “If you come forward, register, pay state income taxes and get your immunizations, California will allow you to stay in California and you will be here legally, at least as far as California is concerned,” Louis J. Marinelli, president of Sovereign California, Inc., the group behind the initiative, said in a statement. The Los Angeles Daily News reports that "Marinelli is also the proponent of initiatives that would create an advisory group to explore establishing California’s autonomy from the United States; require the display of the California flag above the U.S. flag, change the governor’s title to president of California and ban out-of-state contributions to California election campaigns.
Friday, June 26, 2015
Today, the American Immigration Council released ,A Guide to Children Arriving at the Border: Laws, Policies and Responses.This updated guide provides information about the tens of thousands of children—some travelling with their parents and others alone—who have fled their homes in Central America and arrived at our southern border. It also seeks to explain the basics.
Who are these children and why are they coming?
What basic protections does the law afford them?
What happens to the children once they are in U.S. custody?
What have the U.S. and other governments done in response?
What additional responses have advocates and legislators proposed?
The answers to these questions are critical to assessing the U.S. government’s responses and understanding the ongoing debate about whether reforms to the immigration laws and policies involving children are needed.
Today, the Supreme Court in a 5-4 decision held that there is in fact a fundamental right to marriage, including same sex marriage. As I suggested in my analysis of Kerry v. Din for SCOTUSBlog, the decision in that case did indeed foreshadow the outcome of the same sex marriage case. Justice Kennedy, who wrote the majority opinion in Obergefell v. Hodges, refused to sign on to the plurality opinion of Justice Scalia (joined by Chief Justice Roberts and Justice Thomas) in Kerry v. Din, with its narrow view of the right to marriage. Justices Scalia, Thomas, and Alito, along with the Chief, dissented in the same sex marriage case.
Univision, the largest Spanish broadcaster in the United States, is protesting Donald Trump's recent negative comments about Mexican immigrants to the U.S. Trump, who made the controversial remarks in announcing his presidential bid, is a part-owner of the Miss USA pageant. Listen to the NPR report here.
Using previously non-public refugee admissions data from the State Department, a new Migration Policy Institute (MPI) analysis finds that despite the fact that refugees to the United States come from increasingly diverse origins and linguistic backgrounds and that some arrive with low native-language literacy and education, most refugees successfully integrate into the U.S. labor market and society over time.
The U.S. resettlement program is the world’s largest, accounting for two-thirds (66,000) of the 98,000 refugees who were permanently resettled in 2013. Between fiscal 2002 – 2013, the United States admitted 644,500 refugees from 113 countries.
Without significant increases in federal funding for refugee resettlement since the mid-1980s, the increasing diversity of resettled refugees poses challenges for resettlement agencies and other service providers by complicating service delivery and potentially increasing costs, the MPI authors conclude in The Integration Outcomes of U.S. Refugees: Successes and Challenges.
Beyond rising linguistic diversity (the number of primary languages spoken rose from 114 in 2004 to 162 less than a decade later) and nationalities (64 in 2013, up from 11 in 1980), refugees also arrive with a wider range of education and native-language literacy levels than in the past.
The report, which draws on analysis of data from the State Department’s Worldwide Refugee Admissions Processing System (WRAPS), provides a unique demographic snapshot of the 10 largest refugee populations resettled in 2002 – 2013: from Bhutan, Burma, Cuba, Iran, Iraq, Liberia, Russia, Somalia, Ukraine and Vietnam. Using U.S. Census Bureau data, the report also traces integration outcomes for refugees over time, examining their employment, English proficiency, educational attainment, household income, poverty status, and public benefit use.
“We conclude that as refugees’ experience in the United States increases, their income levels and rates of public benefit participation approach parity with the U.S.-born population,” said lead author Randy Capps, director of research for U.S. programs at MPI.
Economic self-sufficiency is the core goal of the U.S. refugee resettlement program. Researchers found this goal is largely being achieved: During the 2009 – 11 period studied, refugee men were more likely to work than U.S-born men (67 percent versus 62 percent), while refugee women were as likely to work as their U.S.-born counterparts (54 percent). Refugees also saw their income rise with length of U.S. residence, with median annual household income $31,000 higher for those here at least 20 years than for those here five years or less. Still, even after 20 years of U.S. residence, refugees’ household income was only 85 percent of the U.S. average, and was lower relative to the U.S. average than in 2000.
“Lower starting incomes and less income progression for more recent arrivals suggest that the economic climate for refugee integration may have become more challenging since the 2007 – 09 recession,” said MPI President Michael Fix. “This disadvantage could also be due to the large numbers of refugees with low literacy and education levels resettled recently. It remains to be seen whether recent refugees with limited human capital will experience the same levels of economic mobility as earlier, better-educated cohorts of refugees.”
Thursday, June 25, 2015
The Public Policy Institute of California has put together some handy facts on immigration. One critical fact -- About one in ten workers in California is an undocumented immigrant. California’s labor force includes about 1.85 million undocumented immigrants—the second-highest statewide share of undocumented workers (9.4%) in the nation, after Nevada (10.2%). Undocumented immigrants work disproportionately in the farming, construction, production, services, and transportation/materials moving industries.
Julia Preston of the New York Times reports that, in a change in policy, the Department of Homeland Security has announced plans to end the long-term detention of mothers with children caught crossing the border by allowing most of them to be released quickly on bond. Here is the statement by DHS Secretary Jeh Johnson. Family detention had been ramped up in response to the increase in families fleeing violence in Central America in 2014.
So yesterday the president held a reception celebrating LGBT Pride Month. When he went to the podium to speak, he was interrupted with shouts of "no more deportations." Obama was not amused, saying "you're in my house," "shame on you," "you shouldn't be doing this."
In a terrific malapropism, CBS evening newsanchor Scott Pelley reported that the heckler was "laid out," but immediately corrected himself to say "led out" of the event.
Wednesday, June 24, 2015
Here is a contribution to the symposium by Chuck Roth of the National Immigrant Justice Center:
I appreciate the opportunity to join this discussion, which has so carefully parsed the three written opinions: Justice Scalia’s plurality opinion (joined by Roberts and Thomas); Justice Kennedy’s concurrence (joined by Alito); and Justice Breyer’s dissent (for the four dissenters). I don’t think I disagree with anything which has been said here. But my subject here is the sum of the parts. That is, regardless of the merits of the various opinions, what precisely is the holding of Kerry v. Din? That turns out to be rather an involved question.
Marks and the Narrowest Grounds Approach
As has been noted for years in the academic literature , it’s not entirely clear what is sufficient to constitute a holding in cases involving splintered opinions. The rule enunciated by the Supreme Court is the “narrowest grounds” approach: if there is no one rationale which commands the votes of five justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977). But the apparent clarity of Marks masks great difficulties in application.
The biggest problem arises when there is no common denominator between multiple opinions. The D.C. Circuit position is that to be binding there must be “a position implicitly approved by at least five Justices who support the judgment,” i.e., it must contain a “controlling rationale.” King v. Palmer, 950 F.2d 771, 781 & n.6 (D.C. Cir. 1991) (en banc). Under the rule of the D.C. circuit, “one opinion can be meaningfully regarded as ‘narrower’ than another… only when one opinion is a logical subset of other, broader opinions.” Id. at 781.
Moreover, while the narrowest grounds portion of Marks looks only to justices who agreed with the judgment, that analysis applies only where “no single rationale explaining the result enjoys the assent of five Justices.” 430 U.S. at 193. The First and Third Circuits permit consulting the reasoning of dissenting justices to determine the holding; under this approach, if five justices agree on a principle it can constitute a holding even if some dissent as to application in that case. See Student Pub. Interest Research Group of N.J., Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1451 (3d. Cir. 1988); United States v. Johnson, 467 F.3d 56, 65 (1st Cir. 2006).
Ratio Decidendi in the Three Din Opinions
There is reason to doubt that any proposition expressed in the three opinions actually commanded a majority of the court. The Court did not adopt or reject the doctrine of consular nonreviewability. The Court did not determine the constitutional rights of Ms. Din. The Court did not determine whether she had standing. The Court did not necessarily find that the Mandel standard was applicable to visa matters generally; or to spousal cases specifically. The Court did not necessarily find Mandel to be the outer limit to judicial review generally; nor in national security cases. The Court did not even determine the content of the Mandel standard as applicable to the facts of Din. The lower courts will doubtless puzzle over this decision; but it appears there is no common ratio decidendi, and thus no holding at all. The Kennedy concurrence comes closest; but in the end, for reasons I explain below, it is not narrower than the other two opinions, but simply different. To illustrate, let me consider several propositions, to explain why none necessarily commanded five votes as expressed in the three written opinions.
1. Consular nonreviewability. In Mandel, the Supreme Court found it “clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise.” Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). In Justice Scalia’s plurality opinion, this language morphs into Din’s Afghani husband having “no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission.” Slip Op. at 1 (citing Mandel, 498 U.S. at 762). (As an aside, Mandel found no “constitutional right of entry”; it did not purport to determine whether he might have a statutory right as against the executive, nor did not address a cause of action at all.) This language from the Din plurality is passing dicta; the discussion explains why Ms. Din pressed the claim rather than her husband, but does not represent a judgment regarding the logic of the doctrine of consular nonreviewability. Moreover, the Scalia plurality is primarily concerned with explaining that Ms. Din herself had no constitutional rights with regard to her husband’s admission (so much so that some commentators saw the plurality as related to the Court’s impending decision on same sex marriage). It is plainly possible for one individual to have a constitutional right which is not shared by another.
Justice Kennedy’s concurrence likewise does not expressly permit consular nonreviewability. It does cite plenary power language from United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 543 (1950), but it cites it for the proposition that “the Government’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.” Slip Op. at 4. Justice Kennedy’s concurrence defers to “the political branches” due to the sensitive national security context; his opinion does not address the possibility that the executive branch would misinterpret a statute, such that the political branches would be in disagreement. Nor does Justice Breyer’s dissent endorse consular nonreviewability (though it finds the lack of notice to the applicant relevant to the constitutional calculus).
Insofar as neither the Scalia plurality nor the Kennedy concurrence endorses the government’s position on consular nonreviewability, the Court’s decision does not resolve the status of that doctrine. The Court had before it amicus briefs filed by law school professors and NIJC and AILA which both argued against consular nonreviewability. (N.b., I was co-counsel on the latter brief.) It appears that most of the arguments made in those briefs remain viable notwithstanding the decision.
2. The constitutional status of spousal interests. The Scalia plurality would have decided the case on the basis that Ms. Din had no constitutionally protected interest in being together with her husband within the United States. Justice Kennedy found it unnecessary to decide the question, because assuming arguendo the existence of such an interest, he found that Ms. Din would still lose. As Justice Breyer noted, the plurality opinion cannot be considered controlling on this point, since Justice Kennedy’s concurrence expressly declined to join that reasoning. That said, Justice Kennedy did not expressly agree with the dissent on this point, either. Thus, there were not five votes to resolve the question of whether Ms. Din had a constitutionally protected liberty interest.
3. Spousal standing. A question closely related to the constitutional rights of Ms. Din was whether she had standing to challenge the refusal to provide information to her. See Brief for the Petitioner at 17, n.8. In oral argument, Justice Scalia doubted standing, suggesting that standing in Din would imply that “the wife would have standing to appeal a wrongful conviction of her husband” if he were inclined not to appeal. Transcript at 8. Justice Scalia had no need to address this question because he found no constitutional interest implicated in the visa denial. Justice Kennedy implicitly resolved the information claim against Ms. Din on the merits, by finding that the information provided was constitutionally adequate; but he did not explicitly find whether she had standing to raise the claim. Since no justice explicitly addressed standing, it seems safe to conclude that the issue was not resolved. ).
4. Whether Mandel applies to visa cases generally, or spousal cases particularly. It might be argued that Din stands for the proposition that Mandel should be applied to cases like this one, where a U.S. citizen spouse sues to vindicate her interests in the immigration of her noncitizen spouse. There are two problems with this. First, not one justice actually holds that Mandel would apply to this scenario. Justice Kennedy’s concurrence assumes arguendo that it would apply, but does not so hold. Justice Scalia would not assess the visa denial even under the super-deferential Mandel standard. Justice Breyer and the dissenters would apply a broader test. It follows that there were not five votes to apply this standard.
5. Whether a U.S. citizen spouse challenging a visa denial may at most obtain Mandel review. This is a closer question. Since Justice Scalia would grant no review, and Justice Kennedy would find due process satisfied by Mandel review, it could be argued that five justices adopted a rule which would grant no more than Mandel review in this context.
Justice Kennedy did indeed find Mandel to be controlling, and he expressed his understanding of it in these terms: “[Mandel] was based upon due consideration of the congressional power to make rules for the exclusion of aliens, and the ensuing power to delegate authority to the Attorney General to exercise substantial discretion in that field. Mandel held that an executive officer’s decision denying a visa that burdens a citizen’s own constitutional rights is valid when it is made ‘on the basis of a facially legitimate and bona fide reason.’” Slip Op. at 3. If Justice Kennedy had stopped there, the argument that a claimant may at most raise claims under Mandel would be strong.
However, Justice Kennedy went on to qualify his reasoning, finding that Mandel “has particular force in the area of national security,” Slip Op. at 3, and later noting that “Congress evaluated the benefits and burdens of notice in this sensitive area and assigned discretion to the Executive to decide when more detailed disclosure is appropriate.” Id. at 5. Because Justice Kennedy appeared to conduct a multi-factor test in which the national security context was an important factor, that implies that in non-national security cases, a different, more favorable test might be applied.
6. Whether a U.S. citizen spouse challenging a national security-based visa denial may at most obtain Mandel review. Let us then add one more modifier to the proposed holding. Perhaps one might characterize Justice Kennedy’s opinion as finding Mandel to satisfy due process for a spouse, at least in the national security context. Again, this has a surface plausibility. It is certainly true that Justice Scalia’s plurality would grant even less review than would Justice Kennedy; and that Justice Kennedy found Mandel review to satisfy due process in this case.
There is, however, reason to doubt this; which can be illustrated by considering the analysis in a particular order. Justice Breyer – speaking for four justices – finds judicial review permitted (he does not specify any particular standard). Justice Kennedy may agree. Thus, if in Case 1, the Court were to address only the question of whether some judicial review exists, it might agree, and remand. But if in Case 1, a majority of the Supreme Court were to hold that a citizen spouse may obtain judicial review over visa denials, it is not clear whether the members of the Scalia plurality would find judicial review limited to the Mandel standard. Mandel is constitutional in nature; but black letter law requires courts to construe statutes (where possible) to avoid constitutional infirmity before ruling on constitutional grounds. If a majority of the Court were to find some judicial review required, it is unclear whether the members of the Scalia plurality would agree to limit that review to the “facially legitimate and bona fide” standard of Mandel which, after all, has no statutory basis. The traditional APA standard, by contrast, has a statutory basis. Several members of the plurality are textualists and generally prefer to rely on statutory grounds rather than untethered constitutionalized reasoning. It would require only one vote from the plurality to join with the four dissenters for there to be five votes to permit judicial review under the APA standard rather than under a judicially-created Mandel standard.
Because it is unclear whether all three members of the plurality would limit review over national security-based visa denials to Mandel – even if Justice Kennedy would limit judicial review in that manner – it is unclear whether that proposition could command five votes. To treat Justice Kennedy’s concurrence as expressing a holding on this point would make the two-justice concurrence the law of the land, even if seven justices would disagree; that would “turn a single opinion that lacks majority support into national law,” a result which seems plainly wrong. King, 950 F.2d at 782.
7. Whether Mandel review is satisfied – at least in the national security context – by the mere provision of a statutory citation. Portions of Justice Kennedy’s concurrence seem to find Mandel review satisfied because the consular officer informed Ms. Din that her husband had been found inadmissible under INA § 212(a)(3)(B), without further explanation. However, Justice Kennedy also found it relevant – it is unclear to what extent – that Ms. Din’s husband was admittedly employed by the Taliban-controlled government. This, reasons Justice Kennedy, provides some factual connection between him and the inadmissibility ground. But then what would happen in another case, where the noncitizen seeking admission makes no similar admission, so that there is no factual connection between the ground alleged and the noncitizen seeking admission? Would Mandel be satisfied in that context by mere statutory citation? The Kennedy concurrence is unclear on this point.
Moreover, as noted above, the Scalia plurality does not purport to address the case applying the Mandel standard. If a majority of the Court were to find Mandel applicable in this context, Justice Scalia might persist in his view that no review is authorized; but he might also regard that conclusion, in any subsequent case, as res judicata. The plurality opinion gives no ground for confidence regarding how the three justices in the plurality would approach a Mandel analysis, assuming the Court were to adopt that test. The dissent offered strong reasons for concluding that a mere statutory citation does not offer a sufficient factual explanation, given the convoluted and factually divergent nature of § 212(a)(3)(B). The plurality did not address those reasons, which were after all irrelevant to its analysis. It follows that we cannot say with any confidence that five justices would hold that a mere statutory citation would satisfy Mandel review, to the extent that Mandel review exists in this context.
Of course, even if the lower courts agree with this analysis, it would mean only that Din lacks a holding. The three written opinions would still have persuasive value for lower courts. In splintered opinions like this, some academic commentary suggests that the Court looks to lower courts to help explicate its opinion, as a prelude to resolving the tensions in a subsequent case. That said, one consequence of the lack of a holding in Din is that it would leave in place existing circuit case law, case law which generally binds subsequent three-judge panels. Thus, for better or worse, Din likely leaves in place Ninth Circuit case law such as Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) and Ventura-Escamilla v. INS, 647 F.2d 28 (9th Cir. 1980). Other circuits, less constrained by prior case law, may be better-positioned to comment on Din. This question seems destined for future Supreme Court review in another case; we will need to await that next case to get clarity on the law in this fascinating and complex area.
From the Bookshelves: Human dignity and fundamental rights in South Africa and Ireland by Anne Hughes
Post-apartheid South Africa has yielded enlightened judicial decisions in contrast to the limited interpretation of human rights in Ireland. The value of human dignity with its central position in international law underpins both countries’ Constitutions, but has left a more striking mark in South Africa. There it has impacted significantly on punishment for crimes, family life, children’s rights, defamation, sexual violence investigations, substantive equality and socio-economic rights. Practical guidance can be gleaned from South Africa to revitalise Irish jurisprudence. While its focus is on South Africa and Ireland, this book draws on the experience of many countries and regions.
CNN has a new series called Rewind: Where are they now? It will be a series to catch up with people who "stumbled into the headlines - and then faded from view."
This week, they have spotlighted Kim Phuc who, at the age of 9, became the face of the Vietnam war when she was photographed, naked, moments after being severely burned in a napalm attack. Here is the photo, courtesy of the Kim Foundation International.
Kim is now living in Canada, where she obtained asylum. She has created The Kim Foundation International, a charity "dedicated to providing funds to support the work of international organizations that provide free medical assistance to children who are victims of war and terrorism." Her goal is to help underprivileged children who are the innocent victims of war.
The famous photo was once a source of embarrassment for Kim. Now, she has "work[ed] with that picture for peace."
The EU has a "safe third country" rule regarding asylees: EU Member States may return asylum seekers to the first "safe" country that they entered on their journey in lieu of ruling on their petitions for asylum.
In contravention of this rule, Hungary has just announced that it will no longer take back asylum seekers who first entered Hungary but traveled on to other countries before seeking asylum.
This announcement comes on the heels of news that the country plans to build a 13-foot high fence along its 109-mile border with Serbia in another effort to curb immigration. In addition to building fences, the Hungarian government has raised anti-immigrant billboards, like this one via Daily News Hungary:
It says, "If you come to Hungary, you can't take Hungarians jobs!"
Nepal, photo by Marina & Enrique
Nepalese nationals (and aliens having no nationality who last habitually resided in Nepal) who have continuously resided in the United States since June 24, 2015, and have been continuously physically present in the United States since June 24, 2015, may be granted TPS.
Folks have 180 days to file paperwork with the USCIS.
This is a welcome development for a country that has suffered tremendously in the wake of its devastating April 2015 earthquake.
Immigration Article of the Day: The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century by Andrew I. Schoenholtz
The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century by Andrew I. Schoenholtz, Georgetown University Law Center, Chicago Journal of International Law, Vol. 16, No. 1, 2015
Abstract: When the fledgling U.N. negotiated a treaty to protect refugees after the Second World War, member states focused on Europe as well as on events causing forced migr ation that occurred prior to 1951. No one imagined that cross-border escape from persecution would become a global phenomenon and remain one more than sixty years later, or that this human rights treaty would be needed in the twenty-first century. In fact, as increased numbers of asylum seekers from developing countries reached the most developed regions of the world during the last thirty years, critics have questioned the merits of this treaty and argued that the Refugee Convention has become outmoded and obsolete.
This Article considers how well suited this treaty is for the protection of refugees fleeing persecution in today’s world. The author first looks at how the nature of the state itself has evolved and finds that too many governments today fail at providing significant portions of their citizenry with the most basic level of human security. A new cast of persecutors apart from the state now exerts authority and power in such societies, targeting particular societal groups using new forms of persecution. Examining how states have adapted this multilateral agreement to these changing circumstances, the author finds that this treaty continues to be vital in protecting the human rights of refugees thanks to two important treaty elements: a clear and fundamental purpose to protect individuals whose governments have been unwilling or unable to do so, and flexible terms that have enabled jurists and government officials to adapt the refugee definition to the changing nature of forced migration. Accordingly, the author’s analysis confirms the conclusion of the International Law Commission Special Rapporteur on Treaties over Time that “subsequent practice by the parties may guide an evolutive interpretation of a treaty.”