Human Rights at Home Blog

New Article: Afghan Allies in Limbo: The U.S. Immigration Response

Lindsay M. Harris, Afghan Allies in Limbo: The U.S. Immigration Response, Howard Law Journal, Vol. 66, No. 3, (2023). Abstract below.

After the fall of Kabul in August 2021, the U.S. government airlifted an estimated 120,000 people to safety from Afghanistan. An airlift of this scale was unprecedented, but also woefully inadequate as a solution to the Afghan humanitarian crisis. This article analyzes the U.S. immigration response to the Afghan humanitarian crisis following the Taliban takeover.

While the U.S. granted humanitarian parole for two years to approximately 76,000 individuals permitting them to enter the United States, along with creating a new category of priority for refugee processing for Afghans, the government and Congress to date have failed to follow through on logical and stable pathways to permanent immigration status for our Afghan allies.

The U.S. has failed the Afghans airlifted to the United States by failing to pass an Afghan Adjustment Act and forcing Afghans through the dysfunctional and delayed Special Immigrant Visa (SIV) process or the backlogged and re-traumatizing asylum system. Similarly, the government’s handling of the estimated 66,000 humanitarian parole applications filed on behalf of Afghans still trapped in Afghanistan or in the region has been nothing short of abysmal. Approval rates plummeted after the end of August 2021 and the U.S. government took in over $25 million in fees for applications that have since languished for now close to a year.

In contrast, the U.S. created an innovative and expeditious process for the reception of Ukrainian refugees – eliminating hurdles and barriers still in place for Afghans and facilitating the admission of over 150,000 Ukrainians into the United States. Months later, the U.S. created a special process for humanitarian parole for Venezuelans, and then later Cubans, Nicaraguans, and Haitians. This article situates the disparate treatment of Afghans and Ukrainians as one of the latest episodes in the long history of racism in the creation, execution, and implementation of immigration policy in the United States. The stark contrast in treatment for Ukrainians and Afghans underscores the need for an end to biased decision-making and to truly welcome those fleeing violence and conflict with a principled and impartial immigration system, grounded in humanitarian principles.

New Edition of Human Rights Advocacy in the United States

There is a new edition of Human Rights Advocacy in the United States available from West Academic Publishing. The Third Edition (2023) of Martha F. Davis, Johanna Kalb, Risa E. Kaufman and Rachel Lopez's wonderful textbook is now available.

From the editors:

This pedagogically innovative book is the only law school casebook focused on human rights advocacy in the United States. It illuminates a range of both emerging challenges and persistent theoretical and doctrinal issues while equipping students to thoughtfully engage human rights law and strategies in their own practice of law. Readings and case studies expose students to the history, tactics, and critiques of the U.S. human rights movement as well as the legal and practical challenges of human rights implementation in the United States. Skills exercises introduce practice-oriented approaches to integrating human rights in U.S. based advocacy, including through engagement with international treaty bodies, regional mechanisms, U.S. courts, and policymakers. Additionally, the appendices provide the text of relevant human rights treaties.

Appropriate for both introductory and advanced seminars, as well as clinical and other experiential offerings, the materials engage students on a remarkable range of human rights issues, including climate change, reproductive justice, immigration, the rights of Indigenous peoples, racially discriminatory policing, and the human right to housing. Chapters also explore fundamental issues of federalism, sovereignty, judicial review, and legal ethics.

New Article: Moral Imperative—Legal Requirement: Why Law Schools Should Require Poverty Law and International Human Rights

Eric J. Boos, Moral Imperative - Legal Requirement: Why Law Schools Should Require Poverty Law and International Human Rights, 19 U. St. Thomas L.J. 63 (2023). Abstract below.

This paper argues that the growing undercurrent of discontent in this nation, which has manifested in increasing levels of civil unrest, violence, crime, mass shootings, and political chaos, is symptomatic of the ever-increasing disparity in wealth that political philosophers, sociologists, economists such as Alan Greenspan, and politicians such as Bernie Sanders, have warned against. This paper further argues that this disparity is, in large measure, facilitated by the legal establishment. Lawyers are at the heart of the global financial crisis, the restructuring of the criminal justice system as a “for-profit” enterprise, the 900+ police shootings since 2014, the $2 billion of property confiscated under civil forfeiture rules, the mass incarceration policies, the recent environmental scandals, the protection of monopolies in agribusiness, pharmaceuticals, and telecommunications, the dysfunctional system of immigration and deportation, and the deplorable and racially biased legal processes for capital crimes and the death penalty. Unfortunately, the response to the increasing levels of discontent has been a predictable increase in policing tactics, legalistic controls, political fearmongering, social vitriol, and intolerance against targeted populations. Society is ripping apart at the seams, and the response has been a fascist-like clampdown—a trajectory first predicted by Mortimer Adler in 1938. Citing the deplorable state of higher education, Adler averred that America would become the next great fascist state in the World. This paper applies Adler’s critique of higher education to America’s law schools and argues that what is needed to change the trajectory is a different approach to legal education. The justification for a restructuring of American legal education is rooted in the fact that lawyers have a special obligation under the Constitution of the United States to achieve justice and to vitiate the tendency of economic and social stratification that occurs in society. The restructuring would ideally include a comprehensive overhaul of the curriculum so that each course addresses the issue of justice (in the Platonic sense and in the sense our Founders used it), but at a minimum it should require courses in Poverty Law (because of our deplorable track record in that area) and International Human Rights (because we live in a global society and justice is a universal goal).

New Article: Weathering the Storm: Establishing Internally Displaced People’s Right to Affordable Housing in the Wake of Natural Disasters

Raina Hasan, Weathering the Storm: Establishing Internally Displaced People’s Right to Affordable Housing in the Wake of Natural Disasters, 31 J. L. & Pol'y 177 (February 2023). Abstract below.

In 2020, natural disasters caused more internal displacement than war; floods, storms, and wildfires caused thirty million new displacements globally, and 1.7 million in the U.S. alone. The data and history suggest that masses of people will be displaced every year and will face housing insecurity without any formal acknowledgement of their unique plight or a guarantee that internally displaced persons (“IDPs”) will have protected rights. This Note proposes that, considering the worsening climate crisis leading to more frequent and severe natural disasters, the U.S. should codify the rights of internally displaced people as laid out in the United Nations’ Guiding Principles on Internal Displacement.

In order to actualize IDPs’ right to return and resettle, the U.S. should also establish IDPs’ right to affordable housing when natural disasters force people to leave behind their homes and communities. To effectively enforce such rights, the federal government should provide more affordable housing, invest in making the existing affordable housing stock and new affordable housing developments climate resilient, and collect accurate data on IDPs to provide adequate disaster relief, taking special care not to exacerbate gentrification and surveillance concerns. Codifying the rights of IDPs would go a long way in remedying larger systemic issues such as the racial wealth gap and rampant housing insecurity, ultimately furthering environmental justice.

New Article: Refugeehood Reconsidered: the Central American Migration Crisis

Macedo, Stephen, Refugeehood Reconsidered: the Central American Migration Crisis (Jan. 18, 2023). Abstract below.

“Who is a refugee?” This essay explores the lively debate on this question in ethics, political theory, and international law. The world now has more refugees than any time since World War II, and there may be no area of public policy in advanced Western states more fraught with deep moral and practical dilemmas. Are state persecution and alienage necessary conditions of refugeehood or is mortal peril sufficient, whatever its cause? The essay describes the various moral grounds relevant to claims for refugeehood, including general humanitarian duties, obligations arising from past and ongoing relations and commitments under international law, and the existence of the state system itself. Particular attention is paid to the Central American migration crisis, and the question of reparative obligations on the part of the U.S. arising from climate change and past state policies that have unjustly harmed sending countries. Further complicating the question of what we ought to do, even for progressive policymakers, is the looming threat of right-wing populist backlash.

New Article:The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice

Gabriel “Jack” Chin and Anna Ratner, The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice, 20 Asian American Law Journal 17 (2022). Abstract below.

For nearly a century, California law embodied a rabid anti-Asian policy, which included school segregation, discriminatory law enforcement, a prohibition on marriage with Whites, denial of voting rights, and imposition of many other hardships. The Alien Land Law was a California innovation, copied in over a dozen other states. The Alien Land Law, targeting Japanese but applying to Chinese, Koreans, South Asians, and others, denied the right to own land to noncitizens who were racially ineligible to naturalize, that is, who were not White or Black. After World War II, California’s policy abruptly reversed. Years before Brown v. Board of Education, California courts became leaders in ending Jim Crow. In 1951, the California legislature voluntarily voted to pay reparations to people whose land had been escheated under the Alien Land Law. This article describes the enactment and effect of the reparations laws. It also describes the surprisingly benevolent treatment by courts of lawsuits undoing the secret trusts and other arrangements for land ownership intended to evade the Alien Land Law. But ultimately, the Alien Land Law precedent may be melancholy. California has not paid reparations to other groups who also have conclusive claims of mistreatment. Reparations in part were driven by geopolitical concerns arising from the Cold War and the hot war in Korea. In addition, anti-Asian immigration policy had succeeded in halting Japanese and other Asian immigration to the United States. Accordingly, one explanation for this remarkable act was that there was room for generosity to a handful of landowners with no concern that the overall racial arrangement might be compromised.

New Article: Commission on Recognition and Reconstruction for the United States: Inspirational or Illusory?

Penelope Andrews, A Commission on Recognition and Reconstruction for the United States: Inspirational or Illusory?, 66 N.Y.L. Sch. L. Rev 359 (2022). Abstract below.

In this article I suggest that President Joe Biden issue an executive order to establish a Commission on Recognition and Reconstruction (CRR) to comprehensively confront the ongoing challenges to racial justice. I envisage the CRR as an adjunct to, and not a replacement for, the several measures currently being undertaken in law and policy to address these challenges. I imagine the CRR providing a national focus on the many ways that public and private institutions have responded to this current moment of racial distress, while also highlighting the obstacles and omissions toward the attainment of racial justice. The proposed CRR would then establish goals to be measurable in the short-, medium-, and long-term.

New Article: Foreword: Centering Intersectionality in Human Rights Discourse

Johanna Bond, Foreword: Centering Intersectionality in Human Rights Discourse, 79 Wash. & Lee L. Rev. 953 (2022). Abstract below.

In the last decade, intersectionality theory has gained traction as a lens through which to analyze international human rights issues. Intersectionality theory is the notion that multiple systems of oppression intersect in peoples’ lives and are mutually constitutive, meaning that when, for example, race and gender intersect, the experience of discrimination goes beyond the formulaic addition of race discrimination and gender discrimination to produce a unique, intersectional experience of discrimination. The understanding that intersecting systems of oppression affect different groups differently is central to intersectionality theory. As such, the theory invites us to think about inter-group differences (i.e., differences between women and men) and intra-group differences (i.e., differences in the experiences of discrimination and rights violations between white women and women of color).

New Article: Human Rights and Lawyer's Oaths

Lauren E. Bartlett, Human Rights and Lawyer’s Oaths, 36 Geo. J. Legal Ethics ____ (2023). Abstract below.

Each lawyer in the United States must take an oath to be licensed to practice law. The first time a lawyer takes this oath is usually a momentous occasion in their career, marked by ceremony and celebration. Yet, many lawyer’s oaths today are unremarkable and irrelevant to modern law practice at best, and at worst, inappropriate, discriminatory, and obsolete. Drawing on a fifty-state survey of lawyer’s oaths in the United States, this article argues that it is past time to update lawyer’s oaths in the United States and suggests drawing on human rights to make lawyer’s oaths more accessible and impactful.

New Article: Mobilizing Universalism - The Origins of Human Rights

Catherine B. Duryea, Mobilizing Universalism: The Origins of Human Rights, Berkeley J. of Int’l L. Vol. 40, Iss. 1, Art. 3. (August 2022). Abstract Below.

Human rights law claims to be universal, setting rights apart from paradigms based on shared religion, culture, or nationality. This claim of universality was a significant factor in the proliferation of human rights NGOs in the 1970s and remains an important source of legitimacy. The universality of human rights has been challenged and contested since they were first discussed at the United Nations (UN). Today, much of the debate centers around the origins of human rights-particularly whether they arose out of Western traditions or whether they have more global roots. For too long, discussions about universality have ignored the practice of human rights in the Global South, particularly in Arab countries. Instead of searching for evidence of universality in the halls of the UN, this Article looks at how activists mobilized and produced universality through their work. Archival sources and interviews show that the turn to human rights in the Arab world was rooted in the politics of the 1970s but relied on the concept of universality as embodied in the foundational human rights documents of the 1940s and 1960s. Activists used these documents to advance conceptions of human rights that were compatible with several distinct political visions. Their work supports the claim that human rights can be universal, not because rights exist outside of politics or have diverse origins, but because they were constantly reinvented to support a range of different, sometimes contradictory, political goals.

New Article: (G)local Intersectionality

Martha F. Davis, (G)local Intersectionality, 79 Wash. & Lee L. Rev. 1021 (2022). Abstract below.

Intersectionality theory has been slow to take root as a legal norm at the national level, even as scholars embrace it as a potent analytical tool. Yet, in recent years, intersectionality has entered law and policy practices through an unexpected portal: namely, local governments’ adoption of international norms. A growing number of local governments around the world explicitly incorporate intersectionality into their law and practice as part of implementing international antidiscrimination norms from human rights instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Elimination of All Forms of Racial Discrimination.

This “relocalization” phenomenon—which brings intersectionality back to its roots in domestic law—is visible in many parts of the world. In Europe, cities in Spain proactively integrate intersectional approaches into their local human rights regimes. Outside of Europe, Montréal applies an intersectional analysis under its Charter of Rights and Responsibilities, a local governance document grounded in the values of fundamental human rights and dignity. Human rights cities like Gwangju, Korea, embrace intersectionality as a programmatic imperative. In the United States, San Francisco, Pittsburgh, Los Angeles, and Cincinnati, among others, incorporated intersectional approaches to nondiscrimination in the wake of adopting local CEDAWs.

The relocalization process is not always straightforward. Challenges include the difficulties of reconciling local intersectional approaches with national laws that may not recognize intersectionality, and developing indicators tailored to local experiences. On the other hand, local adoption of intersectionality opens up robust possibilities for participation in communities’ legal and political processes, which many local governments emphasize.

New Publication: ABA Human Rights Magazine: Economics of Voting Rights

American Bar Association Section of Civil Rights and Social Justice, Human Rights Magazine: Economics of Voting Rights, Vol. 48, No. 1 (October 2022). Excerpt from introduction and featured articles below.

Introduction

Juan R. Thomas - “My theme as chair of the ABA Section of Civil Rights and Social Justice for the 2022–23 bar year is economic justice. I believe that a civil rights agenda without an economic agenda is like clapping with one hand. As the 2022 midterm election approaches, it is particularly timely to focus our attention on the economics of voting rights and the role money plays in our body politic. I want to sincerely thank the authors of this edition of Human Rights magazine for helping me realize my vision of economic justice in the context of voting rights.”

Featured Articles

• How Inequality Impacts Voting Behavior by Cynthia A. Swann and Elizabeth M. Yang
• Human Rights Hero: The Election Worker by Bobbi M. Bittker
• Gender Parity in Election Laws: Past, Present, and Future by Amber Maltbie, Elizabeth M. Yang, Jason Kaune, and Katherine Mirassou
• The Battle to Disenfranchise Indigenous Voters by Robert O. Saunooke
• The Modern Poll Tax: Too Many States Condition the Right to Vote on the Payment of Court Debt by Hon. Lisa Foster

To read more and access other articles in this issue of the ABA’s Human Rights Magazine, click here.

New Article: Certain Prosecutors: Geographical Arbitrariness, Unusualness, & the Abolition of Virginia’s Death Penalty

Bernadette M. Donovan, Certain Prosecutors: Geographical Arbitrariness, Unusualness, & the Abolition of Virginia’s Death Penalty, Washington and Lee Journal of Civil Rights and Social Justice, Vol. 29, Issue 1, Fall 2022. Abstract below.

Virginia’s abolition of the death penalty in 2021 was a historic development. As both a southern state and one of the country’s most active death penalty jurisdictions, Virginia’s transition away from capital punishment represented an important shift in the national landscape. This article considers whether that shift has any constitutional significance, focusing on the effect of Virginia’s abolition on the geographical arbitrariness of the country’s death penalty.

As a starting point, the death penalty in America is primarily regulated by the Eighth Amendment, which bars “cruel and unusual punishments.” The United States Supreme Court has held that the death penalty is not per se unconstitutional, but that the Eighth Amendment constrains its application. In particular, modern death penalty law is concerned with the arbitrary or unusual infliction of the death penalty. Since 2015, the concept of “geographical arbitrariness”—that the death penalty’s localization could render it so random or rare as to be unconstitutional—has gained increased attention.

This Article examines whether and how Virginia’s abolition contributes to the geographical arbitrariness of capital punishment in America. The Article finds that Virginia’s experience demonstrates the geographical arbitrariness of the contemporary death penalty in two important ways. First, this Article examines the localization of capital sentencing within Virginia. Capital sentencing and execution data show that as Virginia’s death penalty declined, the practice was kept alive by a small minority of prosecutors who had an unusual passion for death sentencing. In its latter years, Virginia’s death penalty thus increasingly reflected the unfettered discretion of local decisionmakers. Second, this Article considers how Virginia’s abolition affected the national landscape of the death penalty. The Article concludes that both quantitively and qualitatively, the end of Virginia’s death penalty supports a conclusion that capital punishment has become too arbitrary to be constitutional.

New Articles: University of Miami International and Comparative Law Review 2021 Symposium on International Law & COVID-19

The University of Miami International and Comparative Law Review has published it's symposium issue on International Law & COVID-19.  The articles are now also available on the 2021 International Law & COVID-19 Symposium website, along with videos from the various symposium sessions.  The special issue of the Law Review includes a synopsis report from the symposium, a piece on international regulation and epidemics, an article on the Inter-American Commission on Human Rights’ response to COVID-19, and an article on the duty to protect survivors of gender-based violence in the context of COVID-19, along with a few others. 

Imagine a Day Without Water 2022

From Martha F. Davis, Co-Editor.

 

Today is the annual "Imagine a Day Without Water" Day of Action.

 

To promote greater attention to water affordability and the human right to water for ALL, Northeastern Law School's Program on Human Rights and the Economy has today issued a Briefing Paper: How Five Creative Water Utilities Are Assisting “Hard-to-Reach” Renters as Water Rates Rise.

 

Rising water prices nationwide affect everyone, but the impact on renters is often obscured and forgotten, as they often pay for water prices through rent increases.  Ostensibly neutral on its face, the targeting of water assistance to homeowners is an example of structural racism, since the racial housing gap, the history of redlining and other instances of race-based housing discrimination means that people of color are disproportionately renters.

 

A handful of water utilities around the country have prioritized the assistance to renters, taking different approaches to the problem of assisting water consumers who are not themselves paying water bills. This Briefing Paper highlights the mechanisms adopted by these utilities, in hopes of spreading the word that there are viable approaches to increasing water equity for renters.

New Article: The State, the UDHR, and the Social Construction of Family in Human Rights: The Case of the Scarborough 11

Abby S. Willis, Mary C. Burke, Davita Silfen Glasberg, The State, the UDHR, and the Social Construction of Family in Human Rights: The Case of the Scarborough 11, Societies Without Borders, Volume 16 Issue 1 (2022). Abstract below.

The Universal Declaration of Human Rights (UDHR) declares in Article 16(3) that “the family is the natural and fundamental group unit of society and is entitled to the full protection by society and the state.” However, the UDHR does not define family, but rather presumes it is defined by traditional heteronormative marriage in a nuclear family. The failure of the UDHR to consider a more expansive view of family leaves the definition of family centrally in the hands of the state, and affects the ability of all but traditional nuclear family forms to access other human rights. We add to the scholarship on the role of the state in defining and maintaining family and family inequality through an examination of the case of the Scarborough 11, an intentional family sued by the city of Hartford, CT for violations of residential zoning ordinance based on family. This case challenges hegemonic constructions of family and illustrates the limits of the UDHR to protect all families. The case demonstrates the importance of the related questions: 1) how legal definitions of family create the capacity for local residents to understand non-nuclear families living among them, 2) whether the end-goal of this problem should be to expand the state’s definition of family or remove that power from the state in total (a question of reform vs. abolition) and, 3) what might a case concerning white middle-class professionals’ struggles to thrive tell us about boundary maintenance and the struggles of the poor to survive?

New Article: I Exist, Therefore I Should Vote: Political Human Rights, Voter Suppression and Undermining Democracy in the U.S.

Davita S. Glasberg, William T. Armaline, Bandan Purkayastha, I Exist, Therefore I Should Vote: Political Human Rights, Voter Suppression and Undermining Democracy in the U.S., Societies Without Borders, Volume 16 Issue 1 (2022). Abstract below.

The right to vote is clearly delineated among the rights identified in the Universal Declaration of Human Rights, and the US has long held itself as the beacon of that democracy and enfranchisement. Yet, a long history persists of practices and policies of voter suppression and gerrymandering that targets the rights of Black, brown, and indigenous populations in the US, a history that has in recent years escalated. We use the framework of the Human Rights Enterprise to unpack this history and to explore why efforts of voter suppression are intensifying at this particular moment in history.

New Article: The Declaration Against Arbitrary Detention in State-to-State Relations: A New Means of Addressing Discrimination Against Foreign and Dual Nationals?

Leigh T. Toomey, The Declaration Against Arbitrary Detention in State-to-State Relations: A New Means of Addressing Discrimination Against Foreign and Dual Nationals?, Harvard Human Rights Journal, Vol 35, Spring 2022. Excerpt from introduction included below.

“In February 2021, Canada launched the Declaration Against Arbitrary Detention in State-to-State Relations (“Declaration”) in order to enhance international cooperation in deterring the detention of foreign and dual nationals for the purpose of diplomatic coercion, and to address this form of detention whenever and wherever it occurs. The Declaration is the first of its kind in seeking to address the specific challenge of the arbitrary detention of foreign and dual nationals and their use as “bargaining chips in international relations.”

This Commentary considers the new Declaration, arguing that it is a promising initial response to the urgent need for the international community to denounce the detention of individuals because of their status as foreign or dual nationals. To highlight the prevalence of the arbitrary detention of foreign and dual nationals and the urgency of addressing it, this Commentary reviews recent opinions of the UN Working Group on Arbitrary Detention (“Working Group”). In all of the opinions reviewed, the Working Group found that foreign and dual nationals had been arbitrarily detained due to discrimination based on their nationality, or because they were not afforded their right to consular assistance. The Working Group has welcomed the Declaration, noting that “[i]ts aims and purposes relate closely to the concerns expressed by the Working Group in the past” and that it stands ready, within the remit of its mandate, to support this initiative and to engage with States that have endorsed it. This Commentary takes a similar approach in welcoming the Declaration, while being mindful that States must take action to implement its principles.”

New Article: Let Them Eat Rights: Re-Framing the Food Insecurity Problem Using a Rights-Based Approach

Benedict Sheehy & Ying Chen, Let Them Eat Rights: Re-Framing the Food Insecurity Problem Using a Rights-Based Approach, 43 Mich. J. Int'l L. 631 (August 2022). Abstract below.

Food insecurity is a global issue. Large parts of the global population are unable to feed themselves adequately with hundreds of millions of people suffering from hunger and malnutrition. This problem is recognized widely by governments, industry and civil society and is usually understood using one of three approaches or frames: a basic production problem solved by technology and increased industrialization of agricultural, and an economic problem solved by economic growth and a commercial problem resolved by expanding markets. Much of the discussion and policy advice is based on the premise that hunger is primarily a wealth issue and, that as wealthy countries do not have hunger, the solution is economic development. Using Erving Goffman’s theory of framing, we argue that these frames are inadequate as evidenced by the failure to solve this very basic, but complex problem in both poor and wealthy countries on the one hand nor explain the success of some developing countries on the other. After analyzing the three frames and their limitations, we propose a rights-based frame and explain how rights are an important part of solving the complex problem of hunger. We examine how rights-based approaches have worked by creating three categories based on the status of food rights within the respective constitutional frameworks of those jurisdictions. In each of the three categories, we examine specific jurisdictional frameworks, evidence of performance and evaluate their success. Based on that review, analysis and evaluation, we identify the legal elements of an effective right to food.

New Article: Non-State Actors “Under Color of Law”: Closing a Gap in Protection Under the Convention Against Torture

Anna Welch & SangYeob Kim, Non-State Actors “Under Color of Law”: Closing a Gap in Protection Under the Convention Against Torture, 35 Harvard H.R.J. (2022). Abstract below.

The world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-state actors such as gangs, drug cartels, militias, and terrorist organizations is challenging states’ authority to control and govern torture committed within their territory. In the United States, those seeking protection against deportation under the Convention Against Torture (“CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. However, what is meant by “other person acting in an official capacity” such that torturous acts by non-state actors fall under U.N. Torture Convention protection remains unclear under U.S. CAT jurisprudence. While many aspects of the CAT have been litigated, clarified, and developed through case law since the United States ratified the CAT, the question of whether and when a non-state actor can be deemed an “other person acting in an official capacity” under the CAT within U.S. jurisprudence lacks scholarship or case law. We make the novel argument that courts and agencies should apply factors employed in civil rights claims (also known as § 1983 claims) to assess whether a non-state actor can act in an official capacity or under color of law. Doing so will help fill a critical gap in U.S. CAT protections.