Sunday, October 31, 2021

Webinar on moving from practice to legal academia

Do you want to take your experience into academia? This panel will provide an overview of the process for entering legal teaching, including non-clinical and clinical academic posts, in administrative law and regulatory practice. The panelists will address preparation of materials for the job market, development of references, research agenda, conference interviews, callbacks, and the preparation of a job talk paper. The panel will also discuss the importance of diversity and practical experience in law teaching. In addition, the panel will highlight the new ABA Fellowship in Administrative Law, a fellowship program for full-time practitioners. The fellowship matches fellows with academics for mentoring in the year or two prior to the fellow going on the job market. In terms of structure, after short presentations from each panelist, the panelists will join breakout rooms for more detailed Q & A.

Two of the five speakers specialize in immigration law!

Panelists include:

Kevin M. Stack, Lee S. and Charles A. Speir Professor of Law, Vanderbilt Law School (moderator)

Bijal Shah, Associate Professor, Arizona State University, Sandra Day O’Connor College of Law

Emily Bremer, Associate Professor of Law, Notre Dame Law School

Shoba Sivaprasad Wadhia, Associate Dean for Diversity, Equity and Inclusion Samuel Weiss Faculty Scholar & Clinical Professor of Law, Penn State Law

Kathryn Kovacs, Professor of Law, Rutgers Law


Moving from Practice (Back) to Law School

Wednesday, November 17, 2021

7:00-8:30 pm (including breakout rooms) Eastern Standard Time Register in Advance Via Zoom:

MHC (h/t Jill Family)

October 31, 2021 in Conferences and Call for Papers | Permalink | Comments (0)

Why the Biden administration would pay as much as $450,000 to separated immigrant families

Aaron Blake for the Washington Post offers the lowdown on a possible attempt to redress the damage done by the Trump administration's family separation policy.  As Blake reports:

"The Wall Street Journal broke the news that the Biden administration is looking to settle with the immigrant families who were separated from their children during the Trump administration’s `Zero Tolerance' policy, which it later abandoned and a judge halted, ordering the reunification of the families. As The Washington Post and others confirmed, the administration is reportedly considering paying as much as $450,000 per person."


October 31, 2021 in Current Affairs | Permalink | Comments (0)

Saturday, October 30, 2021

Damages in WA Wage Case Against GEO = $17.3 million

On Wednesday, we noted that a federal jury had found that detained migrants at the GEO-run Northwest Detention Center in Tacoma were entitled to the state's minimum wage ($13.69/hr). GEO had been paying migrants $1 a day for tasks like cooking and cleaning.

Yesterday, the damages portion of the case concluded. The verdict? $17.3 million in back pay.

That's not a small chunk of change. However, CNN Money reports that GEO Group pulled in $551.5 million in sales last quarter. So, I'm thinking the payout is not going to hurt too badly. On the other hand, having to actually pay worker a minimum wage on a going-forward basis? Especially if the company starts to do so in all states not just Washington? That's definitely going to impact the bottom line.


October 30, 2021 in Current Affairs | Permalink | Comments (0)

Friday, October 29, 2021

Public Charge Returns to SCOTUS, But Only About Procedure Not Substance

The Supreme Court has agreed to hear a case involving the infamous "public charge" rule of the Trump administration. But cert is limited to issues of civil procedure, not substance. As USA Today puts it: "The main question for the court is whether the states may defend the Trump rule in court at all."

This is a good time for a refresher on "public charge."

Under INA § 212(a)(4)(A), noncitizens are "ineligible for visas or admission" if "in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge." There statute lays out some factors regarding this inadmissability charge at INA § 212(a)(4)(B) (age, health, family status, assets, resources, and financial status, and education and skills).

For years, this exclusion ground focused on whether the noncitizen seeking a visa would be "primarily dependent on the government for subsistence."

In 2018, under the Trump administration, things changed. IRLC has a great timeline about it all. Here's the short version: the government sought to expand the definition of "public charge." Lawsuits ensued. Once President Biden was elected, his administration stopped defending the rule. The rule was removed it from the Federal Register and adjustments to the Foreign Affairs Manual (FAM) with regards to the new rule were also walked back. Ultimately, a federal court in Illinois blocked the rule nationwide and the Supreme Court, in March 2021, dismissed a challenge to it.

So, no the issue is heading back to SCOTUS but, as said above, not on its substance but rather the procedural question of the states' ability to defend it.


October 29, 2021 in Current Affairs | Permalink | Comments (0)

Termination of Migrant Protection Protocols

Today Secretary Alejandro Mayorkas issued a memorandum terminating the Migrant Protection Protocols, also known as the Remain in Mexico program. The memo details the Biden administration's earlier attempts to terminate the program, the resulting litigation in the Northern District of Texas, and the subsequent comprehensive review of the program by the Department of Homeland Security. In terminating the program, the Secretary writes:

Significant evidence indicates that individuals awaiting their court hearings in Mexico under MPP were subject to extreme violence and insecurity at the hands of transnational criminal organizations that profited by exploiting migrants’ vulnerabilities. It is possible that such humanitarian challenges could be lessened through the expenditure of significant government resources currently allocated to other purposes. Ultimately, however, the United States has limited ability to ensure the safety and security of those returned to Mexico. Other significant issues with MPP, including the difficulties in accessing counsel and traveling to courts separated by an international border, are endemic to the program’s design.

DHS will continue to operate MPP in good faith, it reports on its website, "until the current injunction is lifted."



October 29, 2021 in Current Affairs | Permalink | Comments (0)

Thursday, October 28, 2021

Duke Law: The Asylum Whirlwind: Where Are We Now?


Check out this upcoming event with Karen Musalo on November 9, 2021 from 12:30 – 1:15 p.m. ET.  The QR code will take you directly to the webinar or you can access the event here.  No registration is required.


October 28, 2021 in Conferences and Call for Papers, Current Affairs | Permalink | Comments (1)

Clinical Faculty Appointment: Director of the International Human Rights Clinic

Stanford Law School invites applications for the position on its clinical faculty of Director of its International Human Rights Clinic (IHRC). The appointment will begin in the 2022-2023 academic year.

The IHRC is one of ten clinical programs making up the Mills Legal Clinic at Stanford Law School. The IHRC will provide students opportunities to work as lawyers, on behalf of the clinic’s clients, on human rights projects such as investigation, advocacy, and litigation. We anticipate that the IHRC’s work will mirror the approach of practicing human rights attorneys, employ a range of lawyering methods, and reflect a thoughtful engagement with best practices of international human rights lawyering.

The IHRC Director will have the opportunity to develop a vision for the direction of the clinic, and the particular matters to be handled by the IHRC will be determined by the Clinic Director. Decisions about the overall direction of the IHRC’s work will be made in consultation with the Law School’s Director of Clinical Education and the Law School’s clinical faculty.

All of the clinics at Stanford Law School operate on a full-time basis, with the expectation that each clinic is offered full-time in two out of three quarters that make up the academic year. Students enrolled in the IHRC (typically 8-10 students) will devote a full quarter (approximately 12 weeks) to the work of the Clinic on a full-time basis (i.e., enrolled in no other classes). At the director’s discretion, some students may continue on as Advanced Clinic students, depending on the circumstances.

Duties of the Director of the IHRC include:

  • Developing the clinic’s operating plan;
  • Directly supervising Stanford law students;
  • Identifying and developing clients;
  • Managing all projects and clients;
  • Developing the curriculum for the IHRC;
  • Hiring, supervising and collaborating with a Clinical Supervising Attorney;
  • Supervising and collaborating with Clinic support staff;
  • Teaching the clinical seminar during the two quarters each academic year that the clinic is working with sets of new students;
  • Collaborating with clinical and other faculty at the Law School;
  • Attending conferences and interacting with faculty at other institutions;
  • Participating in faculty governance at the Law School (depending on the status of the appointment, as discussed below);
  • Participating with other clinical faculty in the governance of the Mills Legal Clinic; and
  • Acting as liaison with the public and the Law School community.

We expect that the appointment as Director of the IHRC will be accompanied, depending on experience, by either an appointment as a Professor of Law within the Law School’s clinical-tenure structure or by an appointment on track to clinical tenure.

We seek candidates with the following qualifications:

  • Distinguished practice experience for at least five years as an international human rights lawyer;
  • Demonstrated excellence in clinical teaching (or the supervision of law students) or demonstrated potential for such excellence in teaching or supervision;
  • Strong commitment to clinical education;
  • An academic record that demonstrates the capacity to be an active participant in the Law School’s academic community as well as the international human rights and clinical education communities;
  • Membership in the California State Bar, or a willingness to take the examination necessary for admission as soon as possible (prior to supervision of students);
  • Excellent writing and analytic skills;
  • Experience and ability to direct complex projects;
  • Ability to work in a self-directed and entrepreneurial environment; and
  • A track record of working well in a collegial environment.

Interested applicants should send a cover letter and resume (with at least three references) to Jayashri Srikantiah, Associate Dean of Clinical Education, Stanford Law School, via the following email address:

Applications will be accepted until the position is filled but applicants are strongly encouraged to submit their materials by December 3, 2021.

Stanford is an equal employment opportunity and affirmative action employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identify, national origin, disability, protected veteran status, or any other characteristic protected by law. Consistent with its obligations under the law, the University will provide reasonable accommodation to any employee with a disability who requires accommodation to perform the essential functions of the job.

Online posting here.


October 28, 2021 in Current Affairs, Immigration Law Clinics | Permalink | Comments (0)

10 Most-Cited Immigration Law Faculty in the U.S., 2016-2020

News from the Leiter Law Report:  "Based on the latest Sisk data, here are the ten most-cited law faculty working on immigration law (including the intersection of immigration and criminal law & procedure ["crimmigration"]) in the U.S. for the period 2016-2020 (inclusive) (remember that the data was collected in late May/early June of 2021, and that the pre-2021 database did expand a bit since then)."

Here is the top ten:


Kevin R. Johnson

University of California, Davis




Ingrid Eagly

University of California, Los Angeles




Adam Cox

New York University




Cristina Rodriguez

Yale University




Hiroshi Motomura

University of California, Los Angeles




Gerald Neuman

Harvard University




Jennifer Chacon

University of California, Berkeley




Cesar Garcia Hernandez

Ohio State University




Juliet Stumpf

Lewis & Clark College




Daniel Kanstroom

Boston College

My apologies for the shameless self-promotion. 


October 28, 2021 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (3)

MPI Estimates Nearly Half of Income-Eligible Immigrant Adults Do Not Qualify Because of Immigration Status

Since the onset of the pandemic, the need for public health insurance has surged in the United States. Between February 2020 and January 2021, almost 10 million working-age adults and children signed up for Medicaid and its companion Children’s Health Insurance Program (CHIP). Yet millions of noncitizens with incomes that meet state eligibility thresholds for Medicaid did not qualify due to their status as recent green-card recipients, international students, temporary workers, non-immigrant visa holders or unauthorized immigrants, a new Migration Policy Institute (MPI) analysis finds. These working-age immigrants, who are more likely to be low-income, are also more likely to be workers and parents than U.S.-born income-eligible adults.

The issue brief, Medicaid Access and Participation: A Data Profile of Eligible and Ineligible Immigrant Adults, outlines the number and characteristics of noncitizen adults who are excluded from Medicaid and how this varies by state of residency.


October 28, 2021 in Current Affairs | Permalink | Comments (0)

Secretary Mayorkas Issues New Guidance for Enforcement Action at Protected Areas


Official DHS Photo

Secretary of Homeland Security Alejandro N. Mayorkas yesterday issued a new, comprehensive policy to guide Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) enforcement actions in or near protected areas, replacing previous sensitive locations guidance.  The policy provides an expanded and non-exhaustive list of protected areas, including new designations such as places where children gather, disaster or emergency relief sites, and social services establishments.

“In our pursuit of justice, including in the execution of our enforcement responsibilities, we impact people’s lives and advance our country’s well-being in the most fundamental ways.  As a result, when conducting an enforcement action, ICE and CBP agents and officers must first examine and consider the impact of where actions might possibly take place, their effect on people, and broader societal interests,” said Secretary Mayorkas.  “We can accomplish our law enforcement mission without denying individuals access to needed medical care, children access to their schools, the displaced access to food and shelter, people of faith access to their places of worship, and more.  Adherence to this principle is a bedrock of our stature as public servants.” 

Under the new guidance, U.S. immigration authorities will limit arrests at schools, hospitals and other “protected” areas.  It represents a major change in the approach to enforcement under President Donald Trump. Agents and officers are directed to avoid making arrests or carrying out searches at a range of sensitive locations “to the fullest extent possible.” It is the latest in a series of immigration policies under President Joe Biden aimed at taking a more targeted approach to enforcement. The policy is similar to one under President Barack Obama that restricted arrests at churches and schools. The new policy includes not just schools but medical and daycare facilities, playgrounds and recreation centers as well as demonstrations and rallies.


October 28, 2021 in Current Affairs | Permalink | Comments (0)

Wednesday, October 27, 2021

Detained Migrants Win Right to Minimum Wage in WA

After a two-and-a-half week trial, a federal jury today held that detained migrants at the GEO-run Northwest Detention Center in Tacoma are entitled to the state's minimum wage ($13.69/hr). GEO had been paying migrants $1 a day for tasks like cooking and cleaning.

Interestingly, the case was pursued by the Washington State's Attorney General. A class action suit by affected migrants is expected to follow.

Here's is the AG's press release. And here's the Seattle Times' coverage.


October 27, 2021 in Current Affairs | Permalink | Comments (0)

Art Exhibit: Ladders and Walls

new exhibition at Austin College from artist/activist Scott Nicol, "Ladders and Walls," consists of 14 ladders migrants have used in attempts to enter the United States, Michael Marks reports for The Texas Standard. "There are people who are trying to survive and we need to see what we, as a nation, can do to help them, not try to militarize the border, not destroy the environment along the border, not do damage to border communities, but think of it rationally and compassionately and address it in that manner," Nicol said of the project. 

“Ladders and Walls” is on display at Austin College from October 22 through December 10 in Dennis Gallery of Forster Art Complex. The exhibition of photographs and sculptures related to the South Texas border wall is presented by the Austin College Department of Art and Art History. The gallery is normally open by appointment only by calling 903.813.2283.

From Scott Nicol on Twitter
My Ladders and Walls exhibition is up at Austin College, and will be up through December. Had great discussions about the impacts of border militarization with engaged students today, and looking forward to Saturday's opening reception.


October 27, 2021 in Current Affairs | Permalink | Comments (0)

Cornell International Law Journal Symposium: Human Mobility and Human Rights in the COVID-19 Pandemic

Cornell International Law Journal

Human Mobility and Human Rights in the COVID-19 Pandemic
Revisiting the 14 Principles of Protection for Migrants, Refugees, and Other Displaced Persons

October 2021

Building upon the 14 Principles – which set out how international law should protect migrants, refugees, and other displaced persons during the COVID-19 pandemic and have been endorsed by more than 1,000 scholars worldwide – a group of international law scholars have collaborated to create a series of short essays looking at a set of pressing legal and policy issues relevant to this and future pandemics and the rights of migrants under international law. 

Introduction to Symposium

T. Alexander Aleinikoff, Ian M. Kysel, & Monette Zard

The Right to Health

Joanne Csete

Implementing Principle 2: The Legal Framework vs. the Reality

Iain Byrne

COVID-19, Surveillance, and the Border Industrial Complex

Petra Molnar

Refugees and the Scope for Mandatory COVID-19 Vaccination

Kristin Bergtora Sandvik

Concluding Comments: Revisiting the Principles of Protection for Migrants, Refugees and Other Displaced Persons, One Year On

Guy S. Goodwin-Gill

Concluding Comments: (A) Few Promising Avenues for Promoting the Rights of Migrants in the Post-Pandemic

Ian M. Kysel

Full Symposium PDF


October 27, 2021 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Immigration Article of the Day: Terrorism and the Inherent Right to Self-Defense in Immigration Law by Faiza Sayed, California Law Review


Terrorism and the Inherent Right to Self-Defense in Immigration Law by Faiza Sayed, 109 California Law Review 615 (2021)


The Immigration and Nationality Act (INA) deems an individual inadmissible to the United States for having engaged in terrorist activity. Both “engaged in terrorist activity” and “terrorist activity” are terms of art that are broadly defined under the INA to include activity that courts, scholars, and advocates agree stretches the definition of terrorism. An individual found inadmissible on terrorism-related grounds is barred from nearly all forms of immigration relief, including adjustment of status to lawful permanent resident, refugee status, asylum, withholding of removal, and cancellation of removal. These INA provisions, meant to exclude terrorists from accessing immigration relief, have been perversely interpreted to deny relief to individuals who have taken actions in self-defense, although state and federal courts, state constitutions, and scholars alike describe self-defense as a right so fundamental as to be inherent. There is no principled reason to deny noncitizens the right to present a self-defense justification with respect to acts that may otherwise qualify as terrorist activity in the immigration context. In fact, when properly interpreted, the INA as currently written already excludes force used in self-defense from the definition of terrorist activity; the challenge lies in the fact that the current exclusion is too burdensome for adjudicators to apply properly and too narrow to shield all individuals who have taken actions in self-defense from being denied immigration relief. Given this perplexing state of affairs, Congress should adopt reforms to ensure that the government does not deny immigration relief to individuals who have exercised the most basic of rights—that of self-preservation. These reforms can accomplish two desired immigration law goals: excluding terrorists and providing protection to individuals fleeing persecution.


October 27, 2021 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Tuesday, October 26, 2021

White House Report on the Impact of Climate Change on Migration

The White House recently released a Report on the Impact of Climate Change on Migration. Here are some choice excerpts from the introduction:

From those forced to move to those left behind, U.S. policy can aid in supporting human security by, among other things, building on existing foreign assistance to a reconsideration and development of legal mechanisms to support those who migrate....

The use of U.S. foreign assistance is one lever to respond to climate change related migration....

It is also critical to support people who desire to stay as long and as safely as possible in their home areas through investments in disaster risk reduction (DRR) measures and local adaptation, including capacity building to assist countries with managing environmental risks and land use....

Existing legal instruments to protect displaced individuals are limited in scope and do not readily lend themselves to protect those individuals displaced by the impacts of climate change, especially those that address migration across borders. Given the growing trend in displacement related to climate change, expanding access to protection will be vital. The United States will need to strengthen the application of existing protection frameworks, adjust U.S. protection mechanisms to better accommodate people fleeing the impacts of climate change, and evaluate the need for additional legal protections for those who have no alternative but to migrate....

Most notably, this report recommends the establishment of a standing interagency policy process on Climate Change and Migration to coordinate U.S. Government efforts to mitigate and respond to migration resulting from the impacts of climate change that brings together representatives across the scientific, development, humanitarian, and peace and security elements of the U.S. Government.

Most of the report's recommendations are in the "analytics" vein, that is to say, "let's collect data and think more about this topic."


October 26, 2021 in Data and Research | Permalink | Comments (0)

Anti-AAPI bullying videos for children

Among other harms wrought by COVID-19, there's been an uptick in hate toward AAPIs. Some of the most effective advocacy I've seen is the Hollaback bystander intervention trainings. They have now partnered with Asian Americans Advancing Justice| AAJC and Woori Show to produce short videos for children on 5Ds on how to be a "super ally" in response to hate and bullying. The cartoons are designed for ages 3-10 and include AAPI characters.

5Ds superally


October 26, 2021 in Data and Research, Film & Television | Permalink | Comments (0)

CBP Agents' Violent Facebook Posts Netted Scant Discipline


Photo courtesy of Wikimedia Commons

Facebook -- and its power -- has been in the news.  But here is an especially troubling Facebook story for you.

The report includes a jarring trigger warning:


This report reproduces content of a sensitive, offensive, discriminatory, and sexual nature. This
content is included in the report to provide a clear record of social media misconduct by Customs
and Border Protection employees."

The Executive Summary includes the following:

"This staff report presents the findings of an investigation launched in 2019 by the Committee on Oversight and Reform into violent and offensive posts by Customs and Border Protection (CBP) personnel in secret Facebook groups. The most  prominent of these groups, a private group for Border Patrol agents called “I’m 10-15,” had more than 9,500 members in July 2019. The Committee’s investigation followed alarming media reports of CBP employees threatening harm to migrants and elected officials on the `I’m 10-15' page. 

The Committee requested documents from CBP in July 2019 to determine whether agents who posted this content were allowed to continue working with migrants and to assess whether appropriate disciplinary action was taken. After the Trump Administration obstructed this inquiry for more than a year, CBP finally began producing complete unredacted documents in
February 2021, after President Trump left office.

Documents obtained by the Committee show that although CBP was aware of misconduct on `I’m 10-15' since August 2016, the agency took minimal action to strengthen social media training or guidance after the media began reporting on agents’ misconduct and the Committee launched its investigation in 2019.

The Committee found that CBP conducted 135 investigations into personnel affiliated with `I’m 10-15' and similar secret Facebook groups. The agency determined that 60 CBP agents engaged in misconduct and were subject to discipline. However, the discipline imposed on most of those agents was significantly reduced from the recommendation made by CBP’s
Discipline Review Board. Eighteen agents whom the Board recommended removing from their positions due to serious misconduct had their discipline reduced to suspensions. One proposed removal was reduced to a letter of reprimand, and another was reduced to an `oral admonishment.' Most of these agents were then allowed to resume working with migrants and children."

Here are some incidents documented in the report:

"• A Border Patrol agent who posted a sexually explicit doctored image and derogatory comments about a Member of Congress had his discipline reduced from removal to a 60-day suspension and was awarded back pay.

• A Border Patrol supervisor who improperly posted an internal CBP video of a migrant falling off a cliff to their death, as well as an explicit and offensive comment about a Member of Congress, had their discipline reduced from removal to a 30-day suspension.

• A Border Patrol agent with a history of multiple infractions was allowed to retire with disability benefits rather than face removal or any other discipline after posting a photograph of a drowned father and child and referring derisively to them as `floaters.'" (bold added).


October 26, 2021 in Current Affairs | Permalink | Comments (0)

Democrats quietly scramble to include immigration provision in social spending bill


Over the last few months, Congress has seen lots of action (or inaction?) on immigration.  The nation learned that the Senate had a parliamentarian who could make rulings on what could be included in a budget reconciliation bill and who shot down a couple of proposals that would have regularized the immigration status of undocumented immigrants

It is a big week for the Biden presidency.  There continue to be rumblings, including in this Washington Post article, that there may be some immigration provisions in the President's social spending bill, which is one of the Biden administrat5ion's critical priorities..  As Laura L:tvan for Bloomberg reports, 

"Senate Democrats have abandoned plans to achieve a pathway to citizenship for millions of undocumented immigrants as part of President Joe Biden’s economic agenda, and instead are pursuing a proposal that would provide temporary deportation protections.

The measure would provide temporary immigration parole status to millions of undocumented immigrants, which would allow them to stay lawfully in the U.S. and to apply for work permits, said Senator Dick Durbin of Illinois, the No. 2 Democratic leader in that chamber."

Stay tuned.


October 26, 2021 in Current Affairs | Permalink | Comments (1)

President Biden's Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-⁠19 Pandemic


Official White House Photo

In this October 25 proclamation, President Biden announced the resumption of global travel:

"I, JOSEPH R. BIDEN JR., President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 1182(f) and 1185(a) of title 8, United States Code, and section 301 of title 3, United States Code, hereby find that it is in the interests of the United States to advance the resumption of international travel to the United States, provided necessary health and safety protocols are in place to protect against the further introduction, transmission, and spread of COVID-19 into and throughout the United States.  I further find that vaccination requirements are essential to advance the safe resumption of international travel to the United States and that the unrestricted entry of persons described in section 2 of this proclamation would, except as provided for in section 3(a) of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions." 

Click the link above for further information.  As Reuters reports, the proclamation "impos[es] new vaccine requirements for most foreign national air travelers and lifting severe travel restrictions on China, India and much of Europe effective Nov. 8, . . . ."

Section 6 of the Proclamation provides that  the proclamation "is effective at 12:01 a.m. eastern standard time on November 8, 2021.  This proclamation does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 12:01 a.m. eastern standard time on November 8, 2021." (bold added).

The proclamation is good news to travelers from many countries.  See here, here, here, here


October 26, 2021 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Non-State Actors 'Under Color of Law:' Closing a Gap in Protection Under the Convention Against Torture, Anna Welch & Sangyeob Kim, Harvard Human Rights Journal

Anna-welch Photo_sangyeob_08-2018

Non-State Actors 'Under Color of Law:' Closing a Gap in Protection Under the Convention Against Torture, Anna Welch & SangYeob Kim, Harvard Human Rights Journal, Vol. 35, Forthcoming 2022


The prohibition against torture is one of the most universally accepted principles of international law. Yet, 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 their territory. Many of these non-State actors commit torture with alarming impunity. This global power restructuring is testing the ability of U.S. laws to protect those fleeing torture, especially in light of the fact that State actors (as opposed to private or non-State actors) are the primary subject of most of our international and domestic torture jurisprudence.

In the U.S., those seeking protection against deportation under the Convention Against Torture (the “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. For example, if an individual faces torture by a police officer or other government official for non-lawful purposes, this person must not be returned to that particular country. CAT protection is still warranted even if a private actor (such as a gang member) will likely torture the individual as long as the torture is done with the actual knowledge, consent or acquiescence of a state actor, such as a police officer.

However, what is meant by “other person acting in an official capacity” such that torturous acts by non-State actors fall under Torture Convention protection remains unclear under U.S. CAT jurisprudence. In other words, to what extent might actions by non-State actors become “State-like” such that the CAT should apply. What if private actors are de facto controlling certain areas of a country untouchable by State actors? Or, what if non-State actors’ authority and presence are so significant and intertwined with State authority such that torture is occurring with impunity? Indeed, for the latter scenario, the applicant may establish CAT eligibility by showing a State actor’s acquiescence or consent. However, such cases are difficult to prove if the State excuses its inaction on its inability to protect victims from harm perpetrated by private actors. This is particularly true under current U.S. jurisprudence on government acquiescence, in which some federal courts have found that a mere inability to protect victims is not enough to meet acquiescence to the torture.

This article identifies a major chasm in U.S. CAT jurisprudence that allows individuals to be deported back to countries where they face likely torture. This article argues that resolving failures in U.S. CAT acquiescence jurisprudence addresses part of the problem as it relates to torture by private actors. However, this is only half of the bridge across the chasm. The other half requires a look at when non-State actors are acting State-like such that they should fall within the separate CAT provision of “other person acting in an official capacity.” While many aspects of the CAT has been litigated, clarified, and developed through case law since the U.S. 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 the United States 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, and thereby prevent the refoulement of individuals facing likely torture.


October 26, 2021 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)