Migrants Matter: New Evidence Shows Migration Patterns Help Drive US Lawsuits for Human Rights Abuses Abroad

[Leslie Johns is a Professor of Political Science and Law at UCLA.

Máximo Langer is David G. Price and Dallas P. Price Professor of Law at UCLA.

Margaret E. Peters is a Professor and Vice Chair of Graduate Studies in the Department of Political Science at UCLA.]

For decades, human rights advocates have used US courts to seek compensation for human rights abuses committed in foreign states. Laws like the Alien Tort Statute, the Torture Victim Protection Act, and the Trafficking Victims Protection Act have allowed lawyers to craft novel and innovative strategies for upholding human rights law in US courts. Scholars and policy-makers have ably described how transnational non-governmental organizations helped to advance this cause. Yet little attention has been paid to a key agent of transnational justice: the migrant victims themselves.

In new research, we argue that the movement of migrants across borders has historically been a key driver of transnational human rights litigation. This project complements our earlier work showing the influence of migrants on universal jurisdiction complaints and trials. First passed by the US Congress in 1789, the Alien Tort Statute says: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In simple and modern language, the ATS allows a victim to file a civil complaint in US federal courts if the victim is a foreign national who was harmed by a tort committed in violation of international law. The ATS does not explicitly require that the violation occurred on US territory and it does not explicitly require that the perpetrator be a US citizen. This law became a major tool for human rights lawyers beginning in the late 1970s, when lawyers began filing numerous lawsuits seeking civil remedies for international law violations. In these cases, we see that migrants are using foreign courts to get justice for harms abroad that they cannot get at home. Litigation therefore serves as a justice remittance.

Every case initiated under the Alien Tort Statute (ATS) is based on an alleged violation of international law that is committed by a perpetrator—which can be an individual or a corporation—and typically harms a victim in a non-US sending country (i.e., in a foreign country). For example, the first major ATS case involved the torture and killing of seventeen-year-old Joelito Filártiga in 1976 in Asuncion, Paraguay by members of the police. The underlying violations in most ATS cases have been severe human rights and humanitarian law violations, like genocide and torture. 

A major ATS case that is currently working its way through US federal courts is Doe v. Cisco. In this case, a group of Chinese nationals who practice the Falun Gong religion are suing Cisco, the US technology company. They argue that Cisco has aided and abetted torture in China by providing the “Golden Shield” surveillance system to the Chinese government. 

Successful ATS lawsuits require personal jurisdiction, which is established through minimum contacts with the state in which the case proceeds. If the perpetrator is an individual, these minimum contacts may be established through immigration of perpetrators to the state in which the case ultimately proceeds. In the Filártiga case, the parents and sister of Joelito Filártiga moved to the US and applied for asylum after Joelito’s death. They then learned that Américo Peña-Irala, the former Inspector General of Police in Asuncion, was living in Brooklyn, New York on an expired visa. In the Doe case, personal jurisdiction is easily established because the defendant—Cisco—is a US corporation.

An ATS case begins when a victim files a complaint in US federal court. The Filártiga family wanted Peña-Irala to be punished for Joelito’s painful death. They first reported Peña-Irala to the Immigration and Naturalization Services so that he would be held in prison while awaiting lengthy deportation proceedings. They then filed a civil complaint against him under the ATS in the Eastern District of New York, which has jurisdiction over Brooklyn. This filing resulted in a seminal 1980 ruling by the US Court of Appeals for the Second Circuit that opened the floodgates to subsequent ATS cases.

The Doe v. Cisco lawsuit originated from a May 20, 2008 Senate hearing on Global Internet Freedom before the Senate Judiciary Committee’s Subcommittee on Human Rights and the Law. At this hearing, Shiyu Zhou, a Chinese-born computer scientist and Deputy Director of the Global Internet Freedom Consortium based in Bethesda, Maryland, testified about Cisco’s role in helping China build its surveillance infrastructure. Zhou presented evidence from a 2002 Cisco China PowerPoint presentation that showed Cisco targeting the Golden Shield Project—the host project of China’s Great Firewall—as a major customer. The hearing drew the attention of private attorneys who subsequently identified possible plaintiffs. Three years after this 2008 hearing, in 2011, Falun Gong practitioners—three of whom live in the United States—filed the lawsuit in the U.S. District Court for the Northern District of California, where Cisco is headquartered, alleging that the company aided and abetted human rights violations.

An ATS complaint then triggers judicial proceedings. These proceedings do not require that the plaintiff reside in the US. However, plaintiffs who are immigrants to the US find it relatively easy to obtain legal assistance, provide evidence, and testify in trials. In the Filártiga case, the proceedings were relatively quick and simple because both the Filártiga and Peña-Irala were physically present in New York. 

The Doe case has not yet gone to a jury trial. Legal proceedings thus far have focused on whether the relevant laws apply to aiding and abetting international crimes, and whether the case can continue given recent US Supreme Court rulings. For example, a key 2013 ruling in the Kiobel case established that a presumption against extraterritoriality applies to ATS claims. In contemporary lawsuits, this doctrine implies that unless a law explicitly says that it applies outside US territory or Congress’ intent in that regard is clear, judges should assume it does not Thus far, Doe lawyers have convinced the US Court of Appeals for the Ninth Circuit that the case should proceed, despite Kiobel, because much of Cisco’s conduct in designing the surveillance system occurred in the US. This issue is currently being appealed at the US Supreme Court. Thus, Doe lawyers have not yet had to deal with the challenge of proving claims about what happened in China.

ATS cases are calculated risks. These cases are hard for plaintiffs to win. However, when plaintiffs do succeed, they can receive astonishingly large verdicts. Recent ATS jury verdicts have been over a billion dollars. Unlike the Filártiga case, contemporary ATS cases now routinely target multinational corporations so that plaintiffs can more easily seize assets and enforce judicial orders. Additionally, the high stakes of ATS cases can pressure defendants to accept large settlements. For example, Exxon finally settled in the Doe v. Exxon Mobil case with Indonesian plaintiffs in 2023 after almost 20 years for an undisclosed amount of money. In the Doe case, Cisco’s appeal to the US Supreme Court suggests that it is eager to prevent a jury trial. This suggests that the plaintiffs in Doe v. Cisco may well end up with a large settlement because Cisco fears a costly jury award.

We wanted to understand if these are isolated cases or whether immigrants use these cases to gain justice for crimes committed at home. We used millions of records from US Census data to measure the level of migration from each country around the world in each US federal judicial district. We then examined when and where ATS cases originated, and collected data on a host of different variables, including the level of atrocities in the sending state, factors that affect the cost of filing a lawsuit in the US, and attributes of the federal judicial district. We used this data to run a battery of different statistical tests to examine the relationship between migration and ATS cases. 

Overall, our analysis showed that migration plays a significant role in driving human rights litigation. While these cases are rare, greater immigration from a country leads to more cases: the likelihood of a case doubles if the number of immigrants from a given home country increases from zero to about 5,000. This finding holds even when we control for characteristics of the home country (like how much violence there is and the level of democracy), factors that affect the political costs of litigation (like whether the home country is a major power or an ally of the US), characteristics of the judicial district (including population and the average education and income in the district), and characteristics of the judges in the district (including whether they were appointed to the bench by a Democrat or a Republican). This finding also holds when we use numerous different statistical methods and account for influential judicial districts and home countries.

While the US Supreme Court has tried to limit the use of the Alien Tort Statute in recent years, pushback has come from lower courts, human rights lawyers, and even the US Congress and President, who have created new pathways for transnational justice. Transnational human rights litigation in US courts isn’t going away. Migrants clearly matter.