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General

08 Mar

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium

  Bojana Asanovic is a barrister at Lamb Building, Chambers of Ami Feder in London. She specialises in immigration, asylum and human rights law.   This note examines the way in which asylum claims based on sexual identity are determined as a flagrant breach of Article 8 ECHR after HJ and HT, UKSC (2010).  I will take the case of DBN v the United Kingdom, (26550/10) ECHR 192 (2011) as its starting point, and follow with a brief look at potential consequences of an evidentiary approach that places importance on the need for asylum seekers to prove psychological harm in Article 8 cases. On January 27, 2011, the European Court of Human Rights (‘ECtHR’) communicated the case of DBN v. the United Kingdom, which concerned a lesbian from Zimbabwe who claimed violations of Articles 3 and 8 of the European Convention on Human Rights.[1] This case post-dated HJ and HT in the Supreme Court.  In D.B.N., the question to the parties in relation to Article 8 was phrased thus:
“Is there a real risk that the applicant’s removal to Zimbabwe would amount to a flagrant breach of the applicant’s rights to private life under Article 8 of the Convention (EM (Lebanon) (FC) v. Secretary of State for the Home Department (Respondent) UKHL 64 (2008))?”[2]
The applicant argued that in the context of systematic, virulent, state-sponsored homophobic propaganda with evidence of discrimination and harassment by the police, it was not possible to enjoy a protected right to privacy because she would be forced to live in fear and secrecy as a result of her sexual identity.
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08 Mar

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

Victoria Neilson is the Legal Director of Immigration Equality and an adjunct professor at New York University School of Law.   Reading Queer Cases Make Bad Law, by James C. Hathaway and Jason Pobjoy,  (hereinafter  “Hathaway/Pobjoy article”) my first reaction is to feel fortunate that I practice asylum law in the United States and not in Australia, the U.K., or other European countries that have imposed a duty of so-called “discretion” on asylum seekers to avoid harm.  U.S. courts have rejected the notion that a gay man should be saddled “with the Hobson’s choice of. . . either (1) facing persecution for engaging in future homosexual acts or (2) living a life of celibacy.  Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005).  And in the recently released United States Citizenship and Immigration Services Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims, USCIS instructs asylum and refugee officers that:
Being compelled to abandon or conceal one's sexual orientation or gender identity, where this is instigated or condoned by the state, may amount to persecution.  LGBTI persons who live in fear of being publicly identified often conceal their sexual orientation in order to avoid the severe consequences of such exposure -- including the risk of incurring harsh criminal penalties, arbitrary arrests, physical and sexual violence, dismissal from employment, and societal disapproval.   (LGBTI module at 20-21).
While asylum law in the United States is by no means perfect, I think that the subjects of the Hathaway/Pobjoy article, HJ and HT, could have won asylum here under the existing legal framework.  Thus, rather than re-envision asylum and refugee law as the article suggests, to focus on the “endogenous” harm that comes from leading a forced life of secrecy and suppression, I suggest that European countries look to the United States as a model for analyzing these types of cases. Under U.S. asylum law, applicants are most likely to be successful if they can prove past persecution.  Doing so creates a presumption of future persecution, shifting the burden to the government to prove that the applicant will not face further persecution.  As a practical matter, the government rarely argues against granting asylum where past persecution has been established. In situations where the applicant has not suffered persecution in the past, the inquiry is entirely forward-looking.  Does the applicant have a well-founded fear of future persecution?  It is then incumbent upon the applicant to demonstrate either that he or she will be singled out for future persecution or that there is a pattern and practice of persecution of those that share the applicant’s protected characteristic. 8 C.F.R. 208.13(b)(2). Cases based on a pattern and practice argument are decided almost entirely on country conditions documentation.  U.S. courts have been reluctant to grant “pattern and practice” cases, probably because of the obvious “floodgates” concern that if one applicant with a particular protected characteristic can win asylum based solely on pattern and practice, then presumably all applicants who share that characteristic could also win.  Thus, gay applicants have lost “pattern and practice” claims where evidence of treatment of LGBT people is mixed, such as claims from Peru (Salkeld v. Gonzales, 420 F.3d 804 (8th Cir. 2005)), Zimbabwe, (Kimumwe v. Gonzales, 431 F.3d 319 (8th Cir. 2005)), and Mexico (Castro-Martinez v. Holder, 641 F.3d 1103 (9th Cir. 2011)).
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07 Mar

The NYU Journal of International Law and Politics is partnering once again with Opinio Juris for an online symposium.  The symposium will correspond with the simultaneous release this week of our Vol. 44, No. 2 issue, featuring a ground-breaking piece by Professor James Hathaway, a world-renowned leader in refugee studies and director of Michigan's refugee law program, and Jason Pobjoy, a Ph.D. candidate in Law at Gonville and Caius College, University of Cambridge and a visiting doctoral researcher at NYU.  The article, Queer Cases Make Bad Law, serves as a point of departure for contributions by other leading scholars, who examine and expand on issues raised by the piece.  Here is a short summary of the article and an introduction by Editor-in-Chief Jeff Stein. On Thursday and Friday, several of the print contributors as well as other international experts will engage on various topics intersecting with LGBT asylum and refugee law raised by Professor Hathaway's article here at Opinio Juris.  Rather than taking a traditional Q&A approach, we felt that it would be more productive to actually use direct quotes from the Hathaway/Pobjoy article and responses to ignite conversation. The first two panels focus on the definition of "being persecuted", while the second panel focuses on the issue of "nexus".  The following is the schedule and roster of participants:   Panel 1: Thursday, March 8th, 8am - 12pm James C. Hathaway and Jason Pobjoy, Queer Cases Make Bad Law, 44 N.Y.U. J. Int'l L. & Pol. 315, 388 (2012):
"No, there is no well-founded fear of exogenous harms, such as prosecution or beatings, where a gay man would in fact opt for seclusion to escape such threats. But, given the traumatic effects that normally follow from self-repression (anxiety, paranoia, disassociation, or worse) there is an alternative and solid basis, grounded in the traditional link between persecution and risk to core norms of human rights law, to affirm refugee status. Because the risk of severe psychological harm has been authoritatively interpreted to contravene the right to protection against cruel, inhuman or degrading treatment, this is the persecutory risk that is most likely to be well-founded in such cases."
Participants:  
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06 Mar

Much to say on Attorney General Eric Holder’s much anticipated speech yesterday on the U.S. Government’s approach to targeted killing. It should be said that it is good and right for the AG to make such a speech, and it should be welcomed for its effort. Combined with previous addresses in the past year+ by DOD General Counsel Jeh...

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06 Mar

[Anthony J. Colangelo is an Assistant Professor of Law at SMU Dedman School of Law] I suspect the extraterritoriality issue has taken on renewed significance after the Supreme Court’s decision in Morrison v. Nat’l Aust. Bank, which, as many readers know, addressed the extraterritorial reach of the Securities Exchange Act. According to the Court in Morrison, “When a statute gives no...

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06 Mar

Yesterday was a busy day in International-Foreign-Relations-Law-Land, between the Eric Holder speech on national security and targeted killing at Northwestern University and the quite unexpected announcement that the Alien Tort Statute case of Kiobel will be re-argued in the Supreme Court. Let me add a comment from former DOS Legal Adviser John Bellinger at Lawfare:  
The Court’s order may reflect that a majority or plurality of the justices would like to decide the case on the larger issue of whether the Alien Tort Statute even applies to torts committed in other countries, rather than on the narrower issue of corporate liability, and that other justices want to have more briefing on the issue, which was not addressed by the Second Circuit. As I noted in my post about last week’s oral argument, Justices Kennedy, Roberts, and Alito focused almost all of their questions on the diplomatic tensions and problems under international law caused by extraterritorial application of the ATS. This was also the issue that I addressed in my own amicus brief, and that was the focus of the amicus briefs of the Netherlands, Britain, and Germany …. This development will put the Obama Administration in a difficult position. In its original amicus brief in support of the petitioners, the Administration argued in favor of corporate liability, but made no mention of the numerous diplomatic complaints about the ATS filed by other countries. Assuming that the Administration files a new amicus brief, it will face a dilemma. It will either have to argue against extraterritorial application, contrary to the position of human rights groups and undercutting its prior argument in favor of corporate liability. Or it will have to argue in favor of extraterritorial application of the ATS (at least in some circumstances), which is contrary to the position of many foreign governments and inconsistent with international law principles of jurisdiction. As three members of the International Court of Justice said in the Congo Arrest Warrant case, “[w]hile this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.” Moreover, the Obama Administration would have to reverse the arguments against extraterritorial application of the ATS made by the Bush Administration in its brief to the Supreme Court in 2008 in the Apartheid case (which the Solicitor General may be reluctant to do). This may be one reason why the Administration asked the Supreme Court not to address the issue of extraterritoriality in its original amicus brief.
  One might also add that the amicus brief drafted by Jack Goldsmith in support of defendant corporation Shell seems to have had an effect; Goldsmith and his amicus brief were mentioned by name in the oral argument.  The Goldsmith brief was not primarily about extraterritoriality – it was much more about whether this was international law as such, or instead some kind of well-intentioned but nonetheless faux-international law committed to the hands of US courts.  (I have sometimes referred to it here at Opinio Juris as the “law of the hegemon” which US district courts have been persuaded by ATS plaintiffs’ lawyers, mistakenly  in my view, to regard as “international law.”) This then combines with a general worry on the part of Justice Alito – but not he alone – that particularly the alien-to-alien cases taking place in an alien land simply have no reason to be in US courts, and that what little can be gleaned about the history and purpose of the statute does not support extraterritorial application, at least in the territory of another sovereign.  Piracy on the high seas, yes – and hence presumably the importance of the qualifier in the Court’s briefing instructions to address not extraterritoriality as such, but instead territory of another sovereign. (But see Jordan Paust and Eugene Kontorovich each commenting separately on the piracy issue, below.)
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05 Mar

Sometimes oral argument really does reflect what is going on in the Justices' minds.  The Supreme Court will hear reargument in Kiobel next term (meaning October or so). The Supreme Court on Monday put over to its next Term a major case on lawsuits against corporations for human rights abuses in foreign countries, and ordered lawyers to come back with an...

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05 Mar

I expect the legal issues arising out of a possible attack on Iran's nuclear facilities are going to get hotter in the coming weeks. Peter Berkowitz of the Hoover Institution offers this argument in favor of the legality of Israel's attack drawing from the doctrine of "preemptive" self defense (h/t Jack Goldsmith at Lawfare). The charter of the United Nations affirms...

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