Faculty Bibliography
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A crucial path to legal status for immigrant victims of crimes is the U visa, which Congress established with strong bipartisan support to protect victims of particular crimes who are helpful to law enforcement. Because the U visa was intended to encourage reporting of crimes, the application requires a certification form to be completed by a federal, state, or local authority that is investigating or prosecuting the alleged offense. Arbitrary and inconsistent certification decisions by state and local authorities make it especially important to identify relevant federal authorities that can serve as certifying authorities for U visas. This Piece argues that congressional committees and subcommittees that engage in investigations qualify as certifying authorities under the statute and regulations. To date, these congressional committees have never certified a U visa. The Piece provides three examples of congressional investigations in which U visa certification would be warranted: investigations into medical abuses of detained women, the so-called “Zero Tolerance” family-separation policy, and the use of solitary confinement in immigration detention.
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The Trump administration attempted to drastically curtail protections for asylum seekers in the United States through a series of regulatory changes, including a prohibition on the admission of certain stereotype-based evidence in asylum proceedings. While seemingly benign on its face, the provision would have made it difficult, if not impossible, for many asylum seekers to succeed in their claims. Given the challenges asylum seekers routinely face in gathering corroborating evidence, advocates often rely on stereotype-based evidence in support of asylum claims. Although courts enjoined the rule, preventing it from taking effect, the provision nonetheless offers an opportunity to rethink the role of stereotype-based evidence in refugee protection. By interrogating the type of evidence required to establish asylum eligibility, immigration advocates, scholars, and adjudicators alike can begin to push back against harmful cultural stereotype and return to a core principle of refugee law: the need to afford asylum seekers the benefit of the doubt.
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It is time to rethink the evidence so often submitted and relied upon in asylum claims, to return to a core principle of refugee law – the need to afford a
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Almost one year later, survivors of these horrific abuses are still in precarious situations and require immigration relief.
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As increasing numbers of immigrants face deportation, a major asymmetry in existing immigration procedures requires attention. Individuals who are deported from the United States and attempt to reenter are afforded an opportunity to prove their fears of return to their home countries, whereas those with prior deportation orders who have remained in the United States are not. This difference is based on the false premise that the latter have already had their day in court and do not need an additional layer of screening. This article fills a critical gap in the existing scholarship, which has thus far failed to focus on the asymmetrical application of reasonable fear screening procedures. It proposes a novel solution: adoption of a uniform pre-removal risk screening process to safeguard all immigrants from return to serious harm, torture, or even death. This approach would ensure that the United States fulfills its obligations under domestic and international law to protect refugees and provides all immigrants with due process and a meaningful opportunity to be heard. Other countries already engage in such universal pre-removal risk screenings, and the United States has an obligation to do the same.
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Sabrineh Ardalan, EU and US Border Policy: Externalisation of Migration Control and Violation of the Right to Asylum, in Securitising Asylum Flows: Deflection, Criminalisation and Challenges for Human Rights 282 (Valsamis Mitsilegas, Violeta Moreno-Lax & Niovi Vavoula eds., 2020).
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The political environment and legal decisions in the United States (US) can impact lives around the globe. A recent attack on women’s sexual and reproductive health and rights (SRHR) occurred in June 2018 when former US Attorney General Jeff Sessions reversed a decision (Matter of A-R-C-G-) in which domestic violence was recognized as a basis for asylum. Domestic violence is one form of gender-based violence, encompassing sexual and physical assault and reproductive coercion, which disproportionately harm women. Given the global epidemic of gender-based violence, we argue that Sessions’ reversal of this decision and efforts to rollback protection for domestic violence survivors could have far-reaching impacts on women around the world. This article will provide some recommendations for medical and legal professionals in response to this affront on SRHR.
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A Report of the Syrian Refugee Resettlement Project, An Initiative of the Harvard Immigration and Refugee Clinical Program. At a time when the U.S. refugee admissions program is under serious threat and the world’s displaced population is at its highest, this Report sets forth extensive recommendations regarding the United States’ role in protecting vulnerable refugees and compliance with its commitments under domestic and international law that together safeguard people fleeing persecution and fearing return to torture. The Report also identifies key national security reasons for supporting and enhancing the refugee program in keeping with U.S. foreign policy priorities. Additionally, the Report provides an in-depth discussion of the robust, multistep security-assessment mechanisms already in place for screening refugees; offers viable policy solutions to improve the integration of resettled refugees through enhanced collaboration among government agencies, private resettlement agencies, and sponsors involved in domestic resettlement; and demonstrates the positive economic impact of refugee resettlement in the United States. Drawing on the perspectives of longtime domestic refugee resettlement experts, the Report also provides fresh insights into how public private partnerships function in refugee resettlement and the ways in which they can be strengthened.
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As President Trump acknowledged in his February 16, 2017, press conference, the United States has robust procedures in place to vet refugees and asylum seekers. Any changes to the asylum and refugee processing system should thus promote the rule of law, safeguard the consistent application of screening measures, and ensure the fair and equitable treatment of applications for protection, without regard to an individual’s country of origin. The March 6, 2017 Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” however, attempts to suspend the refugee resettlement program and reduce the number of refugees admitted to the United States in direct contravention of U.S. legal and moral obligations to protect those fleeing persecution and fearing return to torture. This article first provides a brief history of this country’s long-standing commitment to refugee protection. Next, it describes the legal standard applied in determining whether an individual is eligible for refugee protection, including bars to protection under U.S. law. The article then provides an overview of the extensive screening procedures already in place to address national security concerns. Finally, the article concludes with a discussion of challenges related to credibility and corroboration, including issues with trust, translation, trauma, time, resources, and other hurdles, all of which must be considered as part of any effort to change the system.
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This Briefing addresses the ground of religion in asylum cases involving gang violence in Honduras, El Salvador, and Guatemala. It first describes country condition evidence critical to a nuanced understanding of these claims. The Briefing then presents an overview of U.S. asylum law with a focus on religion-based claims and gang violence. Next, the Briefing provides examples of cases in which adjudicators have granted asylum to women and youths who suffered or feared persecution by gangs for reasons of religion, among other grounds. The Briefing concludes with practical guidance regarding how to develop and present asylum cases involving gangs, religion, and the church.
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The U.S. House of Representatives Judiciary Committee recently passed H.R.1153, the Asylum Reform and Border Protection Act of 2015 (“the ARBP Act”), a bill that restricts immigration to the United States, except for families fleeing persecution because they homeschool their children. For those families, the bill allocates 500 grants of asylum per fiscal year. In contrast, for women and children fleeing persecution from gangs in Central America, the bill prohibits any federal funding for legal representation, imposes a heightened burden of proof, and creates unnecessary procedural hurdles, such as forcing certain asylum applicants to travel to Mexico or another “Safe Third Country” to apply for asylum. - See more at: http://www.reflaw.org/refugee-protection-for-homeschoolers-congressional-efforts-to-amend-the-refugee-definition-and-restrict-protection-for-central-american-refugees/#sthash.V6cmXLVg.dpuf
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This Article argues that collaboration among lawyers, psychological and medical professionals, and human rights experts is paramount to ensuring the high-quality representation that asylum seekers need. As policymakers around the country consider different models for expanding immigration representation, it is vital that representation be defined broadly to include the range of experts integral to an asylum seeker’s case. Multidisciplinary representation is a functional requirement to ensure that asylum claims are fully developed and articulated to adjudicators. The article first explores the legal and financial barriers to accessing counsel. It then addresses the challenges that asylum seekers face when forced to present their cases without access to holistic representation. Next, it discusses barriers to inter-professional collaboration in asylum representation. It concludes by recommending a model of holistic representation for asylum seekers.
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Within the field of refugee law, collaboration between lawyers and mental health professionals is increasingly prevalent, particularly in the context of law school clinics and legal services organizations. This trend has the power to transform the experiences of asylum seekers and the professionals who represent them, both improving case outcomes and enhancing the advocacy skills of lawyers and law students. An interdisciplinary approach is also critical to empowering asylum seekers, many of whom have fled serious human rights abuses and are as much in need of medical and mental health care, food, shelter and other basic necessities, as legal representation. Yet, until recently, little attention has been paid to tensions that may arise given the differing mandates and ethical obligations of each set of professionals. This Article seeks to address and reconcile these tensions. The Article first identifies the impetus for, and the benefits of, increased interdisciplinary collaboration in asylum representation. It then highlights obstacles to collaboration, including conflicts between the ethical codes of conduct of lawyers and mental health clinicians. The Article concludes with an analysis of different models of interdisciplinary collaboration, highlighting recent legal and policy developments that support an integrated team approach to asylum representation.
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This chapter opens by explaining the importance of expert testimony in asylum representation given adjudicators’ increasing demands for corroboration in recent years. It then addresses the sometimes-conflicting perspectives of experts and attorneys, and the need for increased transparency and communication among experts and attorneys about their roles and responsibilities. It concludes by arguing that explicit protocols must be adopted in order to improve collaboration between experts and attorneys in the asylum process and to mediate the divide between objectivity and advocacy that is often at issue in these cases.
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This article highlights the importance of considering non-physical harm in developing and presenting asylum cases, drawing on recent examples from federal court cases, decisions by the Board of Immigration Appeals, U.S. Citizenship and Immigration Service training materials, among others. The article first provides an overview of the meaning of persecution under U.S. asylum law and international refugee law. Next, the article addresses evolving interpretations of psychological and emotional harm and violations of economic, social, and cultural rights in U.S. law. The article then concludes with practical guidance on how to develop and present asylum claims involving nonphysical harm.
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Sabrineh Ardalan, Country Condition Evidence, Human Rights Experts, and Asylum-Seekers: Educating U.S. Adjudicators on Country Conditions in Asylum Cases, 13-09 Immigr. Briefings 1 (Thompson Reuters, Sept. 2013).
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This Briefing explores the evolving evidentiary issues in U.S. asylum law and the impact of recent legal developments, focusing on the role of expert evidence. The Briefing then addresses the historic context for the use of country condition evidence and, particularly, expert testimony in asylum cases. The third part of this Briefing highlights the importance of country condition evidence and expert testimony. Finally, the Briefing concludes with a brief discussion of some of the challenges that attorneys may face in working with country experts in asylum cases.
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This briefing highlights the importance of a child-centered approach in children’s asylum cases by focusing on Mejilla-Romero v. Holder, a recent First Circuit Court of Appeals case presented by the Harvard Immigration and Refugee Clinic at Greater Boston Legal Services.
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The authors discuss the escalation of persecution regarding the protection of gays and refugees with respect to the article written by Josan Pobjoy and James C. Hathaway. They are critical of the ideas of Hathaway and Pobjoy on the false analyzing by the courts of Great Britain, New Zealand and Australia on the refugee status of the LGBT people. Information on the jurisprudence by the courts of the U.S. on the issue of sexual orientation is also presented.
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This article argues that the New York State Constitution creates a legal right to equal access to quality health care for all New Yorkers, drawing on both the historical context and the legislative history of the State Constitution to support this interpretation. Next, the article outlines the dimensions of the right to health care required under the text and history of the State Constitution, as informed by parallel provisions of international and federal law, as well as social science research. The article then provides an overview of additional laws that guarantee equal access to quality health care, focusing on racial, linguistic, socioeconomic, and geographic equity. The article concludes that New York State has failed to live up to its obligations to protect and promote New Yorkers’ health and suggests a series of remedies that can help ensure that the State fulfills its obligations.
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Central to this article is the evolution of the nature of the principle of self-determination. The main focus will be on the examination of a recent instance of state practice — the Northern Ireland Peace Agreement. In particular, the way in which the Northern Ireland Peace Agreement has given effect to the primary elements of self-determination, including democratic self-government, the protection of human rights, and the protection of minority rights will be discussed.