“He was detained again for approximately 30 days, and was again beaten while in custody, interrogated about his political activities opposing the Cameroonian government, and accused of plotting to overthrow the current regime.”
We congratulate Lindsay Harrison of Jenner & Block LLP, on the immigration court’s decision last week to grant asylum to Jean Marc Nken, a pro-democracy activist who came to the United States from Cameroon in 2001.
Mr. Nken’s case spanned ten years, and Ms. Harrison’s advocacy set important precedent’s that will save refugees’ lives.
Jean Marc was granted asylum on October 25, 2011. We are delighted for Jean Marc, his wife, and his son, who can now live in freedom.
Read more about Jean Marc’s case, and the role that Human Rights USA played.
Despite an executive order closing down the base and a Supreme Court opinion extending habeas corpus to the detainees, many of the 172 remaining Guantanamo Bay detainees have yet to see any results. Some argue that the holdups and delays are necessary in order to be sure the US does not mistakenly release a terrorist. The United States government has stayed the process of gaining freedom for one detainee by claiming it has new information, allegedly procured recently, that may cause the District Court to reverse its decision granting the right of habeas corpus to this particular detainee. Evidence introduced eight years after the initial arrest, as well as multiple other delays by the government do significant harm to the domestic and international perception of the US legal system. Read the full piece describing this detainee’s case by Human Rights USA’s litigation director, Allison M. Lefrak.
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202514592032&slreturn=1&hbxlogin=1
Human Rights USA wishes to congratulate Colleen O’Brien of Steptoe & Johnson for her recent victory in an asylum case. When her client Farid* first contacted Human Rights USA, he was deeply afraid of returning to his native India where he had already suffered persecution at the hands of family and community members who could not accept his homosexuality. Farid believed his family would try to force him into marriage and subject him to further punishing attempts to “cure” him if he returned. Steptoe & Johnson agreed to take Farid’s case, and with Human Rights USA’s support and many hours of hard work and creative legal thinking by Colleen and her team at Steptoe, Farid’s case was approved by the asylum office in Los Angeles, which will allow him to remain in the United States.
If you are an attorney handling an asylum case involving forced marriage, check out Human Rights USA’s Guide and Sample Briefs.
*The name has been changed to protect the individual’s privacy.
The Third Circuit recently took the opportunity to uphold key refugee law principles and make it clear to the Department of Homeland Security (DHS) that it could not bar deserving refugees from protection in the United States without a good reason. (See Yusupov v. Attorney General, No. 09-3032 (3d Cir., June 16, 2011)).
Bekhzod Yusupov and Ismoil Samadov feared they would face persecution and torture for their religious beliefs if they were deported to their native Uzbekistan. Although the Uzbek government had issued extradition requests for the two men, claiming they were wanted for subversive activity, the U.S. Department of State and two immigration judges recognized that the Uzbek government commonly uses its criminal justice system to persecute political opponents. The immigration judges determined that the men faced a likelihood of persecution and torture and were deserving of refugee protection.
But that wasn’t the end of the story. Because the attorneys for DHS argued that the men were a danger to U.S. national security, and because the Board of Immigration Appeals (BIA) agreed, the men were granted a limited and easily revocable form of protection instead of the broader protection they had sought. And what was the primary evidence that led DHS and the BIA to conclude Yusupov and Samadov were national security risks? The extradition requests. The very same spurious, unreliable extradition requests that the immigration judges and the BIA considered proof that Yusupov and Samadov would more likely than not be tortured in Uzbekistan was also the primary evidence that they were threats to U.S. security.
In fact, DHS offered no direct evidence that either man was actually a threat to national security, basing their argument on speculative and circumstantial evidence in addition to the extradition requests.
The Third Circuit reversed the BIA’s decision and directed the BIA to grant both men withholding of removal, a broader form of protection than that which they had previously been granted. If a person facing deportation can show that they will more likely than not face persecution or torture in the country to which they will be deported, then under U.S. law they must be granted withholding of removal. The law is based on the principle of “non-refoulement” found in both the Convention on the Status of Refugees and the Convention Against Torture, which both state that governments should not deport people into situations of persecution and torture.
Like many countries, the U.S. makes an exception to the non-refoulement principle for individuals that pose a threat to national security. But, as the Third Circuit’s decision made clear, that exception is limited to people who pose an actual, not speculative, threat, and DHS must provide reasonable grounds for believing someone is a threat. In the cases of Yusupov and Samadov, DHS failed to meet that burden.
In its decision, the Third Circuit stressed the fact that Congress passed U.S. refugee law with the intent to fully live up to the United States’ obligations under international refugee law, and that the exceptions Congress created to the non-refoulement principle were to be applied narrowly. To apply the exception broadly enough to cover individuals falsely charged with crimes by despotic governments seeking to suppress their free expression would undermine the entire purpose of U.S. refugee law, as the Columbia Law School Human Rights Institute explained in a brief amicus curiae submitted on behalf of Yusupov and Samadov. The two men, facing politically motivated criminal charges, are text-book examples of a kind of person refugee law is meant to protect. Thankfully, the Third Circuit’s decision reinforces core principles of U.S. and international refugee law, and will allow Yusupov and Samadov to receive the protection they deserve.
Human Rights USA wishes to congratulate the attorneys at Steel, Rudnick & Ruben and Seton Hall Law School’s Center for Social Justice, who represented Yusupov and Samadov, respectively, as well as the amici curiae who contributed crucial legal analysis to the case, Columbia Law School Human Rights Institute, the Asian American Legal Defense & Education Fund, Becker, Glynn, Melamed & Muffly LLP, and Debevoise & Plimpton LLP.
The Inter-American Commission on Human Rights has clarified the standard for assessing states’ compliance with human rights obligations. According to the Commission, states must use due diligence to protect people’s human rights, prevent human rights violations, and investigate and redress the violations that occur.
This came as part of the Commission’s decision in the case of Jessica Lanahan (formerly Gonzales) v. United States, released by the Commission today. The Commission determined that the United States had failed to meet its obligation to protect Ms. Lanahan and her daughters’ human rights under the American Declaration of the Rights and Duties of Man. The Declaration lays out fundamental human rights that must be protected by members of the Organization of American States, including the right to non-discrimination and equal protection under the law, the right to life, the right to special protection for children, and the right to judicial protection.
In 1999, Ms. Lanahan’s estranged husband kidnapped their three daughters in violation of a restraining order. She repeatedly sought help from local police over a 10 hour period, but the police department failed to investigate or issue an arrest warrant for her husband. After her husband appeared at the police station, began shooting and was killed in a shoot-out with police, the bodies of her daughters were discovered in her husband’s truck. The ensuing police investigation failed to determine the time or cause of death of the girls. Ms. Lanahan sought vindication in federal court, but the Supreme Court determined that she had no constitutional right to protection and the failure of police to enforce the restraining order did not violate any constitutional provision. Ms. Lanahan then turned to the Inter-American Commission.
The Commission noted the numerous international authorities explaining that gender-based violence is a form of discrimination, and that systemic failures of governments to adequately address gender-based violence, particularly domestic violence, and to protect women from this harm not only constitute discrimination but fuel further societal discrimination and violence. The Commission stressed that all states must act with diligence to protect women and children from domestic violence, and to not only prevent arbitrary deprivations of life but also to affirmatively protect peoples’ right to life. And when acts of domestic violence do occur, a state must conduct a thorough and meaningful investigation of those violations.
According to the Commission, Ms. Lanahan’s and her daughters’ rights were violated by the police department’s failure to enforce the restraining order and the insufficient investigation into her daughters’ deaths, and by the failure of the U.S. government to investigate any aspect of these incidents.
This important decision does more than just vindicate Ms. Lanahan’s rights. It also makes clear that the U.S. must do more than merely pass laws or create nominal policies protecting human rights; those laws and policies must actually be enforced, procedures must be in place to adequately respond to people seeking protection of their rights, and failures of protection must be genuinely addressed lest they contribute to societal acceptance of human rights violations and perpetuate those very violations.
Human Rights USA welcomes this landmark decision and is proud to be among the signatories to amicus briefs supporting Ms. Lanahan’s case. Our congratulations and thanks go out to Ms. Lanahan’s attorneys at the University of Miami School of Law Human Rights Clinic, the Columbia Law School Human Rights Clinic, and the American Civil Liberties Union.
"But only in recent years has the act been used to target tech firms whose products, or user data, might have been used to trap activists. In the best-known case, in 2007, Yahoo! reached a settlement with representatives of two Chinese democracy campaigners who said the firm had given authorities information that had led to their arrest."Actually, one of them was journalist Shi Tao, who is not a democracy campaigner. But it is correct that the lawsuit, in which Human Rights USA represented Shi Tao, Wang Xiaoning, and Yu Ling, was the first in U.S. courts to assert internet freedom as an internationally recognized human right.
“It should be obvious to anyone, including officials in Texas, that if Americans, including Texans, are arrested and detained in some other country and the United States complains that they have not been given their consular notice it will be pointed out to us that the United States doesn’t comply with our own international obligations,” Bellinger said. “It cuts the legs out from under the State Department—maybe not immediately but over the longer run—to make arguments on behalf of Americans who are detained abroad.”Well said. For the US to have any credibility when asking other nations to respect the rule of law and respect human dignity, the federal government - AND all the states - must respect the rights of foreign nationals when they are here - even when those persons commit horrible acts.
The 2011 report made many good recommendations, as I’ve noted throughout this series (see posts #1, #2, #3, and #4). Actually implementing these will go a long way to eradicating many of the issues I have raised. There does seem to be an effort to genuinely examine our government’s own policies and identify shortcomings. And, of course, overly diplomatic ways of stating certain things is to be expected. But there are some very real shortcomings in U.S. anti-trafficking efforts, problems that may threaten the well-being and even the lives of many trafficked persons, and I hope the U.S. government is really listening to those NGOs whose input the report cites, and that other agencies and branches of government will heed the Department of State’s (DOS) recommendations.
Fixing the problems addressed in this blog series will require effort not just from DOS, but from the Departments of Justice, Labor and Homeland Security as well. Improved labor, immigration and visa regulations, more extensive training of government officials, a stronger engagement with state and local anti-trafficking efforts, and an increase in oversight by agencies over their own officials could all help significantly. DOS seems to recognize much of this.
Congressional action is important too, and at the very least Congress’ reauthorization of the Trafficking Victims Protection Act later this year will be crucial. Congress will also have the opportunity to address labor and visa issues through the legislative process. Furthermore, legislators could do much to address the shortcomings in the U.S. government’s provision of services to trafficked persons. The DOS report does not give much consideration to legislative issues.
But the most significant omission from the report was an evaluation of the human rights implications raised by the problems DOS identified. Failures of protection or assistance to trafficked persons, abuse or misuse of official power, disparities in state laws, as well as systemic flaws in visa programs that traffickers can exploit can all – directly or indirectly – result in serious human rights violations.
Its good that DOS seems concerned with remedying problems, but their approach looks more at symptoms than at the disease. U.S. anti-trafficking policy is not designed around the goal of protecting the human rights – or even the lives – of trafficked persons. It is primarily a criminal justice scheme, and victim protection and assistance are corollary to that. Since programs are generally not designed with victims’, or potential victims’, interests at the forefront, vulnerabilities get built into the system that only become apparent later and are not always easily or quickly remedied.
Trafficking prosecutions are on the rise, but many trafficked persons remain in danger, impoverished, and without access to justice. Assistance must be available to more than just those who are able to navigate the regulatory obstacle course of the T visa process, or those who are fortunate enough to have the Department of Justice prosecute their traffickers. And improvements in preventive efforts such as those DOS recommends for employment visa programs must be made reality. The U.S. government has long recognized that trafficking constitutes a severe human rights violation, but, perhaps, has not quite grasped that how we respond to the issue of trafficking also has human rights implications.
Welcome to my 4th post in the series on the 2011 Trafficking in Persons Report. (Please check out posts #1, #2, and #3). Today’s post looks at the Department of States’s (DOS) assessment of problems within certain employment visa categories that leave people vulnerable to trafficking.
This element of the report probably raised the fewest red flags for me, not because it is a minor problem (its not), but because DOS actually seems to realize that this is an extensive problem that is going to need a lot of attention to cure.
DOS candidly acknowledges that traffickers have been able to abuse several visa programs. These programs are:
The report outlines the steps currently being taken to address these problems, and recommends additional steps.
DOS has begun tracking the application process for A-3 and G-5 visas, requiring employers to pay their domestic servants through bank accounts, and tracking allegations of abuse. The report recommends adding briefings for in-coming domestic workers about their rights.
The report also mentions new DOL regulations that limit the types of fees recruiters can collect from guestworkers, while acknowledging that many recruiters have found ways around these new rules.
The report also describes DOS’ new pilot program for the J-1 visa process, including a requirement that applicants have verified employment before coming to the United States, prohibiting third party staffing agencies, and increasing DOS oversight of the program. Hopefully all of these positive steps will be continued and expanded for all of these vulnerable visa programs.
Fortunately, the government has already begun taking some steps to address these issues, as discussed above, and DOS acknowledges that more needs to be done. My primary criticism is simply that the government needs to do a lot more. H-2 regulations, in particular, still need a lot of amending, and DOL’s new regulations only scratch the surface. We need considerably more regulation of foreign recruiters and the recruitment fees and other fees collected from guestworkers, both in the United States and while they are still in their countries of origin. H-2 and J-1 visa holders also need to be briefed about their rights just as much as A-3 and G-5 visa holders. Misinformation about their rights and options, and about U.S. law, is a primary tool traffickers use to keep victims from seeking help.
I was curious about one statement in the report: DOS states that the threat of suspension of foreign missions’ ability to acquire A-3 and G-5 visas for domestic servants has been "effective." What does this mean? The report does not say how we know it has been effective.
Have there been fewer complaints regarding abuse? Have there been fewer lawsuits filed against diplomats?
If DOS considers fewer lawsuits to indicate less of a problem that would seem naïve. Lawsuits against diplomats can often be ineffective due to the diplomats’ immunity from civil suits, and thus the existence (or lack) of lawsuits is not necessarily the best indicator. They are also immune from criminal prosecution, which may discourage victims who are aware of this fact from reporting their situation to law enforcement. Given the complexities of addressing abuses by diplomats, I would have liked to see a more thorough explanation of what has been done and how it has worked or could be improved.
But the silver lining is that the report does seem to look pretty closely at the problems within all of these visa programs, and recommends further examination and improvement of the programs. Hopefully the government will take its own advice.
Keep an eye out later today for my concluding thoughts on DOS’ evaluation of U.S. anti-trafficking efforts in the 2011 Trafficking in Persons Report.
Today’s post in my series on the 2011 Trafficking in Persons Report looks at the report’s evaluation of federal participation in state and local anti-trafficking efforts. (For previous posts in the series, please go here, and here).
As the Department of State’s (DOS) report notes, the Department of Justice (DOJ) funds and participates in numerous state and local anti-trafficking task forces. The report also notes that 45 states have anti-trafficking statutes. This is a positive trend, and hopefully the remaining states will soon follow suit in adopting anti-trafficking legislation.
The report also acknowledges some potential problems, such as the fact that only 9 states and the District of Columbia offer state benefits to trafficked persons, and that those 45 anti-trafficking statutes include varying definitions and penalties – although I’m not certain the latter statement was meant critically. The inconsistency in state responses to trafficking is not surprising, but it should be seen as a problem.
Not only because it seems unfair that someone who happens to be trafficked into one state may have an easier time getting assistance, or seeing their trafficker convicted, than someone trafficked to another state…
Not only because that disparity seems to undermine our national policy on trafficking…
The United States also has obligations under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, and the lack of uniformity in state laws – and the utter lack of anti-trafficking laws in 5 states – may mean that the United States is in violation of these obligations.
In many areas, or under certain circumstances, access to federal assistance may be harder to come by than access to state assistance (if it exists). And the DOJ can only prosecute so many trafficking cases. With provision of government services so often tied to criminal prosecutions (see post # 1) – a problem in and of itself – state benefits can fill in much needed gaps in the provision of services for trafficked persons.
Even in the hand full of states that provide services, the disparity in state definitions of trafficking mean that an individual who qualifies as a victim of trafficking under the law of one state may not qualify as such in another state, leaving the protection and assistance of trafficked persons to chance and geography. If a survivor of trafficking who merits assistance under international law cannot get assistance in every single state in the United States, we have a system failure.
Even if federal government agencies take pains to protect the human rights of the trafficked persons they come into contact with, gaps in state law can leave many without assistance or protection. Under international human rights law this is not just a local problem…it is the U.S. government’s problem.
The federal government has done a lot to reach out to state and local law enforcement, including funding task forces and providing trainings, but more could be done. Anti-trafficking task forces tend to be limited to law enforcement and executive officials – who is talking to local legislators? NGOs are, of course, but the federal government has a responsibility to ensure that federalism does not undermine human rights or the United States’ international obligations. We need a coordinated effort to make sure that trafficking victims’ rights are being upheld, and their basic needs met, in every single state. While they are a good start, the trainings and task-force initiatives to date have not had that result.
This is post # 2 in my series on the 2011 Trafficking in Persons Report. (See post # 1 here). Today I’m addressing the report’s evaluation of the U.S. government’s training programs to help officials identify and assist trafficked persons.
The report includes highlights of various training programs, as well as recommendations for additional ones. Perhaps most impressive is that all asylum field offices have held trainings to identify trafficking victims among their asylum applicants, and all future asylum officers must receive this training. Naturally, however, this raised a question: what about immigration judges? Many asylum seekers’ claims are never filed until after they are in removal proceedings, and thus an immigration judge is the only official to review their application. Extending the training program to immigration judges will help a far broader number of trafficking victims; limiting it to asylum officers halves its effectiveness.
The Department of State’s (DOS) report also notes that Department of Labor (DOL) investigators, often the first government officials to discover labor exploitation, are not given specific trafficking-related training, and the report recommends providing such training. DOS also noted that detention and removal officers are not trained to identify trafficked persons, and recommends training them. As evidence of the problem, the report notes examples cited by NGOs of potential trafficking victims held in immigration detention or placed into removal proceedings. While more could undoubtedly be said on that, DOS has at least highlighted the issue; the lack of training for DOL and detention officers is clearly a problem and it needs to be remedied. Let’s hope the recommendation is meant seriously.
One of the most troubling characterizations of an issue was DOS’s discussion of the 287(g) program. The program, as explained in the report, “authorizes state and local law enforcement agencies to carry out enforcement of certain immigration authorities related to the investigation, apprehension, and detention of unauthorized immigrations.” As an example of a good practice, the report points out that the training for law enforcement agencies that participate includes information about assisting trafficked persons. Then the report briefly mentions that NGOs have cited examples of non-citizen trafficking victims being afraid to report crimes to the police in 287(g) jurisdictions. No recommendation is made regarding this problem.
The way the report makes such bare mention of the problem is troubling enough. DOS could have perhaps more accurately stated the issue: the 287(g) program has probably impeded the discovery of trafficking situations and the provision of assistance to victims. Many advocates, as well as law enforcement officials in non-287(g) jurisdictions, have complained that the program will cause undocumented immigrants to avoid reporting crimes to the police, for fear of being detained on an immigration basis or deported. Advocates have also complained of racial profiling and other abuses of the program, problems apparently too unrelated to anti-trafficking efforts to be mentioned in the report. Given these issues, it seems unlikely that any training on trafficking will actually result in greater assistance being provided to trafficked persons in 287(g) jurisdictions.
The training of asylum officers is a great first step, and DOL training should also prove a benefit for many trafficked persons. But the mere existence of a training program or training materials does not ensure that all the needs of trafficked persons will be met. Nor does it absolve the U.S. government of responsibility for overseeing its agencies and programs. I hope that the government takes the complaints it receives about programs like 287(g) more seriously than it appears from this report.
Welcome to the first in my series of articles on the 2011 Trafficking in Persons Report. As I wrote earlier, the Department of State’s (DOS) evaluation of U.S. anti-trafficking efforts contained some encouraging examples of genuine self-reflection, but also raised many additional questions and concerns in my mind. Today’s article addresses the system of granting government benefits to trafficked persons through T visas and Health and Human Services (HHS) certifications.
Grants of T visas and certifications by HHS have increased, which is good to hear. The DOS report also notes that foreign victims who do not have a T visa or HHS certification are ineligible for government services, and fortunately, it actually recommends making services available to all trafficking victims regardless of what immigration relief they seek, or even if they seek none.
At least, it recommends making services available to all “eligible” victims. This may merely mean that anyone applying for services will have to prove they are a trafficking victim. That would make sense. But maybe the word “eligible” was included to affirm the continued existence of the caveat to availability of services...
Adult trafficking victims are expected to assist with investigations or prosecutions of the traffickers in order to receive a T visa or HHS benefits. Though there is an exception for victims who are too traumatized to work with law enforcement, successfully proving that one is too traumatized may not always be easy. Also, victims may wish not to cooperate with law enforcement for reasons other than trauma, such as fear of retaliation by traffickers. The requirement of cooperation with law enforcement, as numerous advocates have stated over the years, places the goal of prosecution over that of victim protection, and violates many victims’ human rights.
The new report does not fully acknowledge this problem (and that is an understatement). The report states that the government has “encouraged” foreign national and citizen victims to assist law enforcement.
Encouraged?
Foreign nationals who need to remain in the United States for their own protection are essentially obligated to assist law enforcement. The report also notes that the T visa application does not require the approval of the investigating agency. While this is true, it is far easier to acquire a T visa if the victim can get a Law Enforcement Certification (LEC), a form signed by a law enforcement officer to certify that the victim has been willing to cooperate in the investigation or prosecution. The lack of an LEC can undermine an application.
Additionally, although DOS notes the difficulty reported by advocates in getting law enforcement officers to certify victims who are reluctant to cooperate, this also understates the problem. Even victims who are eager to cooperate may be denied certification by officers who do not find them useful, for example, if their testimony is not necessary or if the investigators decide not to continue the investigation. Victims are still eligible even if no investigation is ever opened, but law enforcement officers and prosecutors in many jurisdictions are unlikely to certify victims unless there is an on-going case and the victim’s testimony is crucial to it. The DOS report does not discuss this, and glosses over the importance of getting an LEC at all.
Currently, foreign victims who choose a form of immigration relief other than a T visa are not eligible for government services under the Trafficking Victims Protection Act (TVPA).
Why is this a problem?
Consider the plight of an asylum seeker. Although anyone who is granted asylum is eligible for refugee benefits (the same services available to T visa holders), these benefits are not available while the asylum application is pending. Asylum seekers are thus treated differently than T visa applicants, who can receive services while their application is pending. Not only does the pending asylum application NOT entitle asylum seekers to government services, most will also be ineligible for work authorization. They must survive on the charity of others – which puts them at risk for further abuse, including trafficking – for the duration of the application process, which can take years.
From a policy standpoint, this is a confusing distinction in general – why should asylum seekers be deemed less worthy of assistance and the right to work than trafficking victims? But from a TVPA policy standpoint, it is especially problematic, considering some trafficking victims will be ineligible for T visas (as well as U visas) and asylum may be their only option. Not only those who choose not to cooperate with law enforcement, but people trafficked outside the United States who flee here to seek protection cannot receive T visas. Thus, despite being in as much need of services as a T visa-eligible trafficking victim, asylum seekers are out of luck.
I am very happy to see that DOS recommends making government services available to all trafficking victims, even those who do not apply for T visas, but the problem was woefully understated, and I hope that provision of services to asylum seekers would not be conditioned on cooperation with law enforcement.
The U.S. Department of State (DOS) released the 2011 Trafficking in Persons Report this week, and over the next week I’ll be posting a series of articles breaking down the U.S. government’s self-evaluation. This is the second time the annual report has included the United States in the ranking and evaluation of countries’ efforts to fight trafficking. I saw many positive elements in DOS’ evaluation of the U.S. government’s efforts, both in terms of good practices and honest acknowledgment of shortcomings. For instance, the report acknowledges:
The report also highlights the Department of Justice’s (DOJ) involvement with local anti-trafficking task forces, while conceding the existence of disparities in state and local anti-trafficking efforts. DOS further notes an increase in the number of T visas granted, and in the number of Health and Human Services (HHS) certifications, both of which allow trafficking victims to receive refugee benefits. Every positive I found, however, raised additional questions for me, and many of DOS’ statements seemed to obscure or ignore some of the U.S. government’s other shortcomings in its anti-trafficking efforts.
I’ve broken up my observations into thematic sections, of which the first – on T visas and HHS certification – will follow later today. Look for additional articles analyzing the report in the coming week, discussing the training of government officials, state and local trafficking efforts, and the abuse of visa programs.
