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April 6, 2022
Posted by Kai Mueller
On April 1, the Centers for Disease Control and Prevention (CDC) ordered the termination of the “Title 42” procedure, a method originally created by the Trump administration at the outset of the Covid pandemic to deport asylum seekers without hearing on supposed public health grounds. The termination is to go into effect on May 23, 2022. The termination of the Title 42 procedure has been long overdue.
The consequence of the Title 42 process had been a circumvention of immigration laws that protect the rights of asylum seekers who face risk of persecution or torture in their countries of origin. This CDC order resulted in border agents expelling thousands upon thousands of migrants without taking into account the irreparable harm that may await them.
The Biden Administration had kept this rule in place and used it over 1.2 million times to block migrants from seeking safety in the United States despite criticism that the policy improperly relied on the Covid-19 crisis to violate legal protections guaranteed to refugees under both U.S. and international law.
On September 16, 2021, a U.S. District Judge had granted a preliminary injunction against expulsion of migrant families without any hearing, in response to a lawsuit filed by the American Civil Liberties Union and others. After a stay pending appeal, the D.C. Circuit affirmed a narrower version of the injunction on March 4, 2022, holding that the public health law did not override statutory protection against return to a country where an asylum seeker was likely to be persecuted. The injunction followed mounting pressure from immigrant rights groups and voices in academia, including amicus briefs co-submitted by Harvard Law Human Rights Program Director Gerald L. Neuman and Deborah Anker, Founding Director of the Harvard Law Immigration and Refugee Clinic, to end the Title 42 policy. The April 1 order of the CDC does not admit the illegality of the Title 42 process, but it would terminate it altogether, subject to the possibility of later reactivation.
It has long been clear that the severe violations of asylum seekers’ rights caused by Title 42 outweighed the purported health benefits related to pandemic control. Hence, the Biden administration’s repeated defense of this regressive Trump-era policy has been a disappointment to those who had hoped for a more humane and rights-based policy toward refugees and immigrants. Regrettably, the termination order itself may be challenged in other courts.
For further information regarding the litigation of the Title 42 procedure, you can watch the webinar “Abusing Public Health Powers at the Border: Litigating “Title 42” Deportations Before the Inter-American Commission on Human Rights” organized by HRP on November 8, 2021, below.
September 20, 2021
Court Issues Ruling Aligned with Amicus Brief Submitted by HLS Professors Protecting the Rights of Asylum Seekers During the Global Pandemic
On September 16, a U.S. District Judge granted a preliminary injunction against expulsion of migrant families without any hearing, in response to a lawsuit filed by the American Civil Liberties Union and others.
Previously, the Trump administration had invoked a public health law, Title 42, section 265, as a substitute measure to deport asylum seekers who had entered the United States. The consequence of this alternative procedure was an abandonment of immigration regulations that protect the rights of asylum seekers who may face risk of persecution or torture in their countries of origin. This CDC order resulted in border agents expelling tens of thousands of migrants without taking into account the possibility that they could face irreparable harm if not admitted to the United States.
The Biden Administration has kept this rule in place, despite criticism that the policy improperly relies on the Covid-19 crisis to circumvent legal protections guaranteed to refugees under both U.S. and international laws.
The court’s ruling requires the U.S government to end the Title 42 policy by the end of the month.
The court’s decision is in line with a February 2021 amicus brief submitted by Gerald L. Neuman, Director of the Harvard Human Rights Program, and Deborah Anker, Founding Director of the Harvard Immigration and Refugee Clinic, joined by other prominent scholars of refugee and immigration law. Commenting on the District Court’s decision, Professor Neuman, who is the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, observed that “the court’s injunction provides a very welcome correction to the abusive interpretation of public health authority for xenophobic purposes by the Trump administration, and vindicates the statutory and international law commitments of the United States.”
If upheld on appeal, the preliminary injunction will have an immediate and significant impact on the safety of migrants who cross the United States’ southern border. They will remain subject to expedited removal procedures, but with the right to be heard on their need for protection.
The government has already appealed the preliminary injunction, and is seeking to have it stayed by the D.C. Circuit. Neuman plans to participate as an amicus in opposing the stay, and in later phases of the litigation.
June 11, 2021
Posted by Jessica Olney and Shabbir Ahmad
Editor’s Note: This article is part of a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series brings together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School. This article was first posted to Just Security on June 10, 2021).
This installment reflects conversations with Rohingya residents of refugee camps in Bangladesh about the coup in Myanmar. Camp residents’ views were collected by Shabbir Ahmad and other members of a team of Rohingya researchers during a recent community feedback collection project. The opinions expressed here are the views of the authors and camp residents, not those of any institution with which the authors are affiliated.
The Rohingya community of Myanmar has been isolated and persecuted for decades, leading to waves of mass displacement, isolation, and resistance. The situation of the Rohingya deteriorated further into crisis after the National League for Democracy (NLD) took power in 2015, starting with a 2016 crackdown and culminating in the massive 2017 violence that displaced over 700,000 people.
Refugees in Bangladesh believe the situation could worsen even further under the current junta, creating new risks for the Rohingya who remain in Myanmar and indefinitely delaying any prospect of a safe repatriation for those displaced. According to one camp resident: “The democratic government didn’t do well for us Rohingya. However, the current conditions will be even worse for us, and maybe for everyone in Myanmar.” According to another, “We Rohingya people don’t expect anything positive to come from the military coup. We know very well that the Myanmar Army is merciless and doesn’t feel afraid of committing injustice.” The greatest fear for many camp residents is that repatriation at a large scale will be impossible as long as Myanmar remains under the control of the Myanmar military, the Tatmadaw. In recent comments, junta leader Min Aung Hlaing affirmed these concerns, reiterating once again that the Tatmadaw does not recognize the identity of the Rohingya people or their right to return home. As long as the junta remains in place, there is little possibility of forging solutions to the outstanding political, legal, and justice questions surrounding the Rohingya crisis.
But there is another dimension of the coup in which an unanticipated, positive change has emerged: There has been a wave of social and political reconciliation between Rohingya and other Myanmar people. Though the situation remains formidable both for Rohingya in Myanmar and for those who seek to return from Bangladesh, certain social and political fault lines that have been present throughout Myanmar’s recent history seem to be shifting.Continue Reading…
May 21, 2021
Posted by Carmen Cheung
(Editor’s Note: This article is part of a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series brings together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School. This article was first published to Just Security on May 20, 2021).
If the current crisis in Myanmar is one “born of impunity”, any response that is rooted in accountability needs to acknowledge that the Myanmar military’s crimes span decades and across its ethnic regions. Some in the international community may have first learned about “clearance operations” in the context of the devastating attacks in recent years that have destroyed Rohingya villages and forced an exodus into neighboring Bangladesh. For almost sixty years, however, Myanmar’s military has engaged in forced displacement, sexual violence, torture, and extrajudicial killings against civilian populations as part of its ongoing conflict against armed groups in the country’s ethnic regions. A proper accounting in Myanmar must be inclusive of crimes committed against all its people, and inclusive of all the communities who have suffered at the hands of its military.
Decades of Impunity: A Brief History
For close to six decades, Myanmar has suffered from a crisis of impunity, one which the international community has never adequately addressed. Almost immediately after its independence from British colonial rule in 1948, civil war broke out between the Tatmadaw (the Myanmar military) and armed organizations in the country’s ethnic nationality areas. The Tatmadaw overthrew civilian rule in 1962 and cracked down on all threats to its power, from journalists and political dissidents to the armed groups in the ethnic areas. Throughout the period of military rule (1962-2011), serious human rights violations such as extrajudicial killings, torture, arbitrary detention, sexual violence, and forced labor were commonplace.Continue Reading…
February 17, 2021
Law Clinics Call for U.S. Government to Condemn Haitian President’s Actions
In solidarity with civil society in Haiti, the International Human Rights Clinic at Harvard Law School, the Lowenstein International Human Rights Clinic at Yale Law School, and the Global Justice Clinic at New York University School of Law have released a statement calling on the U.S. government to denounce actions by President Jovenel Moïse that threaten human rights in Haiti.
Issued on February 13, 2021, the statement describes alarming actions taken by Moïse in the week preceding that threaten the rule of law and suggest an escalating constitutional crisis. Among the many issues cited, the statement notes Moïse’s refusal to step down after the conclusion of his term, the arbitrary detention of notable political officials, the removal of Supreme Court justices, and state violence against protestors and journalists. The U.S. based law clinics identify the crisis as part of a trend of “grave, state-sanctioned human rights abuses in Haiti” and worry that Moïse’s continual affront toward democratic checks on his power indicates his inability to “oversee free and fair elections for his replacement.”
The statement urges the Biden administration to forge a new path in U.S.-Haiti relations.
“The current U.S. administration should not continue the improper pressure that the Trump administration placed on Haitian actors to acquiesce to an unconstitutional electoral process,” the statement says. “Instead, the Biden administration should support democracy and human rights and condemn Moïse’s attacks against Haiti’s constitutional institutions. Otherwise, Moïse may be emboldened to further restrict human rights and democracy.”
The statement also asks the U.S. to halt deportations, given the political instability. “Since the beginning of February, ICE has deported more than 600 people to Haiti, many without even the opportunity to request asylum. These flights have included many children, infants and pregnant women.”
The statement concludes by making specific recommendations for the U.S. government in order to “support the rule of law in Haiti and [to] call on the Haitian government to meet its international human rights obligations.” This week, the organizers reached out to the United Nations to clarify its position on the issue.Continue Reading…
January 29, 2021
Lockdown and Shutdown: New White Paper Exposes the Impacts of Recent Recent Network Disruptions in Myanmar and Bangladesh
The Cyberlaw Clinic and the International Human Rights Clinic at Harvard Law School were proud to co-author a new white paper, Lockdown and Shutdown: Exposing the Impacts of Recent Network Disruptions in Myanmar and Bangladesh, in collaboration with Athan, the Kintha Peace and Development Initiative, and Rohingya Youth Association. The report exposes the impacts of internet shutdowns in Myanmar and Bangladesh, highlighting the voices of ethnic minority internally displaced persons (IDPs) in Myanmar and Rohingya refugees in Bangladesh, who describe the shutdowns’ impacts in their own words. The co-authors joined to present a webinar to launch the report on January 19, 2021, which you can watch below or on the HRP YouTube channel.
August 27, 2020
Gerald L. Neuman, Human Rights Program Co-Director and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, contributed a piece to the Just Security blog this week to discuss the recent Supreme Court decision in DHS v. Thuraissigiam. Neuman previously filed an amicus brief to the Supreme Court on the case, which involves a Tamil individual who tried to claim asylum in the United States after fleeing Sri Lanka in fear of persecution.
“At a time when the rule of law is under threat and xenophobic incitement has become a central government policy, a five-Justice majority of the Supreme Court has called into question the Constitution’s fundamental guarantee against executive detention. Refugees are the primary target of the Court’s decision in Department of Homeland Security v. Thuraissigiam, but the immediate implications of Justice Samuel Alito’s opinion are much wider, and the opinion endangers everyone – U.S. citizens included – by reopening settled questions about the Habeas Corpus Suspension Clause of the Constitution.
This important case has gotten less public attention than it deserves. The opinions may be hard for non-experts to follow, because they arise in a technically complex area of immigration law, and because Alito mischaracterizes some of the issues. The case arose when Vijayakumar Thuraissigiam fled Sri Lanka in the hope of being protected by the United States and was arrested by immigration officials in 2017 at a short distance from the southern border. He was placed in rudimentary “expedited removal” proceedings, where his claims for protection were quickly rejected. The statutory provisions on expedited removal clearly preclude anyone in his position from obtaining judicial review, including by habeas corpus, of the legality of the removal decision. The central issue raised by the case was whether this total preclusion of habeas corpus for a refugee within the United States violated the Suspension Clause.
Once the Supreme Court granted certiorari, it was likely that five Justices would rule against the refugee’s right to have his particular claims reviewed; the more urgent question was how broadly they would uphold preclusion of judicial review.”
July 6, 2020
Gerald L. Neuman, Co-Director of the Human Rights Program, joined immigration and refugee scholars during June in an amicus brief challenging the Trump Administration’s restriction of asylum procedures during the COVID-19 crisis. The brief supports plaintiffs’ emergency motion for a temporary restraining order to halt the removal of a child fleeing targeted violence in his home country of Honduras.
The Trump administration’s order relies on a broad interpretation of the Public Health Service Act, which allows the CDC to limit the “introduction” of individuals and goods to the U.S. In reality, the CDC order is a thinly-veiled attempt to further curb immigration, only applying to noncitizens (including unaccompanied children) who arrive at the southern and northern borders without documentation. Health experts have decried the order, citing the numerous exemptions as demonstrating that its purpose is to target a disfavored category rather than to protect public health.
“The administration is abusing the CDC to create a shadow deportation system that circumvents all legal limitations on deportation,” said Neuman.Continue Reading…
May 24, 2020
Posted by Dana Walters
“I have always felt very strongly that I need to work against inequality and the forces that make it possible,” says Niku Jafarnia J.D./M.P.P. ’20. For her, draconian and difficult immigration systems that favor certain populations are key sources of the disparities she hopes to eliminate.
When President Donald Trump instituted the first of many travel bans that targeted Muslim-majority countries in 2017, Jafarnia was a first-year law student and she was furious. She had not yet entered the legal clinics that would become like a home to her at Harvard Law School. Still, she emailed Sabrineh Ardalan ’02 and Phil Torrey of the Harvard Immigration and Refugee Clinic, asking how she could fight back.
“Had I not been in law school when this happened, I would have felt at a loss with what to do,” she says.
At the airport, she stood with Ardalan and Torrey holding a sign offering legal assistance and translation services in Persian. No one took her up on the offer, but the moment stands out to her from the last four years of graduate school. From the energetic and welcoming response of HLS’s clinical faculty to finding a way to act, she had found a community and a path towards countering what she sees as oppression.
Jafarnia believes that she has been lucky. A constellation of factors, such as being born in the U.S., has provided her with a great amount of opportunity, she said. She is constantly tuned in to how she can use her privilege to dismantle the inequitable structures that cause harm to others. When her parents emigrated from Iran in 1977 to pursue graduate education, they did not necessarily expect to stay, she said, but the combination of the Iranian Revolution and the Iran-Iraq War kept them in the U.S. Throughout law school, she has focused on issues related to migration, driven by a deep connection to people whose stories feel so familiar.Continue Reading…
April 20, 2020
As 3 deportees to Haiti and 75 Deportees to Guatemala Test Positive for Coronavirus, 164 Organizations from the U.S. and Haiti Declare Deportations to be Trump’s Cruel, and Usual, Punishment of Haitians
San Diego, California, April 20, 2020 – Today 164 human rights organizations, immigrants’ rights organizations, faith-based groups and academic institutions across the United States and Haiti submitted a letter to the Trump Administration, Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) denouncing the deportation of 61 Haitians on April 7, 2020, and urging them to halt deportations to Haiti. The letter comes on the eve of rumors of a deportation flight bound for Haiti scheduled for as early as April 21, 2020.
Signatories of the letter were “deeply concerned that all detainees in ICE detention centers have a high risk of exposure to coronavirus.” Deportees are not tested for coronavirus in the U.S. before being deported, and sources indicate that some of the Haitians deported on April 7 were quarantined in Haiti, but none of them were tested.
These concerns were amplified with the report last week that three deportees to Haiti and 75 deportees to Guatemala tested positive for coronavirus. With 215 confirmed cases in Guatemala, the U.S. flights alone make up 35 percent of the confirmed cases in the entire country. The U.S. Center for Disease Control (CDC) has sent a team to Guatemala to investigate further. Pending outcome of the CDC’s investigation in Guatemala, all deportation flights should be suspended.Continue Reading…
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