Immigration: what happens to a Dreamer deferred?
MICHAEL GOLDHABER, IBA US CORRESPONDENT
While the United States Supreme Court is preparing to rule on President Trump’s controversial travel ban, the lower courts are grappling with the President’s decision of autumn 2017 to end the protected status of about 700,000 so-called ‘Dreamers’ – immigrants who came to America illegally as children, but then stayed out of trouble and pursued an education.
On 15 May, the Ninth Circuit Court of Appeals heard arguments over the Obama programme known formally as Deferred Action for Childhood Arrivals, or DACA. Though Congress and the President each voice sympathy for the youth in legal limbo, the inability to compromise on overall immigration policy has left the Dreamers’ fate, at least for now, in the hands of several judges. Five courts in five circuits have wrestled with DACA over the past five months.
In January, in the first of four legal challenges to DACA rescission, a San Francisco federal court ordered the President to extend the legal status of Dreamers who have already qualified for DACA – allowing them to renew their work permits and avoid deportation. A Brooklyn federal judge in February issued a similar injunction, pending appeal to the Second Circuit. But the San Francisco case, argued in the Ninth Circuit, is the most advanced, and likeliest to reach the Supreme Court.
‘We have a real story to tell,’ says Gibson, Dunn & Crutcher’s Ethan Dettmer, who represents the Dreamer plaintiffs in California. ‘Lives and careers and dignity are hanging in the balance.’ DACA has not always fared so well in court. The Dreamers suffered a setback in March, when a Maryland federal judge sustained DACA’s rescission, pending appeal to the Fourth Circuit. They suffered a more subtle blow in late April, when a DC federal judge gave the Trump administration three months to clarify why it would stop DACA.
Josh Blackman of South Texas College of Law calls the DC order a ‘blessing in disguise’ for President Trump. With a stronger rationale, he predicts that ‘DACA rescission 2.0’ will stand up in court. Finally, in early May, seven Republican states led by Texas brought a late challenge to DACA itself (as opposed to DACA’s rescission). They succeeded in drawing the same judge who ended the larger pre-DACA programme known as DAPA, or Deferred Action for Parents of Americans, in 2014. The new suit raises the distinct possibility of duelling federal injunctions, with a Texas judge ordering that DACA be dissolved, and a California judge ordering that it be extended.
“Lives and careers and dignity are hanging in the balance
Ethan Dettmer, lawyer representing Dreamer plaintiffs in California
Gibson, Dunn & Crutcher, San Francisco
Ilya Shapiro of the Cato Institute argues that an anti-DACA order resting on constitutional grounds would obviously prevail, because the pro-DACA orders merely rest on administrative grounds. But Luis Cortes, who serves as co-counsel to the California Dreamers, notes that the Ninth Circuit could affirm on constitutional grounds. To Cortes, the key question is what ‘irreparable harm’ would be inflicted by either rescinding DACA or extending it. He argues that Dreamers are infinitely more at risk than the states who wish to avoid DACA’s cost, because the programme has already been implemented, and 700,000 people are planning their lives around it.
To libertarians, DACA is self-evidently unconstitutional, however admirable its goals, because the President lacks the power to create new benefits and programmes without Congress. ‘When DACA came out, Obama poisoned the well for legislative solutions, and exposed these young people to uncertainty,’ says Shapiro. ‘It only made sense if he thought the Republicans would never win the presidency again. You live by the executive order; you die by the executive order.’
President Obama maintained that taking it easy on Dreamers fell within his discretion. But that only invites a simpler argument for DACA’s rescission: if a President has the discretion to set enforcement priorities, they have the discretion to reset enforcement priorities.
Cortes – himself a Dreamer – answers that discretion must be bounded by the Constitution. Voiding DACA violated due process, he says, because the government had assured Dreamers that they could sign up for the programme without fear that it would ease their deportation. Revoking DACA violated equal protection because 93 per cent of its beneficiaries are Latino, he argues – and from the moment Donald Trump declared his candidacy, he’s shown an obsessive anti-Latino animus. Maybe so, but even sympathetic observers say it’s easier to draw the line from the President’s anti-Muslim rhetoric to the travel ban, than from his anti-Latino rhetoric to his stance on Dreamers, whom he actually exhorts Congress to protect. And DACA’s foes say it technically made no promises.
Dreamers draw support from large majorities in opinion polls. Unfortunately for them, a better indicator of the Supreme Court’s position on DACA is the DAPA case in South Texas. Four million immigrants with US-born children lost the chance to be legalised when the Supreme Court – working shorthanded due to the Senate’s refusal to seat a new justice in 2016 – let the Fifth Circuit kill DAPA by deadlocking 4–4. Although Cortes sees hope in the newly-appointed Justice Neil Gorsuch’s voting record on immigration, Shapiro says killing DACA will be straightforward for a believer in separation of powers and strict statutory interpretation.
If Shapiro’s right, then the justices might ultimately bless DACA’s death with a ritual apology, as the Maryland judge did in March: ‘This court does not like the outcome of this case, but it is constrained by its constitutionally limited role to the result it has reached. Hopefully, the Congress and the President will finally get their job done.’
Of course, Congress and the President may sit on their hands and blame the courts, says Shapiro. ‘Instead of each branch being jealous of its own power, each branch is passing the buck.’
Juvenile justice review calls for move away from punitive systems
Measures to improve global justice systems for children are examined in a new report from the IBA’s Human Rights Institute, launched at the World Congress on Justice for Children in Paris on 29 May.
The Role of the Universal Periodic Review in Advancing Children’s Rights in Juvenile Justice analyses the recommendations made by the Universal Periodic Review (UPR) – an international peer-to-peer mechanism through which each state is reviewed by all other United Nations Member States.
The UPR found that the widespread use of detention, inhumane sentencing and dangerously low minimum ages for criminal responsibility steers many national systems away from rehabilitation.
Looking at the work of the UPR, the report found the process has reinforced the non-imposition of the death penalty for crimes committed by persons under the age of 18, and gone beyond the existing international legal framework by calling on states to ban detention for children.
However, despite strengthening protection for children, the report says the UPR has not sufficiently addressed the prevention aspect and the diversion process that lies at the core of juvenile justice systems under the United Nations Convention on the Rights of the Child.
The report also reveals that the UPR’s recommendations for the abolition of inhuman sentencing and fair trial rights were the least accepted by states that participated. Among other things, the report urges states to:
- ensure that any deprivation of liberty of a child is used as a last resort;
- abolish the death penalty for crimes committed by persons under the age of 18 at the time of the offence, and not replace it with a life sentence, with or without parole, but with punishment appropriate to age;
- discontinue all sentences, including lengthy imprisonment, that amounts to cruel punishment;
- amend existing legislation to guarantee fair trial rights; and
- make sure that legal professionals and law enforcement officers are trained on children’s rights, and to provide adequate and accessible legal aid services.
To download the report, go to tinyurl.com/ibahri-juvenile
IBA Outstanding International Woman Lawyer 2018
Brazilian human rights lawyer, Professor Eloisa Machado de Almeida (pictured), received this year’s Outstanding International Woman Lawyer Award at the IBA’s 8th World Women Lawyers’ Conference in London in mid-April.
The award recognised her significant contribution to the promotion of women’s rights in Brazil and her human rights work in major constitutional cases.
Throughout her career, Almeida has systematically handled cases of women whose children have died in juvenile detention centres or were killed in clashes with the police.
Almeida is the founder of the Human Rights Advocacy Collective, which unites lawyers to act pro bono in strategic landmark human rights litigation. Under this initiative, the first collective habeas corpus was recognised by the Brazilian Supreme Court, determining the release of more than 5,000 pregnant women or mothers in prison awaiting trial and 2,000 children who were with them.
Receiving the award, Almeida said: ‘I would like to use this privileged space to recognise the struggle and persistence of women victims who have had their human rights violated in Brazil: my clients. These women are building a better rule of law for all.’
Read more at tinyurl.com/woman-lawyer
IBA Hague Office marks founding of ICC
The IBA’s Hague Office is marking the 20th anniversary of the Rome Statute – the treaty that established the International Criminal Court (ICC) – with a series of presentations and discussions.
Over the coming year, the Hague-based IBA International Criminal Court and International Criminal Law Programme will undertake a drive to bring its work, particularly on issues relating to fairness and equality of arms at the ICC, to wider legal and non-governmental organisations.
The initiative began with the Programme participating in the annual ICC-NGO Roundtable in mid-May – a forum to discuss the way forward for the Rome Statute system. The anniversary will also see further work to underline the key role of civil society organisations in bridging the gap between the ICC and local communities.
More information is available at tinyurl.com/iba-hague
Trial observations and enforced disappearances in Colombia
A week of activities to support trial observations and a two-day workshop on the existing framework to address enforced disappearances are among the latest activities of the IBA’s Human Rights Institute (HRI) in Colombia.
In May, the HRI staged a roundtable with the Faculty of Finance, Government and International Relations of Externado University in Bogotá, the capital. The event explored the relevance of international trial observations within the country’s Special Jurisdiction for Peace – a judicial component of the peace framework set up following the end of armed conflict in 2016.
The HRI also worked with the Faculty of Jurisprudence of Del Rosario University to offer the first training course on trial observations for Latin American lawyers, both in ordinary proceedings and before international criminal courts.
Del Rosario and the HRI will publish two films, in English and Spanish, on trial observations, comprising conversations with Samuel Escobar, Director of the Legal Assistance Centre and Professor of the Del Rosario Jurisprudence Faculty, and Mark Stephens, Head of Media Law and Regulatory at Howard Kennedy, among others.
The month before, on 26–28 April, an HRI senior programme lawyer participated in a specialised regional workshop on enforced disappearances. The workshop in Bogotá was organised by Externado University, DeJusticia, the International Centre for Transitional Justice, the Heinrich Böll Foundation and the German Institute for Human Rights. It was led by Dr Rainer Huhle, Vice-Chair of the United Nations Committee on Enforced Disappearances.
The HRI presented the main findings of its manual on context analysis, and discussed their relevance for the investigation of enforced disappearances.
HRI Annual Review highlights key projects
The global reach of the IBA’s Human Rights Institute (HRI) is highlighted in its 2017 Annual Review, now available online. The review presents an overview of the HRI’s projects and activities to promote and protect human rights and the independence of the legal profession over the course of last year.
‘2017 was a difficult year for human rights. Since the Universal Declaration of Human Rights was adopted 70 years ago, it appears that we are now reaching a point where the universal acceptance of human rights is being eroded,’ says the review.
Emphasising that the HRI’s work is more important than ever, the review outlines its wide-ranging projects across the globe. In Latin America, for example, it provided torture prevention training to legal professionals in Brazil and Mexico. The HRI also organised a high-level delegation of experts to meet authorities in El Salvador to discuss issues relating to transitional justice and historical memory following the end of its civil war.
In the Asia Pacific, the HRI worked with the Independent Lawyers’ Association of Myanmar, and has been running a trial observation programme to ensure those responsible for the death of lawyer U Ko Ni are brought to justice. In Timor-Leste, it worked to strengthen the legal profession and supported the creation of the country’s first national bar association.
Furthermore, the HRI continued its programmes in the Middle East and North Africa and Sub-Saharan Africa. This included providing Syrian legal professionals with the skills to build their human rights knowledge, confidence and experience; and facilitating training and discussions on the justiciability of economic, social and cultural rights in Tunisia.
The HRI also continued its work across its four thematic areas: human rights in the administration of justice, equality and non-discrimination, independence of the legal profession, and poverty and human rights. Within these areas are projects focused on torture prevention and the abolition of the death penalty; campaigning for sexual orientation, gender identity and human rights across the globe, as well as gender parity in international representation; and highlighting the multiple forms of discrimination faced by persons with albinism, among others.
Download the Annual Review and watch a video summary at tinyurl.com/ibahri-2017
First charges under controversial Cambodian royal insult law
Amid worsening restrictions on free expression in Cambodia, two people have become the first to be charged under a controversial new lèse-majesté law.
The vaguely worded law was added to Cambodia’s criminal code in February, introducing offences against the dignity of the reigning sovereign. It has been widely criticised by rights groups and legal monitors.
On 19 May, Ban Samphy, a 70-year-old barber from the northwestern province of Siem Reap, was arrested and charged for allegedly sharing a Facebook post deemed insulting to the King. This followed the 12 May arrest of Kheang Navy, a primary school headteacher from Kampong Thom, who allegedly posted a Facebook comment in which he criticised the King and Royal Family.
Both men were charged under Article 437, which criminalises any ‘speeches, gestures, writings, paintings or items’ that insult the dignity of the King. Those who are found guilty face between one and five years in prison and up to $2,500 in fines.
‘The Cabinet’s approval of a lèse-majesté law appears to be a further attempt by the government to weaponise the country’s legislation against its perceived opponents,’ said Kingsley Abbott, a senior international legal adviser at the International Commission of Jurists, when the law passed through Cambodia's Parliament.
Rhona Smith, United Nations Special Rapporteur on the human rights situation in Cambodia, called the law ‘incompatible with Cambodia’s obligations under international human rights law, as they criminalise the legitimate exercise of freedom of speech’.
The lèse-majesté law was passed by a ruling party-controlled National Assembly which, along with the Community of Royalist People’s Party, holds nearly every seat following the dissolution of the main opposition party, the Cambodia National Rescue Party (CNRP), last year.
The Phnom Penh Post reported that the barber shared a post that ‘consisted of comparing King Sihamoni unfavourably to Cambodia’s former kings’, while the pro-government Fresh News reported that the Facebook comment blamed the King and the Royal Family for the dissolution of the opposition CNRP, saying they destroyed the will of millions of voters.
In November, the ruling party-aligned Supreme Court dissolved the CNRP, which had been the only viable contender in the 2018 July elections. This came two months after the arrest of CNRP President Kem Sokha, which saw most senior party officials flee the country. Ahead of the Supreme Court ruling, the electoral law was amended to allow the CNRP’s seats to be redistributed.
“There is a genuine danger the lèse-majesté law will be abused to stifle those who wish to express legitimate criticisms of the royal government
Asia Pacific Regional Representative, IBA Criminal Law Committee
While Cambodia’s monarch holds a largely figurehead position and has abstained from politics, the country’s Constitution requires that newly passed laws are approved by the King. This requirement has led to speculation that the King has timed trips to avoid signing controversial laws, including the lèse-majesté law, which was approved by the Senate President of the ruling party.
The arrests of Samphy and Navy come at a moment of greater self-censorship among journalists and more general suppression of free speech in the country. Last month, Cambodia dropped ten places in Reporters Without Borders’ annual World Press Freedom Index, which ranked it 142 out of 180 countries.
Since last September, dozens of radio broadcasters have been shut down, two journalists have been arrested and the English-language Cambodia Daily has closed after being hit with a $6.3m tax bill that many believed to be politically motivated. In early May, the last remaining independent newspaper, The Phnom Penh Post, was sold to a Malaysian buyer with ties to the Cambodian government.
A joint statement from scores of local and international non-governmental organisations said the lèse-majesté law was a type of ‘legal weaponry’ from ‘a government that appears determined to eliminate all forms of peaceful dissent, pluralism, and open political debate’.
‘The vague nature of the amendments means they could be misused to justify the introduction of wide-ranging sanctions punishing the legitimate exercise of fundamental freedoms, including engaging in any discussion of Cambodia’s rapidly deteriorating human rights situation,’ said the statement.
Felix Ng, the Asia Pacific Regional Representative on the IBA Criminal Law Committee, called the new law ‘superfluous and disproportionate’, noting that existing criminal defamation laws already provide broad coverage.
‘There is a genuine danger that such a lèse-majesté law will be abused to silence dissenting voices, and to stifle those who wish to express legitimate criticisms of the royal government,’ he said, pointing to neighbouring Thailand, where strong lèse-majesté laws have long been used to punish the outspoken to chilling effect.
Under the Thai law, those found guilty of defaming or insulting the King, Queen, Heir-Apparent or Regent can be punished by up to 15 years in prison. The wording is vague, with no definition of what an insult consists of, and the law is applied broadly and opaquely. Cases are often held in closed military courts, and those found guilty can face cumulative sentences. Last year, a Thai man was sentenced to more than 30 years in prison for posting several items on Facebook deemed to be defamatory.
‘The number of criminal prosecutions commenced by the military junta under the Thai lèse-majesté law have significantly risen since the coup in 2014, and perceived to be politically driven and to silence oppositions,’ said Ng. ‘According to the UN High Commissioner for Human Rights, only four per cent of those charged in 2016 were acquitted.’