Issue: 1 - Fall

Whether to believe an asylum applicant is one of the most critical issues in asylum law. Many competing interests are in direct conflict: the need to protect people from persecution, the government’s desire to control entry into the country as an exercise of sovereignty, the extreme difficulty of gathering documentary proof of one’s persecution, and the government’s concerns about allowing security threats into the country. It is essential to strike the right balance between these conflicting priorities. The conflict between national welfare and public safety against individual liberty and personal security is not, however, a matter of mere policy preferences. The Constitution demands that whenever government action threatens to deprive an individual of their liberty, that individual must be provided due process. Unfortunately, policymakers have adopted the rhetoric of “security” and cultivated a climate of fear to justify increasing the burdens on refugees to prove their eligibility for asylum. In 2005, the REAL ID Act, claiming to be an effort to maintain security and identify asylum fraud, dictated the factors immigration judges must consider in determining whether an asylum applicant’s testimony is credible and therefore able to support their claim for asylum. Among these factors is the applicant’s “demeanor.”

This Note argues that the consideration of demeanor is a violation of asylum applicants’ due process rights. Though demeanor evidence is pervasive throughout the American legal system, its validity has been called into question by modern psychological studies, and its use has been sharply criticized by legal scholars. Furthermore, unique aspects of asylum adjudication make the use of demeanor especially damaging. Because corroborating evidence is frequently unavailable to asylum applicants, their claims typically turn on their own testimony. To have that testimony found not credible will almost certainly mean denial of the asylum claim. The extraordinary breadth of ways in which demeanor can be assessed, combined with the lack of meaningful judicial review of demeanor determinations, gives immigration judges overwhelming discretion to deny claims for asylum.

Special Administrative Measures (“SAMs”) are rules meant to let the government restrict the contact that dangerous prisoners may have with the outside world in order to prevent further harm to society. SAMs can result in extremely harsh conditions on top of lengthy solitary confinement—practices that many groups, including the United Nations, believe may constitute torture. SAMs were initially imposed mainly against high-risk detainees, such as prisoners who had ordered multiple murders from behind bars, and high-ranking terrorists convicted of mass murder. However, since 9/11, the application of SAMs to pre-trial detainees, especially Muslim terrorism suspects, has become alarmingly general, often seeming more punitive than preventative in nature, to the detriment of their Sixth Amendment rights. In light of the very serious threat that SAMs pose to fair trial guarantees, future courts should weigh the defendant’s fundamental right to an adequate defense against the seriousness of the risk of future injury or loss of life ordered by the prisoner from behind bars, ensuring that the SAMs imposed on a given prisoner are narrowly tailored to further the state’s admittedly compelling interest in public safety. Applying heightened scrutiny to pre-trial SAMs will allow judges to uphold restrictions against high-ranking prisoners who are truly likely to cause death or injury, as well as protect the integrity of the legal profession and the Sixth Amendment.

Over the last 27 years, the United Nations Working Group on Arbitrary Detention has developed a rich jurisprudence on the circumstances in which individuals have been arbitrarily detained. Until recently, most of this jurisprudence focused on detention resulting from the exercise of rights and freedoms, and serious violations of the right to fair trial. The Working Group is increasingly receiving communications involving detention on discriminatory grounds and its findings are evolving in response. Despite significant progress, there are several issues yet to be resolved by the Working Group as it moves toward a more comprehensive equality-based conception of arbitrary detention. The unresolved issues include the need for greater clarity on what constitutes discrimination; how to deal with laws that are discriminatory; how to distinguish between detention resulting from the exercise of rights and from discrimination; whether protection should extend to a broader range of individuals and groups; why poverty matters in detention practices, and whether the Working Group’s recommendations and follow-up need to be tailored in cases of discrimination. This article offers suggestions on the direction that the Working Group might take in its jurisprudence to resolve these remaining areas of uncertainty, including clarifying the circumstances in which differential treatment will amount to discrimination, determining that detention arising from discriminatory laws has no legal basis, taking a flexible approach to the overlap in the categories it employs to evaluate arbitrary detention, incrementally extending protection to marginalized groups such as those living in poverty, making recommendations to address the structural causes of discrimination, and using its follow-up procedure to highlight cases of detention on discriminatory grounds.

International law prohibits the arbitrary deprivation of life, which includes extrajudicial killing. This norm is codified in every major human rights treaty and has attained jus cogens status as a non-derogable norm in international law. In the United States, the Torture Victim Protection Act (“TVPA”) establishes civil liability for extrajudicial killing. As evidenced in the TVPA’s text and legislative history, the definition of extrajudicial killing is based on international law. Despite the clear meaning of the TVPA’s text and the clarity of international law, the TVPA’s definition of extrajudicial killing is still contested in litigation, and some courts express uncertainty about its meaning. This raises a simple question: what constitutes an extrajudicial killing? This Article reviews the status of extrajudicial killing and clarifies its discrete elements under international law. It then considers the status of extrajudicial killings in the case of Mamani v. Berzain, a TVPA case involving the responsibility of the former President and Defense Minister of Bolivia for the killing of civilians in a 2003 government crackdown.

The United States is deeply divided on matters that range from immigration to religion to fracking. “Blue” states resist “red” federal policies, and intra-state disputes pit state legislatures against recalcitrant local governments. One of these intergovernmental policy flare-ups involves so-called “sanctuary jurisdictions”—government actors that object to more aggressive immigration enforcement by slow walking their voluntary compliance or denying it altogether. In some cases, they have filed lawsuits to voice their dissent.

This Article analyzes the recent wave of sanctuary jurisdiction lawsuits in detail and identifies ways in which they undermine claims that local governments are powerless in the face of federal or state authority. Structural and civil liberty constitutional rights may protect local governments from some state and federal mandates. Local residents too may have resistance options beyond the voting booth and the moving van.

This should matter to all sides of the immigration debate: those who support the federal government’s strict immigration policies, those who favor state-federal cooperation in enforcement, and those who believe local jurisdictions should be given room to resist on policy grounds. But local governments’ right to dissent goes beyond immigration law. The sanctuary jurisdiction controversy may guide local officials in many other areas, and help illuminate how and when they may assert local rights.

This Article outlines the contours of potential local rights and makes three descriptive claims. First, respect for local power is on the firmest ground when it fortifies constitutionally sound government, top to bottom. Second, these tools of local resistance are quite limited. They work only in cases where upper level government mandates are beyond the constitutional pale or debatably so, and where courts can and should play a role in calling the lines. Third, they are available to all local government actors, not merely to progressive urban actors. The Article also makes the following normative claim: preserving constitutional breathing room for local dissent is critical to a healthy interchange between and among federal, state, and local governments. Above all, it promotes fundamental liberty values.

This is not a “city power” manifesto; it is a “constitutional city” manifesto. This Article maintains that the articulation and enforcement of constitutional ground rules is particularly critical in the current moment of hyper-partisanship and centrifugal forces that undermine union and intergovernmental cooperation. A call to these basic principles may offer Americans the hope of a fair game, however intensely and politically the game is fought.