Resolving What is a “Forced” Abortion and Sterilization Procedure Under Section 601(a) of the IIRIRA: Expanding Asylum Eligibility Beyond China’s One-Child Policy to Protect Marginalized Women

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Karla Colley, J.D. Candidate 2024, Columbia Law School

The United States Congress enacted Section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996 to protect asylum seekers fleeing China’s One-Child Policy (OCP). Such Chinese asylum seekers have primarily utilized the statute to secure asylum grants on the grounds of being subjected to a forced sterilization or forced abortion. However, while the world is familiar with China’s now defunct OCP, researchers have shed light on a lesser-known practice—the global prevalence of involuntary sterilization by medical providers, both forced and coerced, targeting marginalized women. The published case law’s focus on involuntary sterilization within the context of the OCP raises questions of whether the statute provides equal protection to asylum seekers who were subjected to sterilization outside of China and without a similar government-stipulated policy. This Note explores three groups of marginalized women who are often targeted for involuntary sterilization, as well as the circumstances under which they are forcibly and coercively sterilized. It analyzes how the Board of Immigration Appeals (BIA) and some circuit courts have defined what constitutes a “forced” sterilization or abortion within the context of the OCP. It also presents an analytical framework for why Section 601(a) extends to asylum seekers outside of China. Based on this framework, this Note further argues that attorneys and physicians should widely screen their female asylum clients for involuntary sterilization as a means of potentially securing an additional path, with a lower evidentiary burden, towards an asylum grant.

Protecting the Right to Boycott Israel: A Foreign Affairs Preemption Approach to Striking Down State Anti-BDS Laws

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Ariel Sheffey, J.D. Candidate 2024, Columbia Law School

Legal challenges against the constitutionality of state anti-Boycott, Divestment, Sanctions (BDS) laws are slowly making their way through United States circuit courts, and, so far, these challenges have rested largely on First Amendment grounds. This Note explores the viability of an alternative approach: challenging the constitutionality of state anti-BDS laws under the doctrine of foreign affairs preemption. Ultimately, this Note concludes that state anti-BDS laws pose a sufficient intrusion into foreign affairs so as to be rendered unconstitutional by the doctrine of foreign affairs preemption. Nonetheless, before pursuing this approach in court, litigators and advocates should consider how the precedent might implicate the goals of human rights activists in the long run, particularly regarding the abilities of state governments themselves to mobilize against foreign countries committing human rights violations.

Process [Ill]Defined: Immigration Judge Reviews of Negative Fear Determinations

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Jocelyn Cazares Willingham, Assistant Professor of Law, University of the District of Columbia David A. Clarke School of Law.

In 2023, the Biden Administration announced its plan to enhance the use of summary removals, which are administered and completed by low-level immigration officers without further process unless there is an articulated fear of return by the noncitizen. This fear articulation triggers a fear interview with an asylum officer who determines whether the noncitizen has a credible or reasonable fear of return—a process that the Biden Administration further shortened while effectively imposing a higher fear standard through a recent finalized rule. A negative fear determination results in immediate removal unless the noncitizen requests review by an immigration judge. In 2019, only 15,476 migrants subject to the fear screening process requested review of their negative fear determinations. In most of these reviews, 74.3 percent, the immigration judge affirmed the asylum officer’s negative fear determination, resulting in the humanitarian relief seeker’s deportation as the decision in these reviews is not subject to appeal or further review. This Article seeks to highlight how the lack of clear process in an immigration judge’s review of an asylum officer’s negative fear determination under 8 C.F.R. § 208.30(g) and 8 C.F.R. § 1208.31(g) leads to an unchecked judicial discretion that can serve as a barrier to justice and humanitarian relief for those fleeing severe harms in their countries of origin or removal. This Article presents the first sustained examination and critique of the immigration judge review process that grounds decisions to expeditiously return migrants. After a review of the literature on this corner of our immigration system, I present some rare insights into this immigration judge review process based on descriptive data collected from an accompanying national survey of immigration advocates with direct experience in these proceedings. I then argue that that the fear screening process in its current form is in violation of the United States’ international and domestic obligations and should be dismantled. The lack of clearly defined procedures and meaningful standards, and the vast discretion afforded to immigration judges in these proceedings result in egregious failures of both process and substance. In the current process, expediency is championed over accuracy—belying the pretense of humanitarianism and charity that cloaks the entirety of our system of humanitarian protection. Lastly, I present some suggestions for reform to minimize the risk of erroneous fear determinations and ensure a fairer process for all migrants—not just those who win the adjudication lottery by being assigned to an immigration judge who approaches review of asylum an officer’s negative fear determination as the migrant’s legitimate opportunity to be heard and questioned.

From Criminalizing China to Criminalizing the Chinese

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Leo Yu, Assistant Clinical Professor of Legal Writing, Research and Advocacy, Southern Methodist University, Dedman School of Law.

Many scholars have studied the racialization of Asian Americans and found that perpetual foreignness stands at the core of their ascriptive identity. This identity was formed in the 19th century and is also closely related to the dominant society’s racial understanding of ‘the Chinese’—which refers, for the purposes of this Article, to people of actual or perceived Chinese descent in the United States. This Article investigates this racialization process, with a contemporary lens: What does perpetual foreignness mean to the Chinese in the 21st century? This Article argues that, for the Chinese, their foreignness in today’s United States means more than just otherness, inferiority, and inassimilability; instead, the Chinese foreignness has acquired an additional specific meaning: the unquestionable linkage to China, the United States’ most significant geopolitical challenger. This Article uses the U.S. Department of Justice’s failed China Initiative to investigate this new ascriptive identity of the Chinese and argues that the geopolitical tension between China and the United States plays a vital role in this change. As the United States’ most significant challenger in geopolitics, China has taken a central role in the racial understanding of the Chinese in the 21st century. To many non-Chinese Americans, the Chinese are more than just foreigners who are culturally associated with a far away, inferior oriental country as they were perceived in the 19th and 20th centuries. Today, they are a suspect race who possess an unbreakable linkage to China, the dangerous perpetrator in geopolitics. In short, today, the Chinese are not just foreign; they are foreign perpetrators. This new ascriptive identity of the Chinese resonates with the differential racialization tenet of the Critical Race Theory that the dominant society racializes different minority groups at different times in response to shifting needs and interests. How the United States views China has a direct impact on how Americans views the Chinese. Since China will likely remain the United States’ geopolitical challenger, this Article predicts that the foreign perpetrator identity will be attached to the Chinese community in the foreseeable future.

Abortion and the Mails: Challenging the Applicability of the Comstock Act Laws Post-Dobbs

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Ebba Brunnstrom, J.D. Candidate 2024, Columbia Law School

 18 U.S.C. §§ 1461 and 1462, originating in the Comstock Act of 1873, prohibit the mailing and importation of any abortion-related material within the United States. Whatever protection there was against the application of these laws by the government and private individuals from the constitutional right to an abortion was overturned by Dobbs v. Jackson Women’s Health Organization in 2022. Recent trends from the last year show that conservative lawmakers are now eager to start enforcing the Comstock Act mailing prohibitions; some are relying on the existence of these century-old laws to justify new abortion restrictions. Pushback from the Biden Administration’s Office of Legal Counsel suggests that a limiting construction should be read into the Comstock Act statues so that the prohibition on mailing would apply only to “illegal abortions.” This Note engages with the enforcement history of the statutes and criticism of OLC’s interpretation to ultimately conclude that the Comstock Act Laws are unenforceable because they are unconstitutionally vague. In doing so, this Note advances a conception of the void for vagueness doctrine that would place greater emphasis on enforcement and fair notice considerations. 

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More H.R.L.R.

Resolving What is a “Forced” Abortion and Sterilization Procedure Under Section 601(a) of the IIRIRA: Expanding Asylum Eligibility Beyond China’s One-Child Policy to Protect Marginalized Women

Karla Colley

Protecting the Right to Boycott Israel: A Foreign Affairs Preemption Approach to Striking Down State Anti-BDS Laws

Ariel Sheffey

Process [Ill]Defined: Immigration Judge Reviews of Negative Fear Determinations

Jocelyn Cazares Willingham
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