REFUGEE LAW AND PROCESSES 288.4 Spring 2017 (3 credits) Wednesdays, 10:00am 12:40pm Room 134 Lilien, Seelinger INSTRUCTORS Kyra Lilien Email: kyralilien@berkeley.edu Tel: 510 280-4493 Kim Thuy Seelinger Email: ktseelinger@berkeley.edu Tel: 510 643-2713 Shared office hours: Wednesdays, 1pm 2pm, and by appointment. 392 Simon Hall. COURSE OVERVIEW This course will take a practical approach to examining the actors, cases, and processes central to refugee and asylum adjudication in the US. While studying the legal and institutional framework around the asylum process in particular, students will learn to apply the law through regular case hypotheticals and simulations. Special sessions will provide context by highlighting current issues across global migration crises, examining the dimensions and limits of refugee protection on both the international and domestic levels, with particular attention to unaccompanied minors, gender and LGBTI-based claims, sexual violence, and human trafficking. This course is essential for students interested in asylum representation, as well as for those interested in refugee rights, human rights, immigration law, and public international law. We have two major goals for this course. First, we aim to teach you the nuts and bolts of refugee and asylum law as it operates in the United States, to lay a strong doctrinal and practical foundation for those of you hoping to work in this field. Second, we will develop a framework through which students can better understand and engage with the 1
global migration crises that surrounds us. It is deeply important to us that you hone not just your legal skills, but that you develop a sense of the global context within which we all work on these issues. To achieve these aims, we have designed an interactive course that includes a number of check points for evaluation and experiential learning. On March 8, students will complete a mid-term in-class examination. Details below. From April 12 to April 19, as a culmination of the skill-building component of the course, students will engage in a simulated asylum hearing. A closing brief on asylum eligibility will serve as the final exam. Students will be graded as follows: Midterm assessment 25% Final examination (brief) 50% Class participation (including moot hearing) 25% This class fulfills the Option 1 writing requirement. Students may choose to use the final brief to satisfy the requirement. This course will also count toward the International Law Certificate and the Public Interest Certificate. The instructors are both eager to meet with students interested in pursuing a career in refugee law. Advice and resources for interested students will be available throughout the course. COURSE MATERIALS Text Book: Refugee Law and Policy: A Comparative and International Approach, Fourth Edition, By Karen Musalo, Jennifer Moore, and Richard Boswell. Electronic Materials: Supplement to text book, additional cases, journal articles, news reports, etc. posted to bcourses. Reserve Materials: The Berkeley Law library has agreed to keep one copy of the text book on reserve. Additional reserve materials include: AILA s Asylum Primer, 7 th Ed., ILRC s Essentials of Asylum Law, Kurzban s Immigration Law Sourcebook, 14 th Ed., Chasing Freedom (2004) (fictional film portrayal of asylum process), Well-Founded Fear (2000) (documentary film on affirmative asylum process this is available for viewing at the Media Resource Center in the Moffitt Library on Main Campus, and there is a link to free streaming copy on the bcourses page). 2
CLASS ATTENDANCE AND PARTICIPATION Students are required to attend all classes from start to end. Time is limited and it is precious. We will respect your schedules and expect you to respect ours. Absence may be requested in advance in writing to both instructors before the missed class. Unexcused absences will reflect on class participation. We do not anticipate needing to reschedule any regular classes due to instructor absence. However, should such a situation arise, we will let students know as far in advance as possible that the class period in question will be moved to that week s Friday make-up session. All students are expected to attend the Friday makeup class in this event. As noted above, class participation will count for 25% of a student s overall grade. MIDTERM The mid-term assessment will be conducted on March 1, 2017, during the first portion of the class session. It will consist of a series of short answer questions and fact patterns for analysis, designed to exercise students understanding of doctrinal concepts introduced in the first half of the semester. The midterm will be a one hour, open-book, open-notes examination in class. FINAL EXAMINATION The final examination will be an iterative process. On March 1, students will each be assigned a specific asylum applicant s case. Some students will be assigned to represent the applicant, while others will be assigned to represent the government in prosecuting the applicant s removal (opposing the asylum application). Each student will receive a case file containing a fact pattern and a packet of evidentiary documents. The brief (individual work product) Individual students will prepare a brief arguing for or against the applicant s eligibility for asylum in the United States. A draft of each student s brief, outlining the legal argument and applying relevant facts, is due on March 17. Instructors will provide feedback on students draft briefs based on the order of students assigned moot hearings. Please note that this written portion of the exercise is individual work product; students are responsible for their own research, analysis, and brief writing. There should be no discussion of case files among students in the class. 3
The hearing (group effort) On March 17, students will be grouped into legal teams for the purposes of preparing for the moot hearing component of the final examination. Students will prepare for a defensive asylum hearing in immigration court, which includes either direct examination of the client to sensitively and efficiently elicit key elements of his/her claim or crossexamination as the government attorney, depending on assignment. Both teams should expect interjection from the immigration judge. Moot hearings will take place on April 12 and April 19. Each group will have an hour and fifteen minutes. Unexpected developments may occur in the course of each hearing that students will incorporate into their final closing briefs. Final brief (individual effort) After the hearing, students will resume their individual work as they draft their final briefs as to the applicant s eligibility for asylum in light of courtroom developments. Final closing briefs are due on May 10 from each student. Again, these briefs should represent individual research, analysis, and writing. Final briefs should be well-cited, at 15-20 double spaced pages, Times New Roman 12 point font. 4
REFUGEE LAW AND PROCESSES 288.4 Spring 2017 (3 credits) SYLLABUS (** PROVISIONAL JAN 7, 2016 **) Week 1 (Jan 11) o Introductions & Course Overview o 1951 Refugee Convention & 1967 Protocol o 1980 Refugee Act o Text book on the Origins of Refugee Protection: pp. 19-31 o Text book on 1980 Refugee Act: pp. 74-76 An Introduction to International Protection, UNHCR (pp. 5-10) Malaysia Will Not Sign Refugee Convention, says Minister, Malay Mail Online, March 12, 2015 Thailand Refugee Policies: Ad Hoc and Inadequate, Human Rights Watch, September 13, 2012 To skim: 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees UNHCR Overview of the1951 Convention Relating to the Status of Refugees and its 1967 Protocol Refugee Convention States Parties (as of April 2015) Week 2 (Jan 18) o Refugee Status Determination Global Processes o US Refugee Resettlement System o US Asylum Adjudications System o Asylum versus Withholding o Text book on Asylum Process: pp. 921-929 o Text book on Asylum v. Withholding: pp. 183-204 INS v. Cardoza-Fonseca (1987) UNHCR Mid-Year Trends 2015 Review USCIS Refugee/Asylum page: https://www.uscis.gov/humanitarian/refugees-asylum 5
Proposed Refugee Admissions to US for FY17 President s Report to Congress (read Introduction and Foreword, skim Table of Contents) Congressional Research Service report on Syrian Refugee Admissions and Resettlement in the US: In Brief, Nov. 19, 2015 ORR Letter re: Resettlement of Syrian Refugees, Nov. 25, 2015 Georgia Attorney General Official Opinion, Dec. 30, 2015 Congressional Research Service analysis of States Ability to Bar Refugee Resettlement within their Jurisdiction, Nov. 18, 2015 AIC Fact Sheet: Asylum in the U.S. Ramji-Nogales, J. and Andrew Schoenholtz. Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan.L.Rev. 295 (2007), pp. 299-310 and pp. 372-390. Week 3 (Jan 25) o Burdens of Proof and Standards of Evidence o Well-Founded Fear of (Future) Persecution o Persecution What is persecution? Who is the persecutor? o Text book on WFF, Presumption, Standards of Evidence: pp. 204-226 Matter of Mogharrabi (BIA, 1987) Garcia-Ramos v. INS (9 th Cir, 1985) o Text book on Persecution: pp. 241-242, 245-246, 252-266, 277-282, 287-298 Pitcherskaia v. INS (9 th Cir, 1997) Matter of Chen (BIA, 1989) Korablina v. INS (9 th Cir, 1998) Sadeghi v. INS (10 th Cir, 1994) Pavlova v. INS (2 nd Cir, 2006) Matter of T-Z- (BIA 2007) Hernandez Ortiz v. Gonzales (9th Cir, 2007) Mendoza-Pablo v. Holder (9th Cir, 2012) OPTIONAL: Schoenholtz, Andrew. The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-first Century, 16 Chi.J.Int'l.L. 81 (2015). Week 4 (Feb 1) o Nexus and the Five Protected Grounds Overview What are the five grounds? 6
What does on account of mean? How to determine motive? What if there is no nexus? o Specific Protected Grounds: Race & Nationality o Text book on Nexus, Mixed Motives, Convention Against Torture: pp. 301-302, 322-332, 339-344, 355-367 Zacarias v. INS (9 th Cir, 1990, 1992) I & II In re S-P- (BIA, 1996) Navaratwam Kamalthas v. INS (9 th Cir, 2001) o Text book on Race & Nationality: pp. 527-528, 531-532, 543-544, 558-574 Aliyev and Arziyeva v. Mukasey (2 nd Cir, 2008) Shoafera v. INS (9 th Cir, 2000) In re O-Z- & I-Z- (BIA, 1998) Parussimova v. Mukasey (9 th Cir, 2008) Sinha v. Holder (9 th Cir, 2009) Week 5 (Feb 8) o Specific Protected Grounds, Cont d.: Political Opinion o Text book on Political Opinion: pp. 375-402, 419-423, 436-438 Sanon v. INS (7 th Cir, 1995) Osorio v. INS (2 nd Cir, 1994) Bolanos-Hernandez v. INS (9 th Cir, 1985) Argueta v. INS (9 th Cir, 1985) Bellido v. Ashcroft (8 th Cir, 2004) Fatin v. INS (3 rd Cir, 1993) Sangha v. INS (9 th Cir, 1997) Khudaverdyan v. Holder (9 th Cir, 2015) OPTIONAL: Michigan Guidelines on Political Opinion (2015) Week 6 (Feb 15) (Feb 17 last Add / Drop) o Text book on Religion: pp. 467-475, 494-512 Matter of Liadakis (BIA, 1963) Yong Ting Yan v. Gonzales (10 th Cir, 2006) Shirazi-Parsa v. INS (9 th Cir, 1994) In re S-A- (BIA, 2000) 7
Yan v. Gonzales (10 th Cir, 2006) Matter of J-Y-C- (BIA 2007) Zhang v. Ashcroft (9 th Cir, 2004) Week 7 (Feb 22) Topics: o Specific Protected Grounds, Cont d.: Intro to Particular Social Groups Immutability, Particularity & Social Distinction Precedent Decisions on Specific Groups Part 1 o Text book on Particular Social Groups: pp. 615-630, 653-663 Matter of Acosta (BIA, 1985) Matter of Toboso-Alfonso (BIA, 1990) In Re C-A- (BIA, 2006) Matter of M-E-V-G- (BIA, 2014) Week 8 (Mar 1) o Specific Protected Grounds, Cont d.: Particular Social Groups, Cont d. Precedent Decisions on Specific Groups Part 2 Gender Asylum Gender-based violence and current refugee crises Guest Speaker: TBD o Text book on Particular Social Groups: pp. 712-750 In re Kasinga (BIA, 1996) In re R-A- (BIA, 1999; AG 2005) UNHCR Guidelines 1: Gender persecution (2002) Mohammed v. Gonzales (9 th Cir, 2005) Perdomo v. Holder (9 th Cir, 2010) Matter of A-R-C-G- (BIA, 2014) Assignment: Case brief draft due Mar. 18, 9am Assignment: Mock Hearing overview and instructions 8
Week 9 (Mar 8) MIDTERM EXAM (first half of class; 1 hour, open book) o Asylum and Detention o Reasonable Fear & Credible Fear Screenings o Text book on Detention: pp. 963-970, 977-981 o Text book on Expedited Removal: 134-142 Week 10 (Mar 15) o Bars to Asylum o Text book on Bars: pp. 850-866 Matter of Rodriguez-Majano (BIA, 1988) Aguirre-Aguirre v. INS I & II (9 th Cir, 1997; US 1999) Refugee Convention Arts. 1F and 33 Volker Turk, Forced Migration and Security 15 Int. J. Ref Law 113 (2003) Matter of Pula (BIA, 1987) Matter of A-G-G- (BIA, 2011) (parts I, II, III, IV-A, IV-D, IV-E, & V) Guest speaker: o Magali Maystre, Appeals Chamber of the International Criminal Tribunals for the former Yugoslavia and Rwanda (tentative) The Interaction between International Refugee Law and International Criminal Law with respect to Child Soldiers, J. Int. Crim. J. (2014) March 18 (9am) draft briefs due by email to both instructors Week 11 (March 22) o Global Migration Crisis & the European Union o Unaccompanied Minors at the US-Mexico Border o Gender-based Violence in the Context of Forced Displacement 9
Women s Refugee Commission: Europe-Turkey Deal & Failing Refugee Women & Children (2016) Additional readings TBD Guest speakers: o Julie Freccero, UC Berkeley Human Rights Center (tentative) On UN Population Fund deployment to Greece o Lisa Frydman, Kids In Need of Defense (KIND) (tentative) On unaccompanied minors at the US southern border Discussion of Mock Hearings (March 27-31: SPRING BREAK) March 25 Receive feedback on draft briefs Week 12 (April 5) o Global refugee crises o Filing for Asylum in the US: Practical issues I-589 & submission Working with Interpreters Working with Survivors of Trauma; Managing Vicarious Trauma Fraud / Credibility AILA materials re: practical aspects CNN, Rape in Wartime (listen) I-589 Additional readings TBD Optional: Suzuki, Unpacking Pandora s Box, 4 Hastings Race & Poverty L. J. 235 (2007) Tribe & Lane, Working with Interpreters Across Language and Culture in Mental Health, Journal of Mental Health (2009) Guest speaker: o Vincent Ferri, San Francisco Asylum Office (tentative) Week 13 (April 12) & Week 14 (April 19): Mock Hearings May 10: FINAL BRIEF DUE, midnight 10