In an era of rapid change caused by rising global interdependence, the International Human Rights Law Clinic (IHRLC) at the UC Berkeley School of Law pursues a dual mission: promoting justice at home and abroad and training attorneys for a changing profession. IHRLC marshals the resources of the faculty and students of UC Berkeley to advance the struggle for human rights on behalf of individuals and marginalized communities. It clarifies complex issues, develops innovative policy solutions, and engages in vigorous advocacy. At the same time, IHRLC prepares graduates for an increasingly diverse, competitive, and international legal profession. One of the leading human rights clinics in the country, IHRLC takes advantage of its home in California, the largest and most diverse state in the nation, and builds on Berkeley Law’s commitment to international engagement. Since 1998, IHRLC has completed dozens of projects and trained over 200 students. Learn about the latest clinic news below or read our publications.
Human Rights Day Report Release on Tipped Restaurant Workers
On Human Rights Day 2015, the International Human Rights Law Clinic, Restaurant Opportunities Centers United (ROC United), and the UC Berkeley Food Labor Research Center, released a new report, entitled “Working Below the Line: How the Subminimum Wage for Tipped Restaurant Workers Violates International Human Rights Standards.”
Federal law sets the federal minimum wage, currently $7.25 per hour, as well as the subminimum federal wage, which allows employers to pay workers who earn tips $2.13 an hour. Tipped restaurant workers in states with a subminimum are at least two times more likely to live in poverty than the general U.S. population. Affordable health care is out of reach, and sexual harassment is a significant problem. Workers of color in restaurant industry are concentrated in the lowest-paid “front and back of the house” occupations such as cooks, dishwashers, bussers, and runners while non-Hispanic whites are disproportionately found in higher paid “front of the house” positions like wait staff and managers
The report analyzes conditions of tipped restaurant workers earning subminimum wages in light of international standards. The report finds that the subminimum wage system violates the human rights of these workers, including the right to an adequate standard of living, the right to just and favorable remuneration, the right to health (including the rights to food and to housing), and the prohibition against discrimination.
The report recommends federal and state lawmakers incorporate international standards and best practices into law and policy to ensure tipped restaurant workers a living wage, access to affordable health care, protection from sexual harassment and sex discrimination, and the promotion of job training and advancement for women and workers of color.
The report is part of a growing body of evidence that demonstrates the harms of a two-tiered wage system. Several states have recently responded to these concerns by increasing wages for tipped workers.
Several other geographies will consider eliminating the tipped minimum wage next year. In Massachusetts, a bill to do so is currently before the state legislature while voters in Maine and Washington, D.C. will consider similar measures on next year’s ballot. These geographies would follow the seven states – including California and Minnesota – that have eliminated the two-tiered wage system.
New Report Faults India’s Response to Sexual Violence Against Women
By Susan Gluss
In India, female victims of sexual violence during social unrest, no matter how heinous the crime, have little chance of retribution. Nearly all institutions, politicians, and state officials thwart their efforts, according to a new report. Access to Justice for Women: India’s Response to Sexual Violence in Conflict and Social Upheaval looks at India’s failed responses to these women and calls for corrective action and legal reforms.
The report is a collaboration between Berkeley Law’s International Human Rights Law Clinic (IHRLC) and the Armed Conflict Resolution and People’s Rights Project (ACRes) at the Haas School of Business. Although the report focuses on female victims in India, the authors note that sexual attacks are perpetrated among the country’s other vulnerable groups.
Despite calls for reform after the 2012 Delhi gang rape and murder of a young female student that outraged the global community, sexual violence remains widespread across troubled areas of India. The underlying causes are complex, but stem, in part, from the 1947 partition of India and Pakistan that exacerbated conflicts between Hindu and Muslim communities—and inflamed deeply rooted cultural and political tensions.
Access to Justice examines four emblematic cases of sexual attacks: two occurred in the states of Punjab and Jammu & Kashmir; two others during mob violence in Gujarat and Odisha.
The sexual crimes are “gruesome,” said co-author Roxanna Altholz ’99, IHRLC’s associate director, at a recent panel event to launch the report. “One instinct is to turn away,” she said, but implored the audience to continue to “listen to the voices of these women,” and to recognize their courage and resilience.
Sexual brutality against women can take many forms, including rape, sexual slavery, honor killings, and more, said Laurel Fletcher, director of the law clinic and report co-author. “But what’s common across these crimes,” she said, is “the failure of the state to protect women and to provide survivors access to justice.”
“Justice for these crimes is the exception and not the rule,” Fletcher added.
The four selected cases involve different national and local minority communities, different forms of sexual violence and perpetrators, and different political contexts. Despite these differences, the report reveals a common theme: the Indian justice system failed to investigate, prosecute, and punish the perpetrators—and failed to provide effective redress for victims.
Altholz described one case of a woman abducted by police in Punjab, beaten and raped in jail, and then threatened with retaliation if she reported the crime. The woman asked police to investigate, but they refused to take action. She sought help at a local hospital, but doctors rebuffed her. She wrote letters to a local judge until authorities finally agreed to try the case. It took 14 years for a conviction affirmed on appeal after 80 court hearings in total. And this case is atypical because the perpetrators served time in jail. Most go free, according to the report, with a slap on the wrist.
“For an illiterate village woman to try to get a complaint before a judge is a really Herculean task,” Altholz said.
Impunity is the norm
“Impunity is the result of state action and inaction across institutions and professions: police officers, military personnel, doctors, lawyers, prosecutors, investigators, and judges,” Altholz said. Perpetrators are rarely held accountable, she added, whether due to a code of silence, fear of retaliation, lax laws, or lack of political will.
Clinic alumna Mallika Kaur ’09, a director of programs for the Center for Social Sector Leadership at Haas and report co-author, underscored the need for legal reform in India. “It’s not just to enable people to live without terror, but to enable them to live on their own terms,” she said. “This is not too tall an order for democracy.”
The coauthors examined obstacles to effective investigation, prosecution, and reparation of sexual crimes and recommended a number of reforms. The first one “really appeals to common sense,” Altholz said: redefine rape as a crime of violence in India. “It’s now defined as a crime against modesty, so the emphasis is placed on the woman’s consent, not the use of force and coercion,” she said.
Other recommendations include sanctions against public officials who obstruct investigations, witness-victim protection programs, and independent and impartial tribunals.
The study of sexual violence as a tool of war is a fast-growing area of expertise for IHRLC. Multiple teams of clinic students have worked on related projects over the last few years, which helped build a foundation for this project, Fletcher said.
Other panelists at the event included Angana Chatterji and Shashi Buluswar, co-chairs of ACRes. Along with Kaur, they co-edited and released a related report, Conflicted Democracies and Gendered Violence: The Right to Heal. Both publications will be distributed to local, national, and international institutions and libraries specializing in law, human rights, social sciences, and South Asia studies, Kaur said.
Border Patrol: Clinic Provides Legal Roadmap for Families of Those Killed by Federal Agents
By Andrew Cohen
Since 2010, United States Customs and Border Protection (CBP) agents have killed at least 40 people along the U.S.-Mexico border. Despite claims that unlawful use of deadly force caused many of the killings, efforts to gain redress through the legal system have largely proven futile.
That’s why Alliance San Diego founding executive director Andrea Guerrero ’99 contacted her Berkeley Law classmate—International Human Rights Law Clinic (IHRLC) Associate Director Roxanna Altholz ’99—to help untangle the legal complexities for those pursuing justice.
“We’re facing different kinds of law in multiple jurisdictions along the border,” Guerrero said. “Federal law, civil law, criminal law, international law—there are many permutations for what victims’ family members can do. I already knew about the clinic’s amazing work and Roxanna’s experience in international courts, so I contacted her to see if she could help.”
The result of their collaboration is a new report that identifies the remedies available—in the U.S. and Mexico—and provides a needed legal roadmap. It will be an instructive guide for the Southern Border Communities Coalition, a group of 60-plus organizations from California to Texas co-chaired by Guerrero.
The nation’s largest law enforcement agency, CBP is authorized to apprehend people suspected of violating immigration laws—which are civil laws, not criminal laws—within 100 miles of the border. Since 9/11, Congress has more than doubled its budget and increased its access to surveillance equipment, weaponry, and technology. While a few cases of CBP killings have settled, no plaintiff has won a wrongful death case against a border agent in civil court.
“It’s important for advocates, victims, and litigators to understand the legal landscape,” Altholz said. “Prosecutors haven’t charged a single agent in one of these incidents in five years although the victims include some U.S. citizens, several minors, people shot in the back, and people shot in vehicles driving away. A border patrol agent shot one victim, a 16-year-old boy walking on a street in Mexico parallel to the border fence, several times in the back.”
Co-written by recent IHRLC student Yasmin Emrani ’15, the report probes three main scenarios: foreign nationals killed in Mexico, foreign nationals killed in the U.S., and American citizens killed in the U.S. It also analyzes trends in civil and criminal cases in the U.S. and Mexico.
“These agents have used force against people in unwarranted ways with no accountability,” Emrani said. “We gathered all the cases, looked at all the claims raised, tracked how each case moved through the courts, and produced a big-picture analysis. It’s a flow chart of sorts to determine the best legal strategy depending on the variables involved.”
An uphill fight
Over the years, victims’ relatives have struggled to gain information about the circumstances of killings and the identities of those responsible. They seek accountability through criminal investigation and prosecution, economic compensation, and policy reforms to prevent future killings.
“In the 100-year history of our border patrol agency, no agent has ever been successfully tried or held accountable in a court of law,” said Guerrero. “This should worry all of us if the largest law enforcement agency in the country is acting with impunity.”
U.S. courts routinely dismiss civil lawsuits, ruling that the agent’s actions constituted a reasonable use of force or an act of self-defense. They have also used legal doctrines such as sovereign immunity and extra-territoriality to quash legal claims.
“If a private citizen shot a Mexican minor standing on Mexican territory, that person would be held to account,” Altholz said. “But a federal officer who does the same thing is not. CBP describes itself as a paramilitary organization. They’ve refused to wear body cameras while many local police do. They’ve also refused to release the names of agents involved in these killings, though local law enforcement does that as policy. It’s time to level the playing field.”
With the recent national firestorm surrounding police violence against people of color, there is mounting legal pressure to hold CBP agents accountable. The U.S. Supreme Court is considering hearing a case about the death of Sergio Adrian Hernández Guereco, a Mexican teenager killed in Mexico by a CBP agent shooting across the border. Investigations prompted by the Obama Administration, members of Congress, and border community advocates also triggered a new CBP use of force policy—and the first publication of such a policy—last year.
“That was a major accomplishment,” Emrani said. “Under the old policy, agents could use deadly force against people throwing rocks across the border or unarmed occupants of moving vehicles, but no longer.”
The report uses civil and criminal court records, legal scholarship, and reports by government agencies, media, and advocacy groups. It also explores the basis for filing legal actions in both the U.S. and Mexico and assesses the likelihood for success.
“This will empower families and advocates to negotiate with prosecutors and open up new avenues in the international courts,” Guerrero said. “The report is a game changer for us and arms families with information that’s critical to their ability to seek justice.”
The Dominican Republic Must Stop Expulsions of Haitians
A HUMAN rights crisis is unfolding on the island of Hispaniola, which is shared by the Dominican Republic and Haiti.
The Dominican Republic is threatening to drive out hundreds of thousands of Haitians who live and work in the Dominican Republic. Many of them came to work in the sugar, construction and tourism industries.
Recently, the Dominican Republic demanded that they come forward and register for legal residency or be forced to return to Haiti. Of an estimated 450,000 Haitian migrants in the country, some 290,000 filed by the deadline to register, June 17 (which reportedly has been extended). But so far, less than 2 percent of them have been granted legal status. Although the country’s threat to deport Haitians en masse hasn’t yet materialized, many workers have already fled to Haiti; the Dominican Republic recently put the number at about 30,000.
These migrants are not the only ones who face an uncertain future in the Dominican Republic.
Tens of thousands of Dominican citizens of Haitian descent, whose parents or grandparents had crossed the border for economic opportunities, live in legal limbo. Until 2010, the Constitution ostensibly granted citizenship to anyone born in the country. But many Dominicans were excluded because their parents were deemed to have been “in transit” at the time of their birth. Moreover, the authorities routinely denied papers and ID cards to Dominicans of Haitian descent without justification, often on the basis of their French or Creole surnames or their skin complexion. As a result, these people — along with Haitian migrant workers — have lived in constant fear of arbitrary expulsion to Haiti.
The government has denied that it discriminates against Haitian migrants or Dominicans of Haitian descent. It even says that the recent registration process was a success. These claims are not to be believed.
Over 10 years ago, on behalf of two girls of Haitian descent, we sued the Dominican Republic in the Inter-American Court of Human Rights, challenging the onerous and expensive requirements Haitian parents who sought to obtain birth certificates for their Dominican-born children faced. Without these papers, the children couldn’t attend public school, marry, own property or vote.
In 2005, the court ordered the Dominican government to recognize the nationality of these children and to seek out and issue birth certificates to all such children. But the country has barely complied.
Almost immediately after the decision, a small group of racist, ultranationalist politicians orchestrated an aggressive campaign against the ruling. The legislature amended the Constitution in 2010 to exclude children of undocumented migrants from citizenship. A court retroactively stripped citizenship from people of Haitian descent, going back to the 1930s.
After an outcry, the government backtracked. To save face, it created a plan to restore citizenship to those who had been stripped of it, and to gradually legalize Haitian migrants who had made their lives in the Dominican Republic.
But then the government sabotaged its own plan by demanding that poor migrants — who might earn under $11 a day in the informal economy — furnish documents like pay stubs, letters of employment or proof of homeownership in order to obtain residency papers.
Dominican Republic has a long, brutal history of mass expulsions of Haitians. In 1937, the dictator Rafael Trujillo ordered the massacre of tens of thousands of them. The word in Santo Domingo now is that the government is about to deport Haitians — and those who look Haitian — en masse. Past roundups have been conducted under the cover of night. People were thrust out of their beds, without time to collect their belongings or show what papers they had. Parents were separated from their children, wives from their husbands, citizens from their homeland.
Yes, the Dominican Republic is a developing country, and not the only nation that mistreats migrants and stateless people. But for decades, Haitians and their progeny have served as a scapegoat for Dominican politicians who blame them for poverty, disease and crime.
The Dominican Republic should put a halt to the sporadic roundups and summary expulsions. If it doesn’t, the international community must step in.
The United Nations and the Organization of American States should request that international monitors be stationed along the border and in detention centers to deter human rights abuses. If the Dominicans balk, they should be shunned at international forums. The United States, which gave about $30 million in aid to the Dominican Republic in 2012, must help prevent a humanitarian disaster.
New IHRLC Report Highlights Challenges for Undocumented Students at UC Berkeley
May 6, 2015 – Hunger, fear of deportation, and ineligibility for federal student loans are not the typical concerns of U.S. college students. But these complex issues shape the experience of undocumented students at UC Berkeley, according to a new International Human Rights Law Clinic (IHRLC) report. The study, “DREAMers at Cal: The Impact of Immigration Status on Undocumented Students at the University of California at Berkeley” provides data and recommendations to university, state, and federal officials seeking to support the success of undocumented students in higher education.
Based on surveys and interviews conducted with undocumented students on the UC Berkeley campus, the report explores how undocumented status impacts students’ path to higher education, university experience, and plans for the future. IHRLC conducted the study after establishing the nation’s first on-campus legal support program for undocumented students in 2012. IHRLC Clinical Instructor Allison Davenport directed the research project and oversees UC Berkeley’s legal program, which has served over 250 undocumented students. IHRLC alumni Habiba Simjee ’14 and Genna Beier ’14 were critical members of the research team.
Who are the DREAMers?
Among the estimated 11.5 million undocumented immigrants living in the U.S. is a generation of young immigrants educated in the United States. Over a quarter of undocumented youth in the nation reside in California and it is estimated that over 2,000 undocumented undergraduate and graduate students are currently enrolled in the University of California system. These young undocumented immigrants, known as DREAMers, have become not only more visible on college campuses but in the national debate on immigration reform.
Navigating Higher Education
The report identifies barriers to higher education arising from undocumented status. Undocumented students are ineligible for federal financial aid despite their financial need. Nearly all students in the study (94%) reported annual family incomes of less than $50,000 with the vast majority of households (88%) living below 150% of the federal poverty level.
Despite recent efforts to provide more financial aid, the study’s findings reveal the precarious situation of undocumented students on campus. Nearly three-quarters of students (73%) reported skipping meals or reducing the size of their meals while studying at UC Berkeley. Almost a quarter (21%) of students reported a period of homelessness or lack of stable housing during the time they have been enrolled at the university. Among the report’s recommendations are to extend access to federal financial aid for undocumented students and expand the eligibility criteria and pool of resources available in California.
UC DREAMers and their Families
Nearly all students in the study came to the U.S. more than a decade ago when most were under the age of 12. Most students belong to mixed status families which means, according to Davenport that “Family members living under the same roof live very different lives due to immigration status. One sibling may enjoy full citizenship while another lives in constant fear of deportation.” Over half (57%) of the undocumented students surveyed indicated they have a sibling with lawful permanent status or U.S. citizenship, slightly more (59%) have an undocumented sibling, and several reported the deportation of a close relative.
A shift in the legal landscape came in 2012, when the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) program, which provides temporary permission to live and work in the U.S. to certain eligible young immigrants. The overwhelming majority of research participants qualified for DACA. “DACA has provided stability and new opportunities to so many Cal students,” said Davenport, “But its future is uncertain and those students who do not qualify for the program continue to live without legal protection and permission to work.”
The report examines the central role of family for undocumented UC Berkeley students and how concern for family shapes their decisions. “DACA is a welcome change” noted Davenport, “but there is no peace of mind for these students until their parents and siblings have legal protection.”
Download a copy of the report “DREAMers at Cal” here.