International Human Rights Law Clinic

By Susan Gluss

March 30, 2016–A nearly six-year legal battle for justice took a new turn today (March 30) as the International Human Rights Law Clinic filed a petition against the United States for the death of a Mexican national by U.S. Customs and Border Protection (CBP). The complaint, filed with co-counsel Alliance San Diego before the Inter-American Commission on Human Rights, calls for an investigation into the killing and a condemnation of U.S. actions.

The deceased, Anastasio Hernandez Rojas, died on May 31, 2010, a few days after border agents took him into custody. The father of five was caught trying to cross the Mexican-U.S. border to rejoin his family in San Diego. He’d been deported just weeks earlier, despite having lived and worked in the U.S. for more than two decades.

CBP agents transported Anastasio to a deportation gate, and it’s there that the brutal beating ensued. As Anastasio objected to his detention, a dozen or more border agents punched, kicked, dragged, Tased, hogtied, and denied him medical attention, according to the petition.

Immobilized on the ground, Anastasio cried out for help in Spanish. His cries drew the attention of witnesses standing on a nearby pedestrian bridge, and several onlookers recorded cell phone footage. Border agents sought to confiscate any evidence—images, audio, video—but two eye-witnesses hid their phones and eventually released videos of the beating. Broadcast on U.S. news networks, the videos led to a public outcry and heightened scrutiny of the case.

An autopsy report revealed that Anastasio suffered bruises and abrasions on his face and body, five broken ribs, and hemorrhaging of internal organs. Anastasio died after suffering a heart attack, cardiac arrest, and brain damage. His death was ruled a homicide.

Despite the evidence and eyewitness accounts of the beating, federal prosecutors closed the criminal investigation last fall without pursuing criminal charges. The government was “unable to prove, beyond a reasonable doubt,” that the agents violated federal homicide statutes, according to a Department of Justice (DOJ) press release.

A fearless team

Enter Roxanna Altholz ’99, associate director of the International Human Rights Law Clinic, and a team of clinic students. They drafted the petition for the Inter-American Commission, a body of the Organization of American States, claiming human rights abuses by the U.S.  

It’s a tactic Altholz has employed before—as lead counsel on cases against Colombian drug lords and Guatemalan military officers—when victims found no redress in national courts.

“For decades, the Inter-American Commission has investigated exactly this kind of case—extrajudicial killings by law enforcement,” Altholz said. The commission “has developed clear standards on what circumstances justify the use of force by law enforcement, how on-duty killings should be investigated, and what the government should do to protect the rights of the victims’ family members.”

Students Amanda Barrow ’16, Jessica Oliva ’16, Kelsey Quigley ’17, and Aaron Voit ’17 hand-delivered the petition to the commission in Washington, D.C., along with Altholz, Anastasio’s brother, and Andrea Guerrero ’99, executive director of Alliance San Diego.

“Our collaboration with the clinic is a game changer,” Guerrero said. “With the clinic’s help, we can take this fight for justice to the international arena … against the U.S. government for its systemic failure to deliver justice to border victims.” 

Oliva said it was time to hold the customs agency accountable for its “egregious violations of human rights.”

“As a child of parents who came to this country as undocumented migrants, this case hit particularly close to home,” Oliva wrote in an email. “I hope that by shedding light on this systemic issue, we take a step towards the day where the lives of all human beings are valued equally, irrespective of migratory status.”

Barrow said she was stunned by the “impunity” of agents who kill.

“I thought that this case—involving the brutal killing of an unarmed man while he was handcuffed, in law enforcement custody, and surrounded by dozens of witnesses—couldn’t possibly be dismissed, or swept under the rug. Devastatingly, that’s exactly what happened,” Barrow said.

Pattern of abuse

CBP is the nation’s largest law enforcement agency. Since 9/11, Congress has more than doubled its budget and increased its access to surveillance equipment, weaponry and technology. In the past six years alone, its agents have killed at least forty-six Mexican and U.S. nationals along the U.S.-Mexico border. Yet successful disciplinary, civil or criminal actions against agents are exceedingly rare. The DOJ has closed all but one criminal investigation of a killing without filing charges.

Anastasio’s family members are pursuing a civil case that has yet to go to trial in a California district court.

Law student Voit, a former community organizer in El Salvador, said this case has helped him understand the “dire threats facing undocumented immigrants.”

“U.S. law enforcement at the Southern border has a long history of violence and abuse directed towards undocumented immigrants,” Voit said. “The U.S. government has an obligation to respect, protect, and ensure the human rights of every human within our borders—undocumented or otherwise.”

For Quigley, working on this project added “an emotional, tragic layer of complexity to a personal cultural awakening.” Although from San Diego, she hadn’t heard of the “struggle for justice” by Anastasio’s family. “I am now more aware of the pain, the gravity, and the ‘gray’ of living as an undocumented person in the U.S,” she said.

The issue of impunity by the border agency has to be seen in the context of policing nationwide, according to Guerrero. “If we are serious about holding law enforcement accountable for its actions from Ferguson, Missouri to San Diego, California, we must … hold CBP to the same standards that we seek to hold local police, without exception.”

International condemnation

If the commission pursues this case and finds the U.S. responsible for violating the human rights of Anastasio and his family, its recommendations could include: further investigation and punishment of the agents responsible; reparations for the damages caused; legislative reforms; apologies to the family members and other measures.

Altholz says it’s critical that an outside, international body “without political interests” examine the case. “Given the problems with how U.S. authorities investigated this case, we need an independent panel of experts to review the use of force and the investigation to recommend reforms to CBP,” she said.

“Security should not and cannot mean that it is ‘open season’ on border communities,” Altholz said.

By filing this complaint before the commission, added Barrow, we are “seeking to chip away at the militarization of the border and the violence committed by those who are charged with protecting us.”

For Anastasio’s brother, this latest legal maneuver offers a ray of light in an otherwise dark, difficult time.

“On behalf of my entire family, I am very grateful for the work of the clinic,” Bernardo Hernandez Rojas said. “With their help, we have new hope that one day we will get justice for Anastasio and that we will keep another family from suffering as we have.” 

By Andrew Cohen

March 17, 2016–Tenacity, perseverance, and deft legal maneuvering enabled the International Human Rights Law Clinic (IHRLC) to celebrate a major victory this week. On March 14—after a six-year court battle—a federal judge granted victims of Colombian paramilitary leader Hernan Giraldo Serna the right to participate in the accused’s criminal proceedings.

In 2008, Giraldo Serna was one of 14 Colombian warlords extradited to the United States to face drug trafficking charges. The clinic teamed with the law firm Wilson Sonsini Goodrich & Rosati to represent the victims, who seek justice for egregious human rights crimes Giraldo Serna committed during the course of his drug trade.

“This is a rare acknowledgement by a U.S. court of the human cost of Colombia’s drug war,” said assistant clinical professor of law Roxanna Altholz ’99, IHRLC’s associate director and co-counsel on the case.

The clinic’s clients are the widow and daughter of Julio Henríquez, who directed a Colombian NGO that trained farmers to grow legal crops instead of coca, cocaine’s main ingredient. Giraldo Serna was convicted in Colombia for the 2001 disappearance and murder of Henríquez, who had opposed coca growing in an area under Giraldo Serna’s control. Henríquez’s body was found six years later.

Giraldo Serna admitted that over the course of four decades, he was responsible for torturing, murdering, and forcibly displacing thousands of people. Before serving jail time for those crimes, he was extradited from Colombia to the United States.

In the U.S. federal drug case against Giraldo Serna, Henríquez’s family wanted to be declared as victims of the drug conspiracy, which would allow them to participate in the case under the federal Crime Victims’ Rights Act. Enacted in 2004, the law ensures certain rights to victims—including the right to testify at sentencing, meet with prosecutors, and seek restitution.

New hope for victims’ families

With this week’s ruling by U.S. District Court Judge Reggie Walton, Henríquez’s widow and daughter are cleared to testify at Giraldo Serna’s sentencing hearing on May 14. “The trial court ruling has persuasive value and this decision expands the universe of what is possible,” Altholz said.

Walton initially ruled against the family in August 2015, stating that the circumstances of Henríquez’s death were too removed from Giraldo Serna’s drug conspiracy. Altholz’s legal team appealed, however, and convinced the U.S. Court of Appeals for the D.C. Circuit that Walton was too restrictive in his application of the Crime Victims’ Rights Act. In reviewing the case under a broader standard, Walton ruled in favor of granting the family victim status.

The U.S. Department of Justice (DOJ) opposed the family’s request for victim status—which still baffles Altholz. “There is no question that Giraldo Serna used violence and force to further the drug conspiracy,” she said. “Yet, the department claimed we had not proven that the victim was killed because of the conspiracy. The judge disagreed.”

Clinic students have worked under Altholz’s supervision on this matter since 2010, when they released a revealing report about the extent of human rights transgressions committed by Colombian warlords extradited to the United States. Last semester, students Lydia Sinkus ’17 and Natalie Schultheis ’17 worked on a sentencing submission for the case. It provides a fuller accounting of Giraldo Serna’s extensive criminal history in Colombia than what the DOJ appears to have made available, and describes the harm suffered by the Henríquez family.

“Our clients will be the first Colombian victims heard by any U.S. judge about the human consequences of drug conspiracies,” Altholz said. “They’re eager to find out what impact their participation will have at sentencing, and they’re optimistic about the opportunities this decision creates.”

By Susan Gluss

February 9, 2016–Human rights experts and advocates have struck another blow against subminimum wages. A new report, Working Below the Line, claims the U.S. is violating international human rights standards in its treatment of tipped restaurant workers, most of whom live in abject poverty.

The report is a co-production of Berkeley Law’s International Human Rights Law Clinic (IHRLC), the UC Berkeley Food Labor Research Center and Restaurant Opportunities Centers United (ROC-United).

The criticism of subminimum wages is not new—momentum has been building in the U.S. to stop the “race to the bottom” for tipped workers. But this report, first released in December 2015 on International Human Rights Day, shines a new and troubling light on the issue.

At a packed law school event last week, the report’s co-authors cited numerous U.S. breaches of international agreements designed to protect workers’ access to a living wage, along with basic needs such as food, healthcare and housing. The U.S. is a signatory to most of these accords, but has not ratified all of them, which means they’re not legally binding.

The failure to abide by these international standards, while keeping subminimum wage laws intact, “exposes the gap between our democratic values and what our laws and regulations actually do in practice,” said Clinical Professor Laurel Fletcher, director of IHRLC.

In the restaurant industry, tipped servers earning subminimum wages live in poverty at nearly three times the rate of the total employed U.S. population, according to the report. Women and people of color are at the bottom of the wage tier, while workers of color experience poverty at nearly twice the rate of white restaurant workers.

“Minimum wage laws need to be adequate. It’s not what the market will bear. It’s not how far you can oppress workers who are desperate for a job so that they will accept any amount of wage. It’s actually an affirmative obligation to say that minimum wages need to be sufficient so that people can live a life with dignity,” Fletcher said.

Wage theft

Tipping originated in Europe, and Americans soon mimicked the practice. But the Europeans eventually put a stop to it, seeing it as degrading and economically unfair. Although a powerful anti-tipping movement emerged in the U.S. in the late 1800s, it collapsed as the practice gained legal ground.

Federal law sets the minimum wage at $7.25 per hour. Tipped restaurant workers earn a subminimum wage of a mere $2.13 per hour. If the hourly wage plus tips doesn’t amount to the minimum, the law requires employers to pay the difference.  

But tipped workers say many restaurants often fail to pay them fully and fairly. This “wage theft” occurs when an employer refuses to pay overtime, poaches tips, illegally deducts fees from paychecks, and so on. The result is “a huge and profound wage inequality,” said report contributor Evelyn Rangel-Medina ’16.

In the report, workers tell stories of scarcity, hunger, and desperation: dumpster-diving for food, unpaid sick days, sexual harassment and intimidation, and more.

“I sacrifice eating the way that I should so my daughter can have everything that she needs. … And I make sure she’s taken care of before I make sure that I am taken care of.”
25-year-old, white female bartender in Houston, TX.

“They physically have to see you, in a sick state. … It’s like you literally have to get up out of your sick day to go show your face because they won’t believe you.”
31-year-old, black female server in Troy, MI.

“I didn’t have very much money for food.  You know how places throw away their food … like a pizza when no one picks it up. … I went over there, basically taking [food] from the trash.”
27-year old, white male server in Boston, MA.

Real-world consequences

One of the leading opponents of the subminimum wage is Saru Jayaraman, co-founder and co-director of the Food Labor Research Center and director of ROC-United. In a New York Times op-ed, she writes that tipping has created an unfair “two-tiered wage system with deep social and economic consequences for millions.” A 2013 ROC-United study found that restaurant servers living on tips and subminimum wages depend on food stamps at about twice the rate of the U.S. workforce.

Jayaraman is now pushing a “One Fair Wage” campaign in statehouses across the country, asking lawmakers to require restaurants to pay all employees at least the regular minimum wage. And the drumbeat is growing louder. Twenty-nine states and Washington, D.C. have hiked their minimum wages above the federal minimum, up to $10 per hour. Several cities have gone even further, including Los Angeles and San Francisco, which are gradually phasing in a $15 minimum wage.

For Rangel-Medina, the clinical work in collaboration with ROC-United offered the chance to “connect my legal education to impacting the people that I care about the most,” she said. “Transforming the restaurant industry can create a model in how we approach other sectors in the American economy to actually end the exploitation” of low-wage workers.

Legal remedies

The report recommends a number of steps policymakers can take to align restaurant working conditions with international human rights standards. On the federal level, these include:

• Supporting the Raise the Wage Act and the Pay Workers a Living Wage Act to increase the federal minimum wage and eliminate the subminimum wage for tipped workers;
• Strengthening anti-sexual harassment employment laws and enforcement efforts;
• Supporting the Schedules that Work Act to prevent arbitrary scheduling that can be used to punish workers; and
• Supporting the Healthy Families Act (earned sick days) and the Family and Medical Insurance Leave Act (paid leave).

For state and local policymakers, the authors similarly recommend raising the minimum wage and eliminating the tipped minimum wage, establishing earned sick days and fair scheduling policies, and strengthening protections against sexual harassment and other abuses.

To read the full report with a description of the applicable international human rights conventions, go here.