The Clinic’s Promoting Human Rights in the United States program has three purposes. First, it harmonizes the law, policies, and practices of national, state, and local governments with the United States’ legal obligations under international human rights law. Second, it engages U.S. policymakers at all levels with international human rights standards and principles to develop and implement programs that incorporate universal norms into the domestic context. Finally, it improves policy effectiveness, by exposing U.S. decision-makers to the ways other countries have addressed similar policy challenges. The program currently focuses on improving human rights protections for immigrants in the United States. Our activities in this area are listed in reverse chronological order below:
Killings by U.S. Customs and Border Protection Agents
U.S. Customs and Border Protection (CBP) is currently the largest law enforcement agency in the United States. Since 2010, CBP agents have killed at least fifty migrants and U.S. citizens along the U.S.-Mexico border. The victims include unarmed minors shot in the back, U.S. citizens killed while in moving vehicles, and Mexican nationals who died after they were beaten, shot with Taser guns, or repeatedly pepper sprayed by CBP agents. The Clinic has partnered with Alliance San Diego, a community empowerment organization that builds coalitions to promote justice and social change. Alliance San Diego also helps to lead the Southern Border Communities Coalition, which is comprised of more than sixty advocacy groups. These two organizations seek to document abuse by CPB agents, elevate the most egregious cases of abuse in the media, seek justice for the aggrieved, and pursue administrative and legislative policy solutions to improve the oversight and accountability of CBP agents. The goal of this project is to support Alliance San Diego’s effort to hold CBP and its agents legally accountable for the killing of migrants at the border.
In the fall 2015, the Clinic released a working paper, Elusive Justice: Pursuing Legal Redress in the United States and Mexico for Killings by U.S. Border Agents, which examines legal accountability for killings by U.S. Customs Border Patrol. The working paper concludes that efforts by the victims’ relatives to seek redress through the U.S. legal system have been largely unsuccessful. U.S. prosecutors routinely decline to prosecute these cases and U.S. courts frequently dismiss civil lawsuits brought by victims’ relatives. Indeed, no CBP agent has been held accountable by a criminal or civil court for an unlawful killing. The working paper recommends that advocates and victims consider reframing killings by CBP agents and the lack of legal accountability as human rights violations and submit complaints against the United States before international human rights bodies.
In the spring 2016, the Clinic was retained by the family members of Anastasio Hernández Rojas to initiate human rights litigation against the United States before the Inter-American Commission on Human Rights. On May 28, 2010, a dozen CBP agents beat and Tased Hernández Rojas, a father of five and long-time resident of San Diego. He died as a result of his injuries and his death was ruled a homicide. (A Democracy Now special report on the killing can be viewed here). Despite eyewitness and video evidence of the incident, the Department of Justice closed its criminal investigation of Anastasio’s killing for lack of evidence in November 2015.
In cooperation with co-counsel Alliance San Diego, Clinic students filed a complaint before the Inter-American Commission on March 30, 2016 in Washington, D.C. The complaint alleges that the United States is responsible for torturing and killing Anastasio Hernández Rojas and failing to effectively investigate and prosecute the perpetrators in violation of international human rights law. The lawsuit against the United States was widely reported by media outlets, including Democracy Now, L.A. Times, Salon, Huffington Post, USA Today, the San Diego Union-Tribune, Univision, and Telemundo.
The Inter-American Commission announced on May 10, 2017 that it will move forward with the case, and has given the U.S. government three months (until August 10, 2017) to respond to the complaint. The Commission’s decision to consider its first case against the United States involving an extrajudicial killing by law enforcement killing received extensive coverage by media, including Democracy Now, TeleSur, the San Diego Union Tribune, KPBS Public Media, Law360, and Vice. A failure to respond would break with the United States’ decades-long history of active and robust engagement with the Inter-American human rights system. If the Trump administration ignores the deadline, the Inter-American Commission has the authority to enter a default judgment on behalf of the complainants.
Unsolved Murders in Oakland
Recent events in Ferguson and other U.S. cities have generated a renewed focus on the relationship between the criminal justice system and communities of color. The Black Lives Matter campaign has drawn attention to extrajudicial killings of blacks by police and vigilantes as part of a systematic assault on the dignity of black people. The U.S. criminal justice system also fails to protect the black community or allowing members of the community to be killed with impunity. In Oakland, where nearly 70% of murders go unsolved, black men are almost 80% of the victims.
International human rights law requires States to ensure that violent crime is promptly and thoroughly investigated; that the perpetrators are detained, tried, convicted and punished; and that the family members are provided with adequate reparations that address the harms they have suffered. States must use all legal means to combat impunity, which left unchecked fosters “chronic recidivism” and the “total defenselessness of victims and their relatives.” Under human rights law, impunity is not only the consequence of human rights violations but also the cause of them. In Oakland, it is not only possible, but perpetrators are likely, to get away with murder.
The Clinic is conducting an empirical study of the impact of unsolved murders on the family members of murder victims in Oakland. This study explores the lived experiences of the family members of unsolved murder victims to contribute to a deeper understanding of their: 1) experience of the impacts of the murder; 2) priorities and needs; and 3) attitudes and opinions about law enforcement and victim service providers.
Beginning with the fall 2015 semester, Clinic students have prepared extensive background research on a variety of topics related to the study’s principle research questions and conducted nearly 30 interviews with key informants as part of the first phase of research. In the spring of 2017, students began to conduct interviews with family survivors of homicide under the supervision of faculty. Those interviews, the analysis of the research findings, and the drafting of a final report will take place over the 2017-2018 academic year.
Human Trafficking in California: Improving Investigations, Victim Services, and Prosecutions
Human trafficking is a diverse, global crime in which people exploit others for profit or benefit. Trafficking is recognized internationally as a human rights violation, and since the passage of the Victims of Trafficking and Violence Protection Act of 2000, U.S. law codifies it as a federal crime. California made it a state crime in 2005. According to the California Department of Justice, human trafficking “may involve recruiting, smuggling, transporting, harboring, buying, or selling a person for prostitution, domestic servitude, sweatshop labor, migrant work, agricultural labor, peonage, bondage or involuntary servitude.” The National Human Trafficking Resource Center hotline has identified over 4,000 potential sex and labor trafficking cases in California since 2007.
Over the 2016-2017 academic year, clinic students worked with Berkeley Law’s Human Rights Center (HRC) on a two-part project aimed to help victim service providers, law enforcement, and prosecutors improve their collaboration on cases of human trafficking in California. In fall 2016, clinic Students and the HRC worked with the Los Angeles County Trafficking Bureau, a new entity within the Los Angeles County Sheriff’s Department that uses a collaborative, victim-centered approach to provide wraparound care to victims while ensuring strong investigations and prosecutions. The project team collected and analyzed interview and case data in an effort to assess the Bureau’s strengths and weaknesses in meeting their mission in three key areas: (1) providing sustainable shelter and support services to victims; (2) introducing innovative technologies and procedures in its investigations; and (3) capturing the “elements of the crime” in manner that make the case prosecutable in state and federal courts. The HRC will publish a public report of its findings and recommendations in late 2017.
In spring 2017, clinic Students and the HRC shifted their focus to the San Francisco Bay Area—long known as a hub of human trafficking and recently beset by a high profile case involving human trafficking and minor abuse within a number of local law enforcement agencies including the City of Oakland’s police force. Clinic students worked with the Human Rights Center to conduct a qualitative study of human trafficking in five counties in the Bay Area, conducting legal and fact-based research as well as interviews with prosecutors, investigators, and service providers who specialize in anti-trafficking in the Bay. The research focused on the challenges faced by these actors in their efforts to (1) identify, investigate, and prosecute human traffickers; and (2) provide trafficking survivors with adequate services, protection, and shelter. The Human Rights Center will publish a public report on its findings and recommendations in early 2018.
Missing Migrants Project
Hundreds of thousands of undocumented migrants pass through Mexico each year en route to the United States. During the migration journey, tens of thousands are victimized by organized crime, migration authorities, and security forces. Some migrants eventually succeed in crossing the border, others are detained and deported, and others disappear. Since 2000, the remains of 6,000 migrants who died or were killed in the United States have been recovered along the U.S.-Mexico border. U.S. government morgues and non-governmental organizations have identified some of the remains and notified the families. However, the fate of tens of thousands of migrants remains unknown.
Each year, hundreds of thousands of missing person reports are filed in the United States and the vast majority of missing persons are located. In fall 2015, Mexico City-based Fundación para la Justicia y el Estado Democratico de Derecho (FJEDD) requested that the Clinic help determine whether the family members of missing migrants could file missing persons reports in the United States. In spring 2016, Clinic students drafted a memorandum that examines the legal processes and procedures that exist in the United States to search for missing migrants. Clinic students answered five key questions: Who qualifies as a missing person? Who can file a missing person report? Where can someone file a missing person report? What information should a missing person report include? How does law enforcement investigate a missing person case? At the conclusion of the semester, the Clinic presented research findings to government officials, NGO representatives, and the family members of missing migrants in Mexico City and El Salvador.
In spring 2017, Clinic students used the protocols and procedures that they had identified to attempt to determine the fate of a small test group of the missing migrants identified by FJEDD. Through this process, the students provided FJEDD reports about their efforts and drafted a investigation guide for use by organizations and family members in search of migrants gone missing in the United States.
Colombia Accountability Project
In February 2010, the Clinic issued a report calling on the United States to reform its policies and practices regarding the prosecutions of extradited Colombian warlords to better support Colombia’s efforts to hold these paramilitaries accountable for mass atrocities. Authored by Clinic students, the report, Truth Behind Bars: Colombian Paramilitary Leaders in U.S. Custody, finds that the extraditions of paramilitary leaders have adverse consequences for Colombia’s ongoing human rights and corruption investigations and undermine U.S. counter-narcotics efforts. The report recommends that the United States incentivize the extradited leaders’ cooperation with accountability efforts and improve cooperation with Colombian prosecutors and judges.
The extradited defendants in U.S. custody include the top commanders of Colombia’s most powerful paramilitary group, the United Self-Defense Forces of Colombia (AUC), formed decades ago to fight left-wing guerrillas. The group morphed into a powerful drug-trafficking network that massacred, forcibly disappeared, and tortured thousands of civilians, according to Colombian law enforcement. The United States has extradited 30 AUC members on drug-related charges. After the report was issued, Clinic students traveled to Washington D.C. with Clinic faculty, to brief U.S. officials, academics, international organizations, and non-governmental organizations. In meetings with congressional representatives and staffers, the students discussed practical recommendations to reform U.S. policy towards criminal defendants implicated in war crimes and crimes against humanity.
Since the 2008 extraditions, the Clinic also has been working to secure the opportunity for Colombian victims of paramilitary violence to participate in U.S. drug proceedings against top paramilitary commanders. In partnership with Wilson Sonsini Goodrich & Rosati (WSGR) and Colombian human rights organizations, the Clinic represents the relatives of individuals disappeared and murdered by paramilitary groups in furtherance of their drug. Under the federal Crime Victims’ Rights Act (CVRA), victims have the right to be notified of all public court proceedings, confer with prosecutors, and to be heard regarding a plea or sentence. IHRLC’s clients seek to participate in criminal proceedings in order to tell their stories and obtain information from the defendants about their crimes.
On November 6, 2009, the Clinic and WSGR filed a motion in district court for recognition of our clients as crime victims of drug conspiracy charges against Hernán Giraldo Serna. Paramilitary commander Giraldo Serna was considered one of Colombia’s top cocaine traffickers and has been indicted by Colombian prosecutors for hundreds of murders and raping dozens of women and girls. Giraldo Serna was one of the Colombian warlords extradited in 2008. The Clinic’s clients are the widow and daughter of Julio Henríquez, an activist who was training farmers to grow legal crops instead of coca (cocaine’s main ingredient) in an area under Giraldo Serna’s control. Giraldo Serna ordered his troops to disappear, torture, and execute Henríquez in 2001. Henríquez’s body was found six years later.
On August 7, 2015, the judge denied our clients victim status finding that the Henríquez murder was “too factually attenuated” from the conspiracy for which Giraldo Serna was convicted. Counsel for the victims petitioned the D.C. Circuit for a writ of mandamus arguing that the district court erred in its interpretation of the CVRA and its consideration of evidence and requesting that the court reverse the district court’s order. Both the government and defense counsel opposed the petition.
On October 16, 2015, the D.C. Circuit found that the district court abused its discretion, and ordered the district court to use correct legal standards to consider anew whether the Henríquez family was entitled to full rights under the CVRA. On March 14, 2016—after a six-year court battle—a federal judge granted the Clinic’s clients the right to participate in the criminal proceedings against Giraldo Serna.
The Clinic’s work representing Colombian victims received front page coverage by the New York Times on Sunday, September 11, 2016. The New York Times investigation illuminates what happened to a group of Colombian paramilitary leaders after they were extradited to the United States. It reveals that “[m]ost were handsomely rewarded for pleading guilty and cooperating with the American authorities; they were treated as first-time offenders despite extensive criminal histories in Colombia; and they received credit for time served there, even though the official rationale for their extradition was that they were committing crimes in Colombian jails.” Some received permission to live with their families in the United States.
On March 3, 2017, Henríquez’s widow and two daughters became the first foreign victims to be heard in a U.S. court regarding an international drug conspiracy case (see coverage by NPR, the Guardian, Courthouse News Service, and TeleSur). In three hours of testimony, they provided grim details about Henriquez’s disappearance and the harms they suffered. Before sentencing Giraldo Serna to sixteen years, Judge Walton commended the Henriquez family for their courage and emphasized that impact their testimony had on his decision.
Human Rights of Tipped Workers in the Restaurant Industry
A two-tiered wage system exists in the United States that denies tipped restaurant workers fair wages and basic labor protections. In many U.S. states the law permits tipped restaurant workers to earn a subminimum wage of just $2.13 per hour, a rate that has not increased in decades. This wage structure contributes to conditions for tipped workers in the restaurant industry that violate fundamental human rights protections, particularly women and people of color, who comprise the vast majority of workers in this sector.
The Clinic partnered with the Food Labor Research Center (FLRC) at UC Berkeley and Restaurant Opportunity Centers United (ROC-United) to issue a report on the labor and employment conditions of tipped workers in the U.S. restaurant industry as human rights issue. The FLRC’s director, Saru Jayaraman, is also the Co-Founder and Co-Director of ROC-United. After 9/11 and together with displaced World Trade Center workers, she co-founded the latter group in New York, and since, it has organized restaurant workers to win workplace campaigns, conduct research and policy work, partner with responsible restaurants, and start cooperatively-owned restaurants. ROC now has 10,000 members in 19 cities nationwide.
Over two semesters, clinic students analyzed interviews with tipped restaurant workers, conducted international and domestic legal analyses, and worked to complete the report, entitled Working Below the Line: How the Subminimum Wage for Tipped Restaurant Workers Violates International Human Rights Standards. Launched on Human Rights Day 2015 (December 10th) with project partners in Washington, D.C. (see new story here), the report details how the subminimum wage for restaurant workers violates numerous fundamental human rights. The publication’s west coast launch was held in February at Berkeley Law. Read more here. The report provides an international framework for domestic labor advocates to advance the rights of vulnerable restaurant workers.
Immigration Policy and Human Rights
DREAMers at Cal. In 2012, UC Berkeley established the Undocumented Student Program, the first of its kind in the nation, to provide comprehensive support services to the over 300 undocumented students on the Cal campus.
That same year, the clinic took the lead in coordinating the legal support component of the program with clinic students providing information about immigration law through informational workshops, resource materials, weekly office hours where individual case consultations and assistance are provided, and placement of individual cases with pro bono attorneys for representation. Through the program, many students successfully applied for Deferred Action for Childhood Arrival (DACA) – an administrative program which allows certain undocumented young people to apply for a two-year, renewable stay on deportation and affords eligible applicants a work permit. Others have been able to secure status through a family member, a U Visa, or other legal avenue. The Legal Services Program has assisted hundreds of Cal students and created a model for the provision of immigration legal services to undocumented students on college campuses. The Legal Support Program is now coordinated by the East Bay Community Law Center. For more information, please contact firstname.lastname@example.org.
In order to create a record of this historic moment on the Cal campus and to capture the stories of the students who are eligible for the program and those who fall outside its rigid requirements, the clinic led a documentation project. Over the course of three semesters in 2013 and 2014, clinic students conducted individual interviews to document the personal and family history of undocumented Cal students, the challenges and limitations they face as a result of their legal status, and the impact of falling within or outside of the current policy has had on their lives. This research and the data collected through interviews were compiled and analyzed in the report, DREAMers at Cal: The Impact of Immigration Status on Undocumented Students at the University of California at Berkeley, which portrays the reality of the students’ lives and provides empirical support for policy changes that would provide permanent status for these students as well as a comprehensive legal solution for a broader class of undocumented immigrants. A news story and blog post with Cal’s former chancellor, Robert Birgeneau, highlight the importance and impact of this work.
Immigration Detention. Immigrants are currently being detained and deported at the highest annual rate in U.S. history, with over 2 million deportations since 2008. Increased internal enforcement efforts blur the lines between local police and Immigration and Customs Enforcement (ICE). ICE currently holds approximately 33,000 immigrant detainees nationwide on any given day and deports nearly 400,000 immigrants each year.
In response to these human rights concerns, from 2011-13, the clinic worked with a coalition of Bay Area legal service providers to offer legal orientation to detainees at the main detention center for ICE operations in Northern California. The facility houses approximately 100-200 immigrant detainees at any given time. Clinic students researched applicable domestic and international legal standards and developed a Legal Orientation Program which they presented inside the facility on a periodic basis to educate detainees about their rights and potential forms of relief from deportation, and to screen cases for possible representation by pro bono partners. The clinic also provided support to advocacy efforts to improve conditions and legal protections for immigrant detainees.
Trust Act Reform. California has been a leader in pushing back against the wave of immigration enforcement, particularly the Secure Communities Program. The TRUST Act, which went in to effect in 2014, sets a minimum standard across California by narrowing the categories of immigrants that can be held by local law enforcement agencies at ICE’s request. These voluntary holds previously left all non-citizens lingering in detention for extra time, regardless of whether they were charged with a crime, and before being transferred to ICE custody. The TRUST Act ensures that people with most low-level, non-violent offenses are not held for deportation purposes. The TRUST Act aims to reduce the overall rate of detention and deportation in California, which has witnessed the deportation of over 110,000 residents under Secure Communities.
Despite this legislative victory, implementation of the TRUST Act has been uneven throughout the 58 counties of California and many immigrants, arrested for nothing more than a minor traffic violation, are still being turned over to ICE. A taskforce—coordinated by Asian Law Caucus: Asian Americans Advancing Justice, California Immigrant Policy Center, and National Day Laborer Organizing Network – has been established to monitor implementation, push for consistent implementation in all counties, gather information about violations of the law, and intervene in individual cases where non-citizens are held contrary to the terms of the law.
In 2014, the clinic initiated a project in collaboration with the Taskforce to complete a county-by-county assessment of the implementation of the law to promote thorough and consistent implementation around the state. The clinic’s research included filing public records requests with each county in the state and conducting interviews with advocates from various regions to assess the practical impact of the new law and gaps in implementation. In November 2014, the Obama administration announced a new policy on immigration enforcement, Priority Enforcement Program, and the clinic’s research drew on California’s experience to identify problematic aspects of this new regime. For more information about current county policies and access to additional resources on this issue, please visit the taskforce’s website.
Human Rights in California’s Central Valley
One of the richest agricultural regions in the world, California’s Central Valley stretches 450 miles through the heart of the state and is home to one sixth of the state’s population. While California is the eighth largest economy in the world, the Central Valley struggles with unemployment and poverty rates that are far above, and in some counties more than double, the state average. The region is also plagued with levels of air and water quality which violate various federal and state health standards. Many of these communities lack basic infrastructure, clean water, and access to social services. Residents frequently are excluded from political decisions that profoundly impact their day-to-day lives. The conflation of environmental and socio-economic factors results in serious health disparities for low-income communities of color. The clinic has extended and supported residents’ advocacy efforts with the aim of achieving concrete improvements in living conditions and health, and developing a replicable model for using human rights to stimulate change at the local and state levels.
The Human Right to Water. Water access and quality is a central issue to the well-being of marginalized communities in California. Twenty-one million residents of California lack access to safe drinking water. The U.N. Special Rapporteur on the human right to safe drinking water and sanitation visited California during an official mission to the U.S. in 2011 and reported to the Human Rights Council on numerous barriers to clean water and sanitation facing diverse populations, including small, rural communities, homeless persons, and indigenous groups. In 2012, the clinic began a collaboration with the Safe Water Alliance, a coalition of faith-based, environmental justice, tribal, consumer, and public health advocates that represent communities across California, to lend support to efforts to ensure universal access to clean water from a human rights perspective.
On September 12, 2012, Governor Brown signed in to law AB 685, making California the first state in the nation to legislatively recognize the human right to water. AB 685 aims to ensure universal access to safe water by declaring that “every human being has the right to safe, clean, affordable, and accessible water.” In May 2013, the clinic released a report The Human Right to Water Bill in California: An Implementation Framework for State Agencies. The report draws on domestic and international law to map when state agencies should consider the human right to water, what factors they should consider, and how they should advance the human right to water. The Special Rapporteur’s Legal Adviser, Dr. Inga Winkler, was in residence with the clinic during 2012 and provided important insight and expertise in to the research and drafting of the report. For more information about this work, please visit our news page.
With its partners, the clinic undertook a number of complementary advocacy initiatives to raise violations of the human right to water taking place in the United States before international human rights bodies. Clinic students drafted a shadow report to the U.N. Human Rights Council—a report issued by non-governmental actors that aims to provide additional and alternative information to that provided by the government—as part of the Universal Periodic Review (UPR) of the United States’ human rights record. Additionally, in the lead up to the UPR held on May 11, 2015, the Clinic coordinated the only consultation session on U.S. environmental issues which was held at Berkeley Law in October 2014, with the participation of Department of State and Environmental Protection Agency officials as well as civil society advocates, academics, and other environmental experts. Topics discussed included: climate change, water issues, and environmental/public health protections for members of vulnerable communities. A complete agenda with detailed information about the panels and speakers is available here. You can find a document summarizing the day’s discussion, here, a link to the video of the event here, and a news story featuring the event here.
As follow up advocacy to the UPR process, clinic students and faculty traveled to Geneva in March 2015 to present on the right to water at an event focused on human rights issues in the United States and thereby ensuring that the issue of access to safe and affordable water for communities of color was raised as part of the U.S. review (see press release here). Recommendation 311 of the Human Rights Council’s Draft Report of the Working Group on the Universal Periodic Review specifically calls on the U.S. to advance the human right to water with special attention to disadvantaged communities by “ensuring this human right without discrimination for the poorest sectors of the population, including indigenous peoples and migrants.”
In conjunction with their work on the human right to water, clinic students conducted background research and drafted a shadow report together with their partners from the Safe Water Alliance which was presented to the U.N. Committee on the Elimination of Racial Discrimination (CERD). CERD monitors compliance with the international treaty on racial discrimination and reviewed the United States’ record on racial equality in 2014. The report identifies how communities of color in California are disproportionately impacted by a lack of access to safe and affordable water, with serious implications for health and well-being, and outlines recommendations to prevent and remedy such abuses.
In 2015, clinic students successfully requested a hearing before the Inter-American Commission on Human Rights to highlight the situation of low-income communities and racial minorities across the United States who lack access to safe and affordable water. Clinic partners and other advocates from a range of communities provided testimony to the Commission at a hearing held in Washington D.C. in October 2015.
The human rights of migrants in the Central Valley. In May 2007, clinic students helped Central Valley activists present evidence on shoddy subcontracting operations, inhumane working and living conditions, and language-based exclusion of migrant workers to United Nations Special Rapporteur on the Human Rights of Migrants during his visit to Los Angeles.
In November 2007, clinic students joined nearly 100 Central Valley activists at a day-long workshop in Fresno on the problems facing unincorporated communities and strategies for addressing them. The students distributed Human Rights at Home: The rights to housing, water and political participation in San Joaquin Valley unincorporated communities. The paper discusses the advantages of using international human rights institutions, standards, and advocacy techniques to improve conditions in unincorporated communities. Activists responded with great enthusiasm, reporting that IHRLC’s analysis “opened up important new avenues for their advocacy.”
Human Rights and U.S. Immigration Reform
In March 2010, the clinic released a policy brief, “In the Child’s Best Interest? The Consequences of Losing a Lawful Immigrant Parent to Deportation,” that estimates that the U.S. deported the lawful permanent resident parents of more than 100,000 children between 1997 and 2007. The vast majority, at least 88,000, of those children are U.S. citizens. The report analyzes the impact of parental deportation from a human rights perspective. It found that adverse consequences of parental deportation include psychological harm, behavioral changes, and disruptions in education for tens of thousands of citizen children left behind.
The policy brief, which suggests immigration law reforms, was a joint project of the clinic and the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity at the University of California, Berkeley, School of Law; and the Immigration Law Clinic, University of California, Davis, School of Law. Read more about this on the Resources and Publications page by clicking here.
Human Rights Study on Latino Workers
Clinic students worked with Tulane University’s Payson Center and UC Berkeley’s Human Rights Center to conduct an empirical study of the nature and extent of exploitation faced by workers in the Gulf Coast area in the aftermath of Hurricane Katrina. The report, “Rebuilding after Katrina: A Population-Based Study of Labor and Human Rights in New Orleans” confirmed anecdotal evidence that undocumented workers are being abused even as they provide critical help to rebuild New Orleans after Hurricane Katrina. The study documented the vulnerability of undocumented workers, including severely reduced access to health care, wage discrepancy and unsafe working conditions. Students assisted in the study design and administration. Clinic students traveled to New Orleans and interviewed hundreds of workers for the study. The report received national attention and strengthens the work of domestic groups and policymakers at the local, state, and national levels to incorporate a human rights perspective to address immigrant worker exploitation.
This project was supported by the Koret Foundation. The clinic also submitted a briefing paper at a hearing before the Inter-American Commission on Human Rights in Washington, D.C. which analyzes the human rights impact of the hurricanes. Students advocated for domestic initiatives to address human rights vulnerabilities and participated in a congressional briefing on natural disasters and human rights. Students met with selected congressional staff members to educate lawmakers about the human rights dimensions of the disaster. Clinic students also wrote a shadow report analyzing U.S. compliance with its treaty obligations toward hurricane survivors for the United Nations Human Rights Committee which was submitted in June 2006.
Clinic students initiated litigation before the Inter-American Commission for Human Rights against the United States for its exclusion of certain categories of immigrant survivors of Hurricane Katrina from federal disaster assistance. The clinic requested injunctive measures and asked the Commission to order the United States to take immediate steps to protect the right to life of these immigrants. In response to the clinic’s request, in June 2006, the Inter-American Commission requested information from the United States on three key issues: (i) the availability of emergency information and alerts in languages other than English, (ii) immigrants access to health care in the disaster zone and (iii) the due process guarantees provided to immigrants detained by authorities including information regarding consular assistance.
Forced Labor and Slavery Project
Clinic students worked with UC Berkeley’s Human Rights Center to complete the first report on forced labor in the United States.
On September 23, 2004 the Human Rights Center released the report, Hidden Slaves: Forced Labor in the United States. The study measures forced labor in this country as well as illuminates its human costs; the nature of the U.S. legal response; and the barriers to, and best practices supporting, eradication of forced labor. The report, featured on ABC’s “Nightline,” provides disturbing details of how individuals across the United States are forced through threats or violence to work in deplorable conditions for little or no pay.
The study documents incidences of forced labor in at least 90 cities across the United States. The data also suggests that at any given time 100,000 or more people are forced to toil in sweat shops, clean homes, labor on farms, or work as prostitutes or strippers. The report covers the period of 1998 to 2003 and is based on quantitative and qualitative data, including a survey of 49 service providers experienced in forced labor cases; an analysis of 131 cases of forced labor reported in U.S. newspapers; eight case studies of forced labor in various regions of the United States; and key informant interviews.
To eradicate forced labor, the study recommends launching a broad-based public awareness campaign; improving monitoring of industries vulnerable to forced labor; increasing training and coordination among law enforcement officials in the United States; and strengthening protections for survivors of forced labor.
This project was supported by the Sandler Family Supporting Foundation.
Anti-Trafficking Law in California
On September 21st, 2005 Governor Schwarzenegger signed into law two bills designed to combat human trafficking and modern-day slavery. The clinic served as legislative counsel to the California Anti-trafficking Initiative, a statewide coalition of service providers that proposed the legislation. The California Trafficking Victims’ Protection Act, AB22, and the related bill SB180, criminalize trafficking as a felony, establish a privilege clause between victim and counselor to facilitate trust-building, provide civil remedies that allow victims of trafficking to receive compensation for damages suffered, and create a statewide task force to review and make recommendations about ways to improve the statewide response to human trafficking. To date the bills are the most comprehensive state legislation enacted in the United States to combat modern-day slavery. The legislation builds on two research studies on forced labor published in 2004, “Hidden Slaves: Forced Labor in the United States,” and 2005, “Freedom Denied: Forced Labor in California,” by UC Berkeley’s Human Rights Center, in which clinic students participated.
U.S.-Mexico Anti-Trafficking Working Group
In April 2004, the Clinic and UC Berkeley’s Human Rights Center convened a conference of international anti-trafficking experts to strengthen protections for Mexican victims of human trafficking. Clinic research on forced labor in the United States indicates that hundreds and possibly thousands of Mexican men, women, and children are trafficked into this country each year and forced to work in brothels, agriculture, and sweatshops as modern day slaves. Yet even when victims manage to escape or are rescued, their ordeal is not over. Family members of survivors who prosecute their perpetrators have been intimidated or attacked in home countries. Fear of reprisal against family members in the survivors’ home country once perpetrators are released from prison in the United States is an on-going concern to survivors and delays their rehabilitation. Similarly, fear that law enforcement will be unable to protect them or their families discourages many victims from assisting in prosecution of their traffickers.
Clinic interns presented their research, Transnational Frameworks for Prosecuting Traffickers and Protecting Survivors. The paper sets forth the legal framework for transnational prosecutions of Mexican traffickers, protection measures available to survivors in Mexico and the United States, as well as international models for protecting victim of this illicit trade. Conference participants included officials from the Mexican and U.S. governments, service providers and human rights advocates in both countries, and trafficking survivors. The final conference report (in English and Spanish) includes policy recommendations to improve protection and support for Mexican nationals trafficked to the United States.
Human Rights Protections for Domestic Workers
In November 2003, clinic students, in collaboration with UC Berkeley’s Human Rights Center produced a policy paper, Left Out: Assessing the Rights of Migrant Domestic Workers in the United States, Seeking Alternatives. This paper includes a comprehensive normative analysis of federal law regarding immigration and trafficking, as well as of federal, California, and local law on labor and employment, in order to identify gaps in protections for domestic workers. It also surveys strategies utilized by cities, countries, and international organizations to address the struggles of domestic workers. The clinic’s analysis supports efforts by human rights and labor advocates to initiate legal reforms to protect this vulnerable population of workers.
Due Process Rights and Detention of Asylum Seekers in Expedited Removal Proceedings
The clinic participated in an award-winning multidisciplinary project to examine the effects of expedited removal on people seeking asylum in the United States. This project arose out of a Congressionally-mandated study conducted by the clinic and other partners for the U.S. Commission on International Religious Freedom, an independent, bipartisan, federal agency. Students who worked on the expedited removal project had unprecedented access to Department of Homeland Security and Department of Justice activities and records, including inspections at ports of entry and detention decisions and conditions. The study was recognized with the 2005 Arthur Helton Human Rights Award by the American Immigration Lawyers Association. Download Volume I (Findings and Recommendations), Volume II (Expert Reports), and biographies of the experts who contributed to the study.
Asylum & Religious Persecution
Individuals fleeing religious persecution face particular legal hurdles to establishing protection. This has been an underdeveloped area of asylum law, and only recently have international standards to adjudicate claims of individuals fleeing religious persecution been promulgated.
To promote uniform application of the International Refugee Convention, clinic students in fall 2003 prepared a comprehensive analysis and review of asylum jurisprudence regarding religion-based claims in the United States. This evaluation informed efforts by the U.S. Commission on International Religious Freedom to develop training materials for U.S. asylum adjudicators.
Refugees who escape persecution may find safe haven in the United States through a program known as refugee resettlement. The United States admits refugees according to a complex set of criteria determined by the United States and the United Nations High Commissioner for Refugees. Yet this vital tool of refugee protection has not been fully utilized. In recent years, the United States has admitted very few refugees under this program because of security and other concerns.
In fall 2003, clinic students worked to influence U.S. refugee policy by conducting a study of the treatment of refugees currently hosted in countries of first asylum, where there are reports of religious persecution. Based on their report, students developed an advocacy strategy to urge the United States to assert leadership and resettle refugees who are at risk or suffering persecution in countries of first asylum.
Supporting Gay and Lesbian Asylum-Seekers from Mexico
While representing two gay asylum seekers from Mexico in spring 1998, the clinic became aware of a report commissioned by the INS regarding the treatment of homosexuals in Mexico, which was released in April 1998. In response, clinic students drafted an analysis of the INS report. The purpose of the clinic’s analysis is to provide additional sources of evidence that complement, supplement or contradict information contained in the INS report regarding the treatment of sexual minorities in Mexico, which helps support asylum claims of gays and lesbians from Mexico.
Death Penalty and Human Rights
In conjunction with the law school’s Death Penalty Clinic, students in the International Human Rights Law Clinic prepared model briefs based on international law to be used in the defense of two death row inmates represented by the Death Penalty Clinic. Recent Supreme Court decisions in capital cases recognize international norms as increasingly relevant. The students crafted novel arguments alleging that common practices in the U.S. capital punishment system (e.g. capital charging techniques, the felony murder rule, and the system of elected judges) violate international human rights standards. The students’ work contributes to the defense of the Death Penalty Clinic’s clients and also assists defense attorneys around the country seeking to provide a more effective defense of their clients’ human rights.