Steve Elzie: How to Defend Refugees and Fight the Trump Travel Ban Using International Law in American Courts

The Trump travel ban executive orders, issued in January and March 2017, each called for a 120-day suspension of the U.S. Refugee Admissions Program (“USRAP”) in order to allow for a review of the security measures necessary by executive agencies.[1] Both orders were stayed nationwide on constitutional grounds – the first for likelihood of violations of the Due Process and Establishment Clauses with respect to lawful permanent residents and non-immigrant visa holders,[2] and the second on a likelihood that the travel ban was promulgated with discriminatory intent based on religion, again in violation of the Establishment Clause.[3] Outside of these domestic law challenges, a strong argument exists that the travel bans – and any prospective future actions by the Trump Administration with respect to refugees – can be challenged in U.S. courts as an overreach of executive power based on international obligations that Congress undertook with respect to the 1967 U.N. Convention and Protocol relating to the Status of Refugees.

As stated in the U.N. Handbook on the Convention and Protocol, these instruments contains three main provisions: (1) defining who is and is not a refugee; (2) the legal status, rights, and duties of refugees; and (3) the administrative and diplomatic implementation of the Convention, including the duty of states to cooperate with the U.N. High Commissioner for Refugees (“UNHCR”), as well as the role and duties of the UNHCR with regard to administration.[4] The U.S. acceded to the Convention in 1968 and, at the time, there was a clear understanding that accession would not, in itself, effect change to U.S. refugee policy or domestic law.[5]

Twelve years later, however, the U.S. executed the Convention by w
ay of the Refugee Act of 1980.[6] Congressional hearings made clear that the U.S. was already heavily engaged with the administrative and diplomatic functions of the UNHCR, funding and cooperating with that organ to a significant degree.[7] The hearings also highlighted the congressional concern that the U.S. lacked clear procedures for the admission of refugees, which was at the time governed largely by ad hoc parole admissions procedures.[8] In discussing the need for the passage of the 1980 Refugee Act, the Senate subcommittee chair questioned whether it “was a wise decision” not to have implemented legislation at the time of accession to the Convention.[9] The final joint congressional report on the bill made clear the legislature’s intent to harmonize American refugee law and policy with that of the Convention and Protocol.[10] Moreover, the Supreme Court has acknowledged congressional execution of the Convention and Protocol in holding that “[i]f one thing is clear from the legislative history of . . . the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Re
lating to the Status of Refugees.”[11]

Under the tripartite Youngstown framework of executive power, presidential power to create policy is at its “lowest ebb” where Congress has explicitly acted in the field in a way that is inconsistent with the executive exercise of power.[12] The Supreme Court affirmed in Medellin v. Texas that the Youngstown framework is the proper measure for review of executive actions related to international obligations.[13] While Medellin has been decried by many scholars as closing the door on the domestic enforcement of international law,[14] a close reading reveals instead that Medellin carries no such impact, and should rather be viewed as a limitation on FullSizeRenderexecutive power, not on the effectiveness of international obligations.

Medellin concerned an effort by an inmate on death row to challenge his conviction under the decision of the International Court of Justice (“ICJ”) in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America).[15] In Avena, Mexico sought to annul the conviction of fifty-one Mexican nationals in the United States on the grounds that Mexico had not been properly notified of the arrests and given the opportunity to provide those nationals with consular assistance, pursuant to the Vienna Convention on Consular Relations (“VCCR”).[16] While Mexico claimed that purported VCCR violations deprived its nationals of certain fundamental human rights, the ICJ rejected this claim on its face:[17] the VCCR, as well as its companion instrument, the Vienna Convention on Diplomatic Relations, are addressed to administrative and diplomatic rights between states.[18] Substantive individual human rights, on the other hand, are set forth in other international instruments, including the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights.[19] The ICJ properly rejected Mexico’s sweeping contentions regarding the scope of the VCCR, and instead returned the cases to the U.S. to review the convictions and make a determination, by procedures left to American discretion, of whether the Mexican nationals had suffered actual prejudice from a lack of consular notification.[20] Avena also noted that the U.S. had, at the time of the issuance of that decision, already undertaken significant efforts to improve procedures for consular notification, including by incorporating VCCR warnings alongside Miranda readings, and by training local law enforcement on procedures of consular notification.

Following Avena, Jose Ernesto Medellin, who had previously exhausted his post-conviction remedies, brought a new habeas petition in federal court.[21] Significantly, at every level from the district court to the Supreme Court, Mr. Medellin failed to show actual prejudice resulting from the lack of consular notification and assistance.[22] At the time of his arrest, Mr. Medellin was properly informed of his Miranda rights, and confessed to the crime for which he would be convicted within three hours of being placed in custody – while Avena held that consular notification was adequate if made within three business days.[23] On these facts alone, it would appear that the holding of Medellin was entirely consistent with the broadly deferential holding and purpose set forth in Avena.

Medellin did, however, contain a holding that is of far greater precedential value—one concerning the limitations of executive power with respect to international obligations. Following the issuance of the ICJ’s decision in Avena, the Bush Administration issued a memorandum stating that the U.S. would discharge its obligations under Avena in accordance with “general principles of comity.”[24] Despite the fact that “comity” is a term-of-art in international law referring to courteous or ceremonial practices,[25] the Bush Administration nonetheless argued that its threadbare memorandum had the effect of requiring the Texas state court to set aside its procedural default rules with regards to Mr. Medellin’s conviction.[26] The Court rejected this argument, holding that the president lacks the power to transform international obligations with regard to the execution of treaties.[27] Relying on Youngstown, the Medellin Court held that the president had overstepped the boundaries of his power, given that the presidential memorandum essentially had attempted to unilaterally execute an international obligation where Congress – which holds the exclusive power to execute and implement such obligations – had taken no action.[28]

Thus, properly understood, Medellin is entirely consistent with the body of international law from which it flows. Rather than acting as a bar to the enforcement of international law in U.S. courts, that case must be read as a limitation on executive power with respect to international obligations.  Given that the 1980 Refugee Act carries a clear congressional intent to accede to the Refugee Convention, the president may not, under a Youngstown Medellin framework, restrict American obligations towards refugees absent further congressional action. As litigation on the travel ban proceeds forward, the additional collateral attack based on international law may yet prove vital, as at least one court refused to stay the travel ban on the grounds that constitutional rights cannot apply extraterritorially to refugees outside the United States.[29] Beyond the travel ban itself, the obligations undertaken by the U.S. to support and cooperate with the UNHCR are of tremendous significance at a time when that agency has reported over five million Syrian refugees currently residing in Egypt, Iraq, Jordan, Lebanon, Turkey, and elsewhere,[30] a crisis punctuated by refugees camps along the Syrian border that are defined by isolation from aid workers and the outside world.[31] The need for international cooperation to address global security and humanitarian crises is quickly approaching a critical moment. Now more than ever, it is critical for the U.S. to re-engage with the international community and respect its international obligations—with the 1980 Refugee Act representing fertile grounds for entrepreneurial lawyers to reinvigorate American international legal obligations.

 

Steve Elzie is a lecturer in law at the University of Southern California Gould School of Law, where he co-teaches USC’s Jessup International Law Moot Court program with Duncan Crabtree-Ireland. Mr. Elzie’s research interests include security, human rights, and the development of international law. He can be reached via email at selzie@law.usc.edu. The author would like to thank James Byrd and Larry McGrath for their invaluable contributions to and support for this piece.

 

[1] Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 28, 2017), at § 5(a); Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (March 6, 2017), at § 6.

[2] Washington v. Trump, 847 F.3d 1151, 1157 (9th Cir. 2017).

[3] Hawai’i v. Trump, __ F. Supp. 3d __, 2017 WL 1167383 (D. Haw. 2017).

[4] Handbook on Procedures and Criteria for Determining Refugees Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1, Reedited, Geneva, Jan. 1992, UNHCR 1979, ¶ 12, http://www.unhcr.org/4d93528a9.pdf.

[5] See Lyndon B. Johnson: “Special Message to the Senate Transmitting the Protocol Relating to the Status of Refugees,” Aug. 1, 1968, http://www.presidency.ucsb.edu/ws/index.php?pid=29058 (last visited Mar. 10, 2017); see also Rebecca Hamlin & Philip E. Wolgin, Symbolic Politics and Policy Feedback: The United Nations Protocol Relating to the Status of Refugees and American Refugee Policy in the Cold War, 46 Int’l Migration Rev. no. 3, 586, 597-98.

[6] The Refugee Act of 1980, Pub. L. No. 96-212 (1980).

[7] Admission of Refugees into the United States: Hearing on H.R. 3056 Before the Subcomm. on Immigration, Citizenship, and Int’l Law of the H. Comm. on the Judiciary, 95th Cong. 18-19, 45 (1977) (statement of James Carlin) [hereinafter Admission on Refugees].

[8] Admission on Refugees, supra note 7, at 1, 15.

[9] Admission on Refugees, supra note 7, at 77.

[10] S. Rep. No. 96-590, at 19 (1980).

[11] INS v. Cardoza-Fonseca, 480 U.S. 421, 436 (1987).

[12] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring).

[13] Medellin v. Texas, 552 U.S. 491, 524 (2008).

[14] Oona A. Hathaway et al., International Law at Home: Enforcing Treaties in U.S. Courts, Faculty Scholarship Series, Paper 3851, at 70.

[15] Medellin, 552 U.S. at 502.

[16] Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 I.C.J. 12, 2004, ¶ 1.

[17] Id. at 124.

[18] James Crawford, Brownlie’s Principles of Public International Law 395, 411 (8th ed. 2012).

[19] Id. at 638.

[20] Mex. v. U.S., 2004 I.C.J. at 121.

[21] Medellin, 552 U.S. at 502.

[22] Id. at 502 n.1.

[23] Id.

[24] Memorandum for the Attorney General from the President of the United States of America on Compliance With the Decision of the International Court of Justice in Avena, (Feb. 28, 2005), http://www.refworld.org/docid/429c2fd94.html.

[25] Crawford, supra note 18, at 23.

[26] Medellin, 552 U.S. at 523.

[27] Id. at 525-26.

[28] Id. at 532.

[29] Louhghalam v. Trump, __ F. Supp. 3d __, 2017 WL 479779, *3 (D. Mass. 2017).

[30] See Syria Regional Refugee Response, Inter-agency Information Sharing Portal, http://data.unhcr.org/syrianrefugees/regional.php.

[31] Jane Arrat, Along Syria-Jordan Border, Refugees Struggle at a Camp Aid Workers Can’t Visit, National Public Radio (Mar. 20, 2017), http://www.npr.org/sections/parallels/2017/ 03/20/520857305/along-syria-jordan-border-refugees-struggle-at-a-camp-aid-workers-cant-visit.

Written by

James is a 2L at Harvard Law School. He is originally from California, and completed his B.S. at San Diego State University and M.A. at Arizona State University. Prior to law school, he worked for a small civil rights firm and a public defender's office. Most recently, he worked as a law clerk for the American Civil Liberties Union of Southern California. His research interests include police misconduct, criminal procedure, and economic justice.

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