Harvard Immigration and Refugee Clinical Program staff members frequently publish, and are cited in, scholarly journals or other publications. Recent publications are highlighted on this page.
Law of Asylum in the United States
(Deborah E. Anker, Thomson Reuters, 2016)
This comprehensive treatise, updated annually, covers asylum law in the U.S. and includes detailed discussion of all the elements of the refugee definition: the meaning of well-founded fear, persecution, and the five grounds (race, religion, nationality, social group membership, and political opinion). It also discusses withholding of removal protection and protection under the Convention Against Torture. The book describes, interprets, and provides extensive authority, synthesizing different strands and sources of U.S. domestic law, with references to international sources. It covers basic procedures for applying for asylum and related relief, and it reviews other forms of protection available to asylum seekers.
“Expert as Aid and Impediment: Navigating Barriers to Effective Asylum Representation
(Sabrineh Ardalan, Adjudicating Refugee and Asylum Status, 2015)
This chapter illuminates the development of the United States’ gender asylum law as a story of progressive legal change.
Amicus Curiae brief, Commonwealth of Massachusetts v. Sreynuon Lunn (3/20/17)
This brief argues that Massachusetts does not have authority to arrest and detain an individual solely pursuant an ICE detainer. (Massachusetts Supreme Judicial Court)
Request for emergency hearing, Inter-American Commission on Human Rights (2/28/17)
This request, signed by dozens of U.S. and Canadian academics and advocates, raises concerns about the Safe Third Country Agreement, and makes the case that the U.S. is no longer a “safe” place for aslyum seekers.
“Sanctuary Campus Toolkit”
“Principles of Federalism and Convictions for Immigration Purposes”
(Philip L. Torrey, Immigr. & Nat’l L. Rev. , 2016)
The Immigration and Nationality Act’s definition of conviction sweeps too broadly and frustrates core principles of federalism. Immigration law’s statutory definition of conviction was deliberately constructed to encompass state criminal dispositions in which a final adjudication of guilt has been withheld. Such dispositions are not considered convictions for state law purposes in the forum state. The federal statutory conviction definition thus aggravates principles of federalism when it attaches immigration consequences to state deferral programs. In this Article, I argue that while Congress possesses broad plenary authority to enact immigration laws, recent U.S. Supreme Court precedent—most notably the Court’s 2013 decision in United States v. Windsor—signals a rare moment when the judiciary may be receptive to a constitutional challenge to the federal conviction definition.
“Constructive or Counterproductive? Benefits and Challenges of Integrating Mental Health Professionals into Asylum Representation”
(Sabrineh Ardalan, Georgetown Immigration Law Journal, Vol. 30, No. 1, Fall 2016)
Within the field of refugee law, collaboration between lawyers and mental health professionals is increasingly prevalent, particularly in the context of law school clinics and legal services organizations. This trend has the power to transform the experiences of asylum seekers and the professionals who represent them, both improving case outcomes and enhancing the advocacy skills of lawyers and law students. Yet, until recently, little attention has been paid to tensions that may arise given the differing mandates and ethical obligations of each set of professionals. The Article first identifies the impetus for, and the benefits of, increased interdisciplinary collaboration in asylum representation. It then highlights obstacles to collaboration, including conflicts between the ethical codes of conduct of lawyers and mental health clinicians. The Article concludes with an analysis of different models of interdisciplinary collaboration, highlighting recent legal and policy developments that support an integrated team approach to asylum representation.
“Access to Justice for Asylum Seekers: Developing an Effective Model of Holistic Asylum Representation”
(Sabrineh Ardalan, University of Michigan Journal of Law Reform, Vol. 48, 2015)
“Rethinking Immigration’s Mandatory Detention Regime: Politics, Profit and the Meaning of “Custody”
(Philip L. Torrey, 48 Mich. J. L. Ref. 879, 2015)
This article discusses the legislative history of mandatory immigration detention and offers two different interpretations of the mandatory statute that would allow for greater use of detention alternatives. The article provides historical context to the emergence of mandatory detention and discusses the for-profit prison industry’s political influence in shaping today’s immigration detention regime. Lastly, the article discusses interpretations of the term “custody” in the mandatory detention statute that would allow immigration officials to meet the statute’s requirements without resorting to detention.
“Legal change from the bottom up: The development of gender asylum jurisprudence in the United States“
(Deborah E. Anker, Gender in Refugee Law, Routledge 2014)
Legal change is often thought of as change from the top down – change brought about by new legislation, regulations, precedent administrative, and federal court decisions, or changes resulting from major impact litigation. Gender asylum in the United States, however, tells an unusual story of legal change from the bottom up, grounded, at least in significant part, in direct representation of women refugees.
“Refugee Law, Gender and Human Rights Paradigm“
(15 Harvard Human Rights Journal 133, 2002)
In many respects, refugee law crosses the threshold of justiciability and enforceability past which human rights law has found it difficult to proceed. Refugee law provides an enforceable remedy-available under specified circumstances-for an individual facing human rights abuses. Determinations of refugee status entail contextualized, practical applications of human rights norms. Increasingly, refugee law is confronting issues on the forefront of the human rights agenda, especially questions of gender and women’s rights. The discussion below provides three examples: rape and sexual violence, female genital surgery (FGS), 26 and family violence. In many cases, states have applied a human rights paradigm in evaluating these instances of violence against women as serious harm within the scope of persecution. In so doing, refugee law has built on the work of the international human rights movement and has the potential to have a substantial impact on human rights law. As these examples illustrate, there are conflicts between human rights and refugee lawyers/activists, but proven opportunities for partnership also exist.
“The Forty Year Crisis: A Legislative History of The Refugee Act of 1980”
(Deborah E. Anker and Michael Posner, 19 San Diego Law Review 9, 1981)
This article analyzes the legal responses of the United States to issues of refugee and asylum policy in the post-World War II period that culminated in the enactment of the Refugee Act of 1980. The authors describe the consensus for a humanitarian, nondiscriminatory policy which led to the passage of the Refugee Act. This legislative history demonstrates the effort to develop a coherent and flexible refugee admission policy and to create statutory mechanisms to mediate the conflict between the executive and legislative branches over the control and standards for refugee admissions. The article evaluates the implementation of the Refugee Act, proposals by recent administrations for reform, and offers a series of recommendations for future refugee and asylum policy.
(Sabrineh Ardalan and Thomas Boerman, 2016)
This Briefing addresses the ground of religion in asylum cases involving gang violence in Honduras, El Salvador, and Guatemala, a region known as the Northern Triangle. It first describes country condition evidence critical to a nuanced understanding of these claims.8 The Briefing then presents an overview of U.S. asylum law with a focus on religion-based claims and gang violence. Next, the Briefing provides ex-amples of cases in which adjudicators have granted asylum to women and youths who suffered or feared persecution by gangs for reasons of religion, among other grounds. The Briefing concludes with practical guidance regarding how to develop and present asylum cases involving gangs, religion, and the church.
“Immigration Detention’s Unfounded Mandate”
(Philip L. Torrey, 15-04 Immigration Briefings 1, 2015)
This article (1) reviews the history of the immigration bed mandate (or bed quota) from 2009 to present, (2) discusses its inconsistent interpretation by the U.S. Department of Homeland Security, and (3) offers reasons why the bed mandate is both constitutionally questionable and bad policy.
“’Third Generation’ Gangs, Warfare in Central America, and Refugee Law’s Political Opinion Ground”
(Deborah E. Anker and Palmer Lawrence, 14-10 Immigration Briefings, Thompson-Reuters 1 (2014))
“The Erosion of Judicial Discretion in Crime-Based Removal Proceedings”
(Philip L. Torrey, 14-02 Immigration Briefings 1, 2014)
This article discusses how Congress has eliminated, or at least severely curtailed, judicial discretion in the context of crime-based removal proceedings. By way of illustration, this article focuses on the legislative and judicial histories of two discretionary forms of relief: (1) the Judicial Recommendation Against Deportation (JRAD); and (2) the waiver of deportation pursuant to section 212(c) of the INA.
“Country Condition Evidence, Human Rights Experts, and Asylum Seekers: Educating U.S. Adjuticators on Country Conditions in Asylum Cases”
(Sabrineh Ardalan, Immigration Briefings, Issue 13-09, September 2013)
This Briefing explores the evolving evidentiary issues in U.S. asylum law and the impact of recent legal developments, focusing on the role of expert evidence. The Briefing then addresses the historic context for the use of country condition evidence and, particularly, expert testimony in asylum cases. The third part of this Briefing highlights the importance of country condition evidence and expert testimony. Finally, the Briefing concludes with a brief discussion of some of the challenges that attorneys may face in working with country experts in asylum cases.
“Mejilla-Romero: A New Era For Child Asylum”
(Deborah E. Anker, Nancy Kelly, John Whillshire Carrera, and Sabrineh Ardalan, 12-09 Immigration Briefings, Thompson-Reuters 1 (2012))