Georgia Law Appellate Litigation Clinic students win victory for client in 9th Circuit immigration case invoking Convention Against Torture

A woman seeking withholding of removal from the United States has won her challenge to an adverse ruling by the Board of Immigration Appeals – a challenge briefed and argued by students in the Appellate Litigation Clinic here at the University of Georgia School of Law.

By a 2-1 decision issued Tuesday in Case No. 19-72750, Arellano Herrera v. Barr a panel of the U.S. Court of Appeals for the Ninth Circuit reversed and remanded to the BIA.

The panel majority in Case No. 19-72750, Arellano Herrera v. Barr, comprised Ninth Circuit Judge Margaret M. McKeown and U.S. District Judge Virginia Mary Kendall, sitting by designation. Its opinion effectively reinstated the first decision in the case, in which an Immigration Judge had ruled for the Clinic’s client, Graciela Arellano Herrera, whose parents brought her to the United States three days after her birth.

In oral arguments conducted online this past September (prior post), Georgia Law 3L Jason N. Sigalos argued that if Arellano Herrera were sent back to her native Mexico it was more likely than not that member of a drug cartel would torture her, with the acquiescence of one or more public officials. To permit such a risk, the Clinic team contended, would violate non-refoulement (non-return) obligations that the United States took on when it ratified the 1984 Convention Against Torture. The panel majority agreed.

The panel’s third member, Ninth Circuit Judge Lawrence James Christopher VanDyke, agreed that the BIA had erred on one challenged ground, but in his view the BIA was correct in finding that Arellano Herrera could safely relocate in Mexico. He thus dissented, reasoning that the latter finding alone supported affirmation of the BIA ruling.

The Clinic team included Sigalos and his classmates, 3L Mollie M. Fiero and John Lex Kenerly IV, who earned his J.D. earlier this year. They worked under the supervision of Thomas V. Burch, the Clinic’s Director, and Anna White Howard, the Clinic’s Counselor in Residence. (prior posts)

Georgia Law Professor Amann on depicting Nuremberg artist Laura Knight for symposium on Carsten Stahn’s new Oxford monograph, “Justice as Message”

In this post Professor Diane Marie Amann, the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of our Dean Rusk International Law Center here at the University of Georgia School of Law, discusses her most recent publication.

Among the more captivating women who worked at the 1st Nuremberg trial – women whose stories I’m now researching – was Dame Laura Knight. Already celebrated as the 1st woman in over 150 years to win election to Britain’s Royal Academy of Arts, Knight, then 68, arrived in January 1946, about a third of the way before the year-long proceedings before the International Military Tribunal. Soon after her departure 4 months later she unveiled a 5-foot by 6-foot oil painting, “The Nuremberg Trial,” at a London exhibition.

That work forms the centerpiece of “What We See When We See Law … Through the Eyes of Dame Laura Knight,” my contribution Monday to an ongoing Opinio Juris symposium on Justice as Message: Expressivist Foundations of International Criminal Justice, a new Oxford University Press book by Carsten Stahn, an international criminal law professor at Leiden Law School and Queen’s University Belfast.

My post began by discussing Stahn’s 2020 book in light of my own 2002 article about expressivist theories and international criminal law. The focus was Nuremberg: not only is it much-discussed in Stahn’s book, but the book’s cover features her 1946 painting, pictured above. Those facts launched my post’s cameo about Knight-as-messenger, available here.

Contributors of other posts in the book series include Marina Aksenova, Mark A. Drumbl, Angela Mudukuti, Darryl Robinson, Priya Urs, and Stahn himself.

(Cross-posted from Diane Marie Amann)

Georgia Law Professor MJ Durkee discusses “Interpretive Entrepreneurs” at St. John’s international law colloquium

Melissa J. “MJ” Durkee, the Allen Post Professor here at the University of Georgia School of Law, recently presented “Interpretive Entrepreneurs” as part of the annual colloquium at the Center for International and Comparative Law, St. John’s University School of Law, New York.

Durkee’s article on the subject is forthcoming in the Virginia Law Review

University of Georgia Professor Jonathan Peters, of Grady College and School of Law, presents on press freedom to court personnel and journalists in Uzbekistan

Pleased today to welcome a contribution from Jonathan Peters, an associate professor who has faculty appointments in the Grady College of Journalism and Mass Communication and the School of Law here at the University of Georgia. Professor Peters teaches and researches in the area of media law and policy, and his post here discusses his participation December 3 in an online training event hosted in Uzbekistan.

I was delighted recently to deliver two virtual presentations to court personnel and journalists in Uzbekistan, as part of a project facilitated by the United Nations Development Programme and supported by the United States Agency for International Development and the Supreme Court of the Republic of Uzbekistan.

The purpose of the project, called the “Rule of Law Partnership in Uzbekistan,” is to strengthen public access to the nation’s judicial system as well as public trust in it. One related priority has been to improve citizen knowledge of the courts and to encourage collaboration between court personnel and journalists. This has enabled the local media to tour Uzbekistan’s regional courts and to learn about international practices in court-journalist relations.

To those ends, I delivered presentations to a group of journalists and court personnel, including members of the Supreme Court of the Republic of Uzbekistan, on U.S. rights of access to courts and how American journalists cover legal issues. First, I discussed the tension between the First and Sixth Amendments and the various reasons that U.S. courts have generally protected media rights of access to judicial proceedings and records.

For example, the U.S. Supreme Court has observed repeatedly the historical importance of public trials and has reasoned that openness improves a trial’s functioning, that it has therapeutic value by “providing an outlet for community concern, hostility and emotion,” and that it enhances the public’s acceptance that justice is being done.

Moreover, in significant part, American journalists exercise their First Amendment rights as surrogates of the public when reporting on courts. As Justice Lewis F. Powell put it in Saxbe v. Washington Post Co., in his dissent: “For most citizens, the prospect of personal familiarity with newsworthy events is hopelessly unrealistic. In seeking out the news, the press therefore acts as an agent of the public at large. It is the means by which the people receive the … information and ideas essential to intelligent self-government.”

Then, in my second presentation, on how American journalists cover legal issues, I explored how the rule of law is preserved partly by public knowledge of court decisions and activities, and thus the media is a critical link between the judiciary and the public. So it is democratically important for journalists to explain what courts are doing and why—and to convey the implications (if any) for the public.

That means the journalists must be able to translate legal terms and concepts for a lay audience, and they must be able to distill into a short news story a complex legal action. It is also helpful for them to develop sources in the court system, while appreciating and respecting the ethical limits within which judges, lawyers, and court aides usually work.

After these remarks, the Q&A session opened up conversations among the journalists and court personnel in attendance, allowing us to have a dialogue on some of the issues most pressing for them. I hope the ultimate result is a more open judiciary and a freer press in Uzbekistan.

Georgia Law Professor Cohen presents “Sociology of WTO Precedent” at Leiden “Behavioral Approaches” workshop

Harlan Cohen, the Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of the Dean Rusk International Law Center here at the University of Georgia School of Law, presented on “The Sociology of WTO Precedent” last month at a workshop entitled “Behavioral Approaches to International Law.”

It was sponsored online by the Grotius Centre for International Legal Studies at Leiden Law School in the Netherlands, in partnership with the Institute of Law and Economics at the University of Hamburg in Germany, and iCourts at the University of Copenhagen in Denmark. Organizers were Leiden Professor Daniel Peat, Copenhagen Professor Veronika Fikfak, and Hamburg Professor Eva van der Zee.

Georgia Law Professor Christopher Bruner publishes on AI and corporations in Cambridge Law Journal

Professor Christopher Bruner, the Stembler Family Distinguished Professor in Business Law here at the University of Georgia School of Law, has published “Distributed Ledgers, Artificial Intelligence and the Purpose of the Corporation” in 79 Cambridge Law Journal 431 (2020).

Here’s the abstract:

“Distributed ledgers and blockchain technology are widely expected to promote more direct shareholder involvement in corporate governance by reducing costs of voting and trade clearance. Meanwhile, artificial intelligence may shrink the decision-making terrain where corporations rely on human management. This article analyses these technologies and concludes that, while such outcomes are plausible, their potential corporate governance impacts are likely more complex and contingent. Despite the implicit libertarianism that characterises much of the discourse, we in fact have choices to make about how such technologies are developed and deployed – and these policy decisions will have to be grounded in a normative conception of corporate purpose external to the technology itself.”

Bruner presented the work at a conference on “The Future of the Firm” held last year in London.

Professor Ringhand, Center’s Interim Director, takes part in University of Oxford panel on U.S. presidential election

Lori A. Ringhand, J. Alton Hosch Professor of Law and Interim Director of the Dean Rusk International Law Center here at the University of Georgia School of Law, took part earlier this month in a University of Oxford panel discussion on the American electoral process.

The panel, entitled “‘Our Character is on the Ballot’: Reflections on the US Presidential Election 2020,” was hosted by Jesus College at Oxford. Ringhand, an Election Law scholar and recent US-UK Fulbright Distinguished Chair, earned her B.C.L. degree at Oxford. (prior posts)

Georgia Law clinics join to assist in litigation by immigrant women alleging abuse, retaliation while in ICE detention

Two clinics here at the University of Georgia School of Law have joined forces on behalf of women who allege they endured abusive gynecological and other medical treatments, as well as inhumane conditions and retaliation, while in the custody of U.S. Immigration and Customs Enforcement (ICE), at a privately run facility in south Georgia.

Allegations became public with a September report by an independent team of experts who reviewed complaints by detainee-whistleblowers at the Irwin County Detention Center in Ocilla, located 187 miles south of Atlanta and 55 miles north of Valdosta.

Investigations, congressional inquiries, and litigation ensued – including a habeas corpus petition that one detainee, Yanira Yesenia Oldaker, filed November 9 in the U.S. District Court for the Middle District of Georgia. The Immigrants’ Rights Clinic at Columbia Law School in New York represents Oldaker.

A mid-November phone call led to the representation by Georgia Law’s Community HeLP and First Amendment Law Clinics of another Irwin detainee-whistleblower. Because ICE has sought – at times successfully – to deport detainees who assist in exposing conditions, the case implicates both immigration statutes and the Constitution’s free speech guarantees.

The Georgia Law clinics prepared a motion on behalf of their client and 21 other detainees, women who migrated to the United States from at least 4 continents. Filed last Thursday, the motion and memorandum of law (available here) seek to add these women’s declarations in support of the Oldaker petition; additionally, to permit 19 of the women, who fear retaliation if identified, to proceed using “Jane Doe” pseudonyms and to file under seal their declarations, which contain allegations of abuse.

Clare R. Norins, Assistant Clinical Professor and a clinic director, explained:

While normally the First Amendment Clinic stands on the side of transparency in the courts, this time we are arguing for less public access in order to protect our client and the other 21 women from suffering retribution for exercising their free-speech right to describe their inhumane treatment to the court, and in so doing, petition to government for grievances.

The motion is pending before U.S. District Judge W. Louis Sands in Valdosta.

Taking part in this team effort were faculty, staff, and students: for the First Amendment Clinic along with Professor Norins were 3L Anish Patel and Legal Fellow Samantha Hamilton; and for the Community HeLP Clinic, the director, Associate Dean  Jason A. Cade, and Staff Attorney Kristen Shepherd. Providing further assistance, including translation from English to Spanish, was administrative associate Sarah Ehlers.

At 9th Circuit, Georgia Law Appellate Litigation Clinic students press client’s case for asylum, withholding of removal, relief under Convention Against Torture

The U.S. Court of Appeals for the Ninth Circuit heard arguments this week in an immigration case prepared by a team of students in the Appellate Litigation Clinic here at the University of Georgia School of Law.

Georgia Law 3L Sarah Nelson argued on behalf of client Alicia Naranjo Garcia in Case No. 19-72803, Naranjo Garcia v. Barr. On account of the covid-19 pandemic, Nelson’s argument was delivered virtually, to a panel composed of Ninth Circuit Judges Ronald M. Gould and Michelle T. Friedland, along with U.S. District Judge Stephen R. Bough, sitting by designation. (Video here; Nelson is pictured above at lower left.)

Joining Nelson on the briefs were Jonathan Kaufman and Joe Scarborough, who earned their J.D.s earlier this year.  3L Maddie Conkel, one of Nelson’s classmates in the Appellate Litigation Clinic, helped Nelson prepare for the argument.

Together they represent appellant Naranjo Garcia, the mother of two children who are U.S. citizens. The client herself came to the United States after a cartel killed her husband, stole her husband’s property, tried to recruit her son, stole her home, and twice threatened to kill her.

Both the Immigration Judge and the Board of Immigration Appeals agreed that she had been persecuted, but found that her persecution was not “on account of” a protected ground.  Because of that, they denied her asylum and withholding of removal claims.  They also found that no public official would acquiesce to her being tortured if she were returned, and thus denied her claim under the Convention Against Torture.

The Ninth Circuit panel is now deliberating.