Georgia Law Appellate Litigation Clinic students ask for asylum and withholding of removal in 11th Circuit oral argument

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

Georgia Law 3L Maddie Conkel argued on behalf of the petitioner in Case No. 19-15144, Denis Aguilera Fernandez v. Garland. On account of the Covid-19 pandemic, Conkel’s argument was delivered online to a panel composed of Eleventh Circuit Judges William H. Pryor Jr., Jill A. Pryor, and Ed Carnes (audio here).

In earlier proceedings both the Immigration Judge and the Board of Immigration Appeals agreed that the Clinic’s client – whom Cuban police had detained and beaten repeatedly over two years in an effort to prevent him from protesting the Cuban government – was “thoroughly credible.”  They further agreed that his mistreatment, though “severe and regrettable,” did not rise to the level of “persecution,” and that he had no reasonable fear of future persecution.

Conkel’s argument sought reversal of the resulting denials of asylum and withholding of removal. Georgia Law 3L Sarah Nelson helped Conkel prepare for the argument, and several other students helped the Clinic brief the case. 

The Eleventh Circuit panel is now deliberating.

Georgia Law alumna Chanel Chauvet publishes at Opinio Juris on POW remittances, in blog symposium on 2020 GCIII Commentary directed by alumnus Jean-Marie Henckaerts

Pleased to note the publication last Thursday by a recent graduate of the University of Georgia School of Law, as part of an ongoing joint symposium sponsored by Opinio Juris and by the Humanitarian Law & Policy Blog of the International Committee of the Red Cross.

Author of the contribution entitled “Prisoners of War Remittances – Financial Challenges of Sanctions and Conversion Rates” is Chanel Chauvet, who earned her J.D. degree from Georgia Law in 2018, and also, just last year, her LL.M. degree cum laude in International Humanitarian Law and Human Rights from the Geneva Academy of International Humanitarian Law and Human Rights in Switzerland.

Applying a case study of relations between Iran and the United States, Chauvet’s post details the obstacles faced by a prisoner of war, or POW, in securing remittances – funds that family members send “in an effort to contribute to the POW’s financial welfare” – on account of financial sanctions regimes and currency conversion rates. She concludes with recommendations that would remove remittances from the effects of these regimes, writing:

“The legal landscape governing POW remittances is insufficient, and as such, states should collectively address the obstacles that damage the financial health of POWs by incorporating specific protections for POWs (e.g., a legal exclusion for POW payments and remittances) from the effects of the banking sanctions that are in place in their Power of Origin.”

While a J.D. student, Chauvet served as a Dean Rusk International Law Center Student Ambassador and a research assistant to the Center’s Faculty Co-Directors, Professors Harlan Cohen and Diane Marie Amann. She completed the Grotius Centre Summer School on Humanitarian Law at Leiden Law School in the Netherlands, competed on a winning Model African Union team, served as worldwide student president of the International Law Students Association, and was the recipient of the Blacks of the American Society of International Law Annual Meeting Scholarship.

Chauvet is a member of the Bars of the State of Georgia and of the District of Columbia.

At the Geneva Academy, she was elected the Student Council LL.M. Representative and was the student commencement speaker. She served as a Legal Intern in the International Law & Policy Department at the ICRC, and also made presentations at meetings of the UN Human Rights Council in her capacity as the Permanent Representative in Geneva for the International Association of Jewish Lawyers and Jurists.

Chauvet’s LL.M. thesis, from which the Opinio Juris post draws, was supervised by a Geneva Academy professor who is himself earned his LL.M. at Georgia Law in 1990: Dr. Jean-Marie Henckaerts, Legal Adviser in the ICRC’s Legal Division and a member of our Dean Rusk International Law Center Council.

Chauvet’s post forms part of a symposium of articles analyzing aspects of Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. Commentary of 2020. Known colloquially as GCIII, that commentary is the third published under Dr. Henckaerts’ directorship. Indeed, we at the Center were honored to host a daylong conference marking the issuance of the initial volume, the Commentary on First Geneva Convention, with papers published in the Georgia Journal of International & Comparative Law.

“Future of Global Health Governance” topic of Monday’s Georgia Law international journal conference

Global Healthcare Governance Conference Header

“The Future of Global Healthcare Governance” is the topic of the annual Georgia Journal of International & Comparative Law daylong symposium, to be held this Monday, January 25.

We at the Dean Rusk International Law Center of the University of Georgia School of Law are cosponsoring this online conference along with GJICL and the law school’s Health Law Society and International Law Society, as well as the university’s College of Veterinary Medicine, School of Public & International Affairs, and School of Social Work.

Taking into account the effects of globalization and climate change on the spread of historically localized pathogens — among them, H1N1, Zika, Ebola, and COVID-19 — the conference will re-examine legal and other frameworks designed to respond to global pandemics. The roles to be played by stated and by international entities like the World Health Organization will be explored. To quote the concept note:

“This conference will address three crucial questions of global health governance. It will consider, first, whether and how the ailing global public health infrastructure might be reinvigorated; second, how the pandemic has threatened and exposed limitations of the social safety net in the United States and other economies around the world; and, finally, the phenomenon of vaccine refusal and what national and international legal institutions might do to curb it.”

Delivering opening remarks will be Georgia Law Dean Peter B. “Bo” Rutledge and Elizabeth Weeks, the University of Georgia Associate Provost for Faculty Affairs and Charles H. Kirbo Chair in Law. A keynote address, panel presentations, and breakout sessions will follow. These include (all times Eastern):

10:30-11:30 a.m. The Role of International Organizations in Global Health Governance, moderated by Georgia Law Professor Fazal Khan. Speakers: Thomas J. Bollyky, Council on Foreign Relations; Benjamin Mason Meier, University of North Carolina-Chapel Hill; Alexandra Phelan, Georgetown University Center for Global Health Science & Security; Pedro Villarreal, Max Planck Institute for Comparative Public Law & International Law; and Alicia Yamin, Harvard Law.

12:45-1:45 p.m. The Role of Federal Governments in Pandemics, moderated by Elizabeth Weeks, the University of Georgia Associate Provost for Faculty Affairs and Charles H. Kirbo Chair in Law. Speakers: Christina S. Ho, Rutgers Law; Renée M. Landers, Suffolk Law; Gwendolyn Roberts Majette, Cleveland-Marshall Law; and Wendy Parmet, Northeastern Law.

2-3 p.m. The Global Campaign for the Collective Good, moderated by Hillel Y. Levin, Alex W. Smith Professor of Law at Georgia Law and Director of UGA Law in Atlanta. Speakers: Shawn Harmon, Dalhousie University; Glen Nowak, University of Georgia; Saad Omer, Yale School of Medicine; and Dorit Reiss, California-Hastings Law.

3:30-4 p.m. Keynote Address by Marice Ashe, ChangeLab Solutions, and Elsie E. Hayford, Lamèsè.

Papers will be published in a forthcoming GJICL issue. The full program, with registration information, is available here.

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 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.

Georgia Law alumna Lauren Brown publishes on “Legal Answer to the China Question” in NATO Legal Gazette

“Partnership, Not Pivot: NATO’s Legal Answer to the China Question” is the title of an article by Georgia Law alumna Lauren Brown, just published at 41 NATO Legal Gazette 27-45 (2020). The essay appears in an issue devoted to the subject of “Legal Aspects of Innovation.”

Brown wrote the article while serving in Spring 2019 as a full-semester NATO Legal Extern in Mons, Belgium, an experience she described in a prior post.

With reference to NATO, the North Atlantic Treaty Organization (NATO), Brown’s Legal Gazette essay asserts:

“[T]he Organization is falling behind in addressing the multipolar reality that has defined the geopolitical landscape since the early twenty-first century. This multipolar world features as primary influencers the United States, the Russian Federation, and the People’s Republic of China. And it requires NATO to undertake innovation in its strategy; in particular, to broaden its partnership initiatives formally to include China.”

The essay proceeds to outline multiple ways by which such a partnership might be forged, and concludes that “NATO’s future relevance is contingent upon its ability to directly and formally engage China in a meaningful cooperative partnership.”

Brown earned her Georgia Law J.D. degree magna cum laude in 2019. Since then, she has practiced as an Associate in the International Trade Practice at the Washington, D.C., office of the global law firm Squire Patton Boggs.

She also holds a master’s degree in International Relations from the University of Edinburgh in Scotland and B.A. in International Studies, with highest distinction, from the University of North Carolina-Chapel Hill. Before beginning her legal studies, she had worked as a news analyst in the Washington area. Her activities at law school included: Articles Editor of the Georgia Journal of International and Comparative Law; Research Assistant to Professor Harlan G. Cohen, our Center’s Faculty Co-Director; and Summer 2017 Global Extern at War Child Holland in Amsterdam.

Brown was Georgia Law’s inaugural NATO Legal Extern, thanks to a partnership between our Center and NATO Allied Command Transformation. That initiative is ongoing, as indicated by 3L Miles Porter’s recent post on his experience at NATO HQ SACT in Norfolk, Virginia.

Georgia Law Appellate Litigation Clinic students invoke Convention Against Torture in 9th Circuit oral argument

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

Georgia Law 3L Jason N. Sigalos argued on behalf of client Graciela Arellano Herrera in Case No. 19-72750, Arellano Herrera v. Barr. On account of the covid-19 pandemic, Sigalos’ argument was delivered virtually (video here), to a panel composed of Ninth Circuit Judges Margaret M. McKeown and Lawrence James Christopher VanDyke, along with U.S. District Judge Virginia Mary Kendall, sitting by designation. (Sigalos, who spoke from Georgia Law’s Hatton Lovejoy Courtroom, is pictured above at bottom right.)

Joining Sigalos on the briefs were his classmates in the Appellate Litigation Clinic (prior posts), 3L Mollie M. Fiero and John Lex Kenerly IV, who earned his J.D. earlier this year.

Together they represent appellant Arellano Herrera, the mother of seven children and grandmother of another seven, all U.S.-born citizens. The client herself has lived in this country since her parents brought her to the United States three days after her birth in Mexico.

Her appeal seeks reversal of a Board of Immigration Appeals order that she be removed from the United States. Relying on non-refoulement (non-return) obligations the United States took on when it ratified the 1984 Convention Against Torture, she argues that prior forced involvement with a drug cartel makes it unsafe for her to relocate anywhere in Mexico. She contends that if she were she to be sent back, it is more likely than not that cartel members would torture her, with the acquiescence of one or more public officials.

The Ninth Circuit panel is now deliberating.

Georgia Law Dean Bo Rutledge, 2L student Emina Sadic Herzberger publish on circuit split regarding discovery before arbitral tribunals

A federal judicial disagreement on the extent to which a discovery statute applies to private arbitration is the subject of a new commentary by the dean and a student researcher here at the University of Georgia School of Law.

Coauthoring the Daily Report article, entitled “Circuit Split Deepened by Second Circuit’s ‘Functional’ Test Application in Recent Section 1782 Ruling,” were international business law expert Peter B. “Bo” Rutledge, Dean and Herman E. Talmadge Chair of Law at Georgia  Law, along with 2L Emina Sadic Herzberger.

The article concerns whether 28 U.S.C. § 1782 – which authorizes discovery for use in proceedings before a “foreign or international tribunal” – extends to proceedings before private arbitral tribunals. The U.S. Courts of Appeals for the 4th and 6th Circuits generally say yes; for the 2d and 5th Circuits, no. The doctrine is uncertain, the authors point out, in the Atlanta-based 11th Circuit.

Their full commentary is here.

Georgia Law 3L Devon Pawloski reflects on significance of her Global Externship at DC-Cam in Phnom Penh


Today we welcome a guest post by Devon E. Pawloski, a member of the University of Georgia School of Law Class of 2021 who is enrolled in the JD/MHP, or Juris Doctor and Master of Historic Preservation dual degree curriculum. The summer after her first year of law school, Devon benefited from a GEO – a Global Externship Overseas, administered by Georgia Law’s Dean Rusk International Law Center. Her post describes that experience and then reflects on how it helped guide her career preparation.

I spent my 1L summer working at the Documentation Center of Cambodia, or DC-Cam, in Phnom Penh as a Georgia Law Global Extern Overseas. DC-Cam is a nongovernmental organization that archives documents and objections for the Khmer Rouge Tribunal, and also creates educational materials, curates historic exhibits, and builds programming to promote reconciliation regarding the Khmer Rouge genocide.

My main project connected Cambodia’s rich cultural heritage to DC-Cam’s education and reconciliation goals. Destruction of cultural heritage is often not acknowledged as a significant part of war and genocide. But throughout its history Cambodia’s heritage has been plundered, under French colonization, the Lon Nol civil war, the Khmer Rouge genocide, Vietnamese occupation, and even today. My research focused on the prevention of looting and the incorporation of cultural heritage education in schools, with the ultimate goal of helping Cambodia to heal from the Khmer Rouge atrocities by rallying around Cambodia’s heritage.

Under the guidance of American attorney-advisors, I worked with the DC-Cam staff and a Tulane Law student, Ben Evans, to document the state of cultural heritage looting in Cambodia. Ben and I first researched international heritage conventions and Cambodia’s cultural heritage laws from the French colonial period (1863 to 1953) to the present. We then selected two sites to use as case studies, in which we interviewed government officials, police officers, soldiers, museum curators, teachers, students, and other locals about their personal experiences with looting and their knowledge of cultural heritage laws. The sites were:

  • Angkor Borei, the location of the ancient Funan Empire capital. Looting of Angkor Borei dates to the French colonial period, when French scholars and others took decorative elements and statuary from Phnom Da, a nearby temple that, along with Angkor Borei, has been tentatively nominated to the UNESCO World Heritage list. The French made meaningful attempts to restore portions of the temple, but the damage was done. The temple’s remaining statuary was removed for safekeeping in the 1990s. However, villagers still find remnants of the ancient kingdom in their backyards. Until recently, it was common for villagers to dig for beads, pots, statues, and other small items to sell for food and clothing. Local middlemen approached the villagers to request items, which were then smuggled across the border. In 2011, looting slowed down after an information campaign about cultural heritage laws. (pictured at top left, Devon, as part of her field research, interviews a nun in Wat Kamnou, Angkor Borei) 
  • Ta Moan, an 11th century temple which sits on the contested border between Cambodia and Thailand. Smugglers toted off almost all of Ta Moan’s statuary to Thailand during the Vietnamese occupation of Cambodia in the 1980s and 1990s. Between 2009 and 2011, fighting broke out between Cambodia and Thailand along the border, including within the temple complex itself. In 2011, the countries reached a ceasefire, but armed Khmer and Thai soldiers still occupy the site. (pictured at top right, part of Ta Moan)

This field research led to a paper, “Protecting Cambodia’s Heritage: An Exploration of International and Domestic Law,” which described the current legal historic preservation framework in Cambodia and the lack of enforcement of these laws, then suggested mechanisms for looting prevention. Suggestions includes local cultural heritage education in secondary schools and  heritage protection education for soldiers, by means of DC-Cam’s genocide education program. To help DC-Cam implement this, I drafted a cultural heritage education syllabus with reading materials and activity suggestions that can be added as a final chapter to future editions of DC-Cam’s genocide education textbook.

In addition to this work, I was able to explore many beautiful places throughout Cambodia, including Siem Reap, famous for its Angkor Wat temple complex, and Kep, a beach town with French colonial architecture. When I finished my GEO, I traveled to Ho Chi Minh City, Vietnam. I even gained a few new skills in Khmer and Vietnamese cooking classes, which have been fun to brush up in these recent months of quarantine.

* * * *

The highlight of my law school experience, my Summer 2018 GEO in Cambodia has since influenced my educational and professional path. When I returned from Cambodia, I dove into international law to contextualize my summer experience. I took courses in international law, including International Human Rights with Professor Diane Marie Amann and International Legal Research with Professor Anne Burnett, and I worked with Professor Kate Doty on the Georgia Journal of International & Comparative Law.

When I applied for the University of Georgia Master of Historic Preservation degree program later that year, I wrote about my international heritage law research in Cambodia. Once I was admitted to the program, I wrote about international heritage law and repatriation of Native American artifacts. Although a master’s thesis about international heritage law is not feasible during this pandemic, the skills that I gained during my GEO, including research and communication across cultural boundaries, will be fundamental to my research.

My GEO is also provided an excellent foundation for the beginning of my legal career. I have been asked about my GEO in every job interview I have had since my 1L summer. Interviewers can easily understand my passion for cultural heritage, international law, and even environmental law when I am asked about my incredible experience in Cambodia. I am not sure where my post-law school career will take me, but I know that I will continue to volunteer with my friends and colleagues at the Documentation Center of Cambodia.

Georgia Law Appellate Clinic secures at-risk client’s release from immigration detention center

The Appellate Litigation Clinic here at the University of Georgia School of Law has secured the release from immigration detention of a Cuban client who suffers from asthma and a history of cancer.

The 26 year old client, who has no criminal history, had come to the United States to avoid repeated police beatings for his protests against the government in Cuba. He had been held for nineteen months without a bond hearing at the Stewart Detention Center in Lumpkin, Georgia, where as of mid-August 2 inmates had died from COVID-19 and more than 150 had been infected.

Students working through the clinic contended that their client’s medical condition increased the risk that while in detention during the present pandemic, he too would contract the novel coronavirus disease. They litigated his case in many administrative and judicial forums: a hearing on a motion for bond in Stewart Immigration Court; multiple parole requests to ICE, the United States Immigration and Customs Enforcement agency; a habeas petition before the U.S. District Court for the Middle District of Georgia; and an opening brief and motion to expedite before the U.S. Court of Appeals for the Eleventh Circuit.

Working on the case were Addison Smith and Spencer D. Woody, both of whom earned their Juris Doctor degrees this past spring, along with 3L Steven L. Miller and 2Ls Christopher O. Brock, Destiny J. Burch and Maria C. “Mia” Hughes.

The merits appeal and detention appeal both continue even though the client has been released from ICE custody. Under the supervision of Thomas V. Burch and Anna White Howard, who direct Georgia Law’s Appellate Litigation Clinic, students will continue to pursue an Eleventh Circuit judgment in their client’s favor.

(Credit for photo of the Elbert P. Tuttle Courthouse in Atlanta, home to the U.S. Court of Appeals for the Eleventh Circuit)