International Law and Immigration

ILS NEWS (February 2021)

For a PDF version of the ILS News, click here.

Chair’s Comment

Dear ILS Members,

William Tolin Gay

Happy New Year! By the time you read this, we will be on the eve of the Chinese Year of the Ox, symbol of hard work and achievement. Our Section’s members may find little in this that is out of the ordinary, and yet we face many new developments in 2021: New vaccines, new U.S. President and Congress, and new challenges to the way we practice law. Those of us who work in the fields of trade law, foreign investment, and immigration, to name a few, expect to see many new legal and regulatory developments in the coming months. Our Section will cover them all, and I encourage you to participate.

In the International Law and Immigration Section, this is the time of year when our campus outreach gets underway. This year, for the first time, our law school appearances on campus will be virtual, and under Agustin Ceballos’ leadership we plan to experiment with “Zooming” multiple campuses at once. We have also been invited to extend our presentations to high schools for the first time, as well as a broader range of law schools than in the past.

Our MCLE offerings continue apace, with an upcoming panel discussion organized by Melissa Allain on space law – what could be more international? See inside for details.

Finally, a word of thanks to Bob Lutz, our editor emeritus. Thank you, Bob, for your contributions. The ILS NEWS will be in the excellent hands of Tiffany Heah who, upon publication of this issue (Bob’s fourth), replaces Bob as Editor in Chief.

William Tolin Gay
Wilson Elser Moskowitz Edelman & Dicker LLP

Bob’s Op: “Looking Forward”
Bob Lutz

In early 2020, this Section embarked on reviving its Newsletter to communicate with members about important international legal practice developments and alert them to its programs and other activities. Having been the first editor in chief of the Newsletter when the International Law Section of the California Bar was born in the late 1980s, I volunteered to edit and shape the Section’s new ILS News, now as part of the California Lawyers Association. With the very helpful assistance of Managing Editor and ExCom member, Tiffany Heah, and erstwhile support of CLA’s and the Section’s leadership, three issues were published in 2020. This one—per my agreement to jump-start the new newsletter effort–is my fourth and last issue. The ILS News will be in good hands with Tiffany at the helm as the new editor in chief. Congratulations and best of success Tiffany!

Looking forward and as I transition to new professional tasks, I want to leave some modest thoughts about the future of the Section and its place in efforts of the California Lawyers Association to deliver top-flight professional services:

  • With California being among the largest, most diverse and globally inter-connected economies in the world, transnational legal practice is necessarily involved in developing and sustaining its prosperity. Greater attention to this reality and its continuing growth potential should be given to it by California’s practitioners. New York–via its bar associations and legal institutions–financially and institutionally support the regular touting of its legal and financial environment for international business as superior to those of other venues. Given its many attributes and resources, California should do the same, and the International Law & Immigration Section is the perfect vehicle for doing so.
  • ILS has achieved much in its short-life as a part of the California Lawyers Association, and it has enjoyed the richness of great leaders to direct and lead it. In order to continue its success, and for ILS to assert its appropriate role, the Section could broaden its membership, becoming more representative of the breadth of California transnational practice. It might organize around specific goals and functions, as well as primary practice areas, and reach beyond the structure of the Executive Committee membership for participants and leaders. Finally, the Section needs to aggressively recruit practitioners from all types of California transnational private and public practices. It might create a transparent process for selecting its leadership—based on performance, practice and personal diversity factors, and skill.
  • As an organization dedicated to advancing the rule of law (both international private [commercial] law and international public law), the Section is in a great position to vigilantly safeguard the institutions and laws (both domestic and international) that implement and guarantee rule-of-law. Where the legal profession is abused or threatened, or lawyers are detained or officially punished for “doing their jobs”, the Section and/or the CLA ought to be able to publicly protest and/or seek reversal of such actions. Special mechanisms should be created for the Section to monitor situations and to act when necessary to preserve and advance the rule of law. As the International Law Section of the largest population and economic power in the United States, it is incumbent on us to do so.

Therefore, looking forward I offer these modest proposals for the future growth and influence of the CLA’s International Law & Immigration Section.

Sincerely,

Bob Lutz

Bob Lutz is Treusch Distinguished Professor Emeritus of International Legal Studies, Southwestern Law School; Member, CLA-ILS Executive Board; Editor-in-Chief, California Lawyers Association-International Law (CLA-ILS) Newsletter; Former Chair, ABA Section of International Law and EIC, The International Lawyer; Current Co-chair, ABA-Senior Lawyers International Committee; and Member, U.S. State Department Advisory Committee on International Law.

International Private (Commercial) and Public Law Development Highlights

This column focuses on developments of note that impact California transnational legal practice. While the developments below were collected by the editors during the period of October 2020 to January 2021, the ILS NEWS welcomes Section members bringing others to their attention and also invites readers to contribute short notes about other legal developments.

The U.S. Presidential (Executive) Actions

1. US Rejoins the Paris Accords (Climate Change Agreement)

President Biden on his first day as US President signed an Executive Order to have the US rejoin the 2015 Paris climate agreement, the largest international effort to curb global warming. This reverses the action of former President Trump–initiated in 2017 and effectuated in 2020–to withdraw from the Agreement. Former Secretary of State and Democratic Presidential Candidate John Kerry was appointed Special Envoy to the Climate Convention.

2. Rejoining World Health Organization

In another official first act on Inauguration Day (January 20), President Biden resumed funding for the World Health Organization, reversing actions of predecessor Trump to withdraw US support and engagement with the UN agency. Those actions were taken in mid-2020 when then-President Trump announced criticisms of the WHO. Dr. Anthony Fauci was assigned the leader of a delegation to the agency representing that the US is once again engaged with WHO work and committed to fighting the COVID-19 pandemic crisis via global cooperation.

Myanmar Coup

The US formally declared the military takeover of Myanmar as a coup. The leaders of Myanmar’s military wrested control of the Government claiming there were massive voting irregularities after a democratic election that elected many anti-military politicians to Parliament. US foreign aid to the country is likely to be withheld as the US protests the action and the country’s return to military-rule.

International Criminal Court Sanctions (US Executive Order 13928 for Sanctions Against ICC Personnel). Contribution by T. Sean Butler

On June 11, 2020, the Trump administration announced potential economic and travel sanctions against personnel of the International Criminal Court involved in investigating the conduct of US personnel allegedly involved in war crimes or crimes against humanity in Afghanistan.

On September 2, 2020, sanctions were ordered against both the ICC Prosecutor, Fatou Bensouda, and the Director of Jurisdiction, Complementarity and Cooperation, Phakiso Mochochoko, adding them to the List of Specially Designated Blocked Persons. It is the first time the US imposed sanctions on officials pursuing justice on behalf of an international court.

On January 4, 2021, Judge Failla of the Southern District of New York granted injunctive relief against enforcement of the sanctions order against three law academics and the Open Society Justice Initiative based on violation of their First Amendment rights. Click here for a copy of the Order and Opinion; see also the article from Reuters by clicking here.

Another action challenging the sanctions order was filed January 15, 2021 in US District Court in the Northern District of California by a different group of three law faculty and the ACLU, seeking to invalidate or block enforcement of the sanctions order. A copy of the complaint can be found here.

On January 26, 2021, the State Department announced there would be a thorough review of the sanctions order. A copy of the article which includes the brief announcement can be found here.

The CLA International Law & Immigration Section organized a program about this particular sanctions initiative in July 2020 examining the legality of the executive authority to do so; the program is available here.—Ed.]

T. Sean Butler is an attorney from Los Angeles.

The New Line-Up: Political Appointments of International Practice Significance by Bob Lutz

President Biden has approximately 4,000 positions in the Executive Branch to fill (“political appointees”). Of those appointments, 1,250 require Senate confirmation (“advice and consent”) and include Cabinet members, ambassadors and other critical leadership positions. Below are listed positions of international practice significance for California practitioners, selected by the ILS NEWS Editor-in-Chief Bob Lutz. Along with the designated position in the list are the names of Biden’s nominees with an indication of whether, as of February 2, they have been confirmed.

Position – NomineeConfirmed?
Secretary of Defense – Lloyd AustinYes
Secretary of Treasury- Janet YellenYes
Secretary of State – Antony BlinkenYes
Secretary of Homeland Security – Alejandro MayorkasYes
Secretary of Housing & Human Services – Xavier BecerraPending
Secretary of Agriculture – Tom VilsackPending
Secretary of Transportation – Pete ButtigiegYes
Secretary of Interior – Deb HaalandPending
Attorney-General (Dept. of Justice) – Merrick GarlandPending
Secretary of Commerce – Gina RaimondoPending
Director of National Intelligence – Avril HainesYes
National Security Adviser – Jake SullivanPending
Central Intelligence Agency – William BurnsPending
Federal Bureau of Investigation – Christopher WrayYes (retained)
Agency for International Development – Samantha PowerPending
Climate Change Envoy (seat on National Security Council) – John KerryPending
U.S. State Department Legal Adviser – No nominee yet
U.S. Representative to United Nations – Linda Thomas GreenfieldPending
U.S. Trade Representative – Katherine TaiPending
Environmental Protection Agency – Michael S. ReganPending
Dispute-Resolution International Arbitration by Nathan O’Malley
  • International Chamber of Commerce’s (ICC) International Court of Arbitration: release of a new set of rules on January 1, 2021.
  • International Bar Association (IBA): Changes were made to the IBA Rules on the Taking of Evidence in International Arbitration and are due to be published early in 2021.
  • In the case of Henry Schein Inc. v. Archer and White Sales Inc., the US Supreme Court was again faced with the ever-vexing problem of “who decides” jurisdictional issues under the US Federal Arbitration Act—the arbitrator or the court. In this case there was a “litigation carve-out” clause, which expressly delegated to the arbitrator specific authority, but not all, to determine questions of arbitrability. The Supreme Court heard oral arguments on Dec. 8, 2020, and on Jan. 25, 2021 issued an opinion dismissing the case and holding that certiorari was improvidently granted.

Nathan O’Malley is a partner with Musick, Peeler & Garrett in Los Angeles.

Other International Organizations And International Agreements

View from the United Nations – Recent Legal Developments by Bruce C. Rashkow

The end of the year and the conclusion of the 75th Session of the UN General Assembly provide an opportunity to look back and review recent legal developments within the UN. Sadly, cancellation of conferences and regularly scheduled meetings by UN entities during this past year has diminished the ability of the UN to move forward on a variety of fronts – including with regard to codification and progressive development of international law. That does not mean that there have not been legally relevant developments. The following is a brief overview.

Biden’s First Acts

At the outset, it is interesting to note the recent legal developments at the UN associated with the Presidential election. Two such developments that followed immediately upon the inauguration of President Biden were the submission by the United States of its acceptance to the Paris Accords [Climate Change] and the retraction by the United States of its notice to withdraw from the World Health Organization. [see notes above]. Both actions were accomplished by formal letters to the UN Secretary-General as the depositary for the two agreements. The United States filed its acceptance of the Paris Agreement on January 20, 2021 with the Agreement to enter into force for the United States on February 19, 2021. It filed its retraction of notification of withdrawal from WHO on January 21, 2021, effective immediately.

International Court of Justice

Turning to the International Court of Justice, it like other UN entities, has been hampered in its work by the pandemic. Over the last year, it has issued only four Judgments and some seven Orders, the most recent being its Judgment of December 18, 2020 in the case of Guyana v Venezuela (ruling that the Court has jurisdiction to entertain the Application filed by Guyana so far as it concerns the validity of the Arbitral Award of 1899 and the related question of the land boundary dispute with Venezuela); and its Order of January 20, 2021 in the case of the Ukraine v Russian Federation (an extension of time-limits to file a Counter Memorial). Perhaps, the most important recent ruling has been in the continuing case of The Gambia v Myanmar (Application of the Convention on the Prevention and Punishment of the Crime of Genocide) where the Court unanimously issued an Order issued in January 2020, ordering four provisional measures binding on Myanmar.

Law of the Sea Tribunal

Another decision of note, is that of the UN’s International Tribunal for the Law of the Sea of January 29, 2021, in the case of a maritime boundary dispute between Mauritius and the Maldives. In that decision, the Tribunal criticized the UK’s failure to hand over to its former colony, Mauritius, the Chagos Archipelago that Mauritius seeks to rely upon in resolving its disputed maritime boundary with the Maldives.

The decision of the Tribunal is consistent with an earlier Advisory Opinion issued by the ICJ at the request of the General Assembly (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965). In its advisory opinion of February 25, 2019, the ICJ concluded that “the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence” and that “the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible”.

U.N. General Assembly Sixth Committee

The work of the UN relating to legal issues is overseen by the General Assembly’s Sixth (Legal) Committee.  The Sixth Committee concluded its virtual session followed by action on its recommendations in mid – December 2020, by the General Assembly.  The General Assembly noted that the work of the Sixth Committee represents the UN’s legal priorities, which the Rapporteur of the Sixth Committee identified as the promotion of justice and international law, drug control, crime prevention and combatting international terrorism in all of its forms and manifestations.

The General Assembly adopted the 29 legal texts recommended by its Sixth Committee (19 draft resolutions and 10 decisions) dealing with the full range of substantive and administrative matters addressed by the Sixth Committee.

Among the matters addressed by the Sixth Committee and acted upon by the General Assembly are the following reports and resolutions.

The General Assembly adopted the report “Crimes Against Humanity” (A/75/427) noting that the resolution simply represented technical updates of the resolution introduced in 2019.  The topic is included in the future work of the Sixth Committee – in its provisional agenda for its 76th session.

The General Assembly adopted the Report “Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict” (A/75/429), in essence rolling over of the 2019 text of the ILC. In addition to urging all States Party to the Geneva Conventions to consider becoming parties to the Additional Protocols and related instruments, it requested the Secretary-General to collect information from Member States and the Red Cross on measures to strengthen existing humanitarian law and submit a report on the subject at the 77th session of the Assembly.

The General Assembly also acted upon the Sixth Committee’s Report on “Criminal accountability for United Nations officials and experts on mission” (A/75/423).   The General Assembly urged the Secretary-General to ensure zero tolerance for criminal activities and urged Member States to take measures under their national laws to ensure that the commission of crimes by their nationals as UN staff do not go unpunished.

Others matters the General Assembly acted on include resolutions on: “The Rule of law at the national and international levels (A/75/432) stressing the importance of adhering to law; “The scope and application of the principle of universal jurisdiction: (A/75/433) establishing a working group to discuss the subject at its 77th session; “Measures not eliminate terrorism (A/75/437) calling upon Member States, the UN and other appropriate international, regional and sub regional organizations to implement the UN Global Counter-Terrorism Strategy and related resolutions.

International Law Commission

The 72nd session of the International Law Commission was postponed to 2021, and consequently there was no Report of the International Law Commission for 2020.  In this respect, the General Assembly simply rolled over with some technical updates the draft resolutions introduced in the ILC in 2019 – carrying them forward for consideration in 2021.  Nevertheless, some Sixth Committee delegations took the opportunity to comment further on the ILC’s report of its 71st session in 2019.  In its ILC resolution, the General Assembly drew attention to the importance of Member States providing their views on the ILC’s agenda, particularly on the issues of immunity of State officials; succession of States; general principles of international law and sea level rise in regard to international law. (A/75/42).

UNCITRAL

Bruce Rashkow
Bruce C. Rashkow

With respect to the United Nations Commission on International Trade Law (UNCITRAL), the General Assembly adopted a resolution titled “Report of on the work of its 53rd session which, among other things, saw the General Assembly commend the Commission for holding a series of online panels to discuss the connection between its work and the economic consequences of the COVID 19 pandemic.

Stay tuned for further developments in the coming 76th General Assembly.

Bruce C. Rashkow is a special adviser to the ABA’s United Nations Representatives Committee; former Director, UN’s Office of Legal Affairs’ General Legal Division.

International Criminal Court (Report of Activity — Oct. 2020-Jan.2021) by Sean Butler

Ongoing ICC Hearings, Trials, and Appeals

Two cases are in the pre-trial stage: Abd-Al-Rahman (war crimes and crimes against humanity including murder, torture and rape in the Darfur region of Sudan); and Gicheru and Bett (interference with the administration of justice and interference with witnesses in connection with the investigation into post-election violence in Kenya-Gicheru surrendered to authorities in the Netherlands in November 2020 while Bett is not in custody and the case remains in pre-trial because he must be present for a trial.)

Two trials are currently underway at the ICC: Al Hassan (war crimes and crimes against humanity including torture, rape, sexual slavery, other inhumane acts, including, inter alia, forced marriages, persecution in Mali); Ongwen (war crimes and crimes against humanity of murder, rape, attacks on civilian populations, conscription of children under the age of 15, among others, in Uganda by the Lord’s Resistance Army); and, a third is set to commence in February 2021, Yekatom and Ngaissona (war crimes and crimes against humanity including murder, torture, use of child soldiers, and for Ngaissona, rape and attempted rape in the Central African Republic.) A decision in the Ongwen case is expected February 4, 2021.

Appeals are proceeding in two cases: Ntaganda (war crimes and crimes against humanity in the Democratic Republic of Congo). Gbago and Ble Goude (crimes against humanity including rape, murder, persecution, and other inhumane acts in post-election violence in Cote d’Ivoire) cases.

Reports on Specific Countries

Afghanistan: Afghanistan requested deferral of the prosecution based on claims that Afghanistan would properly investigate and try individuals. Documentation was submitted by Afghanistan which is currently under review by the Office of the Prosecutor. There was an announcement of no continuing proceedings pending a determination on the request for deferral.

Central African Republic: On January 24, 2021, Mahamat Said Abdel Kani, a Seleka rebel commander accused of war crimes and crimes against humanity including attacks on civilian populations and piilage, was turned over to the Court.

China and treatment of Uighurs: The Office of the Prosecutor announced on December 14, 2020, that there will be no further investigation regarding the allegations of mistreatment of Uighurs in China. China is not a party to the Rome Treaty.

Iraq and the UK: On December 9, 2020, the Office of the Prosecutor issued a 184-page report regarding allegations of war crimes committed by British troops in Iraq between 2003 and 2008, declining further prosecution. There was a finding of sufficient facts to investigate war crimes, but that British authorities had demonstrated a genuine investigation not designed to shield those accused, even though there were no prosecutions, so that under the principle of complementarity, the decision was made to close the preliminary examination. A copy of the report can be found here.

Nigeria and Boko Haram: On December 11, 2020, the Office of the Prosecutor announced there was enough evidence that both forces committed war crimes and the ICC would initiate an investigation to gather enough evidence which could be used to prosecute perpetrators of the crimes. Crimes alleged include murder; rape, sexual slavery, and forced marriage; torture; directing attacks against personnel involved in humanitarian assistance; directing attacks against buildings dedicated to education and to places of worship and similar institutions; conscripting and enlisting children under the age of fifteen years into armed groups and using them to participate actively in hostilities; persecution on gender and religious grounds; and other inhumane acts.

Palestine: The decision of the Pre-Trial Chamber in response to the request for guidance on the issue of territorial jurisdiction remains pending.

Ukraine: On December 11, 2020, the Office of the Prosecutor announced there is a reasonable basis to believe crimes against humanity and war crimes were committed which warrant an investigation. Ukraine is not a party to the Rome Treaty but has twice submitted declarations accepting the jurisdiction of the ICC with respect to (1) the crackdown on protesters in 2013-2014 under former president Viktor Yanukovych and (2) conflicts in Crimea and eastern Ukraine.

Assembly of State Parties

The 19th session of the Assembly of State Parties met between December 14-16, 2020 in The Hague and December 17-23, 2020 in New York, with many parts conducted using remote communications as the result of the ongoing CORONA-19 virus pandemic. A budget was approved, a change in how the pay for judges is determined was changed to follow the United Nations system of payments for under-secretaries, and recommendations for strengthening the Court and dealing with attacks on the Court were approved. The resolutions from the 19th session of the ASP can be found here.

Selection of a New President of the Assembly of State Parties: Ms. Silvia Fernández de Gurmendi (Argentina) was elected by acclamation on December 18, 2020.

Selection of Six New Judges: At the Assembly of State Parties six new judges were elected to nine (9) year terms. They are: Joanna KORNER (United Kingdom); Gocha LORDKIPANIDZE (Georgia); Maria Miatta SAMBA (Sierra Leone); Maria del Socorro FLORES LIERA (México); Sergio Gerardo UGALDE GODINEZ (Costa Rica); and Althea Violet ALEXIS-WINDSOR (Trinidad and Tobago). This brings the total number of female judges to 9 of 18.

Selection of New Prosecutor Delayed: The decision is expected in February 2021.

Sean Butler is attorney-at-law in Los Angeles. He is chair of the International Criminal Court Alliance.

Day of the Endangered Lawyer

January 24th, declared as the “International Day of the Endangered Lawyer”, focused this year on Azerbaijan, which in recent years has witnessed the crackdown and persecution of attorneys for doing their jobs—human rights lawyers and lawyers who opposed the current Azerbaijani government.   Attorneys there have been prevented from practice, incarcerated, and banned from the country for doing their jobs.

Since its inception in 2010 in The Netherlands, the day specifically exposes abuses of lawyers in a certain country, as well as celebrates the legal profession as the essential promoter and protector of the rule of law.   Previously, the following countries have been targeted:  Pakistan, Turkey, Egypt, China, Honduras, The Philippines, Iran, the Basque Country (Spain), and Colombia.

Transparency International

On January 29th, Transparency International, an international non-governmental organization (NGO) based in Berlin, issued its signature “Corruption Perceptions Index” (“Index”) ranking countries by their perceived levels of public sector corruption according to experts and business people.

The Index ranked 180 countries and territories using a scale of 0 to 100, where zero is highly corrupt and 100 is relatively clean of corruption.  Similar to prior years, more than two-thirds of the countries score below 50 on this year’s Index with the average at 43 demonstrating that most countries are failing to tackle corruption effectively.   Denmark and New Zealand were least corrupt at a score of 88, with Finland, Singapore, Sweden and Switzerland scoring 85 each.   As one might imagine, South Sudan and Somalia were at the bottom with scores of 12 each, followed closely with Syria (14), Yemen (15), and Venezuela (15).

Think Tanks

Most practicing lawyers do not have the time, issues or needs to consult the local or national Think Tank for information. Yet, to the extent their research and reports are available, Think Tanks–or policy institutes as they are sometimes called–contain a wealth of information, insights and policy analysis. They engage in research and advocacy concerning topics such as social policy, political strategy, economics, military, technology, and culture. As one commentator put it, Think Tanks “bridge the gap between knowledge and policy.”

According to a recent study from the University of Pennsylvania, the US has 1835, and is globally the largest number (incidentally, California has 153 in third place to Massachusetts [168] and DC [148]; and NY follows it with 137).  Second-place China has 435, followed by the United Kingdom (288), and India (280).  There are 6500 institutions worldwide in 179 countries. Many are non-governmental organizations, but some are semi-autonomous agencies within government; some are associated with political parties or businesses and have a point of view.   They are funded often by corporate contributions, governmental and foundation grants.

The most influential Think Tank in the world in 2016 was the Brookings Institution, according to CEO World Magazine.

This was followed by the UK’s Chatham House at second, and the French Institute of International Relations (IFRI) at third.  The Center for Strategic and International Studies (CSIS) was fourth, followed by the Carnegie Endowment for International Peace, Bruegel, RAND Corporation, Woodrow Wilson International Center for Scholars, Fundacao Getulio Vargas, Council on Foreign Relations (CFR).

For a list of think tanks in the US, click here.

On January 28, the U. of Penn’s listing of top Think Tanks ranked the Woodrow Wilson International Center for Scholars tenth in the world, the RAND Corporation (7th), the Center for Strategic and International Studies (4th), and the Carnegie Endowment for International Peace (1st). Click here for the 2020 Global Go To Think Tank Index Report.

Immigration Section

The Rocky Path for Dreamers by Payal Sinha

Deferred Action to Childhood Arrivals (DACA) is a program implemented by the Obama administration in 2012, that currently protects over 643,000[1] undocumented young immigrants from deportation and allows them to work lawfully. Since September 2017, the Trump administration has repeatedly tried to terminate or severely curtail DACA. On September 5, 2017, DHS issued a memorandum to terminate DACA, which was contested in several different federal courts throughout the country. As a result, three U.S. district courts issued nationwide injunctions allowing people who had previously received DACA to continue renewing their DACA while the litigation continued. The entire legal battle, continuing for four years of attack had a negative impact on the mental health of these young minds. At the Huffington Post, a story about Norma, a Dreamer who was diagnosed with anxiety, depression, and PTSD after being undocumented in the U.S. for nearly her entire life resonated with a lot of affected people. She’s far from the only immigrant who’s suffered adverse psychological consequences as a result of her status.[2] This is one of the many stories of immigrants who suffer severe mental trauma as a result of these battles and constant fear of being taken away from the only country they believed to be their home.  

The government sought review of most of the cases in the U.S. Supreme Court. Subsequently, cases from three different district courts— referred to as Department of Homeland Security v. Regents of University of California; Trump v. National Association for the Advancement of Colored People; and Wolf v. Batalla Vidal—were consolidated for U.S. Supreme Court review in fall 2019.[3]

On June 18, 2020, the U.S. Supreme Court decided that DHS’s termination of DACA did not comply with federal law. It found the termination to be “arbitrary and capricious” under the Administrative Procedure Act, because it failed to consider substantial reliance interests.[4] Accordingly, the Court upheld a lower court decision[5] that vacated the September 5, 2017 memorandum terminating DACA, thereby restoring DACA to its original 2012 state.

The U.S. Supreme Court held that: “The termination of the DACA program by DHS was arbitrary and capricious because it did not consider: DHS’ authority to maintain the deportation protections of DACA recipients when it terminated the program; or the reliance interests of DACA recipients, who have relied on DACA in a variety of ways, including to earn a livelihood, and those of their families and other entities, such as their educational institutions and employers, who have invested time and money in training and educating DACA recipients. The claim that the DACA termination violated the Equal Protection Clause of the Fifth Amendment did not raise a plausible inference that the rescission was motivated by racial animus.”[6] However, The Supreme Court did not address DACA’s legality, which was not a question before the Court. This meant that USCIS could have begun accepting both initial and renewal DACA requests, along with applications for advance parole from DACA recipients.

After the U.S. Supreme Court decision, DHS did not immediately provide any guidance about how they would implement the decision and begin processing initial DACA applications and advance parole applications.  Then on July 28, 2020, DHS released a new memorandum titled, “Reconsideration of the June 15, 2012 Memorandum Entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children’” (“Wolf Memo”). The Wolf Memo stated that DHS is “considering a new DACA policy” to assess “whether the DACA policy should be maintained, rescinded, or modified.”[7] On August 21, 2020 USCIS released new implementation guidance to its personnel in response to the Wolf Memo. (“Implementing Guidance”).[8]

On December 4, 2020, the Federal Eastern District of New York issued an order vacating the Wolf Memo. The court had previously concluded, in an opinion issued on November 14, 2020, that Chad Wolf was not lawfully serving as the Secretary of Homeland Security and thus had no lawful authority to issue the Wolf Memo. By vacating the Wolf Memo, the December 4th court order restored DACA to its pre-September 5, 2017 status. Furthermore, the order required DHS to accept applications from first-time DACA applicants as well as renewals, that renewals must now receive two-year grants of DACA and work authorization, and that DHS must accept requests for advance parole for DACA recipients under the pre-September 2017 standards.

This long-haul legal battle has impacted many lives with fear and anxiety in the process. Throughout the process, while dealing with uncertainty, these undocumented immigrants face significant barriers to accessing health care. A life of uncertainty with no access to healthcare and constant fear of deportation, is the harsh reality with which these immigrants live. It discourages them from seeking care, and the stigma of mental illness perpetuates a culture of silence that only worsens the suffering.

“Between the 11 million people currently living in the U.S. without legal immigration status and the roughly 5 million U.S. citizen children with at least one undocumented parent ― not to mention the adult citizens with undocumented loved ones ― nearly 1 in 20 people in the U.S. may be at risk for mental health problems related to immigration status.”[9] The immigration reforms need not only provide a pathway to citizenship; they should also incorporate medical care.

Payal Sinha
Payal Sinha

With initially promising positive changes by the new administration, it is hoped these challenges will be  addressed by overall immigration reforms.  The latest, on inauguration day January 20th, President Biden issued a memorandum directing the Secretary of Homeland Security, in consultation with the Attorney General, to take appropriate action to preserve and fortify DACA, consistent with applicable law.[10]

Payal Sinha is an attorney from San Francisco. She is an ILS Executive Committee Member and editor of the ILS monthly immigration updates.


[1] National Immigration Forum, USCIS, (current DACA recipients, 7/22/2020)

[2] Huffington Post “What Happened To Norma’s Brain? The mysterious trigger behind one Texan’s mental collapse” By Roque Planas February 17, 2018.

[3] Dep’t of Homeland Security v. Regents of Univ. of Cal., 140 S. Ct. 1891 (2020).

[4] Id. at 510

[5] Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 269 (E.D.N.Y. 2018); see also Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 409 (E.D.N.Y. 2018) (granting plaintiffs a preliminary injunction after concluding that they were likely to succeed on the merits).

[6] Deferred Action For Childhood Arrivals Prepared by the National Immigration Law Center and Immigration Law Resource Center.

[7] U.S. Department of Homeland Security, Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” July 28, 2020; “Reject all initial DACA requests and associated applications for Employment Authorization Documents, and return all associated fees, without prejudice to refiling such requests should OHS determine to begin accepting initial requests again in the future.”

[8] U.S. Citizenship and Immigration Services, Implementing Acting Secretary Chad Wolf’s July 28, 2020 Memorandum, “Reconsideration of the June 15, 2012 Memorandum ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”‘ August 21, 2020.

[9] Huffington Post “What Happened To Norma’s Brain? The mysterious trigger behind one Texan’s mental collapse” By Roque Planas February 17, 2018.

[10] U.S. Citizenship and Immigration Services, President’s Biden Memo, January 20 2021,Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)’ “


Committees

2020-2021 Executive Committee

Chair: William Gay

Vice Chairs:

  • Margret Francisco
  • Tiffany Heah
  • Cathy Carlisle

Secretary: Georgina Conheady

Treasurer: Richard Bainter

ILS Journal: Robert Pimm (Editor-in-Chief)

ILS NEWS:

  • Robert Lutz (Editor-in-Chief)
  • Tiffany Heah (Managing Editor)

Members:        

  • Agustin Ceballos
  • Robert E. Lutz
  • Robert Pimm
  • Melissa Allain
  • Payal Sinha
  • Daniel Alef
  • Hon. James P. Kleinberg (Ret.)

CYLA Liaison: Valentina Yan

Immediate Past Chair: Joshua Surowitz

Section Coordinator: Erica Ferrier

Administrative Assistant: Mycah Hetzler

Come Join the Executive Committee

We are looking for members to join the 2021-2022 Executive Committee. If you are interested, please email Erica Ferrier (erica.ferrier@calawyers.org) or Mycah Hetzler (mycah.hetzler@calawyers.org) for the application form. The deadline to apply is April 1, 2021.

Foreign Bar Relations Committee

Chairs: Richard Bainter and Joshua Surowitz

Even during the pandemic, ILS continues to develop and enrich its relationships with foreign bar associations. ILS currently maintains Friendship Agreements with twelve foreign bar associations in ten different countries and we are actively pursuing new relationships including in Canada, Europe, Asia, and South America. The full list of current Friendship Agreements can be found on the ILS website

ILS will continue to create online programming with foreign friendship bars in 2021. We recently completed a joint program concerning international antitrust with the Irish Law Society, and watch for future announcements of joint programs currently being planned with the Barcelona Bar Association, our Japanese friendship bars, and others.

Of recent note, each year the ILS attends the annual Sant Raimon de Penyaforte Festivities of the Barcelona Bar Association. This year the meeting on January 29th, which included Presidents and other representatives from national and regional bar associations all around the world, was held virtually. From CLA, our Executive Director Ona Dosunmu and ILS immediate past Chair, Josh Surowitz, were able to attend, and discuss mutual plans for 2021, including inviting our foreign friends in the Barcelona and other bars to our 2021 Annual Meeting. As was the case in 2020 and previous years, we hope to have a strong representation of attorneys from abroad attend our Annual Meeting and interact with our ILS membership.

Any ILS member who is interested on joining the Foreign Relations subcommittee of ILS should contact Josh Surowitz (Josh@Surowitz.com) or Ric Bainter (rbainter@RichardBainter.com). The subcommittee is currently scheduled to meet at noon on the third Wednesday of each month. The next meeting will be on February 17, 2021.

Education Committee

Chair: Melissa Allain

Any ILS member who is interested in organizing a webinar or interested in speaking relating to a particular topic that would be of interest to other ILS members should contact Melissa Allain (mallain@equinix.com).

02/24/2021 – The Commercialization of Outer Space: Multinational Considerations in US Licenses of 80,000+ Satellites

In the past 36 months, the FCC has made a series of decisions, at an accelerating pace, that may alter forever the Heavens as humans have come to experience them well before the dawn of recorded history. These decisions include: 

  • Licenses to launch hundreds of rockets, each containing scores of satellites to be placed into low- and very-low earth orbit(s);
  • Blanket licenses for millions of earth stations;
  • Modifications in satellite elevations from low- to very-low earth orbit(s); and
  • Expedited consideration and approvals of over 80,000 non-geostationary very-low-orbit satellites.

Scientists and public interest advocates around the world are voicing concerns that the FCC’s satellite program presents a national and international security risk from multiple perspectives.

The Controversy:

The satellite companies and the FCC question and downplay these risk concerns. The FCC is taking the position that it has no legal obligation to assess any of these risks, individually or collectively, prior to making important licensing decisions. Moreover, the FCC asserts it is not obligated to consult with at least fifteen other federal agencies that have jurisdiction and critical missions related to the satellite program.

Join us as we explore the critical questions under international and national law(s) in an open, fair, and balanced way, reflecting the different perspectives at play. A focus of the program will be on the legal areas challenged in a Petition for Rulemaking to the FCC, which raises frontier questions in federal, international, and transnational law and legal practice. A deep question throughout the program is the unaddressed ethical issues of allowing private enterprise to convert, for commercial gain, the Heavens which all of humanity since before the dawn of written history has regarded as sacred public trust and the common human heritage.

Speakers:

Student Programs Committee

Chair: Agustin Ceballos

02/18/2021 – Pathways to International Law Practice

This program is organized jointly with the Southwestern Law School International Law Society. This program will be from 12:30pm to 1:30pm via Zoom. It will provide an opportunity for students who are interested in pursuing a career in international law to speak with experienced attorneys to get guidance and advice.

Immigration Law Committee

Chair: Joshua Surowitz

02/25/2021 – Immigration in President Biden’s First 100 Days

Join us for a discussion about what every practitioner MUST KNOW regarding President Biden’s immigration policy during his first 100 days. We will focus on the following questions and more:

  • What effect will Biden’s Executive Orders have on Trump’s Travel Bans, Remain in Mexico Policy, the Border Wall and restrictions on Temporary Work Visas and Family Reunification?
  • Is his proposal to provide a Pathway to Citizenship to 11 Million Undocumented Immigrants likely to be passed by Congress?
  • How does Biden propose to change Employment-Based and Family-Based Immigration?
  • What are his plans for reforming the immigration enforcement system including both ICE and the Immigration Courts?

Speakers:

Monthly Immigration Updates

The immigration committee currently compiles immigration updates on a monthly basis. Please check out the monthly immigration updates available on the ILS website.

Events By Other Organizations, Institutions And Groups

February 10 – 11, 2021 – The New Normal of ESG Across Borders: Opportunities and Challenges for In-House Counsel

The state of New York, on December 9, 2020, announced that its pension fund with over $226 billion in assets would divest its oil and gas stocks in companies that, in its view, contribute to global warming. The announcement emphatically highlights how ESG factors (Environmental, Social and Governance) across borders represent business risks but also opportunities for companies, their stockholders, and their other stakeholders. In-house legal departments are the first line of defense to re-orient business operations to address global ESG issues and to identify risks. These challenges, risks and opportunities are creating additional demands on legal departments with constrained resources as they navigate this “New Normal” in addition to their traditional responsibilities to stockholders.  This two-day conference webinar will provide in-depth critical analysis through three tracks that efficiently canvas each of the ‘E’, ‘S’ and ‘G’ elements. Through these three tracks, the webinar will identify, explore, and evaluate key areas of relevance to in-house counsel wanting to navigate the numerous complex legal and operational issues raised by ESG in jurisdictions around the globe. Click here for more information regarding the event.

February 17, 2021 – USC Gould Zoom Live Lecture: Privacy Law

Join a virtual lecture from USC Gould School of Law on the topic of Privacy Law. Click here for more information.

May 5 – 6, 2021 – International Arbitration Skills Masterclass

Join leaders in the international arbitration community for the ABA International Law Section’s International Arbitration Skills Masterclass, an innovative program designed to hone your arbitral skills, learning from some of the world’s best international arbitration lawyers. Click here for more information.

May 26 – 27, 2021 – The First Annual Virtual Litigation Conference

The ABA International Law Section presents the inauguration of its Litigation Skills Conference, focusing on both “nuts and bolts” and developing issues. Attorneys new to international litigation will get an overview of the process from start to finish, and more experienced litigators will have the opportunity to interact on specialized issues of note. Whether a refresher on basics or a master class on selected issues, the conference is designed for attorneys of all levels. Click here for more information.

July 21-23, 2021 – Los Angeles – Summer Conference

This Summer Conference will bring a world class international law conference to Los Angeles; identify critical emerging issues; highlight the international legal work being done in Los Angeles; and introduce the firms doing that work to the members of the ABA International Law Section and larger international legal community. Click here for more information.

Nexus of Law and Literature: Bibliographies

“The Future of U.S. Foreign Relations and Foreign Policy”. Contribution by David McFadden
David McFadden
David McFadden

Below I have selected major sources addressing “The Future of U.S. Foreign Relations and Foreign Policy” under the new Administration. They explore the major issues on the horizon for the U.S. and the profiles of the various persons nominated to undertake leadership in framing those issues and U.S. responses. Happy reading! DMcF

Graham Allison, Grave New World: Why Biden’s Job Will Be So Much Harder Than His Predecessors’, FP (Jan, 15, 2021, 10:18 AM).

Kristin Archick, Cong. Rsch. Serv. IF11094, U.S.-European Relations in the 117th Congress (2021).

Wiliam J. Burns, The United States Needs a New Foreign Policy, The Atlantic (July 14, 2020).

David Dollar, Ryan Hass, Suzanne Maloney, Michael E. O’Hanlon, & Célia Belin, Brookings Experts Comment on the Future of US Foreign Policy Under a Biden Administration,  Brookings (Nov. 11, 2020). Audio & transcript available.

James Dobbins, For Joe Biden, an Experienced Foreign Policy Team, The RAND Blog (Jan. 19, 2021). Commentary originally appeared on The Hill on Jan. 16, 2021.

James M. Lindsay, Five Foreign Policy Stories to Watch in 2021, Council on Foreign Rels, (Dec. 21, 2020).

The Future of the Republican Party and US Foreign Policy, Chatham House (Dec. 2, 2020). This is a recording.

The Future of U.S. Foreign Policy, Carnegie Endowment of Int’l Peace (June 18, 2020), (Carnegie Connects Video).

Heather Hurlburt, Inside Joe Biden’s Foreign-Policy Worldview, FP (Jan. 15, 2021, 10:21 AM).

Ronald O’Rourke, Cong. Rsch. Serv. R46656, U.S. Role in the World: Background and Issues for Congress (2021).

Jennifer M. Piscopo, et al., Biden Faces the World: 5 Foreign Policy Experts explain US Priorities – and Problems – after Trump, The Conversation (Jan. 27, 2021 8:27 AM).

Danielle Pletka, A Conservative Foreign Policy for the Future, 239 Foreign Pol’y 41 (2021).

The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law (Paul B. Stephan & Sarah A. Cleveland eds., 2020)

Jake Sullivan, Reflections on the Future of U.S. Foreign Policy, 43 Fletcher F. World Affs. 117 (2019).

Transition 2021, Council on Foreign Rels, (2020-2021). Here is “a full suite of resources to help navigate the transition”.

Leslie Vinjamuri, et al., US Foreign Policy Priorities: What Difference Can an Election Make? (Leslie Vinjamuri, ed., 2020).

David McFadden is Senior Reference Librarian, Southwestern Law School.

Pressing the Reset Button

Article by Tiffany Heah

With the riot at the US Capitol on January 6, 2021, and January 2021 being the deadliest month of the coronavirus pandemic to date in the U.S., 2021 did not start off on a good note. A lot of us are tired from having to work from home, not being able to socialize in person and pursue outdoor activities. This is a sign that it is time for us to press the reset button and here are some ideas on how to do so:

Spring Clean

What better way to reset 2021 and wipe the slate clean by doing a little spring cleaning. Click here for some tips on how to keep your home safe and clean.

Feeling Down?

Looking for tips to get a spring in your step? Check out the 5 activities that can increase your happiness fast (and they are free) by Ashley Whillans, assistant professor of business administration at Harvard Business School and author of “Time Smart”.

Click here for resources made available by the CLA Health and Wellness Committee.

Organize Your Kitchen

There is something satisfying about looking at an organized space. Organizing is not about purchasing products so that it looks Instagram worthy. It is about creating systems that increases efficiency. With everyone working from home and outdoor dining restricted, the kitchen is probably used more regularly than before. Click here for tips on the “right” way to organize your kitchen.

Burnout?

Feeling trapped, stressed, fatigued, cynical or irritable? These are some of the signs that you are suffering from burnout. Check out the tips from Harvard Business Review, The Balance Careers and the Science of People on suggestions of how to manage burnout.

Get Ready for Tax Season

This year, the IRS is accepting tax filings starting February 12, 2021. Now is a good time for you to start compiling your tax documents so that it becomes less stressful when it is time to file your tax returns.

Looking to Buy Gifts

Valentine’s Day is around the corner and retail therapy works for some.  Looking for ideas on what to buy online? Support the museums by shopping from their online gift shop. Check out MoMA Design Store, Corning Museum of Glass, The Met Store, The Smithsonian Store, Tenement Museum, Museum of Contemporary Art Chicago, MOCA Store. There are tons of other museums so check out your local museum and see if they have an online gift shop and show your support.  

Tiffany Heah

Tiffany Heah is ILS Vice Chair and Managing Editor, ILS NEWS.

ILS NEWS

Editor-in-Chief:        Robert E. Lutz
Managing Editor:     Tiffany Heah

Please submit articles (150-500 words), ideas, comments, notices, current developments and new publication announcements to Tiffany Heah (tiffany@tiffanyslawfirm.com).

Opinions expressed herein are those of the authors and are not necessarily those of the California Lawyers Association or of the International Law and Immigration Section. Section dues are $99 per year. Law Students can join the Section for free.

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