MENU

International Human Rights Law

Immigration Moratorium Back in the Court - Podcast

International & National Security Law Practice Group Podcast
Josh Blackman, Ilya Somin July 25, 2017

Eighteen days after the Supreme Court granted certiorari in Trump v. International Refugee Assistance Project and stay applications were granted in part, on July 14, 2017, Judge Watson of the District Court of Hawaii ruled that grandparents, grandchildren, aunts, uncles, and other relatives of people could not be prevented from entering the country as they qualified as persons with a “bona fide relationship” under the Supreme Court ruling.

On July 19, 2017, the Supreme Court upheld parts of the District Court order. Ilya Somin and Josh Blackman joined us again to discuss developments in the litigation of Executive Order 13780.

Featuring: 

  • Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston
  • Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

 

Ziglar v. Abbasi Decided - Are Government Officials Liable for Damages? - Podcast

International & National Security Law Practice Group Podcast
David B. Rivkin Jr. July 07, 2017

Ziglar v. Abbasi is the result of over a decade of remands and appeals. The case was originally filed by the Center for Constitutional Rights on behalf of incarcerated Muslim, South Asian, and Arab non-citizens who were targeted after 9/11 by law enforcement as “terrorism suspects.” The defendants in the case, high level officials in the Bush administration, such as Attorney General John Ashcroft and FBI director Robert Mueller, and low level detention officials, filed a motion to dismiss, which was rejected by the in the District Court.

In 2009, the Supreme Court decided in Ashcroft v. Iqbal that government officials were not liable for discriminatory actions of their subordinates without evidence they directly ordered the actions. Meanwhile, five of the petitioners in Ziglar settled with the government, and the case was remanded to the District Court and amended. In 2010, the District Court granted a new motion of dismissal, but only for the high level officials. This dismissal was reversed by the Second Circuit.

The main question the Supreme Court answered was whether these high-level government officials could be sued for damages under the Bivens precedent. The precedent, created in a 1971 case involving the Federal Bureau of Narcotics, created an implied cause of action for any person whose Fourth Amendment rights are violated by federal officials. On Monday, June 19 the Supreme Court refused to extend the Bivens precedent to the petitioners, reversing the decision by the Second Circuit and remanding the case.

David Rivkin of Baker Hostelter joined us to discuss the opinion and its significance.

Featuring:

  • David B. Rivkin Jr., Partner, Baker & Hostetler LLP 

Courthouse Steps: Hernandez v. Mesa Decided - Podcast

International & National Security Law Practice Group Podcast
Steven Giaier June 29, 2017

On Monday, the Supreme Court vacated and remanded Hernandez v. Mesa to the Fifth Circuit. The case involved a cross-border shooting and a Bivens claim.

In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez’s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen.

The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity.

Steve Giaier of the House Committee on Homeland Security joined us to discuss the Court’s decision to vacate and remand and what it means for the case going forward.

Featuring:

  • Steven Giaier, Senior Counsel, House Committee on Homeland Security

Courthouse Steps: Hernandez v. Mesa - Podcast

International & National Security Law Podcast
Steven Giaier March 08, 2017

On February 21, the Supreme Court heard argument in Hernandez v. Mesa. In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez’s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen.

The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity. The main questions for the Supreme Court to answer are: Does the Fourth Amendment apply? Should qualified immunity apply to the border patrol agent? And can Agent Mesa make a Bivens claim?

Steve Giaier of the House Committee on Homeland Security attended oral argument and shared his perceptions.

Featuring:

  • Steven Giaier, Senior Counsel, House Committee on Homeland Security

The UNSCR 2334 Against Israel: What Is President Trump To Do? - Podcast

International & National Security Law Practice Group Podcast
Bernard Avishai, Orde Kittrie, Eugene Kontorovich January 30, 2017

Since the Obama administration abstained from the United Nations Security Council vote on Resolution 2334 that condemns Israeli settlements in the West Bank and Jerusalem, there has been much speculation as to the force, effect, and consequence of this Resolution. There are many concerns, including that this United Nations declaration may enable boycotts of Israel and that the Palestinian government might attempt to utilize the pronouncement to bring Israel before the International Criminal Court. President Trump’s has stated that he intends to alter or blunt the instrument. What will be the effect of this United Nations censure, and what are the options available to President Trump? 

Featuring:

  • Prof. Bernard Avishai, Adjunct Professor of Business, Hebrew University of Jerusalem, Visiting Professor of Government, Dartmouth College 
  • Prof. Orde Kittrie, Senior Fellow, Foundation for Defense of Democracies, Professor of Law, Sandra Day O'Connor College of Law, Arizona State University
  • Prof. Eugene Kontovorich, Professor of Law, Northwestern Pritzker School of Law