The New Price for Asylum

The Trump Administration announced on July 31 that it had issued a final rule regarding fees charged by United States Citizenship and Immigration Services (USCIS) for immigration benefit applications.  The Rule reflects not only a questionable shift in how USCIS funding works, but also a significant change in our national treatment of migrants.   

According to USCIS, “The rule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and thoroughly vet applicants, petitioners and beneficiaries. The rule also supports payroll, technology and operations to accomplish the USCIS mission.”[1]  While the office is provided funding through Congressional appropriations for general operations, it is a largely fee-based agency.  Fees fund nearly 97% of USCIS’ budget.  Meaning, the people applying for immigration benefits cover the costs of processing their applications by paying fees associated with those applications.  With the increase in fees, however, USCIS now seeks to have migrants not only cover the costs of processing, but to cover the additional costs of “fraud prevention” and operations that have resulted from the Administration’s efforts to make processes more difficult, utilize USCIS staff for immigration enforcement efforts, and deter applicants.  The structure of the rule, however, makes clear that the Trump Administration believes the most vulnerable should shoulder this burden. 

For example, the fee for a waiver of inadmissibility—usually required by applications who have prior immigration violations or criminal issues that would otherwise prevent their ability to obtain immigration benefits—is increasing from $930 to $1,400—a 51% increase.  Compare this to the fee for a petition for immigrant worker (Form I-140), which is decreasing from $700 to $555—a 21% decrease.  The application for a travel document is increasing by 3% from $575 to $590, while a Refugee Travel Document is increasing by 7% from $135 to $145.  Applications for suspension of deportation is increasing 535 percent from $285 to $1,810.  And, fees for applying for naturalization are increasing by 81 to 266 percent (depending on type of application). 

Perhaps most egregiously, however, is the new inclusion for the first time in our history of a fee to apply for asylum.  This makes the U.S. one of only three countries in the world—amongst us, Iran and Australia—to charge to obtain protection from persecution and torture.  

Applications for asylum have traditionally been free, and they remain that way for the majority of countries in the world.  This reflects the reality that those fleeing persecution and torture are the least able to afford application fees.  As we know from many of our clients at The Advocates, asylum applicants have often been forced to flee their homes with very little notice—bringing with them only what they could quickly and covertly carry, with no time to liquidate assets.  Additionally, many must pay exorbitant fees for travel into the U.S. or to help secure relevant travel documentation.  In other cases, they may have spent all of their savings—and that of friends and family—to bribe their way out of jail lest they face certain death in their home countries.  These are not the stories of individuals relocating to the U.S. for business opportunities or to be near family.  As Warsan Shire explains: “no one leaves home unless home is the mouth of a shark….” 

Yet, with this rule—in concert with myriad others proposed and implemented by the Administration seemingly since its first month in office—the United States is turning itself into another shark.  No longer will the United States be welcoming those for whom migration is a last resort; instead, it will be saying that one must pay the price for safety or look elsewhere. 

While a filing fee would have been an affront previously, this is all the more disturbing given the significant narrowing of approvals under the Administration’s many new rules.  For example, the Administration has worked to nearly strip the right to apply for asylum as a victim of domestic of violence or due to threats from gangs and cartels.  In other instances, it is working to expand bars for those perceived to persecute others, committed certain crimes, and more.  Cases that we previously would have felt confident to see approved are now being referred to immigration judges who may also deny them.  Thus, a $50 filing fee without a guarantee of protection is an affront to the human rights of migrants as well as the laws of the United States, which specifically enshrine the rights of asylum seekers and torture victims.

This rule also comes at the same time DHS issued its final rule significantly contracting the rights of asylum seekers to obtain authorization to work in the United States.  Already, we know that many of our clients must depend on friends and community-members to survive after making the perilous journey to the U.S.  Additionally, many asylum seekers are coping with trauma from torture while working to calm the nerves of their children who have journeyed with them.  Others are working to learn basic English, bus routes, cultural nuances, and significant weather changes—all while quickly preparing their asylum cases before the one-year bar elapses.  Now, they must do so without the prospect of work authorization for one-year (possibly not until their case is approved for someone who entered without inspection or failed to apply within one-year of entry) and pay the $50 filing fee simply for the opportunity to have their case heard.  While we see through our work incredible stories of community support and asylee resilience, we also know that many of our clients experience further exploitation by those on whom they are forced to depend.  Extending the wait time for employment authorization, demanding a filing fee, and restricting grants for asylum or prolonging the process extend the likelihood of exploitation and harm, violate the human rights of asylum seekers, and betray our roots as a leader in refugee protections. 


By Lindsey Greising, Staff Attorney with the Research, Education and Advocacy team at The Advocates for Human Rights

[1] https://www.uscis.gov/news/news-releases/uscis-adjusts-fees-to-help-meet-operational-needs

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Poland’s Dangerous Withdrawal From The Istanbul Convention

Introduction

Poland has ratified the Istanbul Convention, yet announced plans to withdraw from the treaty. Related attacks on reproductive rights, the independence of the judiciary, sex education, and civil society have abounded.

The Istanbul Convention

The Istanbul Convention, or the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, was adopted in November 2011. This treaty seeks to address gender-based violence against women in all its various forms. Members are expected to amend their laws to define and criminalize violence against women and children, provide public education, and protect victims by establishing strong support services, in line with international standards.

The Status of the Istanbul Convention in Poland

Poland signed the Istanbul Convention on December 18, 2012 and ratified it on August 1, 2015. Since then, claims that the Istanbul Convention promotes so-called “gender ideology,” a conservative fiction that equates the goals of women’s and LGBTI rights activists with destroying the traditional family unit (consisting of a married man and woman and their children) have instigated threats to withdraw from the treaty. On July 25, 2020, Justice Minister Zbigniew Ziobro announced that Poland will withdraw from the treaty. The Council of Europe condemned the action in a statement released on July 26, 2020, warning Poland that such a move would have serious implications for the protection of women. Thousands in Poland began protesting after Minister Marlena Malag, Minister of Family, Labour and Social Policy tweeted on July 19, 2020 that Poland was preparing to withdraw from the Istanbul Convention. Several organizations, including the Ordo Iuris Legal Institute, have long supported withdrawal from the convention, arguing that it is a threat to traditional family values. Together, with dozens of pro-family organizations, they began collecting signatures for a citizens’ legislative initiative called “Yes to Family, No to Gender.” The petition lobbies the Polish government to withdraw from Istanbul Convention and propose an alternative treaty, the International Convention on the Rights of the Family.

Other Legislation

The withdrawal from the Istanbul Convention and such initiatives are not a new development. Two other citizens’ initiatives recently garnered sufficient signatures to be introduced to the legislature, one of which is the Stop Pedophilia Bill. This bill would criminalize “anyone who promotes or approves the undertaking by a minor of sexual intercourse or other sexual activity.” This could include those who provide sex education or information to minors, such as health educators or providers. 

The bill has been supported by the Law and Justice party, which controls the Sejm legislative body and the presidency. President Duda, relying on anti-LGBTI rhetoric, was re-elected in July 2020. State-run television speculated “on whether Duda’s presidential opponent would have forced LGBTI education on all children, whether he would replace independence-day parades with gay-pride parades, [and] whether Duda should push for a clause in the constitution banning gay marriage.” These sentiments were also echoed by a large part of the Catholic Church, including the archbishop of Krakow who has referred to homosexuals as “the rainbow plague.”

Response of Civil Society

Attacks on NGOs in retaliation for participating in marches for women’s rights have occurred. On the one-year anniversary of the 2016 demonstrations, the government raided many women’s rights organizations. Many organizations, especially those related to sexual and reproductive health, anti-violence, and non-discrimination, have seen their work demonized. Those working in the public sector, such as government employees or teachers, are under pressure not to collaborate with those organizations. Those that continue to work with the NGOs or participate in the women’s rights protests often find themselves subject to disciplinary hearings or other retaliation.

When the two new citizen’s bills were introduced in April during the pandemic, activists again protested by using online platforms, placing signs in their windows and marching in the streets while practicing social distancing. Many who left their homes now face fines of up to $7000, despite wearing masks and leaving their homes for everyday necessities.

Implications

The withdrawal from the Istanbul Convention will greatly impact victims of gender-based violence against women, both in Poland and internationally. In Poland, human rights activists will no longer have the treaty as a tool to push for legislative and societal changes. Such withdrawal sets a dangerous precedent and a is a serious backlash to women’s rights.

By Elizabeth Montgomery, Staff Attorney, Women’s Human Rights Program at The Advocates For Human Rights.


The Advocates for Human Rights is a nonprofit organization dedicated to implementing international human rights standards to promote civil society and reinforce the rule of law. The Advocates represents more than 1000 asylum seekers, victims of trafficking, and immigrants in detention through a network of hundreds of pro bono legal professionals.

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Why Pompeo’s Commission on Unalienable Rights Is Wrong

U.S. Secretary of State Mike Pompeo recently unveiled the draft report of the Commission on Unalienable Rights (Commission). During the event at the National Constitution Center in Philadelphia (“a place intentionally chosen”, even if it is currently closed to the public), Secretary Pompeo gave a speech entitled “Unalienable Rights and the Securing of Freedom”.   

“And it’s important – it’s important for every American, for every American diplomat, to recognize how our founders understood unalienable rights.  As you’ll see when you get a chance to read this report, the report emphasizes foremost among these rights are property rights and religious liberty.”   – Secretary Pompeo, July 16, 2020 

https://www.state.gov/unalienable-rights-and-the-securing-of-freedom/

When reading the draft report, it is important to remember that the Commission is a political body created by Secretary Pompeo to perform a very specific, political function: to create an official U.S. State Department document that reflects his own view of human rights, narrowing the definition to undermine fundamental principles of international human rights law and backtrack on U.S. foreign policy objectives that provide protections for historically marginalized groups, including women, racial and ethnic minorities, and the LGBTQI community (human rights which Secretary Pompeo has called “ad hoc” rights). 

As an organization committed to implementing international human rights standards, The Advocates for Human Rights is deeply concerned about the mandate and work to date of the Commission, as well as the potential harm that the Commission’s report may have on the United States’ fulfillment of its international human rights obligations.  When the Commission was created in July 2019, we joined with other U.S. human rights leaders in sending Secretary of State Mike Pompeo a  public letter letter expressing concern about the many legal, moral, and philosophical problems with the Commission, its mandate, and its makeup, and calling for the Commission to be immediately disbanded. Our concerns deepened as we observed the work of the Commission over the past year. In April 2020, we submitted comments directly to the Commission as it prepared its “advice and recommendations concerning international human rights matters” to Secretary Pompeo, in keeping with its mandate.  

Now that the Commission has released its draft report and recommendations, we are alarmed that the report would narrow the scope of U.S. obligations under international human rights law and justify a ranking of rights that prioritize some rights, such as the right to freedom of religion, over others. We remain strongly concerned that the Commission’s draft report seeks to reinterpret the international human rights framework established over the past 70 years and limit widely recognized international human rights – particularly the rights of women, girls, and LGBTQI persons.  We are alarmed that the Commission suggests “other criteria” in its draft report to determine “whether and when a new claim of human right warrants support in U.S. foreign policy”. 

“In short, human rights are now misunderstood by many, manipulated by some, rejected by the world’s worst violators, and subject to ominous new threats.”  – Draft Report of the Commission on Unalienable Rights 

https://www.state.gov/wp-content/uploads/2020/07/Draft-Report-of-the-Commission-on-Unalienable-Rights.pdf

The international human rights law framework already adequately defines the scope, content, and obligations of States to respect and promote human rights. The Universal Declaration of Human Rights (UDHR) and the nine core human rights treaties, particularly the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), codify widely recognized and accepted international human rights principles. These treaties are the product of decades of multilateral negotiations and represent an international consensus regarding the scope of human rights that bind the States that have opted into to ratifying them. In ratifying the ICCPR, as well as the treaties such as the Convention Against Torture and the Convention on the Elimination of All Forms of Racial Discrimination, the United States has agreed to be bound by these multilateral human rights treaties.  

As the UDHR and subsequent binding human rights treaties make clear, human rights are universal, indivisible, interdependent, and interrelated. In other words, all human rights are equal in importance. Although the international human rights framework does recognize a distinction between derogable and non-derogable rights, it does not establish a hierarchy that allows for the exercise of some rights in ways that violate others. A prioritization of one right – freedom of religion or belief – over the enjoyment of other human rights would constitute a violation of the United States’ binding obligations under international human rights law.   

As an organization with United Nations ECOSOC Special Consultative Status, The Advocates regularly participates in international advocacy at the UN human rights mechanisms.  The Advocates also partners with human rights defenders and civil society organizations throughout the world. Many of our partners are currently experiencing threats, including threats of physical harm, due to a backlash against human rights. We are concerned that the Commission’s work sends a signal to the international community that the U.S. government views the international human rights framework as malleable and open to unilateral re-interpretation. The Commission’s willingness to question the basic foundations of the human rights framework risks emboldening populist and authoritarian regimes to further restrict human rights and justify repressive policies. Further, it is in the U.S. government’s national interest to make the promotion and protection of human rights a cornerstone of U.S. foreign policy. Redefining and restricting human rights would limit the United States’ impact on the protection of human rights around the world. 

We do agree with the Commission’s Concluding Observation that, “A crucial way in which the United States promotes human rights abroad is by serving as an example of a rights-respecting society…” Unlike the work of the Commission thus far, however, a good faith review of the role of human rights in U.S. government policy would necessarily focus on how the U.S. could both improve its human rights record at home and promote greater protections for all human rights worldwide. Such a review would begin by reaffirming the U.S. government’s commitment to the international human rights framework as developed over the past 70 years and would recommend appropriate changes to Trump administration policy based on that framework. Along with others in the U.S. human rights movement, we have expressed our collective desire to refocus this administration on solving some of the human rights violations it has fueled through its reactionary policies on issues ranging from immigration, asylum, freedom of religion, systemic racism, and myriad due process and rule of law issues.  

The Commission was instructed last year to provide Secretary of State Pompeo with “advice on human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights.”  We are better than we were when the UDHR was drafted, shortly after the end of World War II when there were no institutions to challenge the human rights violations perpetrated by State and non-State actors. Human rights are not merely documents. They reflect the core values of our own Constitution and the decades of jurisprudence strengthening anti-discrimination laws that have sought to ensure that these core values can be enjoyed by all. 

By Jennifer Prestholdt, Deputy Director and International Justice Program Director at The Advocates for Human Rights  

Take Action!  The release of the draft report on July 16 began a two-week public comment period.  The Commission welcomes all submissions.  Please route them by July 29 to commission@state.gov and/or Designated Federal Officer Duncan Walker, who may be reached at walkerdh3@state.gov

Veronica Clark: Honoring Our 2020 Volunteer Award Winners

Veronica Clark, The Advocates For Human Rights Volunteer Award Recipient

Veronica Clark, owner of the Minneapolis-based boutique D.NOLO, is the 2020 recipient of The Advocates for Human Rights Women’s Program Volunteer Award. Clark has been an active volunteer with The Advocates since 2015, advocating on behalf of both racial and gender equality. This month, as Clark was in the midst of re-opening her boutique that had closed in the wake of pandemic, she took time out to virtually correspond with me about her work with The Advocates. I left our conversations inspired by her resilience, hard work, and ability to balance her different roles in the community.

Clark first encountered The Advocates while working on a documentary in Geneva. Since then, she has gone on several trips advocating for human rights. In 2017, Clark travelled with The Advocates to lobby at the United Nations in Geneva. While there, she delivered an oral statement to the Human Rights Council raising awareness on issues of race in the United States – particularly with respect to the crisis of the killing of Black men in the U.S. In addition, Clark traveled to Malta for the WAVE (Women Against Violence Europe) annual meeting where she forged new relationships with women human rights defenders from around the world helping to ensure the protection of women’s rights in their respective countries.

In addition to her work at various human rights conferences, Clark also volunteers a substantial part of her time fact finding for The Advocates. She helps them to collect information that will guide their future recommendations and policy changes. She has researched international threats to women’s rights, LGBTQ rights, and the safety of human rights defenders. As director of The Advocates’ Women’s Human Rights Program Rosalyn Park noted, “[f]or each of these projects, Veronica brings tremendous talent to the table: from her keen observation skills where she consistently spots the subtle yet crucial details, to her ability to make everyone she meets feel instantly at ease, to her worldview and multicultural understanding of racial and gender inequality issues.”

When I asked Clark what her favorite part about working with The Advocates was, she responded, “feeling like I have a small part in positive change.” Veronica, you have had more than just a small impact on international and local human rights matters and your commitment to justice is unparalleled. It is with great pleasure that The Advocates’ Women’s Rights Program honors you this year with a 2020 Volunteer Award.

By Jenna Schulman, University of Pennsylvania sophomore and active volunteer for The Advocates For Human Rights.

The Advocates for Human Rights is a nonprofit organization dedicated to implementing international human rights standards to promote civil society and reinforce the rule of law. The Advocates represents more than 1000 asylum seekers, victims of trafficking, and immigrants in detention through a network of hundreds of pro bono legal professionals.

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Justice for George Floyd: UN Human Rights Council Shines Spotlight on Systemic Racism and Police Brutality

The March session of the UN Human Rights Council was put on hold due to the COVID-19 pandemic. But on Monday morning, that session resumed in Geneva with a dramatic opening. The President of the Human Rights Council gave the floor to Dieudonné W. Désiré Sougouri, Permanent Representative of Burkina Faso to the Council and coordinator of the body’s African Group:

Dieudonné W. Désiré Sougouri, Permanent Representative of Burkina Faso

“The tragic events of 25 May 2020 in Minneapolis in the US which led to the death of George Floyd led to protests throughout the world against injustice and police brutality that persons of African descent face on a daily basis in many regions of the world. The death of George Floyd unfortunately is not an isolated incident. Many other cases of persons of African descent having faced the same fate because of their origin and police violence exist. After the widespread indignation over this situation, it would be inconceivable that the Human Rights Council not deal with these questions which are very relevant in accordance with this mandate. This is why the African Group calls upon the Human Rights Council to organize an urgent debate on current violations of human rights that are based on racism, systemic racism, police brutality against persons of African descent, and violence against peaceful demonstrations, to call for an end to be put to these injustices.”  

Without objection, the Human Rights Council President then scheduled an unprecedented urgent debate for Wednesday, June 17: 

It was all over in less than 3 minutes, but it reflected countless hours of worldwide advocacy. The Advocates joined forces with over 600 organizations in 60 countries, in an effort endorsed by family members of George Floyd, Philando Castile, Jordan Davis, Breonna Taylor, and Michael Brown, to push the Council to dedicate a special session to racial justice in the United States 

What to expect? 

Tomorrow at 3:00 pm Geneva time (8:00 am Minneapolis time), the Council President will gavel open an urgent debate on “current racially inspired human rights violations, systemic racism, police brutality against people of African descent and violence against peaceful protests.” You can join me to watch the session livefollow The Advocates on Twitter for livetweetsor catch it later on the UN Web TV archivesThe debate may continue Thursday morning at 10:00 am Geneva time (3:00 am Minneapolis time). 

Like any debate at the Human Rights Council, you can expect a lot of polite formalities. The Council is a political body, with diplomats representing the interests of their own governments in the context of human rights. But you can also expect that every speaker will have watched the devastating and infuriating video of the police killing of George Floyd. Many of these high-level diplomats will say his name, as well as the names of other Black people who have been killed at the hands of law enforcement in the United States. It is possible that the Council will invite a member of Mr. Floyd’s family to address the body via video link.  

Monday’s strong words from Burkina Faso, calling for “an end to be put to these injustices,” may be a sign of what’s to come. It’s hard to gauge whether the debate will include any defense of the impunity that law enforcement officials in the United States usually enjoy. Since the United States resigned its seat on the Council in 2018, it has not attended Council sessions, but it is possible a U.S. delegate will attend the urgent debate and offer up some defense 

Accountability and impunity will be words to listen for. A core component of human rights is that when the government commits a human rights violation, the responsible parties must be held accountable. With qualified immunity as an entrenched judicial doctrine serving as a barrier to accountability, our system falls short.  

As the Council wraps up its March session, resolutions will be top of mind. Burkina Faso has prepared a resolution for the Council to consider later this week. It calls for:

An independent international commission of inquiry, to be appointed by the President of the Human Rights Council to establish facts and circumstances related to the systemic racism, alleged violations of International Human Rights Law and abuses against Africans and of People of African Descent in the United States of America and other parts of the world recently affected,  by law enforcement agencies, especially those incidents that resulted in the deaths of Africans and of People of African Descent; with a view to bringing perpetrators to justice

Ordinarily, resolutions are weeks in the making, but because of the urgent debate, the Council will have the opportunity to move relatively quickly to take action—if it has the political will. We’ll be able to follow debate and voting on the resolution later this week and next Monday. 

If the resolution passes, this commission of inquiry would conduct an investigation and provide a series of reports to the Council at its sessions in September, March 2021, and June 2021. The Council would then have the opportunity to take additional steps based on the commission’s final report. Those steps could include renewing the commission’s mandate or taking other steps to ensure accountability for human rights violations committed against people of African descent in the United States. 

Our efforts 

As soon as the Council announced the urgent debate, we sprang into action. The critical actors in this debate will be the 47 members of the Human Rights Council, who will be able to vote on resolutions later this week, and again in early July. But all UN Member States, as well as observers such as the European Union, the Holy See, and the State of Palestine will also be able to take the floor during the debate.  

We identified UN Member States that are particularly vocal on issues of racism, racial discrimination, and minority rights, like Honduras and Sierra Leone, adding 20 countries to the original 47.  

After years of lobbying delegates to the Human Rights Council for the Universal Periodic Review, we have a great set of contacts for most of the delegations in Geneva. So we reached out to familiar names, letting them know about the written statement we submitted to the Council last week on systemic racism in the United States.  

We had heard that U.S. officials have been working behind the scenes to try to make sure that the United States wasn’t singled out in Wednesday’s urgent debate. So we wrote to delegates to ask them to ensure that the debate would indeed shine a spotlight on the United States. More important, we asked them to commit to measures that would hold the United States accountable for these ongoing and systemic human rights violations. We urged them to support a resolution to mandate the creation of an independent, international accountability mechanism to document and investigate extrajudicial killings of unarmed Black people.  

Other UN bodies speak out 

Photo credit: UN Photo/Loey Felipe

Professor E. Tendayi Achiume, UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, along with the UN Working Group of Experts on People of African Descent, is making a similar request that the Council establish an international commission of inquiry to investigate systemic racism in law enforcement in the United States 

Last Friday, the UN Committee on the Elimination of Racial Discrimination invoked its early warning and urgent action mechanism, called on the United States “to increase the oversight of police misconduct, and to ensure that each allegation of excessive use of force by law enforcement officials . . . is promptly and effectively investigated irrespective of race, colour, descent, national or ethnic origin and that the alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions.” The Committee also emphasized that “systemic and structural discrimination permeates State institutions and disproportionately promotes racial disparities against African Americans, notably in the enjoyment of the rights to equal treatment before tribunals, [and] security of person and protection by the State against violence or bodily harm.” 

Next steps 

With decades of experience collaborating with partners around the world on UN advocacy, we know that sharp criticism from the United Nations is no quick fix. Efforts to dismantle systemic racism and end impunity require both external pressure from bodies like the Council and as well as grass roots mobilization from activists on the ground. Together, we can leverage that pressure from all directions to create a system that respects human rights.  

Follow developments on The Advocates’ Racial Justice Take Action page.  

Click here to learn more about how to advocate for human rights at the United Nations. 

Amy Bergquist is a Senior Staff Attorney with The Advocates’ International Justice Program. 

Supreme Court Lets Stand Qualified Immunity, Growing Impunity

Federal civil rights charges were meant to hold police accountable for violence, but decades of “qualified immunity” cases have eroded this power. The Supreme Court’s decision to deny certiorari in Baxter v. Bracey and not take a new look at the “qualified immunity” doctrine in its fall term leaves in place an increasingly weakened right to a remedy for human rights violations.    

In the 1871 Civil Rights Act, known as the Ku Klux Klan Act, Congress created a right for individuals to sue public officials who violate legal rights as part of its effort to quell racist violence against newly freed African Americans. Codified in 42 U.S.C. § 1983, the provision allows individuals to file a civil lawsuit for civil rights violations like police brutality, an illegal search, or an unlawful arrest.

United States Supreme Court

Section 1983 provides an additional and alternative civil route to protect civil rights and hold violators accountable, beyond any criminal charges. In Section 1983, Congress used specific language to make clear that “every” state official who causes a “deprivation of any rights” guaranteed by the Constitution and laws “shall be liable to the party injured.”  This crucial civil remedy steps in where the criminal justice system fails to provide justice and accountability—either because the state refuses to bring charges, there is no indictment, juries fail to convict, or because a criminal remedy may not provide the avenue needed to make a victim whole, such as damages for pain and suffering. The lower evidentiary standard in civil versus criminal matters, moreover, may be crucial for remedies—a lesson we all learned from the OJ Simpson case.    

Yet, this fundamental right to a remedy has been narrowed over the years through a series of court decisions that created an exception referred to as “qualified immunity.” 

What is “qualified immunity”?

Qualified immunity is a judicial doctrine that allows public officials to be held accountable only insofar as they violate rights that are “clearly established” by existing court decisions.  Under the Court’s current interpretation of qualified immunity, an individual will fail at a Section 1983 claim for remedies unless they can prove that the officer violated their rights through the same specific conduct previously addressed by a court in narrow circumstances—even where the officer knowingly violates someone’s constitutional rights.

The Supreme Court originally upheld application of Section 1983, as in Monroe v. Pape.  However, in 1967, the Supreme Court created “qualified immunity” as an exception for public officials who had acted in “good faith” and believed that their conduct was authorized by law. Fifteen years later, in Harlow v. Fitzgerald, the Court drastically expanded the defense, doing away with the “good faith” element and providing immunity from liability unless the victim can show that his or her right was “clearly established” through a previously decided case that involves the same “specific context” and “particular conduct.” In 2001, Saucier v. Katz created a two-part test to determine whether or not to grant qualified immunity to an officer.  This involves: 1) whether an officer used excessive force in violation of the Fourth Amendment and 2) whether the officer should have known that their actions constituted excessive force based on clearly established court precedent. And, in 2009, the Court further expanded this in Pearson v. Callahan, when it ruled that lower courts can make a finding on part two of the test without addressing part one. 

Pearson, combined with a judicial principle of avoiding questions of constitutional interpretation when possible, means that courts have increasingly been side-stepping the important issue of whether particular conduct in fact violates the Fourth Amendment. And because Pearson gives courts the go-ahead to dodge this issue, they are shirking their role in setting out new “clearly established” law to guide officers’ conduct in the future.

How does the “qualified immunity” doctrine impact human rights?

The overbroad qualified immunity doctrine has led to growing impunity for human rights violations. Article 2 of the International Covenant on Civil and Political Rights recognizes the fundamental importance of the right to a remedy for human rights violations. But the Court’s qualified immunity doctrine undermines Congress’s intent to provide a for victims of brutality or harassment by law enforcement.

The data bear out what communities of color have lived. A Reuters team found that from 2005 to 2008, appeals courts granted qualified immunity in 44 percent of cases, but from 2016-2019, that number had jumped to 57 percent.

The prohibitive costs of litigation exacerbate the situation. Although lawyers can recover fees and costs if the case prevails, few attorneys or clients can afford to front the costs when the chances of success are low. And, because the qualified immunity formulation places the onus on the victim to show that a previously recognized right has been violated, courts may dismiss cases by simply finding no sufficiently similar case law—without ever considering the alleged misconduct.  As fewer courts review the constitutional violations in Section 1983 cases, there are decreasingly few new permutations of misconduct found.

The Supreme Court’s qualified immunity doctrine has radically undermined Congress’s intent, in the aftermath of the Civil War, to hold government actors accountable for human rights violations against Black people. Judges across ideological lines have recognized the problem. Both liberal and conservative justices in recent years have criticized the Supreme Court’s qualified immunity case law.  Justice Sotomayor has said qualified immunity’s “one-sided approach” is “an absolute shield for law enforcement officers,” while Justice Thomas has criticized it for having no legal basis.

With its decision to not hear Baxter v. Bracey, Congress must eliminate the doctrine and restore cornerstone of accountability.

Want to learn more? Check out an excellent audio breakdown of the issue at the front end of this Pod Save the People episode.

By Lindsey Greising, staff attorney at The Advocates for Human Rights.