Emphasizing the human in ‘human rights’

Sarah Paoletti

Sarah Paoletti

Photo credit: Candace diCarlo

The United States, although widely recognized as a bastion of freedom and democracy, does not get an automatic “A” on its human rights report card. America has a much better human rights record than countries such as China, Sudan, Libya and Iran, but Sarah Paoletti, a practice associate professor of law at Penn Law School and director of the Transnational Legal Clinic, says “not being China” does not give the United States a free human rights pass. While other countries may be failing more egregiously, she says that doesn’t mean America has necessarily fulfilled all of its human rights obligations.

“We’re the only country other than Somalia to not have ratified the United Nations Convention on the Rights of the Child, and we’re one of seven countries that have not ratified the Convention on the Elimination of All Forms of Discrimination Against Women, in company with Sudan, Iran and Somalia,” Paoletti says. “We have some work to do.”

At the Transnational Legal Clinic, housed in the Gittis Center for Clinical Legal Studies, law students and staff engage in immigration and human rights advocacy, appearing before different administrative bodies that adjudicate immigration claims, predominately in the areas of asylum, victims of crime, trafficking and unaccompanied minors.

Paoletti, who came to Penn from the International Human Rights Law Clinic at American University, says the Transnational Clinic does international human rights work, such as working with Liberian refugees in Ghana, and also addresses human rights issues in the United States, such as advocating for the rights of migrant workers.

The Current sat down with Paoletti recently, a day before she left for Geneva, Switzerland, to hear America’s periodic review before the U.N. Human Rights Council.

“We are going as part of a fairly large and diverse delegation of advocates from across the United States to try to make sure that the debate in Geneva and the discussions in Geneva are reflective of the rights discussions that are happening on the ground in the communities across the United States,” she says.

Q. How did you become interested in human rights and the law? Did you have an interest in law when you entered Yale?
A.
I think I always, even as a child, was very much bothered when I felt something was unjust. That was sort of the only time I’d get upset as a child, if I thought something was unjust. When I went to Yale, I don’t know if I necessarily knew that I was going to do law. But my father always told me I’d be a good lawyer because I knew what the line was and knew how to argue right up against the line. When I was in college, I was interested in a range of different topics: women’s rights, environmental rights, development, civil rights. Human rights encompasses all of these different areas, and also allows me to think about other countries. In my mind at the time it gave me an opportunity to do international human rights and travel, which just seemed great to me. So it was the all-encompassing area for me to think about.
In my second year of law school, I took the human rights clinic. I had a client and I was working for the American Bar Association doing policy work around immigration. I found direct client representation so much more satisfying and realized that for me, I needed clients. I needed that contact and I needed to feel that connection to the clients and the client population. I found the policy work frustrating and disconnecting and, to a certain degree, unsatisfying for me to tell somebody who was calling the ABA after their husband had been picked up and shipped off to call their Congressman, or asking them if I can write their story to share with the staff. It just didn’t seem like what I wanted to do.

Q. You clerked for Judge Anthony J. Scirica on the U.S. Court of Appeals for the Third Circuit from 1999-2000. Do you have a most memorable case from this period?
A.
I went into my clerkship having already had a fair amount of work experience. I started the clerkship after I had already been a farm worker attorney for a year, so I think I went into it from a slightly different place than law students often go into clerkships. When I interned for the judge, he would give me all of his immigration cases. I worked on a case that allowed for asylees—people who have been granted asylum—to be authorized to work. Even if they didn’t have their work authorization, their status as an asylee automatically granted them authorization to work, and it was an unfair termination case brought under the provisions of the immigration act. That case ended up having significant precedent moving forward. And I think as a practical matter, it had an impact. That was one of the reasons why I really enjoyed clerking for Judge Scirica; he very much was concerned with what the practical impact was on the cases and decisions. That statute says that as an asylee, you’re authorized to work, and then you submit your application for work authorization.

Q. You served as staff attorney for the Friends of Farmworkers, Inc. from 2002-03. What kind of work did you do?
A.
Direct legal services for migrant farm workers, and we represented them in any issues that arose out of their status as a farm worker. So it was predominately labor and employment law, but we also ended up doing housing law and anti-discrimination law and we did a lot of language access work. We had a large group of clients who ended up in bankruptcy, so I ended up doing bankruptcy law. Because we were the only point of contact for our clients, it was a more comprehensive legal representation than other cases. A lot of what we did was going out to the labor camps, introducing ourselves and our legal services, and a lot of outreach and education.

Q. I presume some of the migrant farm workers are here illegally. Does their legal status have any affect on their rights?
A.
It depends who you ask, but under the statute, workers are workers. They’re employees. So they’re employees regardless of their immigration status. The Wage Payment and Collection Law, the Fair Labor Standards Act, the National Labor Relations Act and Equal Employment Opportunity, all of the anti-discrimination laws, none of them distinguish based on migration status. They do distinguish, though, based on industry, so agricultural workers are excluded from a lot of protections that other workers have. And so we dealt with those exclusions in terms of what rights they had or didn’t have, and tried to work to make sure that their basic rights were protected. In terms of immigration status, the day after I argued a default judgment in the Eastern District of Pennsylvania on behalf of two workers who had been beaten up by their employer for trying to assert their claim to wages, the Supreme Court issued its decision in Hoffman Plastic Compounds, which basically allows our immigration statute to trump our labor statutes in what remedies undocumented workers were entitled to. [The Court] basically said the right to back pay, which is pay for work that would have been performed but for the unlawful termination, presumes that the individual is entitled to employment. If the individual isn’t entitled to employment, then they’re not entitled to back pay, which strips the individual of any remedies if their rights are violated under the National Labor Relations Act. A lot of work has been done to make sure that exclusion and those protections are really confined to that situation and do not expand into areas of anti-discrimination law or worker’s compensation.
The other thing the court’s decision does is call into question the relevance of immigration status. So you can’t guarantee immigration status won’t be brought up anymore. I used to be able to pretty much guarantee my clients—to the degree that you can give any guarantees in the law, which you can’t—but I could say with some certainty to my clients that their immigration status is not relevant for the purposes of their case and it will not come up and if the employer tries to raise it, we’ll get a protective order. Because of the Hoffman Plastic decision, it’s much harder, except in the cases of unpaid wages. The judge may compel you to reveal your immigration status. And if it is revealed, that may have an impact on what you’re ultimately entitled to.

Sarah Paoletti

Sarah Paoletti

Photo credit: Candace diCarlo

Q. As a lawyer, what are your thoughts about people who technically break the law by coming here illegally?
A.

It’s important to remember that immigration violations are civil law violations. They are not criminal law violations. It is a criminal violation to commit fraud on the U.S. government, so if they are presenting false documents or lying about material facts, that could be a criminal violation, but for the most part, we’re dealing with civil violations and not criminal violations. This is important because at the end of the day, the immigration debate shifts and we talk about criminals and illegal aliens. If immigration violations were criminal law violations, then maybe undocumented residents would get the range of due process rights entitled to people in criminal proceedings. [Undocumented residents] are not entitled to the same due process rights because for the most part [coming here illegally is] deemed a civil violation. They are viewed as criminals, whereas in reality these are civil law violations.
I think the other thing that’s important to keep in mind is understanding the circumstances under which people come here, and also the false notion that there is this clear dichotomy between legal and illegal. It’s not so black-and-white. There are people who may be out of status, but may have an opportunity to get legal status. They may be naturalized and not realize they’re citizens. So they may not be able to prove that they have a legal right to be here when they get pulled over on the side of the street, but that doesn’t mean that they don’t have a legal right to be in the country. I think the real problem with the immigration debate is it has become very politicized and way oversimplified and it’s a much more complex situation.

Q. In an ideal world, what would comprehensive immigration reform involve?
A.
In an ideal world, any immigration system or reform would recognize the inherent dignity of all people and the fundamental human rights of all people, regardless of immigration status. I think there can be humane immigration policy that recognizes the complexity of the immigration system, that protects families and recognizes the value of the family as the core to our immigration system, and family unification and family reunification. What I always say about comprehensive immigration reform is that as long as we’re only talking about immigration enforcement and maybe expanding or creating additional opportunities for people who stay in the country, we’re still not going to have comprehensive immigration reform, because comprehensive immigration reform involves so much more than just the immigration system. It involves our entire labor market system. It involves our foreign policy, it involves our trade. But unless we’re willing to look at all the ways in which immigrants come here and why immigrants come here and how they’re brought here and the systems that have them here, there’s never going to be a comprehensive solution.

Q. You are the founder and director of the Transnational Legal Clinic. What types of opportunities do you seek out for students?
A.
We’re looking for opportunities for students to have clients and engage in advocacy where they have to start with the international law, the domestic law, and the different advocacy mechanisms. Our primary goal here in the clinic is pedagogy and teaching students how to lawyer. Asylum cases are really good for teaching lawyering skills, but there’s also a growing demand from the student body that we do more international work. The direction of the clinic is grounded, to a certain degree, in my experiences as a farm worker attorney, but also grounded by my desire for the students to have client contact, to have the opportunity to engage in meaningful oral and written advocacy, and have the opportunity to really work across languages and across cultures in a way that, increasingly, no matter what they end up doing, they are going to have to do in a real profession.

Q. Is there a main country that asylum seekers come from?
A .
Our clients are from all over the place. We’ve had clients from Guatemala, El Salvador, Guinea, Mali, Liberia, Ethiopia, China, Indonesia.

Q. Do most come for political or religious reasons?
A.
Every case is different. We’ve had a couple of clients seeking asylum who are women who have undergone female genital cutting and were seeking to protect their children from undergoing the same procedure. We’ve had clients who have been seeking asylum on the basis of persecution because of HIV status, domestic violence, persecution on account of sexual orientation or sexual identity, persecution on account of political opinion. So it really varies.

Q. Does the United States seem more sympathetic to any one asylum issue over another?
A.
I think there are issues that they’re more skeptical about, issues where there’s a common fact pattern. For example, Falun Gong cases out of China. They’re more skeptical about those cases being true. They don’t deny that there’s persecution of Falun Gong in China, but they think that they’re stock stories. When you get a repeat story or what they feel like seems like a stock story, they’re more skeptical. We’ve had a couple of cases that have been about gang violence and you just have to be thoughtful about how those cases are presented and what the facts are. But I think a lot comes down to the quality of representation that the client gets and helping them tell their story and doing the fact gathering and the evidence gathering and getting the expert witnesses and really putting together a compelling application. It’s hard. Philadelphia is such a diverse population too, so they’re more skeptical in certain cases because they’re viewed as stock cases.

Q. Do you think certain countries should get special asylum status, like Cuba and its ‘wet foot, dry foot’ policy?
A .
I think that the way that the Refugee Convention is written, and our asylum laws come out of the Refugee Convention, you have to be able to demonstrate you’re eligible for asylum based on certain criteria. Just like I feel like we can’t exclude everybody from certain countries because it seems like a nice country or a friendly country, you can’t have it both ways. I think it does need to always be individualized. There are other statuses, so we have temporary protected status granted to people where there’s been a humanitarian crisis. Liberians had temporary protected status and now that has been extended and they have deferred enforced departure. Haitians were granted temporary protected status, but the way that works is if you’re already here at the time the administration makes the decision that we should not be sending you back to your home country, you get to stay in the United States. And so we stopped all deportations to Haiti and we granted people who are here from Haiti temporary protected status, and with that they can work. That also expires at a certain point, so it’s not a permanent status, but it’s a recognition that there’s a humanitarian crisis on the ground in the home country that we don’t want to send people back to for humanitarian reasons.

Q. What do you make of the call by some to repeal the 14th Amendment or do away with birthright citizenship?
A.
Just as a fundamental matter, I think it’s based on the myth of ‘anchor babies.’ There’s this notion that people come here and deliver their babies so that they can then get status. And, in fact, a child cannot petition for their parents until that child reaches age 21. That’s some real long-term planning for the parents if that’s what they’re looking to do. Beyond that, the 14th Amendment comes out of the Dred Scott decision. The 14th Amendment comes out of a recognition that all people are created equal and that all people are entitled to citizenship if they were born in this country. I think we need to go back and remember that there is some important historical significance with the 14th Amendment and why it exists. And what are we really trying to combat by doing away with birthright citizenship?

Q. What does the United States need to do to get an ‘A’ in human rights?
A .
The obvious rights [violations] are related to torture and all of the things that have come out of Guantanamo and the so-called War on Terror. There are just clear violations going on down in Arizona in Maricopa County with Sheriff Joe Arpaio and the way he’s rounding up immigrants and treating immigrants in complete denial of all due process rights, and racial profiling that continues and has been exacerbated by the way in which our immigration enforcement is now being carried out by local law enforcement. There’s a large movement across the country to talk about housing rights in this country and the way in which people are being denied housing, and the criminalization of homelessness. Access to healthcare has been raised, access to education and disparities in our education system, excessive punishment in our education system that results in the school-to-prison pipeline, juvenile life without parole until recently, although there’s still juvenile life without parole, just for a smaller category of people. Certainly the death penalty, where our obligations under the Vienna Convention have been violated. The denial of the right of freedom of association for large categories of workers—for domestic workers, agricultural workers and for public workers in certain states. I could go on, but those are some of the range of issues that I think communities across the country are now talking about as human rights issues.

Originally published on November 11, 2010