Supreme Court Hears Oral Argument in Nken v. Filip, on Question of Standard of Review for Stays of Removal Pending Appeal

Yesterday the Supreme Court heard the argument in Nken v. Filip (formerly Nken v. Mukasey), which asks whether an alien who seeks a stay of deportation pending appeal must prove by clear and convincing evidence that his deportation is prohibited by law.  The majority of courts have held that the ordinary standard for stays pending appeal continues to apply to such stays despite Congress’s enactment in 1996 of legislation providing that “no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law,”8  U.S.C. sec. 1252(f)(2).

The question is especially important in cases like Mr. Nken’s, in which the alien’s underlying claim is that he will suffer severe persecution or even death if returned to his country.  If such aliens must demonstrate their right to stay by clear and convincing evidence, i.e., more than a preponderance of the evidence, to obtain a stay, then the expected result would be that some aliens with valid claims would be returned to their home countries and possibly subject to persecution before having the chance to have their appeals decided on the merits.

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Building a Better Truth Commission

Lisa Laplante has a new article in print: Transitional Justice and Peace Builduing: Diagnosing and Addressing the Socioeconomic Roots of Violence Through a Human Rights Framework, 2 Int’l J. Transitional Justice 331 (2008).  (Subscribers can download a copy from the journal’s website.)  In recent years, many nations have used “truth commissions” to ease the transition from oppressive to more democratic regimes: the commissions investigate and report about human rights abuses in the old regime, with the idea that an honest accounting of the past may facilitate reconciliation and reform.  However, as Lisa observes, there are distressing signs of renewed civil unrest and violence in a number of nations that have employed truth commissions, including Chile, South Africa, and Guatemala.  In her article, Lisa argues that the mission of truth commissions ought to be reconceived such that the commissions would address a broader range of human rights violations, including violations of economic, social, and cultural rights.  Social conflict and violence are often connected to deep-seated socieconomic inequalities.  If truth commissions do not recognize a human rights dimension to these inequalities, Lisa suggests, then they will fail to get at the root cause of the more traditional types of human rights violations on which they have focused their attention.  And failing to address root causes means that social conflict may continue unabated, despite all of the effort otherwise put into achieving reconciliation.

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We Know Where You Live

Opponents of Proposition 8 have put up a map purporting to show where donors to the “Yes on 8” campaign live. You can get the name, occupation, and amounts of donation for each mapped donor. While you can’t get the exact address, it would be quite easy to use the map to find the homes of donors.

The information used to create the map is all publicly available, but it does make it more accessible and convenient to use. But for what end?

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