With continued contributions from the International and Immigration Law Section Council membership, we are able to present this fourth issue of The Globe this year.
Scott D. Pollock, Vice Chair has provided his second “Immigration Consultation Corner.” This is an occasional column, which describe practical situations any attorney may encounter and how a non-immigration law practitioner may be better prepared to proceed with or refer the case to an immigration attorney.
Section Council Secretary Shannon Jackson has submitted a brief summary of the November 11, 2005 afternoon program cosponsored by the International and Immigration Law Section on current issues in international commercial arbitration.
“Stop the Genocide in Darfur: Bribe the Chinese” is by Lydia Lazar, Assistant Dean of International Law and Policy Development at Chicago-Kent College of Law of Illinois Institute of Technology. Additional articles by Professor Lazar are available on the Chicago-Kent College of Law Web site at <www.kentlaw.edu>.
Alex Carbonell is managing partner and Rick Silberstein is an associate with Gómez-Acebo & Pombo, Abogados, in Barcelona, Spain. Their article is “Proposed regulation would help generalize the use of asset-backed securitization in Spain.”
Alen Takhsh is a second-year law student at The John Marshall Law School in Chicago. In the previous issue of The Globe, (Vol. 43, No. 3), we printed his article, “Unaccompanied immigrant children: The problem.” In this issue the second part appears, “Unaccompanied immigration children: The Solution.”
Brian Endres is Assistant Professor of Agricultural Law at the University of Illinois, College of Agricultural, Consumer and Environmental Sciences, in the Department of Agricultural and Consumer Economics in Urbana, Illinois. Brian is an attorney and member of the Illinois State Bar Association’s Agricultural Law Section. His article, “Risk Management Strategies for Identity Preserved Grain Exports” appeared earlier in the ISBA Agricultural Law newsletter.
Thanks to all of the authors for their contributions to this issue. I encourage readers of The Globe to submit articles, case notes or prepared law memorandums, which touch on immigration or international issues to us for publication consideration.
Lewis F. Matuszewich
Matuszewich, Kelly & McKeever, LLP
Telephone: (772) 279-8787; Facsimile (773) 279-8872
E-MAIL: lfmatuszewich@mkm-law.com
A foreign national comes to see you about attending school in the U.S. She last arrived two weeks ago on a B-2 visitors visa. She wants to study in an undergraduate program in Chicago that will begin in the spring.
Summary conclusions:
I. Changes of nonimmigrant status are generally permitted under INA Sec. 248;
II. Changes of status from B-2 to F-1 (student) are specifically permitted;
III. CIS will scrutinize the change of status application for eligibility issues, including proper admission on the B visa, maintenance of status and eligibility for student status.
IV. She cannot enroll and begin classes until the U.S. Citizenship and Immigration Services (CIS) Regional Service Center grants her application for a change of status.
Discussion
Nonimmigrant visa categories are set forth at Section 214 of the Immigration and Nationality Act. Changes from one category to another are permitted, with certain exceptions, under INA Section 248. The Attorney General and Director of Homeland Security prescribe regulations detailing additional eligibility criteria and procedures at 8 C.F.R. Sec. 214 and 248. Reviewing these sections will show that a person who is maintaining one nonimmigrant visa status, such as a B-2 visitor, may change status to an F-1 student, but there are challenging issues that will need to be resolved in this particular fact scenario.
Is B-2 visa fraud an issue? Whenever a foreign national (an “alien” under the INA) seeks admission to the U.S. as a visitor, he or she asserts that the purpose of the trip is short-term, for pleasure or for permitted non-employment business activities. A separate visa, the F-1, is authorized for intending students who normally intend to remain in the U.S. for a longer period of time than the usual visitor for pleasure or business. Often intending students abroad are subject to higher scrutiny in their visa applications than are the typical visitor- they must present documentation that they have been accepted by a school in the U.S. that is authorized to register international students (using a form SEVIS I-20 Student Identification Form), they are pre-entered into an electronic database by the school (the Student and Exchange Visitor Information System- SEVIS), and they must show a reasonable academic plan, financial ability to study without resorting to unauthorized employment, and persuade a consular officer that they do not have “immigrant intent” that would lead to a visa denial under Section 214(b) of the INA. U.S. consulates abroad may issue a B-2 visa to an intending student who either has not yet received an I-20 from a school, or who plans to visit a number of schools for the purpose of selecting one and changing status in the U.S. In this case, the intending student informs the consular officer of her intent and receives a visitor visa that is annotated with the appropriate information. If the intending student fails to disclose her real intent in applying for the visa, there is no annotation made, and the CIS may conclude that she misrepresented her intentions, which could lead to a denial of her change of status application. Thus, the attorney will want to closely question the intending student about what she stated on her B-2 visa application, at her consular interview, and to the U.S. Customs and Border Patrol officials at the port of entry in the U.S. as to the questions that were posed and answers that were given.
Timing of the application for a change of status could be an issue. Some CIS offices refer to an interpretation found in the U.S. State Department’s Foreign Affairs Manual known as the “30-60 Day Rule.” This is used by consular officers abroad to determine whether a foreign national previously made a material misrepresentation in obtaining a visa. Under the rule, if someone who enters the U.S. on a particular nonimmigrant visa engages in conduct that is inconsistent with the visa status (e.g., marrying a U.S. citizen having entered as a B-2 or beginning unauthorized employment) within the first 30 days after admission, there exists a strong presumption of visa fraud. If the inconsistent conduct occurs between days 30 and 60, there is no presumption of fraud but the consular officer may decide to make additional inquiries to determine if in fact there was fraud. After 60 days, the inconsistent conduct should not bear on the question of visa fraud. Thus, in this case, the foreign national should ideally wait at least 30, if not more than 60 days, to obtain acceptance by a college or university.
The 30-60 day rule is not a CIS rule, though. CIS is sensitive to visa fraud any time a visitor seeks to change status to that of a student. Therefore, in addition to applying for the change of status, using Form I-539 with the appropriate fee, the intending student should provide a sworn statement that explains her intention in coming to the U.S., why she did not obtain an F-1 visa to begin with or disclose an intent to study at the time she applied for the B-2 visa, and what facts occurred subsequent to her admission as a visitor that caused her to decide to study and seek a change of status.
A few concluding issues. The CIS will reject a change of status request if the student has already begun attending classes before the change is granted. This rule pertains only to changes from visitor to student status. Other nonimmigrants, such as H-1B temporary workers or R-1 religious workers, may enroll and begin classes while the change of status application is pending. Also, “visitors” who have come on the Visa Waiver Program, J-1 exchange visitors who are subject to a two-year home residence requirement, and certain others specified in the statute and regulations, are ineligible to change status in the U.S. If the intending student is statutorily ineligible to change nonimmigrant status in the U.S., or is denied the change by CIS, she must proceed abroad and apply for the F-1 student visa at a U.S. consulate.
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Scott Pollock is Vice Chair of the International & Immigration Law Section of the ISBA. Scott may be reached at spollock@lawfirm1.com. Immigration Consultation Corner is a periodic summary of an actual consultation. © 2005 Scott D. Pollock & Associates, P.C.
1. © 2005 Scott D. Pollock & Associates, P.C. Immigration Consultation Corner is a periodic summary of an actual consultation.
The International & Immigration Law Section co-sponsored a complimentary program entitled “Current Issues in International Commercial Arbitration” on Friday, November 11, 2005 at the ISBA Chicago Regional Office. Dr. Robert Briner, Chair of the Court of International Arbitration of the International Chamber of Commerce, was the featured speaker. Co-sponsors were the Alternative Dispute Resolution, Commercial Banking and Bankruptcy Law, Corporate Law Departments, and the Corporations, Securities, and Business Law Sections.
Dr. Briner currently lives in Paris, France, where the Court of International Arbitration is based. A soft-spoken man, Dr. Briner exudes a quiet passion for the principles of alternative dispute resolution. Starting with a brief history lesson, Dr. Briner explained that the ICC was formed after the First World War, as an international body to speak for the business community worldwide. From there, the ICC has developed many useful tools such as model international business contracts and the Court of Arbitration.
The reason many international contracts favor arbitration clauses, Dr. Briner suggested, is that many businesspersons have the perception that they will not be fairly treated in foreign courts. Additionally, some countries’ court systems are behind the times in accepting and enforcing arbitration clauses and awards, in spite of the fact that their countries are signatories to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted on June 10, 1958. The New York Convention requires courts of each contracting states to recognize arbitration agreements and refuse to litigate issues covered, and to enforce arbitral awards. The Convention is one of the most successful international conventions, with 135 signatories.
In order to ensure that disputes will be resolved by arbitration, the parties must put an arbitration clause in the contract. It is too late to demand arbitration when the dispute has begun. An arbitration clause can range from the very simple statement such as “All disputes shall be settled by Arbitration” (an ad hoc arbitration clause), to the very specific, such as the clause suggested by the ICC in the Guide to ICC ADR that was handed out at the program. The parties can also agree to an alternative dispute resolution clause with varying degrees of force. For example, the clause could state the parties have the option to settle through ADR, or it could impose an obligation to submit a dispute to ADR. The Guide to ICC ADR contained many suggested clauses of varying force. The information handed out at the program is also available on the Web at <http://www.iccwbo.org/index_adr.asp#model_clause>.
Dr. Briner’s informative speech provided the attending practitioners with practical knowledge about the ADR process, as well as real-life anecdotes from Dr. Briner’s own experience on the Court. For more information on ICC ADR, you can go to their Web site at <www.iccadr.org>.
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Shannon M. Jackson, a graduate of The John Marshal Law School, currently practices with the Law Offices of John Z. Huang & Associates in Chicago. She is Secretary of the International & Immigration Law Section.
You have to give the Bush administration’s deputy secretary of state Robert B. Zoellick credit: he certainly appears to be doing the best he can to stop the genocidal violence in Sudan’s Darfur region. He has been to the area four times in six months and, as was reported this week, has met with the President of Sudan as well as with the warring rebel factions. He has been ‘fact finding’ in the refugee camps, he has listened to the African Union’s peacekeeping commanders describe what is happening and he has listened to what the government officials responsible for the region have had to say. Listening and fact finding are crucial elements of diplomatic intervention and Zoellick is by all accounts a skilled and honest negotiator and deal-maker. But the violence continues; men, women and children are being senselessly murdered everyday by the so-called “janjaweed,” Sudanese government-sponsored militia on horseback, and no amount of political discourse appears likely to bring these rampaging cowboys (janjaweed means ‘gun and horse’) to heel.
A quick review of the facts: The Sudan is Africa’s biggest country, Khartoum is its capital city, it has multiple religious, ethnic and socio-economic divisions between Muslims (70 percent), Animists (25 percent), and Christians (5 percent), between Arabs and Africans, and between nomads and farmers. Since independence from the British in 1956 there has been nearly constant conflict in the Sudan. While the larger Sudanese conflict could be characterized as an attempt to Islamisize the animist and Christian south, the conflict in Darfur was, until recently, an essentially geographic/economic clash between nomads and farmers, exacerbated by a drought in the 1980s which forced northern Africans from the Zaghawa tribe to drive their herds south into Arab tribes’ grazing lands.
In the larger civil war between the Muslim north and the animist/Christian south, Khartoum’s strategy to fight the southern rebels during the 1980s was to arm Arab tribesmen from Darfur and these armed, mounted militias (proto-janjaweed) served as army irregulars fighting the Sudanese rebels led by John Garang. Unfortunately, when peace negotiations finally took place between Garang’s SPLA and Khartoum, representatives from the Darfur area were excluded and they took up arms in 2003 to fight for a place at the table. The Darfur rebellion was led by African tribal activists fighting to get a share of the country’s wealth into Darfur in the form of investments in schools, roads, hospitals and the like. To fight this rebellion, Khartoum uses it regular army but has also turned again to the Arab tribesmen and created more janjaweed militias to serve as irregulars, terrorizing the African tribespeople and implementing a “scorched earth” policy that the government does not, supposedly, control.
The humanitarian crisis in Darfur is complicated but not impossible to understand: the Darfur rebels attack government positions in and around villages and then the government attacks back, using both ground troops and helicopter gunships to rout the rebels. After the rebels are driven out, the janjaweed attack the same villages, justifying their attacks by characterizing the villagers as sympathetic to the rebels. The janjaweed loot, burn and kill the inhabitants and force survivors to flee to refugee camps.
In this way, thousands of people have been displaced from Darfur, and genocidal killing has been going on for at least three years. But what is really going on here? It turns out that in 1978 oil was discovered in the Sudan, and more recently, oil was discovered in Darfur. The fighting in Darfur is over who will control the money that flows from Darfur’s oil riches. The Darfur conflict, which was originally a local dispute over water and grazing rights, has metastasized into a power struggle over the control of oil, the curse of the developing world. The humanitarian disaster in Darfur is a result of the Khartoum government’s inability or unwillingness to stop the janjaweed from massacring the people of Darfur as they clear the area of inconvenient people. By depopulating Darfur for Khartoum, the janjaweed pave the way for the oil companies to come in so that the oil can flow—corporate ethnic cleansing by proxy, as it were. It is certainly easier to carve up the land and award oil concessions to global companies if there aren’t any farmers on it. Scroll down to the end of this article for a map of the Sudan’s oil concessions to date.
It does not help that the Darfur rebels are divided and disorganized, as this has played right into the hands of Khartoum, which made its peace with the SPLA and is by all accounts working towards its long promised oil-rich future. The civil war has been over for nearly a year, and this week Mr. Zoellick officially opened a US consulate in Juba, the capital of the new Southern autonomous region. Last week Khartoum agreed to share Sudan’s oil wealth with the former SPLA southern rebels and now both the northern and the southern Sudanese governments are busy cutting deals with the Chinese, the Indians, the Japanese and others to mine the country’s oil. See the Sudan Tribune ‘Oil in Darfur’ <http://www.sudantribune.com/mot.php3?id_mot=37> and in the Guardian: <http://business.guardian.co.uk/story/0,16781,1637403,00.html>.
The US oil industry has been a frustrated bystander to the exploitation of the oil in Sudan, and the Bush administration policy objective has been to get a peace agreement between Khartoum and the SPLA so that it could lift the economic sanctions which have been in place since 1997 and which have prevented our firms from working in Sudan. With the peace agreement in place, and the emergence of a ruling elite for Southern Sudan, it would seem likely that the sanctions could soon be lifted and the US oil companies could get into the game. However, increased attention to the genocide in Darfur has made it difficult to get the sanctions lifted, because activists are agitating for the US and the world community to put pressure on Khartoum to shut down the janjaweed and the economic sanctions on US firms are seen as both our biggest stick and our best carrot.
Recently, the Bush administration has lifted the sanctions to permit Khartoum to hire a US public relations company to improve its image, but is that really the most strategic move we can make at this point? It depends on our objectives, of course. If all we really want to do is buy time so that Darfur can be cleared and the oil concessions awarded, then our current policy is spot on, and starting the PR campaign for the new peaceful Sudan makes perfect sense. But if we really wanted to stop the genocide now, we wouldn’t be enabling Khartoum to improve its image; instead we’d bribe the Chinese, or the Indians, to get them to force Khartoum to close down the janjaweed and in fact, make peace with the Darfur rebels.
The good news is that China recently abstained from vetoing a UN security council measure that condemned Sudan’s terrible human rights record in Darfur, so there are signs that the Chinese are paying increasing attention to what the world thinks about them. There must be something that the Chinese want from us that we can offer as a bribe to get them to pro-actively intervene in the Darfur situation. And why should the Chinese “accept” our “bribe” to close down oil fields 4, 6 and 7? Because the savagery in Darfur demeans all of us, whether we are Chinese, European, North American, Malaysian, or African. As the activists say, one people, one planet.
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As assistant dean at Chicago-Kent College of Law of Illinois Institute of Technology, Lydia Lazar is responsible for the LL.M. Programs in International and Comparative Law, International Intellectual Property Law and Financial Services Law, as well as the Global Law and Policy Initiative. She teaches Introduction to the American Legal System to all LLM students, and co-leads the seminar on Nation Building. Lazar received her AB in International Relations from Dartmouth College, her MA in geography from Columbia University, and her J.D. with honors from Chicago-Kent College of Law.
Earlier in her career, Ms. Lazar worked as a consultant on strategic communications issues for several foundations, and in an executive capacity with Waste Management International (based in London) and with the City of New York’s Department of General Services, Division of Public Structures.
I. Introduction
The Spanish Ministry of Economy is on the verge of approving an Order that will enable many companies in Spain to make a wider use of asset-backed securitizations as a way to finance their activities.
Spain, like most of Continental Europe, does not have as mature a market for securitizations as the United States and Great Britain do. Despite the fact that the number and importance of securitizations has continuously increased since the mid 1980s, they have almost exclusively been mortgage-backed securities originated by banking entities. In contrast to the United States and Great Britain, companies in other sectors (e.g. telecoms, real estate, insurance) have seldom securitized their assets.
As is generally known, asset-backed securitizations can entail market efficiencies for all the parties involved: (i) originators (the companies securitizing their assets) are able to reduce the financial costs of transactions, exclude them from their balance sheets, and thus free more of their own resources for other activities, and (ii) investors also benefit since the securities (e.g. bonds, commercial paper) they acquire are not affected by the solvency of the originator and the corresponding financial risk has been subject to the valuation of a rating entity.
Even given this win-win situation, the question is why asset-backed securitizations have not had more widespread use as a financing instrument by companies in Spain. One of the main reasons has been the lack of adequate regulation to ensure the existence of the conditions required for successful asset-backed securitizations. Such securitizations principally require the existence of an adequate legal framework that:
(i) Ensures the legal possibility to market such an instrument.
(ii) Enables the creation of special purpose vehicles (in Spain, a securitization fund), and thus allows the appropriate financial structuring of asset-backed securitizations. These special purpose vehicles issue the relevant securities and act as intermediaries in the transactions. They are an essential element of asset-backed securitizations given that they are configured as a patrimony separate from that of the originator. As a consequence, the securitized assets are outside the reach of the creditors of the latter.
(iii) Includes all the accounting, tax and market regulations necessary to facilitate their use by both originators and investors.
Without the above, asset-backed securitizations may not be viable financing solutions since the lack of legal certainty would significantly reduce the number of potential investors. The associated financial costs would increase, and the originators would as a consequence not find sufficient incentives to grant them. As we explain in the point below, the above conditions have not always been met by Spanish regulations.
II. Legal status of asset-backed securitizations in Spain
Royal Decree Law 3/1993, of February 26, contemplated the possibility of extending the regime regarding mortgage-backed securitizations to other loans and credit rights. Despite that and other subsequent measures adopted in this regard, the first significant regulatory step towards the widespread use of asset-backed securitizations in the Spanish economy was taken with the enactment of Royal Decree 926/1998, of May 14, regarding asset-backed securitization funds and managing entities.
Royal Decree 926/1998 establishes securitization funds as the special purpose vehicles for asset-backed securitizations in Spain. The patrimony of these funds is separate from that of the originator, but lacks specific legal personality. Thus, they need to be controlled by special management entities. The funds may have financial assets and other rights as securitized assets and may issue only fixed income securities, with certain exceptions.
Under Royal Decree 926/1998, the Spanish Stock Exchange Commission (SSEC) is granted significant supervisory powers over asset-backed securitizations. For starters, the SSEC must previously verify all relevant documentation (e.g. incorporation project, draft of public deed of incorporation, prospectus, reports from the managing entities, auditors, rating agencies) in order to incorporate any asset-backed securitization fund whatsoever. In addition, all transfers of assets to securitization funds are subject to certain requirements which the SSEC also has a major supervisory role:
(i) Subjective requirements. The originator must file its audited financial statements for the last three financial years with the SSEC. The last year’s statements must contain a favorable valuation from the auditors. The annual reports in the financial statements of the originator have to adequately describe the assets being securitized and the securitization process being adopted.
(ii) Objective requirements. The transfer of the assets must be complete, unconditional and for the full term remaining until maturity.
(iii) Formal requirements. Any transfer of assets to the fund has to be executed in writing, so as to evidence the transaction. Any new transfers of assets to previously existing funds requires that such assets are described with sufficient detail, and the managing entity will have to represent that the new assets meet the requirements of the public deed of incorporation.
Royal Decree 926/1998, in short, established the needed regulatory framework to implement asset-backed securitizations in Spain, particularly when the securitized assets were existing receivables of the originator. However, the possibility of securitizing expected future receivables (future flows securitization), was not fully regulated (with the exception of the credit rights to toll payments on highways). Later, this need was partially met by Law 13/2003, of May 13, regarding public works concession agreements.
If the new draft order from the Spanish Ministry of Economy is definitively approved, as is most probable, future flows securitizations in general, will have a legal framework.
III. The new draft order from the Spanish Ministry of Economy
The new draft order has the objective of specifically determining the remaining future credit rights that may be incorporated in asset-backed securitization funds, and, thus, noticeably widens the scope for future flows asset-backed securitizations in Spain.
The future credit rights considered apt for securitization according to the draft order are the following:
(i) The landlord’s right to rental payments, including those derived from the financial leasing transactions regulated in Law 26/1988, of July 29.
(ii) A company or entrepreneur’s right to consideration for the rendering of a service that entails a continuous performance for a period of time.
(iii) Author’s rights to the profits derived from his/her work.
(iv) A patent owner’s right to the profits derived from its use.
(v) A company or entrepreneur’s right to consideration for the sale of goods or services, provided that they give rise to a recurrent flow of payments and that their amount may be known or estimated.
Certain requirements have been set for the transfer of such assets to securitization funds. Similarly as for the asset-backed securitizations regulated in Royal Decree 926/1988, the draft order states that the SSEC is granted supervisory powers over the securitization of future credit rights and that the subjective, objective and formal requirements established in Royal Decree 926/1998, described above, must be met. Additionally, transfers of future credit rights to securitization funds must comply with the following:
(i) The public deed of incorporation of the securitization fund shall describe the terms of the title of the originator to the future credit rights being transferred.
(ii) The deed shall also include the terms of the transfer of the future credit rights, expressly stating the term and the allocation of the inherent risks between the transferor and the transferee. It shall also indicate the consequences for the transferee of those special situations that may entail the temporary or definitive interruption of the transferred payments.
(iii) The transferor may expressly assume, totally or partially, the risk that a difference exists between the amounts foreseen at the time of the transfer and the ones finally obtained. However, it will not be possible for the transferor to be liable for the solvency of the future debtor whose payment flow the former has transferred.
IV. Conclusions
If approved as is, the draft order will establish the legal framework for companies in innumerable sectors that enables them to seriously consider asset-backed securitizations as a viable method of obtaining financing. Given the characteristics of certain business sectors (e.g. those that render services), securitization is currently not an option if future credit rights are not included. The broad wording in the draft regarding the future credit rights that are apt for securitization would eliminate this problem.
As a result, we can expect that many more companies will resort to asset-backed securitization for financing. Likewise with the consolidation of such securitizations in Spain and their recurrent market presence, it can also be envisioned that not only will institutional investors find incentives in acquiring the securities being issued, but that gradually smaller investors will also show an interest in them.
Although the SSEC still has to complete the regulatory framework of these asset-backed securitizations, it is safe to say that with this new regulation the legal obstacles that may have existed in Spain to securitizations of future credit rights have for the most part disappeared.
If investors disregard certain bonds or commercial paper issued as a result of asset-backed securitizations regarding future credit rights, it will not be as a result of a legal uncertainty, but rather due to the uncertainty regarding those specific credit rights.
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Alex Carbonell is Managing Partner in the Barcelona Office and Rick Silberstein is an associate with Gómez-Acebo & Pombo, Abogados, Barcelona, Spain. They may be reached at Phone +34 93 415 7400, Fax +34 93 4158400 and e-mail silberstein@gomezacebo-pombo.com or acarbonell@gomezacebo-pombo.com
This is the second of two articles. The first appeared in the prior issue of The Globe (November 2005, Vol. 43, No. 3) and contained the background factual situation.
I. Flores Agreement Criticized
Eight years after the Flores Agreement, national and international organizations continue to criticize the United States for noncompliance with well-established human rights standards in dealing with unaccompanied immigrant children. For instance, in 2001, the Office of the Inspector General [hereinafter “OIG”] in the Department of Justice found that, “[a]lthough the INS has made significant progress since signing the Flores agreement, …deficiencies in the handling of juveniles continue to exist in some INS districts, Border Patrol sectors, and headquarters that could have potentially serious consequences for the well-being of juveniles.”1 Similarly, in 2003, Amnesty International USA [hereinafter “Amnesty”] confirmed OIG’s findings and labeled the treatment of unaccompanied immigrant minors as “unconscionable.”2 Specifically, Amnesty reported “commingling of immigrant children with juvenile offenders; the use of excessive discipline, physical and verbal abuse, solitary confinement, pat-down and strip searches, and restraints; and a lack of access to exercise, open air, recreation, education, religious services, mental health services, counsel, translators, and telephones.”3 Furthermore, in 2001, Human Rights Watch found that the Flores Agreement had not vitiated INS’ “institutional bias” in that the Agency was in charge of both initiating removal proceedings against the minors, as well as fighting for the best interest of the children.4
II. From Kids Act To HSA
In response to the dismal disregard for the Flores Agreement, U.S. Senator Dianne Feinstein introduced the Unaccompanied Alien Child Protection Act of 2001 [hereinafter the “Kids Act”].5 The Kids Act called for minimum custody standards, pro bono, as well as fee-based (at the government’s expense) legal representation, and training for adjudicators and immigration judges on how to best address unaccompanied children’s claims for asylum.6 The Kids Act also provided for guardians ad litem, who would make recommendations regarding “custody, detention, release, and removal based on the best interests of each child.”7 However, prior to the enactment of the Kids Act in 2002, the Homeland Security Act [hereinafter “HSA”) abolished the INS and “transferred the care and custody of unaccompanied minors to the Office of Refugee Resettlement [hereinafter “ORR”] within the Department of Health and Human Services.”8 HSA provides in pertinent part:
There are transferred to the Director of the Office of Refugee Resettlement of the Department of Health and Human Services functions under the immigration laws of the United States with respect to the care of unaccompanied alien children that were vested by statute in, or performed by, the Commissioner of Immigration and Naturalization . . .9
Eventually, certain parts of the Kids Act were incorporated into the HSA, including a recommendation for the use of the refugee child foster care system and a requirement to track unaccompanied minors.10 Despite the incorporation of these provisions into the HSA, several substantive rights promulgated by the Kids Act were omitted, including the right to a guardian ad litem, government funded attorneys and training for judges and administrative personnel.11
III. Definitions Are Key
Analyses of immigration policies often and quite predictably begin by examining the meaning of such terms as “refugee” and “social group.” The instant analysis has refrained from treating such terms as a mere foundation upon which to build its more weighty arguments. The present investigation takes the position that a complete understanding of the foregoing (and similar) terms is central to a solution to the perils facing unaccompanied immigrant children.
In the 1951 Convention relating to the Status of Refugees, the international community defined Refugee as a person, “who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion...is unable [or] unwilling to avail himself of the protection of that country.”12 “Unaccompanied minors” have been defined by the United Nations [hereinafter ”UN”] as “children under 18 years of age who are separated from both parents and are not being cared for by an adult who by law or by custom is responsible to do so.”13 Furthermore, the European Community has defined “unaccompanied minors” as “separated children” in order to foster a more inclusive definition that recognizes children who become separated from their caregivers while fleeing their native countries.14 The United States defines “unaccompanied minors” as “children under the age of 18 who seek admission to the United States and who are not accompanied by a parent or guardian.”15
The non-inclusive nature of the United States’ definition of “unaccompanied minors” is facially evident through its disregard for whether the place. This, or course, begs the question of why the United States is not obliged to follow international norms in handling unaccompanied immigrant children. This fact stems from international conventions’ prerogative not to interfere in matters that are domestic in nature. For example, Article 2(7) of the Charter of the United Nations provides in pertinent part: “Nothing contained in the present Charter shall authorize the United Nations to intervene on matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter.”16 As such, even though “UNHCR encourages countries to...determine the refugee status [of children] using the broadest possible interpretation,” it lacks the “legal ability to act on behalf of minors contrary to the territorial sovereign.”17
IV. A Call To Reconsider
At issue is not whether the adjudicators and officials, who have been in the forefront fighting for the rights of unaccompanied immigrant children, have done all that is legally within their power to protect the said minors. The answer to that query is unequivocally in the affirmative. Rather, what is at issue here is whether the time has come for the United States to reevaluate its commitment to safeguard the best interests of unaccompanied immigrant children. The answer to that query, too, is clearly in the affirmative.
The best interests test is widely implemented within the international community, as it appears in numerous provisions, including the Declaration of the Rights of the Child, the Draft Convention on the Rights of the Child, the Draft Declaration on Foster Placement and Adoption, the Adoption and Child Abduction Conventions of the Hague Conference on Private International Law, and the UNHCR Guidelines for Durable Solutions.18 U.S. judges, adjudicators and officials also had the best interests of unaccompanied immigrant children in mind when, in fashioning the Flores Agreement, they incorporated essential parts of the Kids Act into the HSA. Nevertheless, as such organizations as UNHCR, Human Rights Watch and Amnesty have found, the good intentions of those involved have yet to crystallize into substantive improvements.
The United States has one of two viable options. First, it can expand its definition of unaccompanied immigrant children through specific legislation mandating greater inclusion. Second, since the international community does not have the legal ability to interfere with domestic matters and is, therefore, unable to protect children in derogation of the territorial sovereign, the United States can subject itself to international human rights standards by ratifying the 1989 Convention on the Rights of the Child.19 Unaccompanied minor children have continued to tell us about their struggles hoping that their candid stories would motivate policy-makers to alleviate their plight. However, unaccompanied immigrant minors “stop being child[ren]” not only by virtue of having endured a horrifically turbulent life in their native countries, but also by realizing that it is futile to plead their case to and expect continued protection from the system. The time has come for the United States to take a stance and protect those who are unable to protect themselves.
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Alen Takhsh is a second year at The John Marshall Law School. He can be contacted at 5Takhsh@stu.jmls.edu
1. Areti Georgopoulos, Beyond the Reach of Juvenile Justice: The Crisis of Unaccompanied Immigrant Children Detained by the United States, 23 Law & Ineq. J. 117, 127-28 (2005) (citing Hum. Rts. Watch, Detained and Deprived of Rights: Children in the Custody of the U.S. Immigration and Naturalization Service, 10 Hum. Rts. Watch pt. III (1998)).
2. Carolyn J. Seugling, Toward a Comprehensive Response to the Transnational Migration of Unaccompanied Minors in the United States, 37 Vand. J. Transnat’l L. 861, 863 (2004) (citation omitted).
3. Georgopoulos, supra n. 13, at 129-30.
4. Seugling, supra n. 2, at 869-72 (citation omitted).
5. Id. at 873.
6. Id. at 874.
7. Id. at 874.
8. Id.
9. The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, § 462(a) (2002).
10. Seugling, supra n. 2, at 875.
11. Id. at 875-76.
12. Seugling, supra n. 2, at 895 n. 1.
13. Id.
14. Id.
15. Id.
16. Rodriguez Navarro, An Analysis of Treatment of Unaccompanied Immigrant Children and Refugee Children in INS Detention and Other Forms of Institutionalized Custody, 19 Chicano-Latino L. Rev. 589, 609 (1998) (citing E. Diane Pask, Unaccompanied Refugee and Displaced Children: Jurisdiction, Decision-Making and Representation, 1 Int’l J. Refugee L. 199, 207 n.2 (1989)).
17. Seugling, 37 Vand. J. Transnat’l L. at 887; Navarro, supra n. 40, at 609.
18. Navarro, supra n. 40, at 609.
19. Seugling, supra n. 2, at 894-95.
Emerging foreign regulations for imported grain ultimately may result in trace-back liability to U.S. farmers for the commingling of even miniscule amounts of genetically engineered DNA. As of April 2004, all imports to the European Union (including bulk grain shipments) that contain more than 0.9 percent genetically modified organisms (GMOs) must be labeled as containing or consisting of GMOs. Moreover, the European Union has imposed a zero tolerance for the existence of biotech products that are either unapproved or pending approval, such as StarLink™ corn. Japan imposes similar purity and labeling requirements.
Importing governments historically have tested some bulk grain shipments for the unauthorized presence of genetically engineered grain. For example, in December 2002, the Japanese government seized a shipment of corn from the United States because it contained an unapproved genetic engineering event. Total liability for the commingled shipment exceeded $1 million—paid by the farmer-cooperative responsible for the shipment. More recently, European Union and Japanese authorities have detected trace amounts of unapproved B.t.10 corn. The European Union first detected this discrepancy in a shipment of corn gluten feed to Ireland in May 2005. Since that initial discovery, Japan has detected ten shipments containing B.t.10. As a general rule, all grain in the ship’s hold containing the unapproved transgenic event is subject to destruction or return to the United States at the shipper’s election.
Recent ratification of the Cartagena Protocol on Biosafety, a subsidiary of the UN Convention on Biological Diversity, may provide nations seeking to maintain zero tolerances for biotech crops further legal justification for their strict testing regimes. Consumer and interest group pressure may also fortify these jurisdictions’ resolve to maintain a zero tolerance policy. For example, in January 2005, protestors halted a ship bound for France and demanded inspection of the cargo for traces of genetically modified organisms. This action followed a previous interruption of a shipment bound for Italy in May 2004.
Increased inspections, coupled with strict enforcement of seed and grain marketing contracts, may expose individual U.S. farmers to liability claims for the adventitious presence (commingling) of GM grain. As an initial step, attorneys representing farmers should educate their clients of the potential pitfalls of guaranteeing via contract that their grain is non-GMO or “GM-Free.” Although elevators generally test incoming shipments for genetic purity tolerances before accepting the grain, elevators may retain samples of each farmer’s grain delivery for more detailed testing at a later date if problems arise further along the distribution chain. Assurances made by the farmer at the point of sale may expose the farmer to warranty claims for the lost premium of an entire elevator or even an overseas grain shipment if the grain is later determined to be outside allowable tolerances for the adventitious presence of GMOs. Two recent articles in the JOURNAL OF FOOD LAW & POLICY (Spring 2005) provide a more detailed legal analysis of this potentially serious problem. See Thomas P. Redick & Michael J. Adrian, “Do European Non-Tariff Barriers Create Economic Nuisances in the US?,” 1 J. Food L. & Pol’y 87-130; and A. Bryan Endres, “Revising Seed Purity Laws to Account for the Adventitious Presence of Genetically Modified Varieties: A First Step Toward Coexistence,” 1 J. Food L. & Pol’y 131-164.
Farmers also must recognize risks and exercise diligence when purchasing seed. Seed dealers draft most purchase agreements to disavow all responsibility for seed impurities beyond the replacement cost of the seed. For example, if the originally purchased seed, marketed to the farmer as “conventional” or “non-GMO,” actually contained 2 percent GM seed, the farmer’s harvested crop probably would exceed the 0.9 percent GMO threshold required for export to the European Union. The farmer would have no contract remedy against the seed seller for any losses.
The extent of genetic impurity in the domestic seed supply is unknown, but at least one pilot study found low levels of GMOs in corn, soybean and canola seed marketed as conventional or “non-GM.” Unfortunately, state and federal seed laws generally do not address the issue of genetically modified seed unless the impurity exceeds 5 percent, a far cry from the 0.9 percent required for importation to the European Union. Moreover, growers also should keep in mind that seed labels indicating 98.00 percent pure soybean seed or 99.5 percent pure corn seed refer to varietal, not genetic purity and, therefore, could contain significant amounts of genetically modified seed.
In light of this uncertainty in the seed market and potential downstream liability, attorneys should advise their clients of strategies to at least mitigate the risk of liability for the adventitious presence of genetically modified DNA in grain shipments. Farmers should review their current insurance policies. At least one major agricultural insurance company has dropped standard coverage for damages resulting from biotech commingling and is demanding a specific GMO endorsement. Growers considering entering into non-GM contracts or other identity preserved growing arrangements should verify and, if necessary, secure insurance coverage to mitigate this risk. In addition, farmers should retain seed receipts for at least five years to confirm what seeds they planted and sold. The European Union’s traceability regulation mandates retention of these records and local elevators that export grain to the European market may start requiring copies for their own traceability auditing. Finally, some commentators recommend independent testing of seed for GM content prior to planting. Although probably not a practicable approach for all farmers, this step may identify potential problems at an earlier date and further mitigate the risk of farmer liability for commingled biotech grain shipments.
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A. Bryan Endres is Assistant Professor of Agricultural Law at the University of Illinois, College of Agricultural, Consumer and Environmental Sciences, Department of Agricultural and Consumer Economics in Urbana, Illinois and may be reached at bendres@uiuc.edu. He is a member of the ISBA Agricultural Law Section Council. This article first appeared in the Agricultural Law newsletter of the ISBA.