Friday, September 21, 2007

Excluding Academics Through Secret Evidence

To the shameful exclusion tales of Bolivian historian Waskar Ari and Swiss theologist Tariq Ramadan, we can now add that of musicologist Nalini Ghuman, a British citizen of British and South Asian descent. It is hard to imagine how Ms. Ghuman, an expert on Elgar, could pose any kind of threat to the security of the United States. Even Department of Homeland Security (DHS) officials who refused her entry admitted that her exclusion was probably a mistake, and "suggested that perhaps a jilted lover or envious colleague might have written a poison pen letter about her to immigration authorities." Over a year later, Ms. Ghuman has been provided with no further explanation as to why she might be considered a threat, and has been separated from her fiance, her job at Mills College, and her home of 10 years. In her eloquent words, "I don't know why it's happened, what I'm accused of . . . There's no opportunity to defend myself. One is just completely powerless." My forthcoming article, A Global Approach to Secret Evidence: How Human Rights Law Can Reform Our Immigration System (soon to be posted on SSRN), details several cases of exclusion or removal of non-citizens, all of Arab, Muslim, or South Asian descent, on the basis of secret evidence. The sloppiness with which the DHS has pursued these cases has led to tragic results for individuals and serious embarassment for the US government, as the evidentiary basis for removal has often been seriously inaccurate and unreliable. As an evidence professor, these practices make my hair stand on end; as an American academic of South Asian descent, they hit home in a whole different way. In the article, I argue that human rights law presents a middle path that balances national security interests and individual rights, and should be used by DHS and DOJ in interpreting immigration statutes, drafting immigration regulations, and, perhaps most importantly, training immigration officials. Utopian, perhaps, but a profound shift in institutional culture seems the only way to prevent DHS from turning the lives of any more non-citizens into Kafka-esque nightmares.

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