Bringing ATS litigation into conformity with U.S. refugee and asylum law.

• Author: Danforth, Matthew E.
• Position: Alien Tort Statute

1. INTRODUCTION II. PERSECUTION AND NONREFOULEMENT IN REFUGEE AND ASYLUM LAW A. Refugee: Definitional Requirement B. The Principle of Nonrefoulement III. THE ALIEN TORT STATUTE A. History and Content of the Statute B. Forum Non Conveniens C. Prudential Exhaustion IV. RECOMMENDATIONS A. Refine Forum Non Conveniens Analysis B. Increase Defendant's Burden in Exhaustion V. CONCLUSION I. INTRODUCTION

   In the late 1960s, Rio Tinto, an Australian mineral resource company, began mining copper and gold in Bougainville, a small island off the coast of Papua New Guinea (PNG). (1) In 1988, as the project began to displace villages and pollute drinking water, Bougainville's residents revolted by sabotaging the mines. (2) Unable to operate, Rio Tinto responded by threatening to abandon all investment in PNG and coerced its government into taking military action. (3) The PNG government sent in troops, which allegedly engaged in "in aerial bombardment of civilian targets, wanton killing and acts of cruelty, village burning, rape, and pillage." (4) A decade later, one of the victims, Alexis Holyweek Sarei, then a resident of California, brought a claim against Rio Tinto under the Alien Tort Statute (ATS). (5)

   As the only statutory grant of universal jurisdiction in the world, the ATS enables aliens, like Sarei, to bring tort actions for the most heinous violations of international law. (6) However, the Ninth Circuit held that if Sarei had not exhausted possible legal remedies in PNG, he could not bring an ATS suit in the United States. (7) Alternatively, courts have also used the procedural doctrine forum non conveniens to dismiss ATS cases. (8) While the exhaustion requirement and forum non conveniens are likely inconsistent with the ATS generally, they also conflict with U.S. immigration law when the ATS plaintiff is an asylee or refugee. Under the Immigration and Nationality Act (INA), refugees and asylees are admitted into or allowed to remain in the United States because they have either experienced past persecution or have a well-founded fear of future persecution in their home countries. (9) Requiring refugees and asylees, like Sarei, to return home to bring tort claims would put them at a risk of harm that is inconsistent with the ATS and both refugee and asylum law.

   This Article examines how courts should alter exhaustion and forum non conveniens requirements when an ATS plaintiff is a refugee or asylee. In such cases, it recommends presumptions favoring plaintiffs and court consideration of persecution. Part I describes the INA's persecution requirement for refugees and asylees and the international customary norm of nonrefoulement. Part II chronicles the progression of ATS content and jurisdictional limitations. Part III explores the current incoherence between the ATS and refugee law and advocates for reducing barriers for refugee and asylee ATS plaintiffs as a way to square the two laws. Part IV concludes the Article.

2. PERSECUTION AND NONREFOULEMENT IN REFUGEE AND ASYLUM LAW

   Refugee and asylum cases frequently involve subtle and complicated issues of international law. (10) Because this Article focuses on a statutory refugee's and asylee's endemic difficulty in overcoming exhaustion and forum non conveniens, this section considers only the INA's persecution requirement and the nonrefoulement rationale underlying refugee law. (11)

   1. Refugee: Definitional Requirement

      A noncitizen that seeks asylum status in the United States must first meet the INA's definition of a refugee, (12) which INA [section] 101(a)(42)(A) defines as:

      [A]ny person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. (13) Thus, a refugee is not merely any person deprived of basic needs, (14) but rather someone whose past persecution or well-founded fear of future persecution (based on a protected ground) prevents him or her from returning home. (15) Persecution arises from the "sustained or systemic violation of basic human rights demonstrative of a failure of state protection." (16) For example, when the Burmese military imposed forced labor on a preacher and then tortured and killed his religious companion, the Ninth Circuit held that the preacher had a well-founded fear of future persecution. (17)

      Under U.S. law, persecution represents extreme conduct that is more egregious than offensive, unjust, or even unlawful treatment. (18) Accordingly, "mere harassment, annoyance, and discrimination" and "minor inconvenience[s] or disadvantage[s]" do not constitute persecution. (19) "If no single incident is severe enough to constitute persecution," multiple incidents "viewed cumulatively, can still qualify as persecution, but such incidents ... must be more than sporadic and isolated." (20)

      Although findings of persecution require fact-specific inquiries and adjudicators differ as to the extent of harm a petitioner must undergo before he or she may rightly claim persecution, these jurisprudential variations lie outside the scope of this Article. (21) For the purposes of this discussion, it is sufficient to accept that any asylee or refugee in the United States has made the necessary showing of persecution as severe misconduct, as determined by administrative adjudicators or a federal court.

   2. The Principle of Nonrefoulement

      Protection against refoulement, the return of the refugee to persecution, is a refugee's or asylee's most basic need. (22) The 1951 Convention Relating to the Status of Refugees provides the fundamental legal framework for protecting the rights of refugees and outlines the refugee's right to nonrefoulement. (23) Article 33 of the 1951 Convention prohibits a country from expelling or returning a refugee in any manner to the country of persecution. (24) Adhering to this principle, the INA's nonrefoulement provision generally prevents the Attorney General from returning petitioners to a place where their lives or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. (25)

      By recognizing the right of nonrefoulement, U.S. immigration law manifests a desire to shelter persecution victims from future harm. (26) Although a right against forced return differs from a right to bring a particular tort claim, this Article posits that the purposes of the ATS and asylee law would best be served by incorporating the idea of nonrefoulement in ATS cases with asylee plaintiffs. (27) After a brief summary of the ATS's history, with a focus on the statute's purpose and the types of claims a plaintiff can bring, this Article outlines forum non conveniens and exhaustion, the two elements of ATS litigation that present the greatest inconsistencies with the principle of nonrefoulement.

3. THE ALIEN TORT STATUTE

   1. History and Content of the Statute

      In 1789, Congress enacted the Alien Tort Statute as part of the First Judiciary Act to enable foreign citizens to attain justice for injuries caused by acts of piracy, which by their nature often occurred outside the territory of the United States and the victim's sovereign. (28) The statute's original language provided "[t]hat the district courts shall have, exclusively of the courts of the several States, cognizance ... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." (29) The operative part of the ATS--that it grants jurisdiction only for torts in "violation of the law of nations or a treaty of the United States"--has generally remained unchanged. (30)

      When Congress enacted the ATS, Blackstone's Treatise provided the substantive content of the "law of nations," (31) the "system of rules ... established by universal consent among the civilized inhabitants of the world; in order to decide all disputes ... which must frequently occur between two or more independent states, and the individuals belonging to each." (32) For Blackstone, three main offenses constituted violations of the law of nations: violation of safe conduct, interference with ambassadors, and piracy on the high seas. (33) History shows that with the exception of piracy claims, plaintiffs rarely invoked the ATS. (34) However, in 1980, nearly 200 years after the ATS's enactment, the Second Circuit expanded ATS litigation with its landmark decision in Filartiga v. Pena-Irala by holding that acts of torture committed by individuals acting under official authority constituted a violation of the law of nations. (35)

      In making this determination, the Filartiga court looked to "the sources from which customary international law is derived--the usage of nations, judicial opinions, and the work of jurists." (36) Because those sources showed the "universal renunciation [of torture] in the modern usage and practice of nations," the Second Circuit held that the district court had subject matter jurisdiction under the ATS to hear the plaintiffs' action. (37)

      In Sosa v. Alvarez-Machain, the Court accepted the Second Circuit's construction of the law of nations as customary international law. (38) Thus, ATS plaintiffs may only bring actions for the most egregious and universally accepted human rights violations, which now include torture, genocide, slavery, war crimes, and even aiding and abetting those violations. (39)

      While providing an important remedial avenue for human rights victims, ATS litigation has domestic and external costs. As ATS cases grew in number and diversified once the Ninth Circuit contemplated the possibility of ATS corporate liability in 2002, (40) U.S...