Bringing ATS Litigation into Conformity with U.S. Refugee and Asylum Law

Article excerpt

  I. 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.

II. 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)

A. 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. …