Day Zero: Blessing the Rains in South Africa

Meagan McNeely

 

In 2018, after years of below-average rainfall[1], the South African government announced the impending arrival of “Day Zero,” the day on which city tap water would be officially turned off.[2] The city of Cape Town, South Africa, had a population of four million residents in 2018.[3] The city prepared “two hundred emergency water stations;” each station was meant to serve twenty thousand residents.[4] In order to avert the impending crisis of Day Zero, the city of Cape Town implemented numerous water restrictions. These restrictions were largely successful; in May 2018, Day Zero was pushed back.[5] Now, in January of 2020, Day Zero serves as both a story of success and a grim reminder of the trials which lie ahead. With rapid climate change, political unrest, and unprecedented population growth, cities across the world should take note of South Africa’s initiatives to prevent future water crises.

After the initial announcement of Day Zero, Cape Town residents were asked to use only fifty liters of water per day.[6] For context, the typical American uses a minimum of three hundred liters per day; twenty-five liters equals roughly four minutes in the shower.[7] Households using more than the allotted fifty liters were fined or, in extreme cases, had a meter installed that automatically shut off their water.[8] It became illegal to fill a swimming pool with city water; instead, citizens often used their pools for emergency bathing and water supply.[9] Cafes began using paper cups and plates to eliminate the need for excessive dishwashing, and city-operated parks and golf courses were functionally abandoned.[10] By the time the reservoirs and dams were at a mere one-third of overall capacity, the fifty-liter restriction was less than the minimum amount recommended by the United Nations “for domestic water needs.”[11] With Day Zero hanging overhead, the permitted daily usage of water was to be reduced to no more than twenty-five liters per day.[12]

With the criminalization of typically simple tasks such as washing a vehicle, Cape Town residents became creative in their conservation efforts.[13] Showering over a bucket in order to catch and reuse water, flushing toilets once a day, and only washing clothing when absolutely necessary became common techniques to conserve water.[14] In spite of these efforts, “water trafficking” became an issue.[15] While illegal to actually charge for well or river water, traffickers could “charge for labor and transport.”[16]  This became a lucrative business, yet it remained in a “legal gray area.”[17]

The city of Cape Town also made concessions. Beginning with the cessation of watering municipal facilities such as public parks, the city also reduced water allocation to fruit farms.[18] While hospitals and other important civic structures maintained their water usage, Day Zero affected all residents, agriculturists, and hospitality workers.[19] The city allowed nighttime irrigation, implemented the reparation of infrastructure, and approved potential desalination construction.[20] City officials also took measures to reduce water pressure to minimize leakage and subsequent water loss.[21]

By August 2019, the dams in Cape Town were over eighty percent capacity.[22] Day Zero came and went.[23] Partially credited to long overdue rains, the conservation efforts of the city of Cape Town and its residents prevented the manifestation of a full crisis. Such efforts should act as a model to other world cities facing water shortages and potential crises.

Cities with large populations, such as Mexico City and Jakarta, are already having structural problems. One-fifth of Mexico City residents only have tap water for a few hours per week.[24] The city of Jakarta is essentially sinking due to the dire need to pull up ground water.[25] Australia voiced concerns, reporting that it may run out of water in approximately ten years.[26] Southern California experienced a five-year drought, causing agricultural issues and widespread fires.[27] These cities are not alone in this risk; many cities with “inadequate infrastructure” and unsanitary conditions could easily find themselves in a water crisis.[28] Further, political stability and the looming threat of rapid climate change make worldwide water famine a practical reality.[29]

Just as Day Zero came and went for South Africa, many large cities are likely to narrowly avoid the catastrophic consequences of simply not having enough water. Citizens of the world should begin making conservation efforts and become more aware of excessive usage. While climate change and political dynamics may play a role, the deciding factor in avoiding any crisis is the action of the people. It might not always rain, and the world must be prepared.

[1] Charlotte Edmond, Cape Town Almost Ran Out of Water. Here’s How it Averted the Crisis., World Economic Forum (Aug. 23, 2019), https://www.weforum.org/agenda/2019/08/cape-town-was-90-days-away-from-running-out-of-water-heres-how-it-averted-the-crisis.

[2] Craig Welch, Why Cape Town is Running Out of Water, and Who’s Next, Nat’l Geographic (Mar. 5, 2018), https://www.nationalgeographic.com/news/2018/02/cape-town-running-out-of-water-drought-taps-shutoff-other-cities/#close.

[3] Christian Alexander, Cape Town’s ‘Day Zero’ Water Crisis, One Year Later, City Lab (Apr. 21, 2019), https://www.citylab.com/environment/2019/04/cape-town-water-conservation-south-africa-drought/587011.

[4] Welch, supra note 2.

[5] Krista Mahr, How Cape Town Was Saved From Running Out of Water, Guardian (May 4, 2018, 8:04 AM), https://www.theguardian.com/world/2018/may/04/back-from-the-brink-how-cape-town-cracked-its-water-crisis.

[6] Welch, supra note 2.

[7] Welch, supra note 2.

[8] Mahr, supra note 5.

[9] Aryn Baker, What It’s Like to Live Through Cape Town’s Massive Water Crisis, Time, https://time.com/cape-town-south-africa-water-crisis (last visited Jan. 21, 2020).

[10] Id.

[11] Baker, supra note 9.

[12] Id.

[13] Edmond, supra note 1.

[14] Mahr, supra note 5.

[15] Baker, supra note 9.

[16] Id.

[17] Id.

[18] Mahr, supra note 5.dian

[19] Baker, supra note 9.

[20] Mahr, supra note 5.rdian

[21] Edmond, supra note 1.

[22] Id.

[23] Id.

[24] Welch, supra note 2.

[25] Id.

[26] Id. (Information accurate as of the date this article was written; subsequent wildfires may affect this number.)

[27] Id.

[28] Id.

[29] Id.

Parallel Imports and the Principle of Exhaustion: The First Sale Rule in International Commerce

Kyle C. Williams

 

The lack of harmony in international trade law regarding parallel imports of goods that are protected by intellectual property (IP) rights has created challenges for IP owners doing business in foreign markets. Many jurisdictions differ with respect to the policies and laws prohibiting or allowing parallel imports of goods protected by intellectual property rights.[1] However, preventing IP owners from using their rights to monopolize the re-sale of protected products from third parties can benefit fair trade and competition policy. Because each jurisdiction differs in policy, IP owners must consider the law of the jurisdiction where a potential licensee/distributor operates for the sale of a protected product to determine whether its products may be re-sold in competition with the IP owner in their domestic market.[2] The principle of exhaustion of intellectual property rights will determine whether an IP owner may prevent a third-party purchaser re-selling a product as a parallel import in the IP owners’ domestic market.

 

International jurisdictions have trade policies that follow the principle of either national exhaustion or international exhaustion regarding the extent of intellectual property rights after a particular product has reached the market.[3] Under a national exhaustion regime, the IP owner loses the right to restrict trade of a product using its protected IP in the country where it was first put into commerce.[4] However, the IP owner reserves the right to restrict the first sale of a product using its protected IP in any other jurisdiction.[5] This form of the principle allows for the IP owner to maintain control over their rights and retain the ability to authorize re-sale in exchange for additional compensation in a licensing agreement with a foreign distributor/manufacturer.

 

Under an international exhaustion regime, the IP owner loses the right to restrict trade of a product using its IP after it has first been put to commerce wherever the product has been sold. This form of the exhaustion principle effectively prohibits the IP owner from preventing third-parties from re-selling their products both abroad and in the IP owners’ domestic market.[6] Intellectual property law in the US provides the IP owner with the exclusive right to benefit from the sale of a protected product in most cases. Once the first sale rule has been met, however, the policies of the jurisdiction where the product was sold dictate whether those rights remain in effect.[7] The adoption of the first sale rule can stimulate growth within the market by supporting competition and a stable price for many protected consumer goods.

 

  1. Intellectual Property Rights and Parallel Importation

 

Despite the attempt to establish uniformity of intellectual property rights internationally, regulation of parallel imports has not been consistent amongst many of the world’s most prominent international partners. Trademark, patent, and copyright law in the US, for example, each address the issue of parallel imports differently. Moreover, Article 6 of the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) asserts that the issue of exhaustion shall not be addressed by the agreement.[8] The consequence is that each jurisdiction on the international stage will decide whether to have a national exhaustion regime or an international exhaustion regime. The US applies an international exhaustion regime through the use of the first sale rule, requiring IP owners to rely on other mechanisms to address parallel imports.

 

  1. US Trademark Protection against Parallel Imports

 

Trademark Law in the US limits the tools available for IP owners to protect against parallel imports. In Matrix Essentials, Inc., the Fifth Circuit held that liability under trademark infringement is predicated on a finding that the infringers’ activities are likely to cause confusion.[9] In order to find infringement, the consumer must either be misled with respect to defects in the goods or be confused regarding whether the seller is authorized by the manufacturer/IP owner to sell the goods purchased in good faith.[10]

 

Citing Shell Oil Co., the fifth circuit agreed that trademark law does not usually apply to the sale of genuine goods that contain the mark of the legal IP owner even if those sales are conducted without the IP owners’ consent.[11] Thus, if the goods are not counterfeit, were acquired legally, contain the IP owners mark, and fit the quality control standards of the IP owner, there can be no infringement for re-sale.[12]

 

US trademark law does provide protection for IP owners through the Lanham Act. When goods sold through a third-party are protected by the original IP rights, and are materially different from those sold by the IP owner, the Lanham Act provides a remedy for cases of infringement.[13] Section 32(1) creates a remedy for the use of civil actions against infringement of registered trademarks.[14] Section 42 allows the customs and border patrol to prevent imports of goods that infringe both registered and unregistered trademarks.[15] Section 43(b) allows a party to create a civil action to enjoin importation of any goods that are likely to infringe on a registered or unregistered trademark.[16] Courts in the US have found that even subtle differences are enough since the standard is a low bar.[17] However, these protections do not solve for the re-sale of identical goods put into the domestic market.

 

Additional federal statutory protection against parallel imports exist in the 1930 Tariff Act. Section 526 of the Act blocks parallel imports of goods protected under a trademark owned by a US person without written consent, regardless whether the goods are identical or materially different.[18] However, Section 526 only applies to goods manufactured outside the US, and does not apply when the US person who owns the trademark also owns a trademark for the goods in the manufacturing country, or a corporate affiliation with a foreign manufacturer.[19] Thus, Section 526 may protect a US IP owner of a registered trademark from parallel imports sold in their domestic market as a biproduct of a licensing agreement with a foreign distributor, but will not protect against third-party sales if the foreign distributor is a parent or subsidiary corporation of the IP owner.

 

  1. US Copyright Protection against Parallel Imports

 

Under the Copyright Act, the owner or exclusive licensee of a federal copyright maintains the exclusive right to import and distribute materials using that copyrighted material in the United States.[20] However, the first sale rule limits this right of importation and distribution by only providing the IP owner the right to control the first public sale, while granting no rights over subsequent resales of the same copyrighted material.[21] US courts had differing opinions as to whether the Copyright Act protected against the resale of copyrighted products if those products were manufactured abroad until the US Supreme Court addressed this issue in Kirtsaeng.

 

Court in Kirtsaeng held that the first sale rule applies to goods protected by US Copyright Law regardless of whether the goods were manufactured in the US or abroad.[22] The Court found that because the product was brought to sale by the IP owner, and because there are no geographical restrictions on where the first sale rule applies, the IP owner/manufacturer could not prevent Kirtsaeng from creating a parallel import of the copyrighted material.[23] Thus, the rationale of the first sale rule would apply in any jurisdiction after the IP owner put the goods to market anywhere in the world. Therefore, Copyright Law in the US also provides limited protection against parallel imports.

 

  1. US Patent Law Protection against Parallel Imports

 

Under 35 U. S. C. §154(a) a US Patent holder has the right to “exclude others from making, using, offering for sale, or selling [its] invention throughout the United States or importing the invention into the United States.”[24] The Supreme Court, however, has affirmed in Impression Products, Inc. that once the patentee sells one of its protected products the patentee can no longer control the patented item through the patent laws because those rights will have been exhausted.[25] The Court reasoned that because the purpose of patent law is for the patentee to receive his/her reward for the use of his/her invention, that law furnishes “no basis for restraining the use and enjoyment of the thing sold.”[26] Thus, the first sale rule extends to all applicable intellectual property rights provided by US federal law. Protection against parallel imports is therefore limited in the jurisdiction of the United States.

 

  1. International Law and Parallel Imports

 

Most nations around the world utilize an international exhaustion regime. However, many nations include specific variations on the core principle. The United States and Canada, for example, both use an international exhaustion regime based on a standard of whether the parallel import is materially different from the IP owner’s original product.[27] If no material differences are found then the product may be imported into the country subject to national competition law by state or province.[28]

 

Some nations and international blocs have national exhaustion regimes within their borders. For example, the European Union (EU) prohibits IP owners from restricting the trade of parallel imports within its member states, while requiring each member state to block parallel imports from outside the EU.[29] The EU prohibits any individual member state from operating an international exhaustion regime in an effort to promote free trade policies amongst its member states while restricting foreign trade.[30] Similar to the examples set by North America and Western Europe, most nations apply a national or international exhaustion regime under the first sale rule to address parallel imports and IP rights.

 

  1. International Exhaustion Regimes

 

Many prominent players in international trade operate within an international exhaustion regime. Australia, Singapore, China, Hong Kong, and Japan all operate within this type of regime. Although all of these nation states follow the international exhaustion principle, they all approach the policy differently.

 

Under Section 123 of the Australian Trademarks Act 1995, a parallel importer may claim a defense to trademark infringement if the goods have been legally marked by the IP owner, or if the mark was applied with the IP owners’ consent.[31] Under Schedule 2 to the Competition and Consumer Act 2010, IP owners may protect against trademark infringement where the parallel importer makes a false representation regarding a performance characteristic, use, benefit, warranty, guarantee, or country of origin information that is different from the actual IP owners product.[32] This is similar to the “material differences” standard used in North America to prove infringement.

 

China does not currently have legislation in place to regulate parallel imports, but Chinese customs may prevent physical goods from entering the country that violate Customs protection of intellectual property rights.[33] China has avoided many cases regarding parallel imports in its courts because multinational corporations usually manufacture products in China and export them into other jurisdictions.[34] The low cost of manufacturing goods in China helps to prevent most parallel importers from purchasing goods at a lower price elsewhere and selling them into China.[35] At present, parallel imports freely exist without restriction in the Chinese market, so the nation can be considered to be under an international exhaustion regime by proxy. However, without clear legislation or binding case law precedent, a definitive regime cannot be established.[36]

 

In contrast to the ambiguity for treatment of parallel imports in mainland China, Hong Kong has a relatively clear international exhaustion regime. With respect to trademark law, Hong Kong mirrors the first sale rule of the United States in that it looks to whether the protected goods have been altered from the original standard put to market by the IP owner, and whether the goods will harm the distinctive character of the trademark.[37] Upon the enactment of a revised copyright law in 2007, Hong Kong now includes a far more protectionist standard against parallel imports for goods under copyright than with trademarks.

 

It is an actionable offense in Hong Kong to sell imported parallel copies of goods protected by copyright for any business purpose to the public, unless the good is computer software.[38] Additionally, the importation of genuine goods for educational purposes is allowed as a form of fair use within its borders.[39] Hong Kong also provides a criminal action as a remedy if a party sells, or imports for sale, goods that are protected by copyright (with exceptions for computer software, within the previous 15 months of the import.)[40] A criminal action is also available for the parallel import of protected motion pictures made available to a viewing public.[41] Thus, Hong Kong has a hybrid international exhaustion regime.

 

In Japan, the so-called “Fred Perry” case, heard by the Supreme Court of Japan, established the rule on parallel imports in that jurisdiction. In the Fred Perry case, a party brought suit against a parallel importer after goods associated with a valid international licensing agreement entered into the Japanese market in competition with the IP owner of the marks used for those goods. The Supreme Court of Japan held that if the goods sold in the domestic market are genuine goods produced with the consent of the IP owner, from an identical source and with identical quality, the parallel import cannot violate Japanese trademark rights.[42] Therefore, parallel imports in Japan follow the international exhaustion regime under a version of the first sale rule.

 

  1. National Exhaustion Regimes

 

Although most industrious nations follow some form of international exhaustion for the regulation of parallel imports using IP rights, some follow the national exhaustion model despite the global focus on free trade policy. The Philippines and Russia, both hybrid national exhaustion regimes, maintain protectionist policies regarding the creation of parallel distribution channels for IP protected products.

 

The Philippine system is a hybrid national regime because only copyright and patent IP owners may restrict parallel imports, while trademark IP owners must endure competition from parallel distribution channels.[43] Trademark law in the Philippines permits the importation of genuine products sourced from the IP owner of the mark used on a given product.[44] The law does, however, prohibit the copying or simulation of trademarked goods.[45] In Solid Triangle Sales Corp. v. The Sheriff of RTC Quezon City, the Supreme Court of Manila held that only in cases of fraud or deceit may a parallel importer be found liable of unfair competition based on whether the imported product is passing off as something different.[46]

 

Section 190 of the IP Code authorizes the importation of copyright protected works, where the IP owner is a domestic producer, only when the work is not available in the Philippines and is in the personal luggage of a natural person.[47] Additionally, the amount of copies must not exceed three in total.[48] The law does not, however, address commercial quantities of genuine goods under protection of copyright law.[49] Thus, the courts may have discretion to determine the fate of a parallel importer that has been accused of copyright infringement.

 

Patent law in the Philippines is much more concrete regarding parallel imports of IP protected products. Where the subject matter of the patent is a product, the IP owner maintains the right to restrict an unauthorized person or entity from making, using, offering for sale, selling, or importing that product.[50] Although there are limitations on an IP owners’ rights after the protected product has been put to sale, those rights only effect domestic producers, not foreign distributors.[51] Thus, Philippine patent law maintains a national exhaustion regime with respect to most of its IP rights related to the activity of parallel importation.

 

Maybe insert a more concrete transition into talking about Russia? For many years, parallel imports of IP protected goods into the Russian market were prohibited and considered counterfeit.[52] If parallel goods were caught by customs agents they would be confiscated for a period of 10 days allowing for the Russian IP owner to execute a civil suit to have them destroyed following payment of court ordered damages.[53] In 2018, the Russian Constitutional court held that although there is a conflict of interest between IP trademark owners and parallel importers, Russia maintains a policy of national/regional exhaustion of IP protection, so parallel imports are prohibited.[54]

 

Russian courts have, however, begun the process of liberalizing the policy against parallel importation. The Constitutional Court has also held that IP owners should be barred from abusing their rights by restricting the import of goods that meet unique public interests.[55] The courts have also used their discretion in judgements to lower damages for cases of parallel imports of genuine goods rather than making damages equal to a judgement for the sale of counterfeit goods.[56] As a member of the Eurasian Economic Union, there is international exhaustion between the member states, but like the EU, a practice of national exhaustion applies to all foreign parallel imports.[57]

 

  1. Rationale and Policy Considerations

 

Globalization has sparked a wildfire of free trade policy across the industrial world. Naturally, to promote free trade policy, the sale of goods must be allowed to move between markets with minimal restraint. However, producers must have a means to protect themselves and their work product. Intellectual property rights provide one mechanism to protect those interests. On the other hand, IP rights offer an opportunity to abuse free market principles by promoting activity that restricts healthy competition.[58] Adopting a policy of exhaustion is an attempt to regulate the potential abuse of IP rights while protecting foreign and domestic producers.

 

Parallel importation on the global market does provide a nuisance to IP owners, but there is great benefit in promoting the activity. Owners of IP bring a product to market with set prices and launch dates. This activity allows producers to exert a large amount of control over consumer access and competition in the region where sales are being executed by effectively promoting market segmentation.[59] Thus, the decision to use either an international or national/regional exhaustion regime for IP rights reflects economic competition policy of the country in question. Therefore, the strength of the domestic economy may indicate which regime will evolve in that country.

 

Intellectual property rights confer a monopoly over what amounts to an intangible asset.[60] This asset may be affixed to any number of physical products that enter the market anywhere in the world. The IP monopoly is intended to provide the IP owner the right to profit off of its inventive work product, but under the principle of exhaustion that monopoly does not extend past the sale of an individual product that has been affixed with the protected IP after it has been put into commerce.[61] This restriction on the extension of IP rights to prevent parallel imports preserves an important  channel for commerce that benefits competition and often strengthens the international economy.

[1] Christopher Heath, Parallel Imports and International Trade, WIPO, July 9, 1999, at 3, par. 1 Available at: https://www.wipo.int/edocs/mdocs/sme/en/atrip_gva_99/atrip_gva_99_6.pdf

[2] Michala Meiselles, Hugo Wharton, International Licensing Agreements: IP, Technology Transfer and Competition Law, 32-34, par. 4 (2018) Available at: https://play.google.com/books/reader?id=QI6WDwAAQBAJ&hl=en&pg=GBS.PT38.w.6.0.61

[3] Fabio Giacopello, Parallel import: The Battle Between Safe and Cheap, HFG Law & Intellectual Property, Last updated: 3 Apr. 2019, at 1, par. 5 Available at: http://www.hfgip.com/news/parallel-import-battle-between-safe-and-cheap

[4] Id.

[5] Id.

[6] Id.

[7] Mary LaFrance, Wag the Dog: Using Incidental Intellectual Property Rights to Block Parallel Imports, 20 Mich. Telecomm. & Tech. L. Rev. 45, 51 (2013). Available at: http://repository.law.umich.edu/mttlr/vol20/iss1/2

[8] TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197, Art. 6 (1994) Available at: https://www.wto.org/english/docs_e/legal_e/27-trips.pdf

[9] Matrix Essentials, Inc. v. Emporium Drug Mart, Inc., of Lafayette, 988 F.2d 587, 590 (5th Cir. 1993)

[10] Id.

[11] Id.

[12] Id.

[13] Mary LaFrance, Wag the Dog: Using Incidental Intellectual Property Rights to Block Parallel Imports, 20 Mich. Telecomm. & Tech. L. Rev. 45, 52 (2013) Available at: http://repository.law.umich.edu/mttlr/vol20/iss1/2

[14] 15 U.S.C. § 1114(1) (2012)

[15] Id.

[16] Id.

[17] Mary LaFrance, Wag the Dog: Using Incidental Intellectual Property Rights to Block Parallel Imports, 20 Mich. Telecomm. & Tech. L. Rev. 45, 53 (2013) Available at: http://repository.law.umich.edu/mttlr/vol20/iss1/2

[18] 19 U.S.C. § 1526 (2012)

[19] Mary LaFrance, Wag the Dog: Using Incidental Intellectual Property Rights to Block Parallel Imports, 20 Mich. Telecomm. & Tech. L. Rev. 45, 55 (2013) Available at: http://repository.law.umich.edu/mttlr/vol20/iss1/2

[20] 17 U.S.C. § 602(a)(1) (2012)

[21] Mary LaFrance, Wag the Dog: Using Incidental Intellectual Property Rights to Block Parallel Imports, 20 Mich. Telecomm. & Tech. L. Rev. 45, 58 (2013) Available at: http://repository.law.umich.edu/mttlr/vol20/iss1/2

[22] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 553, 133 S. Ct. 1351, 185 L. Ed. 2d 392 (2013)

[23] Id.

[24] 35 U. S. C. §154(a)

[25] Impression Prod., Inc. v. Lexmark Int’l, Inc., 137 S. Ct. 1523, 1531, 198 L. Ed. 2d 1 (2017)

[26] Id. at 1532.

[27] Impression Prod., Inc. v. Lexmark Int’l, Inc., 137 S. Ct. 1523, 1531, 198 L. Ed. 2d 1 (2017); Dupont of Canada Ltd. v. Nomad Trading Co. (1968) 55 CPR 97

[28] Id.

[29] Mary LaFrance, Wag the Dog: Using Incidental Intellectual Property Rights to Block Parallel Imports, 20 Mich. Telecomm. & Tech. L. Rev. 45, 76 (2013). Available at: http://repository.law.umich.edu/mttlr/vol20/iss1/2

[30] Id.

[31] Trade Marks Act 1995, (Cth) s 123 (Austl.)

[32] Competition and Consumer Act 2010 (Cth) sch. 2 (Austl.); Star Micronics Pty Ltd. v. Five Star Computers Pty Ltd. (1991) 22 IPR 473

[33] Article 3, Regulations of the People’s Republic of China on Customs Protection of Intellectual Property Rights (2004) Available at: https://www.wipo.int/edocs/lexdocs/laws/en/cn/cn025en.pdf

[34] Daniel Chow, Exhaustion of Trademarks and Parallel Imports in China, 51 Santa Clara L. Rev. 1283, 1286 (2011). Available at: http://digitalcommons.law.scu.edu/lawreview/vol51/iss4/7

[35] Id.

[36] Id. at 1309.

[37] Section 20, Trade Marks Ordinance (Cap. 559 of the Laws of Hong Kong)

[38] Copyright Ordinance (Cap. 528 of the Laws of Hong Kong)

[39] Angela Wang & Co, Parallel Importation of Goods in Hong Kong and Mainland China (Part I – Hong Kong), MONDAQ, Last updated: 25 Feb. 2008, at 1, par. 11 Available at: http://www.mondaq.com/article.asp?article_id=57560

[40] Id.

[41] Id.

[42] Case H14 (Ju) 1100, Judgment on February 27, 2003 (H15) Available at: https://www.jpaa.or.jp/old/english/court_decisions/69FREDPERRYCase.pdf

[43] Ignacio S Sapalo, PHILIPPINES: PARALLEL PROBLEM, SVBB, 01 October 2007, at 1, par. 2, Available at: https://www.sapalovelez.com/2014/08/27/philippines-parallel-problem/

[44] Section 166 of Republic Act 8293, the Intellectual Property Code (IP Code)

[45] Id.

[46] Solid Triangle Sales Corp. v. The Sheriff of RTC Quezon City, Branch 93, 370 SCRA 509 Available at: http://www.chanrobles.com/scdecisions/jurisprudence2001/nov2001/gr_144309_2001.php

[47] Ignacio S Sapalo, PHILIPPINES: PARALLEL PROBLEM, SVBB, 01 October 2007, at 1, par. 8, Available at: https://www.sapalovelez.com/2014/08/27/philippines-parallel-problem/

[48] Id.

[49] Id.

[50] Section 71(a), Rep. Act No. 8293 (Intellectual Property Code), as amended by Rep. Act No. 9502 Available at: https://PH_Intellectual-Property-Code-of-the-Philippines-Republic-Act-No-8293-2015-Edition.pdf

[51] Ignacio S Sapalo, PHILIPPINES: PARALLEL PROBLEM, SVBB, 01 October 2007, at 1, par. 10, Available at: https://www.sapalovelez.com/2014/08/27/philippines-parallel-problem/

[52] Olga Yashina, Russian Federation: Parallel Imports In Russia: Same Game, Different Rules, MONDAQ, Last updated: 3 December 2018, at 1, par. 1, Available at: http://www.mondaq.com/russianfederation/x/760194/Trademark/Parallel+imports

[53] Id.

[54] Id. at 8.

[55] Id. at 10.

[56] Id at 12.

[57] Id. at 16.

[58] E. Bonadio, Parallel Imports in a Global Market: Should a Generalized International Exhaustion be the Next Step?, European Intellectual Property Review, 33(3), 1 (2011) Available at: https://openaccess.city.ac.uk/id/eprint/4106/1/Parallel Imports in a Global Market.pdf;Exhaustion

[59] Keith E. Maskus, Economic Perspectives on Exhaustion and Parallel Imports, CALBOLI 9781783478705 PRINT (M3966) (G).indd, 106 (2016) Available at: https://www.colorado.edu/faculty/kmaskus/sites/default/files/attached-files/chapter_6.pdf

[60] E. Bonadio, Parallel Imports in a Global Market: Should a Generalized International Exhaustion be the Next Step?, European Intellectual Property Review, 33(3), 1 (2011) Available at: https://openaccess.city.ac.uk/id/eprint/4106/1/Parallel Imports in a Global Market.pdf;Exhaustion

[61] Id.

The Abolishment of the Kafala System, How Qatar’s World Cup Nomination Led to Change in Their Labor System

By: Francis Mulligan

            The announcement that Qatar would host the 2022 FIFA World Cup was met with widespread criticism. How does a country with no historical success in international soccer and a population of fewer than two million people become the host of the world’s most notable sporting event?[1] Claims of corruption within FIFA were widespread at the time and were later substantiated with arrests.[2] FIFA officials were arrested under charges of racketeering, money laundering, and wire fraud a few years after the announcement. Following these arrests, leaked documents showed that Qatar had offered FIFA $400 million weeks before the bidding process had ended in order to host the tournament.[3]

 

Additionally, there were, and still are, numerous practical issues that plague the upcoming tournament. Notably, the average temperature in Qatar makes playing the tournament in the summer nearly impossible. As a result, the tournament, which has always taken place in the summer, has been moved to the winter.[4] This has raised problems for players and their domestic club teams, who compete throughout the winter months. Numerous domestic leagues have come forward and said that they do not want the tournament to take place in the winter.[5] A spokesman for the English Premier League stated, “The prevailing view from the leagues has been that displacing the 2022 World Cup significantly from the original summer dates disproportionately impacts the sporting integrity of our competitions.”[6] Also, there are questions as to whether the infrastructure of Qatar can withstand the increased traffic the tournament would bring. The country’s infrastructure is designed for that of a small nation, as Qatar’s population at the time was under two million; the last World Cup saw over seven million tourists visit Russia.[7] An influx of almost four times Qatar’s population visiting the nation could provide a great strain on hotels, roads, airports, etc.[8] Most importantly, Qatar did not, at the time of the announcement, have any stadiums in which the games could be played. Despite this, the Qatari government assured FIFA that the stadiums would be built and completed by the start of the tournament.[9]

 

The need for new stadiums led to a large influx of migrant workers entering the country. Since the announcement of the World Cup, Qatar’s population has grown from 1.6 million to 2.6 million. Most of that growth is the result of the influx of migratory workers. Many of the workers hail from countries in the south of Asia, such as Nepal, Bangladesh, and India.[10]

 

All of this has shined a light onto Qatar’s labor system. Qatar, along with other nations in the Middle East (Bahrain, Jordan, Kuwait, Lebanon, Oman, Saudi Arabia, and the United Arab Emirates), employs the Kafala labor system.[11] Kafala, meaning sponsorship in Arabic, ties employees to specific employers.[12] The employers sponsor employees’ visas and issue residency permits.[13] The Kafala system is part of immigration law in these countries and is monitored and regulated by each nation’s Ministry of the Interior.[14] Issues arise due to the control the employers then have over the employees. Stories of employers taking their employee’s passports away for years, refusing to allow employees to change jobs, and wages being withheld for months at a time are numerous.[15] Furthermore, the working conditions on construction sites have been dangerous. Employees have claimed that they were being forced to work without water in the desert.[16] Lastly, employees have claimed that they were not allowed to leave the country without employer permission.[17] Any claims of abuse were disregarded by authorities who would meet with the employers of the workers. The employers would claim that nothing wrong had taken place. Then, workers would often be deported or punished for going forward with claims of abuse.[18] A lack of a legitimate system of redress for employees, along with the Kafala system has left migrant employees powerless in dealing with their employers.

 

Once the World Cup was been granted to Qatar in 2010, human rights groups across the globe began to scrutinize the Kafala system. Those criticisms fell upon deaf ears until 2013. In 2013, the International Trade Union Confederation warned that the 2022 World Cup in Qatar risked over 4,000 lives.[19] Mortality figures acquired by the organization showed that migrant workers from Nepal and India alone were dying at a rate of over one person per day.[20] This was at a time in which the government of Qatar was making public claims that over 500,000 more workers were needed to finish the World Cup’s construction on time.[21] In 2014, the Human Rights Council of the United Nations stated, “The recruitment process for migrants needs to be further formalized in order to prevent exploitation . . . The kafala system is a source of abuse and exploitation of migrants, and should be abolished.”[22]

 

Once the pressure of international criticism began to mount, Qatar attempted to make changes to the Kafala system, but they were not enough. Following a report by Amnesty International in 2016, the International Labor Organization (ILO) and Qatar entered into a three-year program to carry out extensive labor reformation.[23] The ILO is a UN employment rights agency whose mission is to advance social justice and set international working standards.[24] The focus of this three-year program is to adjust wage payments, to reform the Kafala system, and to provide workers with more power in labor negotiations.[25] This plan operated in a manner through which the ILO would make recommendations to Qatar in order to reach certain goals, but all of the decision-making would still be in the Qatari government’s hands.

 

Despite this three-year plan, migrant workers in Qatar still saw their wages withheld by employers. In 2018, multiple construction companies withheld wages from employees for several months before ceasing operations altogether, leaving thousands without any pay for months of work.[26] Additionally, as part of the reformation process, the ILO set up a complaint system for employees to seek redress against unfair labor practices. The ILO received over 6,000 complaints in a year from workers regarding the harsh working conditions or employer mistreatment.[27] The complaint system was supposed to be quick and efficient, where Qatari officials would issue a ruling on a complaint within six weeks. However, complaints took anywhere from three to eight months to be resolved instead.[28] Due to this elongated and ineffective complaint system, employees who were not paid their wages would forego civil action against employers and instead often elected to leave the country after working for months with nothing to show for it.[29] Many human rights organizations continued to call for the end of the Kafala system due to these continued issues. In August of 2019, over 5,000 workers took to the streets protesting the delay of wages and poor working conditions.[30]

 

Two months later, on October 17, 2019, Qatar pledged to abolish the “Kafala” system altogether and add a minimum wage to the country’s labor laws.[31] A Qatari official stated, “Qatar has made substantial progress on labour reforms and it continues to work with NGOs, including the International Labour Organization (ILO), to ensure that these reforms are far-reaching and effective.”[32]

 

The announcement has been met with acceptance but also hesitance. A spokesman for Amnesty International said that “it would be a major step forward if these measures finally allow workers to return home or change jobs without restriction. We will be closely scrutinizing the details of this announcement and pushing for any positive measures to be quickly and fully implemented.”[33] Due to the recent failed efforts of the Qatari government in reforming its labor system, human rights organizations understandably want to see the abolishment of the Kafala system play out before claiming this as a victory. However, this effort by Qatar is undoubtedly a step in the right direction.

 

In conclusion, a surprising positive emerged from the 2022 FIFA World Cup being given to Qatar. The granting of the World Cup to Qatar was, according to leaked documents, due to FIFA accepting a bribe from the Qatari government. Many issues regarding the tournament’s practicality remain, but the social activism and backlash over Qatar’s labor practices have led to the country abolishing a system that perpetuated inhumane labor practices. Now, Qatar has pledged to be one of the first countries in the Middle East to abolish the Kafala system and establish a working minimum wage. While these reforms are not yet in place, if the country follows through with their promises, then Qatar may be an example for other nations in the region to follow.

[1] Amnesty International, Reality Check: Migrant Workers Rights With Four Years To The Qatar 2022 World Cup, https://www.amnesty.org/en/latest/campaigns/2019/02/reality-check-migrant-workers-rights-with-four-years-to-qatar-2022-world-cup/.

[2] Evan Perez and Shimon Prokupecz, U.S. Charges 16 FIFA Officials in Widening Probe (2015), https://www.cnn.com/2015/12/03/sport/fifa-corruption-charges-justice-department/index.html/.

[3] Qatar’s secret $880m World Cup payments to FIFA (2019), thetimes.co.uk/article/revealed-qatars-secret-880m-world-cup-payments-to-fifa-p3r5rvw9x/.

[4] Steven Mufson, Facing Unbearable Heat, Qatar Has Begun to Air-Condition the Outdoors, https://www.washingtonpost.com/graphics/2019/world/climate-environment/climate-change-qatar-air-conditioning-outdoors/.

[5] Tony Manfred, FIFA moving the 2022 World Cup to winter is a total mess — and the world’s biggest teams are outraged (2015), https://www.businessinsider.com/fifa-will-not-compensate-clubs-for-2022-world-cup-move-2015-2/.

[6] Id.

[7] FIFA, 7.7 million football fans visit FIFA Fan Fest during Russia 2018, https://www.fifa.com/worldcup/news/7-7-million-football-fans-visit-fifa-fan-fest-during-russia-2018/.

[8] Mufson, supra note 3.

[9] Id.

[10] Amnesty International, supra note 1.

[11] International Labor Organization, Reform of the kafala (Sponsorship) System, https://www.ilo.org/dyn/migpractice/docs/132/PB2.pdf/.

[12] Id.

[13] Id.

[14] Priyanka Motaparthy, Understanding Kafala: An archaic law at cross purposes with modern development (2015), https://www.migrant-rights.org/2015/03/understanding-kafala-an-archaic-law-at-cross-purposes-with-modern-development/.

[15] Amnesty International, Qatar World Cup of Shame (2016), https://www.amnesty.org/en/latest/campaigns/2016/03/qatar-world-cup-of-shame/.

[16] Id.

[17] Id.

[18] Id.

[19] International Trade Union Conference, Qatar 2022 World Cup Risks 4000 Lives (2013), https://www.ituc-csi.org/qatar-2022-world-cup-risks-4000/.

[20] Id.

[21] Id.

[22] François Crepéau, Special Rapporteur on the Human Rights of Migrants, Mission to Qatar, ¶ 25-32, 80, U.N. Doc. A/HRC/26/35 (April 23, 2014).

[23] International Labor Organization, Qatar, https://www.ilo.org/beirut/countries/qatar/WCMS_654238/lang–en/index.htm.

[24] Id.

[25] Id.

[26] Amnesty International, Qatar: Despite Reform Promises, Migrant Workers Still Return Home Without Wages or Justice (2019), https://www.amnesty.org/en/latest/news/2019/09/qatar-despite-reform-promises-migrant-workers-still-return-home-without-wages-or-justice/.

[27] Id.

[28] Id.

[29] Id.

[30] Faras Ghani, Qatar Moves to Announce Abolishment of Kafala System (2019), https://www.aljazeera.com/news/2019/10/qatar-moves-announce-abolishment-kafala-system-191017070750729.html.

[31] Id.

[32] Id.

[33] Amnesty International, Qatar: Pledge to End Abusive ‘Kafala’ System Must Truly Transform Workers’ Rights (2019), https://www.amnesty.org/en/latest/news/2019/10/qatar-pledge-to-end-abusive-kafala-system-must-truly-transform-workers-rights/.

FGM Victims Deserve Better U.S. Asylum Protections

By: Bianca Gutierrez

 

From stifled whispers to impassioned shouts, our country is renewing focus on the conversation relating to the scale and scope of violence against women. The media covers headlining stories of sexual assault, domestic violence, and the strength in healing found in survivors of these events. One issue remains eerily ignored and yet horrifically prevalent: female genital mutilation (“FGM”). Because FGM is both invisible to the public eye and sometimes insufficient for asylum protections, victims of FGM face a unique barrier to asylum grants. Due to lack of binding uniform legal authority, FGM victims should be afforded protections spelled out in the Immigration and Nationality Act, instead of facing contradictory protections afforded by caselaw, USCIS guidelines, and IIRIRA.

Also known as female genital cutting (“FGC”), female genital mutilation is a tradition practiced worldwide that involves the “intentional injury or removal of the external female genital organs for non-medical purposes.”[1] FGM procedures vary, but most include the painful process of partial or total removal of the clitoris and labia minora and sealing the vaginal opening. This is meant to reflect the cultural importance of purity and chastity in young women. FGM procedures can also include “pricking, piercing, incising, scraping, and cauterizing the genital area.”[2]

Publicly occurring today in over twenty-nine countries, this practice is embedded in cultural and religious traditions that emphasize “traditional notions of femininity, control of female sexuality, preservation of family honor and preparation of marriage” and seek to remove parts of the female body that are considered “impure” or “unclean.”[3] Regardless of these antiquated motivations, the process of FGM cruelly strips women and girls of their autonomy and sexual agency. This extremely painful procedure can lead to a myriad of life-long health complications including severe bleeding, problems during urination, infertility, ovarian cysts, open sores in the genital region, hemorrhages, bacterial infections (tetanus or sepsis) during and after pregnancy, and increased risk of newborn deaths.[4]

Adding to the horrifying nature of FGM, victims are often subjected to the procedure without anesthesia, and the tools used are unsanitary and rudimentary, such as knives; these tools can worsen the possible health complications.[5] Victims are often forced to undergo pre-marital FGM and are physically restrained during the procedure by other women that have themselves suffered FGM.[6] Following most FGM procedures, victims are immediately bandaged from their knees to their waist and abandoned; it takes weeks to recover even while lying down.[7]

According to FGM victims, the consequences of undergoing FGM are often worse than the procedure itself and include ongoing physical, sexual, and psychological complications.[8] Specifically, the sexual and psychological effects of FGM leave victims facing irreversible consequences.[9] Unfortunately, the FGM procedure is widespread, even today. In 2013, the World Health Organization estimated that 30 million girls under the age of 15 are at risk of being cut.[10] With over 140 million victims throughout the world, female genital mutilation is internationally recognized as a violation of women’s fundamental and human rights.[11]

Due to the prevalent and dangerous nature of FGM, women and girls at risk of being cut have been fleeing violence in search of asylum across the globe. Beginning in the 1990s, courts around the world started recognizing FGM as a form of persecution for asylum claims.[12] In Aminata Diop (1991), the French Commission for Appeals of Refugees officially recognized female genital mutilation as a basis for persecution to woman “exposed to FGM against [their] will, where FGM was prescribed, encouraged or tolerated.”[13] The Immigration and Refugee Board of Canada followed suit in Farah v. Canada (1994), describing it as a “torturous custom” and extending asylum protection FGM victims.[14] The trend continued among international courts when the Australian Refugee Review Tribunal recognized the applicant’s well-founded fear of female genital mutilation in RRT N97/19046 (1997).[15] Additionally, the United Kingdom acknowledged in Yake (2000) that persecution through FGM constitutes a well-founded fear and described the violence as a serious “human rights issue” because “the procedure. . . amount[s] to torture or other cruel, inhuman or degrading treatment” in Fornah (FC) (Appellant) v. SSHD (Respondent) (2006).[16]

United States jurisprudence has evolved alongside that of the international community in recognizing FGM as a well-founded fear for asylum. In a 1996 landmark case, In re Fauziya Kasinga, the United States Board of Immigration Appeals (“BIA”) found that female genital mutilation constituted well-founded fear in, and the applicant was granted asylum because she was a member of a social group comprised of women in Togo who had not been cut and who refused to submit to FGM.[17] The court adopted FGM into the established definition of persecution because the level of harm inflicted met the standard set forth in in 8 U.S.C. § 1101(a)(42)(A) and was consistent with previous categorizations of persecution.[18] Importantly, this was the first time the court recognized FGM as persecution, relying heavily on “Considerations for Asylum Officers Adjudicating Claims from Women,” an Immigration and National Services memorandum.[19]

Because Kasinga set the precedent for past persecution asylum claims, the BIA drew a sharp contrast in Matter of A-T when an FGM victim filed for asylum asserting a well-founded fear of future persecution. The BIA reasoned that because FGM is a one-time procedure, victims of FGM lack basis to assert a well-founded fear of persecution in the future for the same type of harm inflicted. Using this rationale, BIA attempted to categorize FGM as an “isolated incident” of persecution, instead of what was observed in Kasinga that FGM is “continuing and permanent” type of persecution. However, this case was vacated and remanded by the Attorney General, and the federal courts generally agree that FGM is a permanent and continuing circumstance.[20]

The inconsistency of U.S. case law regarding protections for FGM victims reveals the need for binding legislation. The reduction of FGM to only past persecution reflects the deep misunderstanding of other cultures and dangers victims face around the world. The notion that BIA minimized the horrific, disfiguring procedure as nonpermanent, isolated incidents highlights the need for stronger protections for FGM victims in U.S. asylum laws.

To be clear, there are other legal protections that are afforded to FGM victims in the United States. These include the Gender Persecution Guidelines published by the Immigration National Services and the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”).[21] The Gender Persecution Guidelines officially recognized gender-based persecution as a potential ground for asylum and outlined important points for reference and clarification.[22] When the IIRIRA was published in 1996, Congress criminalized the practice of FGM to anyone that “knowingly circumcises, excises or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person under the age of 18 years old.”[23] These legal protections are important for FGM victims and women and girls who are at risk of being cut; however, there still exists a gap of protections that contradict U.S. criminal law when these protections are not binding to FGM asylum seekers.

In order to strengthen existing asylum protections, victims of FGM and women and girls at risk of being cut should be afforded protections spelled out in the Immigration and Nationality Act and not subjected to the unpredictability of a guideline.[24] Because guidelines do not bind immigration officials, FGM-based asylum claims are left to the discretion of immigration judges.[25] Leaving the approval of FGM-based claims to immigration judges directly contradicts the domestic policy that clearly denounces FGM by criminalizing the practice in all its forms. No longer invisible and unheard, FGM asylum applicants should be afforded legislative protections when they seek asylum in the United States of America. These protections will minimize the possibility that crucial case law is overturned and that the standard set by other countries that afford protections for FGM victims with similar asylum claims is met.

 

 

 

[1] Pooja Shah, Note, Cutting Female Genital Mutilation from the United States: A European-Influenced Proposal to Alter State and Federal Legal Responses when Affording Relief to Somali Victims in Minnesota, 22 Cardozo J.L. & Gender 583, 584-85 (2016).Top of FormBottom of Form

[2] Id. at 585.

[3] Id. at 586-87.

[4] Id. at 586.

[5] United Nations High Commissioner for Refugees, UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation at 4 (May 2009), https://www.refworld.org/pdfid/4a0c28492.pdf.

[6] Shah, supra note 1, at 585.

[7] Vanessa Ortiz, Comment, Culture Shock: Expanding the Current Federal Law Against Female Genital Mutilation, 3 FIU L. Rev. 423, 424 (2008).

[8] UNHCR Guidance Note, supra note 5, at 3.

[9] Sanctuary for Families, Report, Female Genital Mutilation in the United States: Protecting Girls and Women in the U.S. from FGM and Vacation Cutting (2013), http://www.sanctuaryforfamilies.org/wp-content/uploads/sites/18/2015/07/FGM-Report-March-2013.pdf.

[10] Sanctuary for Families Report, supra note 9, at ii.

[11] Id.

[12] United Nations High Commissioner for Refugees, UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation at 6 (May 2009), https://www.refworld.org/pdfid/4a0c28492.pdf.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] In re Kasinga, 21 I. & N. Dec. 357, 366 (B.I.A. June 13, 1996); see also 19 I. & N. Dec. 211 (B.I.A. March 1, 1985).

[19] American Immigration Lawyers Association, INS Issues Guidelines from Womens Asylum Claims, AILA Doc. No. 95053180 (May 26, 1995), https://www.aila.org/infonet/ins-guidelines-from-womens-asylum-claims.

[20] Top of Form

Matter of A— T—, 24 I. & N. Dec. 617 (B.I.A. September 22, 2008)Bottom of Form

[21] American Immigration Lawyers Association, INS Asylum Gender Guidelines, AILA Doc. No. 95053159 (May 31, 1995), https://www.aila.org/infonet/ins-asylum-gender-guidelines; see also H.R. Rep. No. 104-828 (1996) (Conf. Rep.).

[22] American Immigration Lawyers Association Gender Guidelines, supra note 21.

[23] H.R. Rep., supra note 21.

[24] Eva N. Juncker, A Juxtaposition of U.S. Asylum Grants to Women Fleeing Female Genital Mutilation and to Gays and Lesbians Fleeing Physical Harm: The Need to Promulgate an INS Regulation for Women Fleeing Female Genital Mutilation, 4 J. Int’l Legal Stud. 253 (1998).

[25] Juncker, supra note 24.

Crimmigration: The Stigma Behind the Criminality of Immigrants

By: Kathleen Andrade

 

Immigration rates have been growing exponentially in the United States. Under the current Trump administration, significant immigration regulations have been imposed. Some of these regulations include: implementing the travel ban (which banned nationals of eight countries, most majority-Muslim, from entering the United States), cancelling the Deferred Action for Childhood Arrivals (DACA) program (which provides work authorization and temporary relief from deportation to approximately 690,000 unauthorized immigrants brought to the United States as children), and ending the designation of Temporary Protected Status (TPS) for nationals of Haiti, Nicaragua and Sudan.[1] These types of regulations have exacerbated the stigma behind immigration.

 

Somewhere along the way, the term “immigrant” has adopted a negative connotation, and certain stereotypes have become associated with this group of people. Some of these include judgments of character and assumptions of actions. A common assumption is that all immigrants come to the United States illegally and are therefore criminals or that they are more likely to commit crimes when compared to native-born citizens. Therefore, there is a dual relationship between criminality and immigration of both documented and undocumented individuals in the United States and, with respect to that relationship, a more pronounced stigma exists. As it is such a broad classification of people, there are many tiers to immigration. Some examples are naturalized immigrants, undocumented immigrants who cross the border, immigrants who enter the country on a temporary visa, and immigrants who overstay that visa and later become undocumented. The United States takes pride in being a country founded on the idea that people deserve the chance to create a better future, which is why many people from developing countries or countries under political turmoil flee to the United States with the hope to encounter some form of stability.

 

What appears to be a result of these assumptions are harsh penalties and preventative measures implemented that promote a negative message of exclusion and resentment towards immigrants as a whole. For example, throughout his campaign, President Trump focused the nation’s attention on building a wall at the border as a preventative measure to stop immigrants from entering the United States from Mexico.[2] However, statistics show that from 2010 to 2017, the population of undocumented immigrants from Mexico fell by a remarkable 1.3 million.[3] The primary form of entry into the United States of undocumented immigrants was from overstaying their temporary visas, not from crossing the border illegally.[4]

 

Multiple studies have been designed to answer a lingering question: are immigrants more likely to commit crimes than native inhabitants? What might be shocking to some people, given the stereotypes that tend to be attached to the “immigrant” title, is that immigrants are less likely to commit serious crimes when compared to native-born citizens.[5] This holds true for both documented and undocumented immigrants. There is no satisfactory evidence to show that immigration has resulted in an increase in crime. “The problem of crime in the United States is not ‘caused’ or even aggravated by immigrants, regardless of their legal status. But the misperception that the opposite is true persists among policymakers, the media, and the general public, thereby undermining the development of reasoned public responses to both crime and immigration.”[6] It is difficult to make the determination that criminality and immigration have a direct correlation when the evidence to support that claim is not present; the accusations that are typically made regarding the crime rate by immigrants have no evidentiary support.

 

The impact of having a negative societal viewpoint on immigration is crucial because societal norms and behaviors can influence decisions and outlooks on issues. If society views immigrants in a negative light, it naturally follows that the legal system will also adopt those viewpoints in its laws and opinions. An example of this is 8 U.S.C. § 1324(a)(1)(A)(iv). In 2018, the Ninth Circuit, in United States of America v. Sineneng-Smith, held that 8 U.S.C. § 1324(a)(1)(A)(iv) was unconstitutional and that the overly broad plain language of the statute demonstrates how negatively immigrants are viewed. Subsection Four of the statute states, “[A person who] encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”[7] In itself, Subsection Four would criminalize certain communications with non-citizen family members, communications related to advocacy for immigrants, or even communications between employers and employees.[8] These effects reach further than just immigrants, but also to the people around them, simply because immigrants are looked down upon.

 

Immigration is an issue that is becoming more relevant as the years progress. Due to its importance, one should be aware of the negative effects of the stigma behind immigration. Not only is it important to generally overcome ignorance and to better understand the realities of these situations, but it is also important to be aware that societal beliefs, while they might seem inconsequential, are significant and have the capability of spiraling into something greater.

 

The butterfly effect is a theory where one small action can result in a big difference later on. It is known for its famous analogy that a minor perturbation, such as the flap of a butterfly wing, can cause something as destructive and chaotic as a tornado somewhere else in the world. What might seem insignificant in the moment, such as a overgeneralized assumption or comment about immigrants entering the United States, can lead to legislation being passed or court opinions being decided that will have a lasting and disturbing impact on the lives of families. It is important to become aware of the realities of immigration policies in the United States in order to end the stigma.

 

 

[1] Sarah Pierce and Andrew Selee, Immigration under Trump: A Review of Policy Shifts in the Year Since the Election, Migration Policy Institute (December 2017), https://www.migrationpolicy.org/research/immigration-under-trump-review-policy-shifts.

[2] Robert Warren, US Undocumented Population Continued to Fall from 2016 to 2017, and Visa Overstays Significantly Exceeded Illegal Crossings for the Seventh Consecutive Year, Center for Migration Studies (Jan. 16, 2019), https://cmsny.org/publications/essay-2017-undocumented-and-overstays/.

[3] Warren, supra note 2.

[4] Warren, supra note 2

[5] Walter Ewing et al., The Criminalization of Immigration in the United States, Immigration Policy Center Special Report, Washington: American Immigration Council (Jul. 13, 2015), https://www.americanimmigrationcouncil.org/

research/criminalization-immigration-united-states.

[6] Rubén G. Rumbaut & Walter A. Ewing, The Myth of Immigrant Criminality and the Paradox of Assimilation: Incarceration Rates Among Native and Foreign-Born Men, Immigration Policy Center Special Report,” Washington DC: American Immigration Law Foundation (Spring 2007), https://www.americanimmigrationcouncil.org/r

research/myth-immigrant-criminality-and-paradox-assimilation.

[7] 8 U.S.C. § 1324(a)(1)(A)(iv) (2012).

[8] 8 U.S.C. § 1324(a)(1)(A)(iv) (2012); see, e.g., United States v. Henderson, 857 F. Supp. 2d 191, 197 (D. Mass. 2012) (exemplifying an instance when an employer was charged and convicted based on communications with an employee); see also United States of Am. v. Sineneng-Smith, 910 F.3d 461 (9th Cir. 2018) (in which the Ninth Circuit found persuasive was a grandmother who asks her grandson to overstay his visa).