Skip to main content

Third World Law Journal

Vol. 31 Electronic Supplement 2010

Living a Lie: Why "Don't Ask Don't Tell" Presents an Unworkable View of Personhood

A fundamental conflict exists between the understanding of personhood in asylum law and its conception in military law. Asylum law in the United States and the United Kingdom recognizes homosexuality as a fundamental characteristic of personhood, which cannot be concealed. Conversely, “Don’t Ask Don’t Tell,” the statutory ban on gays serving openly in the U.S. Military, demands complete suppression of any indication of homosexuality. This Comment argues that, in light of the framework for examining personhood most recently articulated by the U.K. Supreme Court, the arguments in favor of “Don’t Ask Don’t Tell” are both specious and destructive. This Comment proceeds first by examining the understanding of personhood in asylum law. It then contrasts this understanding with the demands and restrictions that “Don’t Ask Don’t Tell” imposes on homosexual military personnel. Finally, this Comment concludes by calling for a uniform application of the view of personhood found in asylum law.

Melissa Bordeaux

 [View PDF]

Perdomo v. Holder: The Continuing Struggle to Define the Concept of a Particular Social Group

Qualifying for asylum requires that an applicant be considered a refugee. In order to qualify, an applicant bears the burden of demonstrating persecution or a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group. Often, gender-based asylum claims can only proceed under the particular social group category. The Ninth Circuit’s recent decision in Perdomo v. Holder highlights the court’s struggle to identify a coherent and workable definition for a particular social group and the consequent adverse effect on gender-based asylum claims. This Comment explores the Ninth Circuit’s definition of a particular social group as well as the Board of Immigration Appeals’ conflicting definition. By examining Perdomo in light of these divergent definitions, this Comment demonstrates the need for clarification so that confusing and unnecessary language does not continue to create problems for deserving applicants. This Comment ultimately concludes that the Ninth Circuit should adopt the Board of Immigration Appeals’ definition in order to provide greater consistency and clarity in asylum law.

Corey Sullivan Martin

 [View PDF]

A Burden Too Heavy: Berghuis v. Smith and the Fading Right to a Jury From a Fair Cross-Section of the Community

In November of 1993, Diapolis Smith was convicted of second degree murder by an all-white jury in Kent County, Michigan. On appeal, Smith challenged the constitutionality of Kent County’s jury-selection procedure, claiming he had not been afforded his Sixth Amendment right to a jury drawn from a fair cross-section of the community. This Comment examines Smith’s claim and argues that the Supreme Court ultimately erred in ruling that Smith failed to make a prima facie case for a Sixth Amendment claim. First, this Comment argues that Smith presented sufficient evidence for the Court to draw a reasonable inference, under Duren v. Missouri, that Kent County’s jury-selection procedures systematically excluded African Americans. Second, in the face of extensive academic research that demonstrates the nexus between socioeconomic disparity and minority underrepresentation on juries, this Comment argues that the Supreme Court should be more amenable to claims that hinge on the presence of socioeconomic factors. Finally, this Comment addresses the consequences of the Berghuis v. Smith decision and the solutions to minority underrepresentation in jury venires.

Thomas R. Neumeier

 [View PDF]

How to be a Terrorist Without Really Trying: A Common Law Test for Determining Who is "Part Of" a Terrorist Group

This Comment critiques the D.C. Circuit Court of Appeals’s practice of utilizing a case-by-case approach to determining whether an individual detained at the military facilities of Guantanamo Bay, Cuba is considered “part of” the Taliban or al-Qaeda. The 2010 case of Bensayah v. Obama was among the first to grant a writ of habeas corpus to a Guantanamo detainee and therefore acts as an outer boundary in determining a more concrete standard for determining who is “part of” the Taliban or al-Qaeda. In articulating such a standard, this Comment proceeds first by analyzing previous case law and examining the four indicia commonly used to determine a detainee’s status. In light of this case law, including the recent Bensayah decision, this Comment then proposes a balancing test to replace the current case-by-case method as a more reliable and predictable means of determining whether a detainee is “part of” the Taliban or al-Qaeda.

Andrew Kessel

 [View PDF]

A Community Affair: Effectuating Meaningful Community Involvement in New York School Governance

In 2009, the New York Legislature imposed more stringent requirements on the State’s Department of Education when it amended section 2590-h of article 52-A of the Education Law. Now, as a precondition to closing or significantly changing the use of a school, the Chancellor, who heads the Department of Education, must prepare an impact statement detailing the ramifications of the proposal on students and the community. The Chancellor is also required to hold a joint public hearing where affected community members can present comments or concerns. In 2010, community members affected by proposed school closures in New York City successfully challenged the Department of Education’s compliance with section 2590-h. Although the appellate court affirmed the decision, it left the applicable standard of review a question. This Comment argues that section 2590-h calls for meaningful community involvement and the court should therefore apply a strict standard in reviewing the Department of Education’s compliance.

Michael H. Meidinger

 [View PDF]

The Unjust Application of Miranda: Berghuis v. Thompinks and its Inequitable Effects on Minority Populations

In Berghuis v. Thompkins, the U.S. Supreme Court held that in order to invoke the right to remain silent during a custodial interrogation, a criminal suspect must do so clearly and unambiguously. The Court also held that the Thompkins suspect’s conduct during his interrogation— remaining mostly silent for almost three hours before offering three oneword responses—was sufficient to indicate waiver of his right to remain silent. This Comment argues that these holdings serve to curtail the rights established in Miranda v. Arizona, in line with the recent direction of the Court’s jurisprudence with respect to custodial interrogations. This Comment further argues that, although Thompkins’s dual holdings will abridge the constitutional rights of all criminal suspects, they will even more substantially curtail the rights of minority populations in the United States.

Michael O'Neil

 [View PDF]