Jones, R., A. Kocher, F. Sultana, D. Smiles, K. McSweeney, and P. Molnar, “Interventions on public geographies” (2023) Political Geography, forthcoming.
ACCESS: Full publication available at ScienceDirect.
EXTRACT: “Reese Jones: When I began graduate school in the early 2000s, I did so with a plan to do research that was not simply academic, in the pejorative sense of the word, but spoke to problems that affected people’s lives out there in the world. As I learned more about the discipline of geography, I was impressed by the research of my fellow geographers, who had important things to say about contemporary issues such as wealth inequality, environmental change, and the geopolitics of the war on terror. Consequently, I was disappointed that these contributions to real world problems did not seem to be reaching a broader audience…”
Mercier, E. and S. Rehaag, “Canadian ‘Dreamers’: Access to Postsecondary Education” (2023) Osgoode Hall Law Journal, forthcoming.
ACCESS: Full draft accessible at SSRN.
ABSTRACT: “Youth with precarious legal status (PLS) in Canada are entitled to access primary and secondary education regardless of their immigration status. However, once they graduate from high school their opportunities for postsecondary education are highly constrained. This article sets out an argument for expanding postsecondary educational opportunities for PLS students, drawing on the example of the only existing program in Canada targeting such students: York University’s “Access for Students with Precarious Immigration Status Program”. The article considers possible legal impediments to the establishment of such programs, including offenses under Canadian immigration legislation, and argues that charges against postsecondary institutions or their employees are unlikely. Moreover, the article contends that if such charges were pursued, courts would likely find that the relevant legislative provisions are unconstitutional due to overbreadth and because they penalize humanitarian assistance, which was not the intention of the drafters of the provisions. The article also argues that in the unlikely scenario that postsecondary institutions were found to be in breach of Canadian immigration law for admitting PLS students, this is one of the limited sets of circumstances where pushing back against the law – and even breaking the law if necessary – would be warranted. Overall, the article argues that it is time for faculty, students and administrators at Canadian colleges and universities to join the fight to create pathways for postsecondary education for PLS students…”
Verman, A. and S. Rehaag, “Transgender Erasure: Barriers facing transgender refugees in Canada” (2023) McGill Law Journal, forthcoming.
ACCESS: Full draft available at SSRN.
ABSTRACT: “This paper explores the experiences of transgender refugee claimants in Canada’s refugee status determination system, using mixed methods: quantitative analysis of data obtained from the Immigration and Refugee Board (IRB), reviews of published and unpublished decisions, country condition documentation packages and IRB guidelines, as well as interviews with refugee lawyers. Using these methods, we explore how credibility arises in transgender refugee claims, noting the impact of medicalization and country conditions materials on transgender claims, and drawing parallels between medical gatekeeping and credibility assessments in refugee claims. We identify potential explanations for low recorded numbers of transgender claims as rooted in data-gathering and decision-making practices that are misaligned with transgender experiences, and we offer policy recommendations to overcome this mismatch. Though transgender refugee claims appear to be largely successful in recent years, longstanding patterns of exclusion and erasure as policy nevertheless lead many transgender claimants to experience the refugee determination process as traumatic and transphobic, resulting in unaccounted-for complications and challenges to practice…”
Wallace, S., B. Perryman, G. Lukács, and S. Rehaag, “‘The Biggest Problem With You..’: Racial profiling and Canada’s program of extra-territorial migrant interdiction” (2023) Osgoode Hall Law Journal, forthcoming.
ACCESS: Full draft available at SSRN.
ABSTRACT: “On April 3, 2019, Andrea and Attila Kiss tried to board an Air Canada Rouge flight from Budapest to Toronto. Andrea’s sister was ailing, and the couple planned to visit Canada for two months to support her family. Their travel was legitimate and lawful. Their documents were in order. But when they lined up to check in, Andrea made a mental note of a fact that was about to become relevant: as members of the Hungarian Roma community, they were the only racialized people in line…”
Guha, N., et al, “Legalbench: A Collaboratively Built Benchmark for Measuring Legal Reasoning in Large Language Models” (2023) 2023 Conference on Neural Information Processing Systems, Datasets and Benchmarks Track.
ACCESS: Full publication available at SSRN.
EXTRACT: “The advent of large language models (LLMs) and their adoption by the legal community has given rise to the question: what types of legal reasoning can LLMs perform? To enable greater study of this question, we present LegalBench: a collaboratively constructed legal reasoning benchmark consisting of 162 tasks covering six different types of legal reasoning. LegalBench was built through an interdisciplinary process, in which we collected tasks designed and hand-crafted by legal professionals. Because these subject matter experts took a leading role in construction, tasks either measure legal reasoning capabilities that are practically useful, or measure reasoning skills that lawyers find interesting. To enable cross-disciplinary conversations about LLMs in the law, we additionally show how popular legal frameworks for describing legal reasoning—which distinguish between its many forms—correspond to LegalBench tasks, thus giving lawyers and LLM developers a common vocabulary. This paper describes LegalBench, presents an empirical evaluation of 20 open-source and commercial LLMs, and illustrates the types of research explorations LegalBench enables…”
Molnar, P., “Digital border technologies, techno-racism and logics of exclusion” (2023) 61:5 International Migration 307.
ACCESS: Full publication available at Wiley Online Library.
ABSTRACT: “Like a wound in the landscape, the rusty border wall cuts along Arizona”s El Camino Del Diablo, the Devil’s Highway. Once the pride and joy of the Trump Administration, this wall is once again the epicentre of a growing political row. President Biden’s May 2023 repeal of the Trump Administration’s Covid-era Title 42 regulation comes with the introduction of hardline new policies preventing people from claiming asylum in the United States, undergirded by a growing commitment to a virtual smart border extending far beyond the physical frontier (Transnational Institute, 2023)…”
Rehaag, S., “Claim Types in Canada’s Refugee Determination System: An Empirical Snapshot (2013-2021)” (forthcoming) Refuge.
ACCESS: Full draft available at SSRN.
ABSTRACT: “This article presents an empirical overview of refugee claims made in Canada from 2013 to 2021, using data obtained from Canada’s Immigration and Refugee Board. The research aims to supplement standard legal research methodologies by providing an empirical snapshot of outcomes in different types of unpublished refugee claims in Canada. The article explains the research method used and presents the findings, including a broad overview of the number of claims made and their outcomes, a description of the categories of claims adjudicated, and a detailed examination of each of the main categories. The article concludes with some concluding remarks, including suggestions for future research…”
Rehaag, S., “Luck of the Draw III: Using AI to Examine Decision-Making in Federal Court Stays of Removal” (11 January 2023) Refugee Law Lab Working Paper.
ACCESS: Full publication accessible at SSRN.
ABSTRACT: “This article examines decision-making in Federal Court of Canada immigration law applications for stays of removal, focusing on how the rates at which stays are granted depend on which judge decides the case. The article deploys a form of computational natural language processing, using a large-language model machine learning process (GPT-3) to extract data from online Federal Court dockets. The article reviews patterns in outcomes in thousands of stay of removal applications identified through this process and reveals a wide range in stay grant rates across many judges. The article argues that the Federal Court should take measures to encourage more consistency in stay decision-making and cautions against relying heavily on stays of removal to ensure that deportation complies with constitutional procedural justice protections. The article is also a demonstration of how machine learning can be used to pursue empirical legal research projects that would have been cost-prohibitive or technically challenging only a few years ago – and shows how technology that is increasingly used to enhance the power of the state at the expense of marginalized migrants can instead be used to scrutinize legal decision-making in the immigration law field, hopefully in ways that enhance the rights of migrants. The article also contributes to the broader field of computational legal research in Canada by making available to other non-commercial researchers the code used for the project, as well as a large dataset of Federal Court dockets…”
Molnar, P., “Territorial and Digital Borders and Migrant Vulnerability Under a Pandemic Crisis” in A. Triandafyllidou, ed, Migration and Pandemics: Spaces of Solidarity and Spaces of Exception (Toronto: Springer, 2022) 45.
ACCESS: Full publication available at Springer.
EXTRACT: “Tucked away on a quiet street minutes from a major train station in Brussels, a house is at first indistinguishable from its nondescript neighbours. However, inside this ‘squat’ lives a bustling community. Made up of climate justice organisers, self-described anarchists, and social justice advocates, L’Autre Caserne provides shelter, food, and support to undocumented people who find themselves living in the Belgian capital. With a massive cardboard clock that reads ‘Revolution Time’ and ‘No One is Illegal’ stickers everywhere, the bright three-story building has skylight windows and even a salsa dance room, contrasting with the ever-present threat of eviction and arrest. On a sunny Sunday afternoon, over 30 undocumented people gathered together to share snacks and stories of their migration journeys, while sheltering in place during the Covid-19 pandemic. Most people present were from Eritrea or Ethiopia, as the previous group of Syrians vacated their rooms a few weeks back, moving on and trying their luck with the elusive passage to the UK – a Promised Land that seems simultaneously full of opportunity yet unattainable except for a lucky few. The UK remains difficult to reach during the coronavirus pandemic, where irregular passage on a boat across the English Channel or on the back of a lorry all come with the risk of increased surveillance (Meaker, 2020) and potential indefinite detention, if apprehended…”
Rehaag, S. and P.A. Thériault, “Judgments v Reasons in Federal Court Refugee Claim Judicial Reviews: A Bad Precedent?” (2022) 45:1 Dalhousie Law Journal 185.
ACCESS: Full publication accessible at Dalhousie Law Journal.
ABSTRACT: “This article offers an empirical examination of policies on the publication of refugee law decisions in Canada’s Federal Court. In 2015, the Court issued a notice describing the Court’s general practice of publishing written reasons in cases that the deciding judge considers as having precedential value and of issuing unpublished judgments in cases that the deciding judge does not view as precedential. In 2018, the Court reversed course and issued a new notice. This time, the Court indicated that all final decisions on the merits will be published…”
Khan, J. and S. Rehaag, “Promoting Privacy, Fairness and the Open Court Principle in Immigration and Refugee Proceedings” (2023) 54:2 Ottawa Law Review 357.
ACCESS: Full publication accessible at Ottawa Law Review.
ABSTRACT: “Court decisions and court documents are becoming easier to access online than ever before. This access provides many possible benefits, including increased fairness. But court decisions and documents often contain intensely personal information. Public exposure of that private information may even lead to significant harm. The Federal Court of Canada has demonstrated leadership among Canadian courts in attempting to proactively grapple with these issues, including by consulting stakeholders about increased electronic access to court records…”
Molnar, P., “Robots and refugees: the human rights impacts of artificial intelligence and automated decision-making in migration” in M. McAuliffe, ed, Research Handbook on International Migration and Digital Technology (Northampton: Edward Elgar Publishing, 2021) 134.
ACCESS: Full publication accessible at Elgar Online.
ABSTRACT: “Millions of people are on the move due to conflict, instability, environmental factors and economic reasons. As a result, many states and international organizations involved in migration control are exploring various technological experiments to strengthen border enforcement and improve decision-making. These experiments range from Big Data predictions about population movements in the Mediterranean, to Canada’s use of automated decision-making in immigration, to Artificial Intelligence (AI) lie detectors at European borders. However, these technological innovations often fail to account for profound human rights ramifications and real impacts on human lives. Now, with the COVID-19 pandemic sweeping the globe, the use of new technologies is increasing. As governments move towards biosurveillance to contain the spread of the pandemic, there has been an increase in the use of tracking, automated drones and other types of technologies that purport to help manage migration, exacerbating potential human rights concerns (Cliffe, 2020; Lewis & Mok, 2020; Molnar & Naranjo, 2020). Emerging research1 is beginning to highlight how new technologies such as biometrics, Big Data and airport AI lie detectors by private companies such as iBorderCtrl are used in the management of migration, but there is a gap in the conversation around the disproportionate impact of technological experimentation on migrants and refugees without appropriate mechanisms of accountability and oversight (Picheta, 2018). New technologies challenge our understanding of decision-making and procedural protections, with the risk of creating legal black holes…”
Molnar, P., “Surveillance sovereignty: Migration management technologies and the politics of privatization” in G. Hudson and I. Atak, eds, Migration, Security, and Resistance: Global and Local Perspectives (London: Routledge, 2021).
ACCESS: Full publication accessible at Routledge.
ABSTRACT: “Through technology, the management of migration has broadened. In various jurisdictions across the world, people on the move are often presupposed to be criminals unless proven otherwise, justifying increasingly hardline surveillance and data-gathering interventions (Atak & Simeon, 2018). The increasing opacity of border zones and transnational surveillance practices work to transform migration into a site of potential criminality that must be surveilled and managed to root out the ever-present specter of terrorism and irregular migration (European Commission, nd; International Organization for Migration, 2010; PR Newswire, 2020). For example, the increased use of drones to police Europe’s borders has resulted in the decentralization of the border zone into various vertical and horizontal layers of surveillance, suspending state power from the skies (Csernatoni, 2018) and extending the border visually and virtually. At the US–Mexico border, various “smart border” technologies have led to not only a highly securitized border zone but also to the doubling of people’s deaths in the Arizona desert (Chambers et al., 2019; De Leon, 2015). These technological practices have justified the expansion of other technologies that manage migration. With retinal scans in refugee camps, or automated artificial intelligence (AI) lie detectors at the airport, the primary purpose of these technologies is to collect data, make decisions, and report to the state the necessary information on a potentially unsafe or at least unknown migrant body, rendering them into security objects and data points to be analyzed, stored, collected, and rendered intelligible…”
Molnar, P., “Technological Testing Grounds and Surveillance Sandboxes: Migration and Border Technology at the Frontiers” (2021) 45:2 Fletcher Forum of World Affairs 109.
ACCESS: Full publication accessible at HeinOnline.
ABSTRACT: “Experiments with new technologies in migration management are increasing. From Big Data predictions about population movements in the Mediterranean, to Canada’s use of automated decision-making in immigration and refugee applications, to artificial intelligence lie detectors deployed at European borders, States are keen to explore the use of new technologies, yet often fail to take into account profound human rights ramifications and real impacts on human lives…”
Smith, C.D., S. Rehaag, and T.C.W. Farrow, “Access to Justice for Refugees: How Legal Aid and Quality of Counsel Impact Fairness and Efficiency in Canada’s Asylum System” (2021) Toronto: Canada Excellence Research Chair in Migration and Integration, Centre for Refugee Studies, Canadian Forum on Civil Justice.
ACCESS: Full publication accessible at SSRN.
ABSTRACT: “This report presents findings from a study exploring relationships between refugee legal aid, quality of counsel, the fairness and efficiency of asylum procedures, and access to justice for refugee claimants in Canada…”
Wallace, S., S. Rehaag, and B.L. Berger, “Immigration Detention meets Evidence Law: a discussion paper” (2021) Fact-Finding in Immigration Detention reviews: Evidence Law Meets Administrative Law Workshop, 30 September & 1 October, 2021.
ACCESS: Full publication accessible at SSRN.
ABSTRACT: “This discussion paper aims to encourage a broader engagement between the fields of evidence law and administrative law, using evidence in the Canadian immigration detention review setting as a case study. For most, the field of evidence law is essentially concerned with the rules of non-admissibility. This narrow vision of evidence law partly explains why administrative decision-making and administrative law only sporadically reaches to evidence law’s lessons—and why administrative law settings feature only infrequently in evidence law doctrine. This disconnect is regrettable because contact between the fields could be mutually enriching: evidence law has a rich tradition of thinking about information and, today, administrative law is the primary site of contact between the individual and the state. This paper considers if and how the disconnect between administrative law and evidence law can be bridged…”
Mercier, E. and S. Rehaag, “The right to seek asylum in Canada (during a global pandemic)” (2020) 57 Osgoode Hall Law Journal 705.
ACCESS: Full publication accessible at Osgoode Hall Law Journal.
ABSTRACT: “This article analyzes the effect that the Canadian Government’s use of emergency powers during the COVID-19 global pandemic has had on the right to seek asylum in Canada. The article suggests that that the federal government has taken advantage of a public health crisis to make a contentious political problem – the entry of asylum seekers between land ports of entry (such as at Roxham Road) – go away. It details how the Quarantine Act and various Orders in Council have been used to temporarily extend the Safe Third Country Agreement between Canada and the United States [STCA] across the entire length of the Canada-US border. It then details how this de facto extension of the STCA, which previously applied only at official land ports of entry, violates international refugee law and overviews several ways in which the global pandemic has made the United States even less ‘safe’ for refugees. The article concludes by urging the federal government to champion asylum seekers’ rights by suspending the STCA and by recognizing that crossing the border to seek asylum is amongst the most ‘essential’ forms of international travel that there is…”
Molnar, P., “Architectures of Trauma: Forced Shelter and Immigration Detention” in T. Scott-Smith and M.E. Breeze, eds, Structure of Protection?: Rethinking Refugee Shelter (New York: Berghahn Books, 2020) 83.
ACCESS: Full publication accessible at De Gruyter.
ABSTRACT: “Elizabeth sits perched on the edge of an uncomfortable plastic chair, jumping up at ever robotic announcement barking over the tinny announcement system: ‘Santiago, Rom 9,’ ‘Okafor, report at the reception window’. Her three children, all under the age of five, sit quietly at her feet, crying occasionally as the wait stretches longer and longer…”
Molnar, P., “Technological Testing Grounds: Migration Management Experiments and Reflections from the Ground Up” (2020) European Digital Rights and Refugee Law Lab.
ACCESS: Full publication accessible at European Digital Rights.
ABSTRACT: “States are increasingly turning to novel techniques to ‘manage’ migration. Across the globe, an unprecedented number of people are on the move due to conflict, instability, environmental factors, and economic reasons. As a response to increased migration into the European Union over the last few years, many states and international organizations involved in migration management are exploring technological experiments in various domains such as border enforcement, decision-making, and data mining. These experiments range from Big Data
predictions about population movements in the Mediterranean and Aegean seas to automated decision-making in immigration applications to Artificial Intelligence (AI) lie detectors and risk-scoring at European borders…”
Rehaag, S., “A Snapshot of the Law in the Streets: Reflections of a Former Parkdale Academic Director” (2020) 32 Journal of Law and Social Policy 32.
ACCESS: Full publication accessible at Journal of Law and Social Policy.
ABSTRACT: “In this reflective essay, an Osgoode Hall Law School professor and former Academic Director at Parkdale Community Legal Services attempts to model the sort of critical self-reflection expected of law students enrolled in the Intensive Program in Poverty Law at PCLS. The essay does so by drawing lessons from a brief interaction that the author observed in the streets of the community served by PCLS and from the author’s responses to that interaction. The essay aims to highlight the value of reflection in experiential education pedagogies, in community lawyering practices, and in learning about law in context…”
Rehaag, S. and H.E. Cameron, “Experimenting with Credibility in Refugee Adjudication: Gaydar” (2020) 9 Canadian Journal of Human Rights 1.
ACCESS: Full publication accessible at Canadian Journal of Human Rights.
ABSTRACT: “Canada offers refugee protection to sexual minorities facing persecution abroad. While success rates for sexual minority refugee claims have generally been higher than the overall average at Canada’s Immigration and Refugee Board, hundreds of such claims are nonetheless turned down each year. The most common reason for denying these claims is that assertions about the claimants’ sexual orientations are determined not to be credible. Scholars have raised concerns about how such credibility determinations are made. This article contributes to the critical literature in this area by exploring sexual minority refugee claim credibility assessments through an experimental study involving simulated refugee determinations. The experiment focuses on whether a claimant’s appearance affects the simulated adjudicator’s credibility determinations and written reasons provided to justify those determinations…”
Rehaag, S., J. Song, and A. Toope, “Never letting a good crisis go to waste: Canadian interdiction of asylum seekers” (2020) 2 Frontiers in Human Dynamics 588961.
ACCESS: Full publication accessible at frontiersin.org.
ABSTRACT: “This article examines two moments of crisis at Canada’s border with the United States: the aftermath of September 11th, 2001 (“9/11”) and the COVID-19 pandemic. The Canadian government leveraged both crises to offshore responsibilities for asylum seekers onto the United States. In the first case, Canada took advantage of U.S. preoccupations with border security shortly after 9/11 to persuade the United States to sign the Canada-U.S. Safe Third Country Agreement (“STCA”)—an agreement that allows Canada to direct back asylum seekers who present themselves at land ports of entry on the Canada-U.S. border. In the second case, Canada used heightened anxieties about international travel during the COVID-19 pandemic to persuade the United States to block irregular border crossings that asylum seekers were increasingly using to circumvent the STCA. After reviewing Canada’s successful use of these moments of crisis to persuade the United States to take on additional responsibilities for asylum seekers for whom Canada would have otherwise been responsible, the article discusses a recent Canadian Federal Court decision that may make all this political maneuvering moot. This decision found that Canada cannot send asylum seekers back to the United States without violating constitutional rights to life, liberty, and security of the person. Given past practice, however, we can expect the Canadian government to continue to pursue avenues to persuade the United States to take on additional responsibility for asylum seekers—and moments of crisis will be important drivers for those efforts…”