Look On! Asylum Cases Brought to the Theater

(Look On! takes occasional note of noteworthy films and stage productions.)

Playwright Jefferey Solomon has written two exceptional plays based upon real asylum claims and cases brought in United States immigration courts. The first, De Novo, depicts the case of a fourteen-year-old boy named Edgar Chocoy who fled Guatemala City when MS-13, the largest gang in Central America, put a hit on his life. He traveled over 3,000 miles through the desert, and across the borders of three countries in search of his mother who had left him at the age of six months to work in the United States. Detained by the Department of Homeland Security upon his entry, Edgar, normally quiet and timid, spoke clearly and loudly about his fear of being deported: “I’m afraid to go back. They’ll kill me.” A pro bono immigration lawyer helped Edgar argue his asylum case in Denver, but the Immigration Judge ordered Edgar deported to Guatemala. He was murdered seventeen days later. The play weaves together court transcripts, interviews, letters and other documentary sources to reconstruct the gripping and poignant true story of the case whose outcome prompted a national outcry and a fundamental reconsideration about the way in which the government handles the many thousands of unaccompanied minors in immigration custody.
The second play, Tara's Crossing, tells the story of a transgendered asylum seeker from Guyana and her uphill battle to prove her claims of persecution from within the confines of U.S. Immigration Detention. The play, inspired by interviews with asylum seekers from around the world, deals with the hurdles that lesbian, gay, bisexual, and transgendered asylum seekers and refugees face in proving that their fears of persecution are well founded particularly when detained.
Solomon’s theater company, Houses on the Moon, based in New York City, aims to educate the public about the perils that vulnerable asylum seekers face navigating US immigration procedures and laws, particularly as most are unrepresented. As IntLawGrrl Jaya Ramji-Nogales has documented in her co-authored pieces on asylum claims, the likelihood that an asylum seeker will be successful when unrepresented by an attorney falls to about 14%.
The Boston premiere of De Novo, presented by New England LawBoston’s Center for Law and Social Responsibility, will take place at the Stuart St. Playhouse on Wednesday February 9th at 6:30 with post play discussion with the artists and law professors to follow. The show is free and open to the public (rsvp to Martha.S.Drane@nesl.edu).

Enabling Asylum Seekers with Disabilities

Mindful of Hope Lewis's exhortation to include disability rights in human rights analyses, and in honor of the International Day of Persons with Disabilities, my post today reviews a recent study of asylum seekers with disabilities in Europe. This UNHCR research paper, written by Clara Straimer (pictured below right) and entitled Vulnerable or invisible? Asylum seekers with disabilities in Europe, echoes Hope's call to ensure that the disabled are included in the ostensibly universal scope of human rights obligations. Focusing on the Common European Asylum System but applicable to asylum determination processes worldwide, the paper seeks to "render visible the relevance of disability in the context of asylum."
Straimer's study begins and ends with the point the suffering of disabled asylum seekers is largely overlooked. The UN Refugee Convention provides no guidance on accommodating the needs of disabled asylum applicants, nor has the UN High Commissioner for Refugees promulgated any guidelines on a disability-sensitive interpretation of refugee law. Such an interpretation should view disability as structural oppression rather than an abnormality; in Straimer's words, as "disabling barriers imposed on persons with impairments by an exclusionary society." This social and human rights based approach to disability is exemplified by the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which focuses on recognizing the equality and capabilities of persons with disabilities and providing reasonable accommodation for disability-specific needs. It is surprising and concerning that UNHCR has yet to engage with the UNCRPD.
This legal lacuna belies the fact that disability may present a significant barrier to protection and can provoke and result from displacement. Disability may create multiple barriers to accessing asylum processes -- when combined with obstacles of language and citizenship, asylum seekers with disabilities may be prevented from even presenting their asylum claims. Even those asylum seekers with disabilities who access the process may face particular impediments to obtaining protection. For example, mental impairments may interact with the credibility determination process in a way that excludes the disabled from gaining asylum status. Moreover, asylum seekers with disabilities may have specific health care and accommodation needs that may go unnoticed during and after the asylum process. Finally, asylum law is insufficient in its recognition that disability may be a cause of displacement though discrimination, stigmatization, harassment, and neglect of persons with disabilities in their own communities is widespread.
Straimer walks the reader through the European Union's law and policy on disability and finds that they are in line with the UNCRPD's holistic understanding of disability. However, in practice, member states discriminate in the application of disability rights to nationals and non-nationals both at border and within borders. Moreover, Straimer's examination of the European asylum process directives highlights the need to ensure an individual assessment rather than a group-based understanding of disability. The study notes that while the Receptions Conditions Directive does a good job meeting this standard, the Asylum Procedures Directive and Qualification Directive do not. The former fails to recognize the diversity of disability (intellectual, physical) and the resultant principle that asylum seekers with disabilities don't need "special" treatment in all contexts. The latter fails to recognize disability as a particular social group. Both of these failures render barriers to asylum for the disabled invisible, in stark contrast to the visibility of gender and minority barriers to asylum.
Straimer then describes the qualitative research she performed to determine the reasons for this invisibility. The results and analysis are well worth reading further; I won't, however, describe these here in hope that the reader will be enticed into reading this ground-breaking study!

Doubling Back on Dublin

The European Union's Dublin II Regulation funnels asylum claims to the states through which applicants first entered Europe. But what happens when the state of first entry fails to uphold its obligations under international refugee law? The question of how other Dublin member states should address Greece's disastrous asylum system has been answered differently by nearly every national court that has entertained the question, illustrating the difficulty of reconciling competing legal norms.
In the first half of 2009, Greece saw over 80,000 undocumented migrants cross its borders and received the sixth largest number of asylum applications (nearly 10,000) in the EU. Greece's asylum system simply cannot cope with the flow of applications; in late 2009, only 20 claims were registered per day at the Asylum Department in Athens though up to 2,000 people each day wait in line to apply for asylum. Ninety percent of asylum claims are filed in that office, as it is reportedly difficult to file claims outside of Athens. Even those asylum seekers who are able to access the process are often interviewed in a language they can't understand, without interpretation, and without legal counsel to advise them of their rights.
In 2007, Greece granted 8 asylum claims in the first instance - a grant rate of 0.04% -- and 138 claims, a grant rate of 2.05% on appeal. All of the 305 decisions in late 2006 to early 2007, relating to applicants from Afghanistan, Iraq, Somalia, Sri Lanka, and Sudan, were negative. None of these decisions contained any discussion of the facts of individual cases or provided any legal reasoning. Greece's asylum system is, simply put, non-functional.
UNHCR first stepped into the fray in 2007, issuing an advisory note about the risks of refoulement for asylum seekers transferred to Greece under Dublin II. In 2008, UNHCR stepped up the pressure through a position paper communicating its grave concern with Greece's asylum system and advising governments "to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice." And in 2009, UNHCR published a detailed observation paper indicting the the Greek asylum system.
Finally, last week, UNHCR released a report on Dublin member states' use of the "sovereignty clause", Art. 3(2) of the Dublin II Regulation, against transfers to Greece. The sovereignty clause authorizes a member state to process an asylum claim even where the Dublin criteria would require that the claim be heard in a different country. While data on the application of the clause are scarce, UNHCR reports that it is rarely used except to protect vulnerable asylum applicants. In the past year or so, however, states have increasingly relied on the sovereignty clause to suspend transfers to Greece.
And here's the legal tussle -- there's quite a dispute, akin to a circuit split in the United States, brewing over the interpretation of the sovereignty clause. In other words, national courts can't agree on the circumstances under which member states can double back on Dublin. Some national courts have focused on the sufficiency of procedural safeguards (France, Romania), while others ask whether transfer would result in a violation of Article 3 (prohibition of torture) or 8 (right to family life) of the European Convention on Human Rights (Austria, Hungary). French and Spanish courts emphasize the need to examine the risk of return on a case-by-case basis, with the latter providing an exception for vulnerable asylum applicants, including families with small children. On the other end of the spectrum, Belgian courts have found that since Greece is an EU member state, party to the ECHR and the Refugee Convention, and bound by EU instruments, the court must presume Greece will uphold these obligations. As a result, the burden is on the asylum seeker to rebut this presumption with proof of a risk of violations of ECHR Article 3. Similarly, Dutch courts have required tangible or specific indications that a member state isn't fulfilling its international obligations and have suggested that complaints about failure to implement EU law should be raised in Greece with Greek authorities.
It should come as no surprise that asylum applicants have petitioned the European Court of Human Rights to hear their complaints about Dublin transfers to Greece. At the beginning of this month, there were a reported 760 such cases pending before the ECHR. M.S.S. v. Belgium and Greece, the lead case on this question, will be heard by the ECHR's Grand Chamber on September 1. Stay tuned!

Results are in, immigration is down in Europe

Eurostat, the European Statistics office, has published its 2009 report on asylum requests in Europe. The results should warm the heart of any proponent of tighter borders, managed immigration, and "local" asylum solutions (i.e., in or near the asylum seekers' home country):
► Of the total 229,500 asylum requests made in the EU, 166,900, or close to three-quarters (73%), were denied.
France, which calls itself a terre d'asile (land of asylum) as if it were synonymous with terre promise (promised land), received the most requests (47,600). But of the more than 35,000 requests it actually reviewed in 2009, it denied more than 30,000, while Germany refused 17,000 of the roughly 27,000 requests it received. Of the 27 EU member states, only Malta, Portugal and Slovakia granted more requests than they denied. Moreover, the 27% of requests that were not denied did not necessarily result in grants of asylum:
► While 12% of those seeking asylum did obtain it, 4% were given permission to stay in the EU on humanitarian grounds, and 11% were granted only subsidiary protection, which means they may be returned to their home country once it is deemed "safe."
The drawbridge to Fortress Europe (image credit) would therefore seem to be up, perhaps never to come back down.
This will have a disproportionate impact on women (see prior post):
► Subsidiary protection is replacing asylum in cases of gender-based discrimination, such as genital mutilation and forced marriage, whereas the conditions taken into account to determine a country's "safety" do not include indicators of gender-based discrimination.
More and more women and girls are therefore being given a temporary status that deprives them of the ability to easily integrate into and become fully autonomous, contributing citizens of their adoptive countries, where they live under threat of being returned to a country with outward signs of "safety" (end of armed conflict, democratic government) that may be unrelated to these women's personal safety.

Speed, but at what cost?

Beyond the $540 million price tag, that is. That's the estimated cost of the sweeping changes to Canada's asylum system, often admired by refugee advocates south of the border as a "luxury limousine" model of process, proposed by Canada's Immigration Minister, Jason Kenney, on Tuesday. While the old system was by no means perfect, the proposed changes threaten to transform one of the world's fairest asylum processes into a minefield of arbitrariness.
Claiming that the system needs reform to prevent "gaming" of the system by thousands of asylum seekers making false claims, Kenney and the Conservative party offer a bill that draws a line at those from "safe" countries. Asylum applicants unlucky enough to come from one of these nations, to be designated by an independent panel on the advice of the United Nations High Commissioner for Refugees(!), will face an expedited process -- an initial interview within eight days of arriving in Canada, and a second hearing within sixty days (a process that currently takes an average of 19 months). If they lose their case, they will be deported within a year of this decision. While on first glance, one might think that such speedy adjudication might benefit the asylum seeker, given the amount of work required to present a successful asylum claim and the obstacles faced by a traumatized individual in putting together their case, it's hard to imagine how this will work in practice -- not to mention how these applicants will find and work with legal representatives to present their claims.
The "safe" country of origin idea is not only contrary to the spirit of the Refugee Convention, but places at particular risk women fleeing domestic violence or other forms of gender-based violence as well as LGBT applicants seeking protection from persecution based on sexual orientation. These asylum seekers might come from countries that are otherwise politically stable and unlikely to produce many refugees, but fail to protect battered women and LGBT individuals from violence. While the bill allows for designations to be made specific to a population in a given country -- e.g. by gender -- a system of strict guidelines risks becoming ossified and unresponsive to current situations. Moreover, such an approach may be subject to political manipulation unlikely to benefit genuine refugees.
It would be a shame to see a "Fortress Europe" approach adopted by our neighbor to the north. As the numbers of asylum claims stagnate throughout the industrialized world, asylum applications in Canada increased by 60% between 2006 and 2008. Though higher fences elsewhere may be the cause of this surge, surely there are ways to address such influxes without gutting the asylum system. Especially given Canada's 42% grant rate for asylum claims in 2009, which suggests that fraud is not a significant problem, it should continue to strive for fairness over speed in its asylum process.

Expulsion repulsion

Causing concern in France these days are cases in which the government's kicked out of the country women who've cried for help.
Among them is Najlae Lhimer (left (credit)), a 19-year-old student who resided in the north-central département of Loiret. As reported in Le Monde, she'd fled her home in Morocco in 2005 in order to escape from forced marriage -- only to end up living with a brother who "mistreated her regularly."
A few weeks ago Lhimer filed an official complaint alleging that she was the victim of domestic violence. Police responded quickly. But not as she'd hoped. Within days, she was sent back to Morocco.
Hers is not a unique case. It's reported that 4 battered women in Loiret have been threatened with expulsion or actually expelled. As a result, legislator Danielle Bousquet (below right (credit)) has urged

'a moratorium on the expulsions of foreign women who are the victims of violence.'

Protests have been ongoing, and more are planned for this weekend in the runup to International Women's Day, which as we've posted, is this Monday, March 8.

Deference to Error?

How many serious errors must an agency make before the deferential standard of review accorded its decisions is revisited? That's the question that came to mind reading yesterday's excellent asylum decision by the Second Circuit. In Kone v. Holder, the court found that the Board of Immigration Appeals' decision (adopting and affirming the immigration judge's opinion) doubly erred, making mistakes both in its application of the law and its findings of fact. Ms. Kone, a national of Cote d'Ivoire, suffered female genital mutilation in her home country and feared that her two U.S. citizen daughters would be subject to the same treatment if she were to be sent back. She was also persecuted for her race, religion, and political opinion.
Even applying the highly deferential standards of review applicable in the immigration field (substantial deference to the agency's interpretation of its own regulation and substantial evidence for the agency's findings of fact), the Second Circuit found that the agency made serious mistakes in Ms. Kone's case. First, the immigration judge failed to shift the burden of proof to the government, as its own regulations require when an asylum applicant proves that they suffered persecution in the past. Notably, the court cites its own precedent for the point that where a woman has already undergone female genital mutilation, this does not lead automatically to the conclusion that no possibility of future persecution exists. Apart from the reality that a woman might be subject to further mutilation, there is no requirement in asylum law that threats must take the same form or be the same act as past persecution. The concept is simple -- if an asylum applicant's arm had been chopped off by government agents who opposed his political opinion, nobody would argue that he'd already lost his arm so wouldn't risk being persecuted again upon his return -- yet somehow judges find it difficult to grasp that a woman who has suffered female genital mutilation might face other forms of persecution, such as rape, based on her gender and ethnicity.
After describing the second error made by the immigration judge (a fundamental factual mistake), the court suggests that Kone might be eligible for asylum on two additional grounds. First, the mutilation she suffered might rise to the level of severe past persecution, which can on its own be grounds for asylum regardless of the risk of future persecution. Second, even if Kone's experience of FGM does not meet this higher standard, it might be sufficient to show past harm in the form of mutilation combined with the "mental anguish of a mother who was herself a victim of genital mutilation who faces the choice of seeing her daughter suffer the same fate, or avoiding that outcome by separation from her child." With stakes this high, and errors this grave, how is it that such great deference is still accorded to these administrative adjudicators?

Lesbian soldier inching to asylum in Canada

An American lesbian is breaking new ground in the fight for refuge from the U.S. military's "Don't Ask, Don't Tell" policy.

On September 11, 2007, Army Private Bethany Smith (right), then 21, fled to Canada after enduring taunts, physical abuse, and a

death threat from her military cohorts because she is gay. (photo credit)

On November 20, 2009, Judge Yves de Montigny of the Federal Court of Canada granted Smith's petition for judicial review of the Canadian Immigration and Refugee Board's denial of her application for asylum on the grounds that she had failed to seek state protection, which would have been adequate.

The petition by Smith, who is represented by Jamie Liew of the law firm Galldin & Liew, states that Smith began experiencing homophobic harassment from her fellow soldiers soon after she was assigned to the motor pool at Fort Campbell in Kentucky. The situation deteriorated after a soldier spotted her holding hands with a woman off base. Smith alleges that she received hundreds of written threats, including a specific death threat, as well as one physical assault. When Smith revealed her sexual orientation to her supervising sergeant in an attempt to be discharged, she was refused and ordered not to speak to any higher ranking officers about the matter. Even after Smith fled Fort Campbell, she received several anonymous calls, threatening her with abuse and death if she returned. In addition to these threats, Smith faces court martial for desertion upon return.

After reviewing Smith application for asylum, Judge de Montigny:

► Held that she had presented "clear and convincing" evidence that the United States is unwilling to protect her from persecution on account of her sexual orientation.

► Held that Smith had established "a serious possibility" of persecution on account of her sexual orientation or that she is "more likely than not" to face a risk to her life or cruel and unusual treatment or punishment upon her return to the United States.

► Distinguished Smith from other U.S. servicemembers who have sought refuge in Canada on account of their "conscientious objector" status. While the Federal Court of Canada has previously held that conscientious objection alone is not a basis for asylum, Smith faces persecution solely on the basis of her sexual orientation, which has been recognized as a protected ground for asylum under Canada's Immigration and Refugee Protection Act as well as the 1951 Convention Relating to the Status of Refugees.

► Placed particular emphasis on the ability and/or willingness of the United States to protect Smith from persecution based on her sexuality. Judge de Montigny wrote that, even though refugee applicants must normally make multiple attempts to obtain state protection, "it is clear that in the Army reigns an atmosphere of unconditional obedience to the hierarchy" which the Board should have taken into account when evaluating Smith's claim. Smith's testimony that she had been told by her superiors to "tone down her behaviour" and that she endured harsher treatment from superiors once her sexual orientation became known supported her contention that it would have been futile to seek further protection within the military. The judge added that "documentary evidence indicating that superiors in the U.S. military are too often complacent and sometimes even actively participate in the harassment and abuse directed at gays and lesbians in the military" also indicated an absence of state protection.

► Found, finally, that the Board's conclusion that the fatal beating of Private Barry Winchell in at Fort Campbell in 1999 was an "isolated" event, rather than evidence of insufficient state protection, went beyond the record and was speculative.

The Board must now reassess Smith's asylum claim in light of the guidance provided by Judge de Montigny. Over 13,500 members of the U.S. armed services have been discharged since "Don't Ask, Don't Tell" took effect in 1994. President Barack Obama has vowed to repeal the policy.

Breaking News: A Moratorium on Detention of Asylum Seekers?

The Obama Administration announced today that it will stop detaining asylum seekers found to have a credible fear of persecution. As of January 4, all asylum seekers who can establish their identities, demonstrate that they do not pose a risk of flight or a threat to national security, and prove a credible fear of persecution or torture in their homelands will no longer be detained. I've not seen a more detailed announcement (or even the press release), but this appears to be a great step towards protecting those who have suffered persecution by enabling significantly greater access to legal representation and the support of family and friends, not to mention preventing retraumatization in detention. It's also a nice illustration of how the executive can use its discretionary powers to improve the situation of immigrants. More good immigration news to come in my Friday post!