'Nuff said

(Taking context-optional note of thought-provoking quotes)

[T]he Grand Chamber's judgment exposes flaws in the current European asylum regime. ... [E]stablished to reduce 'asylum shopping' and ensure minimum standards of protection to asylum seekers across the European Union, [it] is based on a presumption of equality and cooperation among safe countries. For geopolitical reasons, [there is] an unbalanced burden-sharing among the various European countries.
The judgment acknowledges those challenges, yet underlines that neither uneven burden-distribution (Greece) nor a state's minimalist reaading of the Dublin Regulation (Belgium) absolves Member States of their responsibilities vis-à-vis the Convention or other applicable international treaties ....

-- Tom Syring, co-chair of the International Refugee Law Interest Group of the American Society of International Law and member of Norway's Immigration Appeals Board, in an ASIL Insight written in his personal capacity. Syring analyzed the judgment that the European Court of Human Rights (right) issued this January in M.S.S. v. Belgium & Greece. An asylum case, M.S.S. unfolded within the framework of the Common European Asylum System -- launched in 1999 and better known as CEAS -- as well as the 2003 Dublin Regulation that implements CEAS. A 17-member Grand Chamber of the Court ruled that both respondent countries had violated rights of the asylee-applicant under Article 3 (banning inhuman and degrading treatment) and Article 13 (guaranteeing an effective remedy) of the 1950 European Convention on Human Rights. Belgium was faulted for having returned the applicant to his 1st state of entry -- Greece -- without considering that there he might endure the poor living conditions and risk of refoulement to his native Afghanistan. Greece, meanwhile, was held to account for the possibility of such risks and for the delays in providing the remedy of asylum. By Syring's telling, the judgment appears to place a significant, affirmative responsibility on member states -- and thus is well worth a read for international lawyers in many fields beyond that of asylum law.

From Principles to Process: Mexico's New Asylum Law

Last Thursday, President Felipe Calderon signed Mexico's new Law on Refugees and Complementary Protection. Mexico, which acceded to the UN Convention Relating to the Status of Refugees in 2000, created this law in order to bring its practices into line with international standards. The law is expansive and inclusive in its definitions and principles, but falls short on process and protection for disfavored groups.
Mexico could certainly stand to be more generous to asylum seekers. Though an estimated 400,000 refugees reside in Latin America and approximately half a million migrants cross into Mexico each year, there are just over 1000 refugees currently residing in Mexico. Most refugees come from other Latin American countries (mainly Colombia, Haiti, El Salvador, Honduras and Guatemala) but Mexico also hosts refugees from around the world (including Bangladesh, the Democratic Republic of Congo, Iraq, Iran, Nepal, Nigeria, Myanmar, Somalia, and Sri Lanka).
The law's refugee status provisions are framed by several noble principles: no return, no discrimination, best interests of the child, family unity, no sanction for unlawful entry, and confidentiality. It boldly puts several of these guarantees into practice through its very broad and inclusive definitions.
Perhaps most notably, the new law adds gender to the traditional list of five protected grounds upon which asylum law is based. And that's just the beginning as far as non-discrimination is concerned; the law further prohibits discrimination based on ethnic or national origin, gender, age, disability, social or economic status, health conditions, pregnancy, religion, opinions, sexual preferences, and marital status.
The guarantees of family unity are profound; refugees can extend derivative status to spouses, partners, blood relatives to the fourth degree, and economically dependent blood relatives of their partner/spouse to the second degree. This status is valuable, as the law provides that individuals granted refugee status and/or complementary protection are also granted permanent residence in Mexico, enabling long-term family unity and stability.
Mexico is also the fifteenth Latin American country to include the broader refugee definition found in the Cartagena Declaration, which offers protection to those fleeing not only individualized persecution but also generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances seriously disturbing public order. This definition offers a potential avenue for gang-based asylum claims from Central America, but it remains to be seen whether these will be actualized.
The law is rather vague on processes for recognition, revocation, and termination procedures, all of which should at least be subject to basic due process protections. For example, the law states that a refugee may be expelled if there are substantial grounds for believing that they are a threat to national security, but does not describe how this determination will happen and what rights will be due the refugee. On the other hand, the law is disturbingly specific on time limits -- asylum seekers must submit their applications within 30 business days of entry into Mexico. Mexican NGO Sin Fronteras has further criticized the law for its failure to create alternatives to detention for asylum seekers. And it will be quite a challenge to begin implementing the law's provisions until a budget for refugee procedures is approved.
It remains to be seen how both the very progressive rights laid out in and the troublingly vague and strict provisions of the law will be realized in practice. One can only hope that Mexico's reformed asylum process will reflect the lofty principles that guide the law rather than the increasingly exclusionary approaches to refugee law and policy practiced in Mexico's neighbor to the north.

(translation of the Mexican law, and any errors therein, are mine)

For the Sake of the Children

On Tuesday, following an increasingly interesting avenue for vindicating the human rights of undocumented immigrants, the Appeal Court in the Hague and the High Court in London issued decisions upholding the rights of the children of failed asylum seekers. Both courts applied the European Convention on Human Rights (ECHR) in finding the state practices unlawful. Though each court was careful to apply the convention narrowly, these decisions may be part of a trend that may expand protection of migrants through the rights of their children.
In the Dutch case, a failed Angolan asylum seeker and her three minor children won the right "not to be put out on the street." In other words, though the woman has refused to cooperate with efforts to remove her, the Appeal Court in the Hague held that the Dutch state is obligated to provide shelter and care to her and her children until they leave the country or the children reach the age of majority. The state had wanted to place the children in foster care to facilitate deportation the mother, but the court decided that the children's right to family unity overrode the state interest in immigration enforcement. The opinion draws on the jurisprudence of the European Court of Human Rights, focusing on the children's right to a family life under Article 8. Though the Dutch court notes that the expansion of immigration status under Article 8 is limited, it distinguishes this case as determining whether the government could kick the family out of the free refugee housing center in which they resided, not whether the mother could obtain lawful immigration status.
In the English case, the High Court considered the legality of the detention of the minor children of failed asylum seekers. The court read the UK Home Department's written policy to require that families with children be detained only in exceptional circumstances, but found that these limits on detention of children were not applied in practice. The opinion draws on several reports by British officials, including the Chief Inspector of Prisons, the Children's Commissioner for England, the House of Commons Home Affairs Committee, and the Independent Chief Inspector of the UK Border Agency, all of which harshly criticized the practice of detention of children for sustained periods of time. Though the UN Convention on the Rights of the Child has not been incorporated into UK domestic law, the court held that UK immigration law requires compliance with Articles 3 and 37(b) of the treaty, protecting the best interests of the child and prohibiting arbitrary detention, in decisions to detain children. Moreover, the court found a violation of Article 5 of the ECHR, which protects against arbitrary detention.
These decisions are a far cry from extending a right to residency to undocumented migrants, even those with minor children who face unstable and potentially violent situations in their home countries. Yet they fill important gaps in protection, and offer a creative route for expanding the human rights of those who are often left vulnerable under domestic laws and practices. For those of us beyond the jurisdiction of the ECHR, the decisions offer a tantalizing glimpse of the impact of a robust supranational human rights regime on domestic law and policy on the treatment of migrants. And though the holdings are modest, the use of human rights language with respect to undocumented immigrants and their children and the explicit prioritizing of their rights as individuals over the state's interest in enforcement (as compared to the federal preemption analyses used to assess the rights of immigrants in recent U.S. decisions) holds significant expressive power.


(translation of the Dutch Appeal Court decision, and all errors therein, are mine; a newsclip about the case with English subtitles is available here)

Guest Blogger: Kim Thuy Seelinger

It's IntLawGrrls' great pleasure to welcome Kim Thuy Seelinger (left) as today's guest blogger.
Kim directs the Sexual Violence & Accountability Project at the Human Rights Center at the University of California, Berkeley, School of Law. The Project pursues interdisciplinary strategies to address impunity for sexual violence.
Prior to joining the Human Rights Center, Kim was a staff attorney and clinical instructor at the Center for Gender and Refugee Studies at the University of California Hastings College of the Law. There she co-taught the Refugee and Human Rights Clinic with our Hastings colleague Karen Musalo (prior IntLawGrrls posts). Kim also represented asylum seekers who were fleeing gender-based violence. She's also served as a Yale-China Association Legal Education Fellow in southwest China and as immigration staff attorney with Lutheran Family & Community Services in New York City. She earned her J.D. from New York University School of Law, and serves on the Board of Directors of the Southeast Asia Resource Action Center.
Kim's scholarship focuses on issues of gender-based violence, persecution based on sexual orientation, and developments in asylum jurisprudence. Most recently, this year she published "Violence Against Women and HIV Control in Uganda: A Paradox of Protection? ," in the Hastings International and Comparative Law Review. Her sample-based analysis of asylum claims involving forced marriage is forthcoming. Ki'ms current interests include the relationship of legal and medical sectors in the prosecution of sexual violence, as well as the intersection of women's rights and health status in general. In her guest post below, Kim discusses a range of efforts to address sexual violence in Kenya.
She writes the following dedication:

Kim dreams her international foremother to have been Trưng Trắc, a Vietnamese village woman born in the 1st century. Under the strain of Chinese Han control over North Vietnam, Trưng Trắc and her younger sister (atop elephants), led a predominantly female legion to temporarily expel Han dynasty forces from the northern prefectures.

Today Trưng (image credit) joins IntLawGrrls' other foremothers in the list just below the "visiting from..." map at right.

Heartfelt welcome!

Building Barricades to Protection

This week, Israel began building a $372 million, 155-mile barrier, including electric fencing and surveillance technology, along its border with Egypt.
As other routes for African migrants (such as the sea route between Libya and Italy) have been blocked, the numbers of migrants crossing the border from Egypt has increased dramatically. In 2009, Israel reported just over 4,000 undocumented migrants; that number is up to over 10,000 so far this calendar year. While the Israeli government claims that the wall will prevent Islamic militants and human traffickers from reaching Israel, it will also significantly impair the ability of asylum seekers to reach Israel.
One might expect a nation of refugees for whom the UN Refugee Convention was created to have a generous policy towards those seeking protection within its borders. This new barrier, however, presents just one more instance of Israel's failures to live up to its responsibilities under the UN Refugee Convention.
Israel hosted just over 4,000 asylum seekers in 2009, most from Eritrea and Sudan, yet Israeli NGOs report that the country has granted asylum to fewer than 200 applicants since it ratified the UN Refugee Convention in 1954. As described further in this report by the Israeli NGO Refugees' Rights Forum, the asylum process in Israel is dysfunctional, often requiring a wait of over a year for an interview. Rather than legally recognizing refugees from Eritrea and Sudan -- nations to which the UNHCR forbids deportation because of the dangers facing those who return -- Israel instead grants most of them temporary protection, a much less stable status that does not permit them to work and allows the Israeli government to return them when the situation the refugees' home country improves.
Those who are less lucky are detained (currently, over 2000 asylum seekers) or worse. Under Israel's "Hot Return" policy, authorities expel undocumented migrants directly to Egypt without providing access to asylum procedures and without obtaining guarantees against refoulement from the Egyptian government. The U.S. State Department reports that Egyptian authorities detain some of these asylum seekers, holding them in conditions that violate international human rights standards, and refoules thousands of others back to Eritrea and Sudan.
Though Israel must take seriously threats to its national security, this nation of refugees does itself a disservice by building further barricades to protection for those fleeing persecution.

Go On! U.S. refugee law

(Go On! is an occasional item on symposia and other events of interest)

The 30th Anniversary of the Refugee Act is the topic of a symposium to be held 10:30 a.m.-2:15 p.m. on November 12, 2010, by the Center for Immigrants' Rights at the Dickinson School of Law, Pennsylvania State University, University Park. (hat tip ImmigrationProf Blog)
Moderating the program will be Shoba Sivaprasad Wadhia (below right), Clinical Professor and Center Director. Speakers who will consider the United States' Refugee Act of 1980 in contemporary context include:
► Elizabeth Dallam, Senior Protection Officer at the Office of the U.N. High Commissioner for Refugees
► Regina Germain, Adjunct Professor at Sturm College of Law, University of Denver, and author of The Asylum Primer (6th ed., 2010)
► Tara Magner, Adjunct Professor at Georgetown University Law Center and Senior Counsel to the Chairman of the U.S. Senate Committee on the Judiciary, Senator Patrick Leahy
► Jeanne Smoot, Public Policy Director, Tahirih Justice Center, Washington, D.C.
► Anne Sovcik, Advocacy Counsel for Human Rights First's Refugee Protection Program and Chair of the Asylum Working Group
Program here; other details and registration available here.

Asylum Process as Border Control

I'm in Toronto today, speaking at a conference entitled Directions and Developments in Refugee Determination. Organized by Donald Galloway of the University of Victoria Faculty of Law, former member of the Immigration and Refugee Board of Canada and current President of the Canadian Association for Refugee and Forced Migration Studies, the conference brings together law professors from around the world to discuss comparative and international law on refugee determination. In particular, the conference will focus on the new Canadian refugee law, Bill C-11, passed in June of this year, which makes significant changes to Canada's asylum process (prior post here).

My talk will focus on asylum process as border control. In the United States, anti-immigrant sentiment in combination with powerful push and pull factors enticing migrants northwards have resulted in a schizophrenic approach to immigration law and policy. While legal employment migration routes are severely restricted, jobs aplenty are available to those able to cross the border. In many cases, legal migration options are so limited that the asylum determination process provides the only avenue for lawful entry into the United States. The legislature has responded to resultant concerns of overload and misuse of the asylum process by instituting procedural bars to asylum.
These bars, which often aim to exclude the undocumented, may have unintended consequences, particularly for those applicants filing claims based on gender violence or sexual orientation. Such "non-traditional" applicants may be unaware that the harms they suffered, often at the hands of non-state actors, make them eligible for asylum, and may also be particularly reluctant to share their stories of persecution with government officials. Though these asylum seekers have meritorious claims, they may not file for asylum until after the one-year filing deadline has passed or may not be able to articulate their fears in an expedited removal hearing at the border. The unexpected consequences of these procedural bars, then, can be quite severe.
Is Canada headed down the same path? Faced with a 60% increase in asylum applications between 2006 and 2008, Bill C-11 imposed procedural bars on the asylum process. As discussed in my prior post, the law introduces safe country of origin requirements, which can be put into place based on the number of asylum claims from and grant rate for nationals from a given country. These nationals may then face shorter time limits in the asylum process, including those related to filing and perfecting appeals, which may be added through regulations.
Canada's use of procedural restrictions on the asylum system as a mechanism of border control mirrors the American approach. Not only will such an approach harm applicants with non-traditional claims, but it fails to address the root push-pull factors spurring migration in the first place. Procedural bars are not the solution to the "problem" of undocumented migration. Instead, Canada and the United States should pursue development policies that promote safety, stability, and economic growth in home countries and offer safe and legal migration routes for those whose labor is needed to drive our economy.

The Asylum Law Round-Up

In the past two weeks, two federal courts of appeals have weighed in on important asylum issues, yet again demonstrating the poor quality of decision-making at the immigration courts and the Board of Immigration Appeals (BIA) and the importance of access to judicial review for asylum seekers.

Last Monday, in Todorovic v. Attorney General, the Eleventh Circuit vacated and remanded an immigration judge's decision denying an asylum claim because he did not believe that the asylum seeker was gay. As the Court noted, the immigration judge "relied impermissibly on stereotypes about homosexuals" to find that the applicant was not a credible witness.
The applicant, Todorovic, described a litany of abuses, from rape to severe beatings, that had been perpetrated upon him by various state and non-state actors in Serbia and provided ample corroboration of his claims. He further explained that these instances of persecution occurred either because the perpetrators knew he was gay or because he was in a gay bar or with his boyfriend, a gay rights activist. Yet the immigration judge held:

The Court studied the demeanor of this individual very carefully throughout his testimony in the Court today, and this gentleman does not appear to be overtly gay . . . since he bears no effeminate traits or any other trait that would mark him as a homosexual.

Of even greater concern, based on the record described above, the Board of Immigration Appeals affirmed the immigration judge's determination that Todorovic was not a credible witness. Even under the highly deferential substantial evidence test, the Eleventh Circuit could not support this determination. While Todorovic can celebrate this outcome, it was disturbing to note that this was the fourth court of appeals decision in the past four years to overturn an immigration judge's credibility findings because they were based on stereotypes about gays. This reveals a significant failure of training in the immigration courts and of effective review at the BIA.
On Wednesday, in Cheng v. Attorney General, the Third Circuit remanded to the BIA the case of a young Chinese woman who claimed persecution based on her opposition to China's coercive population control policies. Cheng became pregnant by her boyfriend at the age of nineteen; though they wanted to marry, their village forbade women from marrying before the age of twenty-three. When town officials discovered her pregnancy, they tried to force her to have an abortion. Cheng fled, and when the officials learned she had given birth elsewhere, they confiscated her family's farm and truck, on which Cheng's family depended to earn a living. The town government ordered that Cheng and her boyfriend be sterilized, and threatened to take her baby from her and detain her boyfriend for months if she did not cooperate. Under this pressure, Cheng agreed to have an IUD inserted, which was particularly painful, and was forced to submit to gynecological exams every three months to verify its presence (and was assessed significant fines when she was unable to appear for these exams). Because she had two more children in the United States, Cheng feared sterilization upon return to China.
The immigration judge, finding Cheng credible, initially granted her claim, but then the BIA vacated the decision and remanded it for further proceedings in light of their recent decisions on China's population control policies. The BIA concluded that mandatory IUD insertion alone does not render an applicant eligible for asylum, but failed to address Cheng's resistance to the IUD and the harms that resulted. The immigration judge on remand denied the asylum claim, and on Cheng's second appeal, the BIA affirmed. (credit for photo at left).
Again, even applying the substantial evidence standard of review, the Third Circuit was compelled to disagree. The Court laid out the history of the coercive population control provisions of U.S. asylum law. In 1989, the BIA decided that China's family planning policies, even where they resulted in forced sterilizations, could not be considered persecution. Congress disagreed, and in 1996, expanded the definition of refugee to include those who suffered forced abortion, forced sterilization, or persecution for resistance to a coercive population control law. In 2008, the BIA decided that forcible insertion of an IUD, though "intrusive", does not rise to the level of persecution without aggravating circumstances.
Though it was disappointing that the Third Circuit did not dismantle this standard, the court sidestepped it by holding that the aggregate mistreatment suffered by Cheng constituted persecution on account of her resistance to China's population control policies. Again, the case presents a chilling reminder of the limitations of review by the BIA and the administrative asylum process. What has become of the Chengs and Todorovics of the world who were not able to pursue their asylum appeals into the federal courts?

Rejecting Refugees

The New York Times today reports on my most recent co-authored empirical study of the U.S. asylum system, Rejecting Refugees: Homeland Security's Administration of the One-Year Bar to Asylum, forthcoming in the William and Mary Law Review. As the title suggests, this article focuses on asylum law's one-year filing deadline, which was created by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Scholars and practitioners have long expressed concern that refugees have been denied asylum due solely for failure to apply within a year of entry, and fear that the bar has had a significant impact on the U.S. asylum system. Our article is the first systematic empirical study of the effects of the deadline on asylum seekers and the asylum system.

We focus on decision-making by the Department of Homeland Security, which adjudicates most applications for asylum in the first instance. The findings are troubling. Most notably, it is likely that since the one-year bar came into effect, in April 1998, through June 2009, DHS rejected on the deadline more than 15,000 asylum applications (affecting more than 21,000 refugees) that would otherwise have been granted.
"Rejected" means that these asylum seekers could, if they had sufficient resources, have pursued their case further in immigration court. Because the data systems used by DHS and the immigration courts (which are part of the Department of Justice) do not regularly coordinate and track cases, we cannot tell how many of these applicants were successful in immigration court. If immigration judges decided these cases the same way as the asylum officers, many refugees were ordered deported not because they failed to establish eligibility for asylum but because they did not file their applications within a year of entry. Even those asylum seekers lucky enough to win their one-year deadline arguments in immigration court faced the expense and trauma of an appeal, not to mention the delay, during which their family members remaining in their home country might suffer serious harm. (Spouses and children are eligible to join successful asylum seekers in the United States.)
The data give rise to concerns that certain populations were more adversely affected by the deadline than others. Women were significantly more likely to file very late (three or more years after the deadline had passed) than men, perhaps because they are more likely to suffer sexual violence and therefore more reluctant to reveal what happened to them. Moreover, women claiming asylum on gendered grounds, such as domestic violence and female genital mutilation, might not become aware that they are eligible under the law until they have lived in the U.S. for several years. Asylum seekers from certain countries, such as the Gambia and Sierra Leone, were much more disadvantaged by the deadline than applicants from other countries, such as Haiti and India. Though we can't know from the data the cause of this disadvantage, it is possible that the deadline particularly impacts refugees who do not have a strong community of immigrants from their home countries who can help to guide them through the asylum process.
Our recommendation? The deadline should be repealed, as several bills introduced in Congress propose. Short of repeal, the Obama administration should amend its regulations to broaden the scope of exceptions to the deadline and expand its training of asylum officers to encourage acceptance of a broader range of evidence and engagement in proactive questioning to establish applicants' compliance with the deadline.

(cross-posted on Concurring Opinions)
(credit for photo above left)

Migration in the age of unemployment

How have migration flows responded to the recession?
The 2010 International Migration Outlook of the Organisation for Economic Co-operation and Development provides a comprehensive statistical assessment of migration developments in member nations in 2008. Unsurprisingly, most forms of migration are down, and unemployment is up, among the foreign-born. But there are some unexpected findings, and some findings of particular interest with respect to female migrants.
► While permanent legal migration and temporary migration fell throughout the OECD in 2008 and 2009, asylum applications are on the rise.
► Family ties continued to play a dominant role in permanent lawful migration to the United States, with 65% of permanent flows based on such ties. French and Swedish immigration policies similarly favored family migration; in contrast, in Italy, Portugal, Spain, and the United Kingdom, labor was the predominant migration rationale.
► The focus of OECD immigration policies continues to be on high-skilled migrants, with very few lawful migration opportunities for the less skilled.
Though one might expect the drop in permanent and temporary migration, the increase in asylum applications is more surprising; one would expect that the recession would make it more difficult for asylum seekers to find the financial means to flee their home country. As it turns out, asylum seekers have been arriving in OECD countries in increasing numbers since 2006, with the United States receiving nearly 40,000 asylum seekers and Canada, France, Italy, and the United Kingdom each receiving over 30,000 asylum seekers in 2008. Afghanistan, Iraq, and Serbia produced the largest numbers of asylum seekers in 2008.
It will be interesting to learn what has happened to student flows and migration-driven population growth in the wake of the recession. The report does not provide these numbers, but found that between 2000 and 2007, international student flows to the OECD doubled, with most studying in Australia, France, Germany, the United Kingdom, and the United States. An average of 21% of students stayed in their host country after completing their degree, remaining through lawful employment status.
The study also reports that migration played a central role in population growth in the OECD between 2003 and 2007, accounting for nearly 60% of population growth. Perhaps most surprisingly, France, New Zealand, and the United States were the only countries for which childbirth was the central cause of population growth. Indeed, in some OECD countries, 90% of population growth was due to migration. If policies to retain migrants are not put in place, these countries may suffer negative population growth in the wake of the recession.
As one would expect, the financial crisis hit immigrants harder: the foreign-born, particularly youth, lost jobs at higher rates than the native-born in nearly all OECD countries. Many countries implemented immigration policies specifically responding to the economic crisis, including provisions for unemployed migrants who couldn't renew their visas, arrangements for their return, and cut-backs in migration quotas.
Perhaps of most interest this readership, in nearly all OECD countries, immigrant women retained their jobs at higher rates than immigrant men. In some cases, immigrant women even increased their rate of participation in the labor market, presumably to account for loss of income from male family members. This of course mirrors the gender impacts of the financial crisis here in the United States; it remains to be seen whether this opportunity for increasing gender equality in the home will translate into real change once the recession has passed.

Kudos to Jaya

Proud to report that Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform (2009), coauthored by IntLawGrrls' own Jaya Ramji-Nogales (left), is the subject of the lead book review in the latest edition of the prestigious British journal, The Modern Law Review.
Reviewer Mike Sanderson (right), Kosovo-based Legal Consultant to the U.N. High Commissioner for Refugees, sets out a superb account of the empirical research by Jaya and her coauthors, Andrew I. Schoenholtz and Philip G. Schrag. Sanderson's evaluation of the book, on which we've posted here, is nothing short of gushing. In the fashion of movie advertisements, here're a few snippets:

... I cannot recall another occasion where an academic work has been so widely trailed, at least in my own area of refugee and asylum law. There is good reason for this. ...
...
... truly eye-popping ...
... exciting ...
... Ramji-Nogales, Schoenholtz and Schrag seem to be stones that have rubbed each other smooth. Their prose is beautifully clear throughout. ...
... it is excellent value and deserves to be widely purchased and read. ...

Agreed!

Ruling favors gender asylum claimant

The U.S. Court of Appeals for the Ninth Circuit has just issued a ruling with potentially far-reaching consequences for women seeking asylum in the United States.
The petitioner in the case, Perdomo v. Holder, is Lesly Yakayra Perdomo, a Guatemalan woman seeking asylum in the United States because she fears that she will be persecuted in Guatemala on account of her gender.
Under the Immigration and Nationality Act, an individual may obtain asylum in the United States if she has suffered past persecution or has a well-founded fear of future persecution on account of her race, religion, nationality, political opinion or membership in a particular social group. Perdomo is claiming that she has a well-founded fear of persecution on account of her membership in the particular social group of "all women in Guatemala."
The gravamen of her claim is that young women in Guatemala are tortured and killed at a disproportionately higher rate than men, without any response by the Guatemalan government. She cites reports by the U.S.-based Guatemala Human Rights Commission that describe the phenomenon of femicide in Guatemala. According to the Commission, in a country of 14 million, over 4,000 women were murdered between 2000 and 2008. Between January and August of 2008, 61% of those murders were the result of domestic violence, with 45% having taken place in the victim's home. Perhaps more disheartening is the Guatemalan government's lack of response -- a key element of any asylum claim -- a staggering 98% of the 4,000+ murders of women between 2000 and 2008 remain unresolved.
Both the Immigration Judge and the Board of Immigration Appeals considered Perdomo's definition of "all Guatemalan women" to be too broad to constitute a "particular social group" for purposes of the Immigration and Nationality Act. On appeal, a panel of the Ninth Circuit disagreed, finding that under Board and federal court precedent, gender alone can constitute a particular social group. Issued on Monday and written by Judge Richard A. Paez on behalf of himself and Judges Dorothy W. Nelson and William A. Fletcher, the decision:
► Cited cases in which asylum was granted to women who had endured female genital mutilation and women who faced beating and imprisonment for refusing to wear veils;
► Cited decisions from Australia, Canada, and the United Kingdom, all of which recognized gender as the basis for asylum; and
► Quoted from the UN High Commissioner for Refugees Guidelines on Membership within a Particular Social Group, which state that

women may constitute a particular social group under certain circumstances.

Unsurprisingly, the ruling is being portrayed as having the potential to "unleash a "wave of political asylum claims from applicants who say being a woman from Central America is reason enough to fear for their lives."
In actual fact, the Ninth Circuit remanded the matter back to the Board of Immigration Appeals to determine whether, in light Board and Ninth Circuit precedent, "all women in Guatemala" constitutes a "particular social group." Even if the Board were to so find, the case of Lesly Yakayra Perdomo and thousands like her would not be settled because, in addition to proving her membership in a particular social group, an asylum applicant must also demonstrate that:
► She has a well-founded fear of persecution on account of such membership;
► The government of her home country is unwilling or incapable of offering protection; and
► She cannot relocate safely within her home country.
Thus, while there is much to celebrate in the Ninth Circuit's analysis of gender under the Immigration and Nationality Act, the floodgates are far from open.

Equality in the UK

Last week, the Supreme Court of the United Kingdom (prior post) issued a unanimous judgment extending protection to gay asylum seekers who would be required to conceal their sexual orientation if returned to their home country.
Though sexual orientation has long been recognized as a ground for asylum in the United States, LGBT asylum seekers have not fared as well in the UK. Indeed, the UK Home Office had made a practice of telling gay asylum seekers to go back to their home country and keep their sexuality private.
The UK Supreme Court decision rejected the case law upon which this policy was based (the "reasonably tolerable" test), finding that an asylum seeker "cannot and must not be expected to conceal aspects of his sexual orientation which he may be unwilling to conceal, even from those whom he knows may disapprove of it" -- and even where the adjudicator finds this refusal to conceal unreasonable.
Home Secretary Theresa May (right) welcomed the ruling, noting that the government had already promised to stop deporting gay asylum seekers, and that the Home Office will reframe its guidance on sexual orientation claims based on the decision.
The trend is promising, but there's still much work to be done educating asylum decisionmakers from the UK Border Agency.
A report issued earlier this year by the gay rights charity Stonewall found that Border Agency staff often dismissed gay applicants if they were not immediately open about their sexual orientation, did not engage consistently and exclusively in same-sex sexual activity, or had not participated openly in explicit homosexual activity. Breaking down these and other stereotypes about LGBT asylum seekers will require comprehensive ongoing training of and guidance for asylum adjudicators. Ending assumptions that LGBT people can be safe in their home country if they "hide" their sexual orientation is only the first step in ensuring equality in the UK asylum system.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

We as a nation should be humbled that the Haitian people, a people who rose above slavery, a people of great resilience and survival, wish to become part of our community. They want only the basics: education, food and shelter. In return they offer their cultural riches – their resilience, their art, their music, their beloved food and their beautiful laughter. The United States government should grant humanitarian parole to the Haitians in need ....

-- My colleague Holly Cooper (above left), Lecturer in the Immigration Law Clinic at the University of California, Davis, School of Law (Martin Luther King, Jr. Hall), in an op-ed in London's Guardian, entitled "How the US can help Haiti: Thousands of Haitians lost everything in the earthquake. The US should open its borders and start granting humanitarian parole." Holly's essay deftly invokes the Greek myth of Persephone in recounting her experiences earlier this month in Haiti, where she was part of "a human rights delegation intent on finding individuals for whom we could request humanitarian parole into the US."

Towards holistic transnational protection against kidnapping: public law approaches

(Thank you to IntLawGrrls for the invitation to provide a guest post based on a forthcoming article of mine)

My most recent area of research is the global criminal phenomenon of kidnapping as it relates to an increased presentation of asylum claims in the United States, Canada, Belgium, France, United Kingdom and New Zealand.
This most striking aspect of this problem is that the private market is both part of its origin and part of its solution.
Inequitable enjoyment of socio-economic resources and the exclusion from participation in formal markets prompt marginalized individuals to pursue the criminal market of kidnapping, in which the human body becomes the ultimate commodity. In turn, corrupt and ineffective judicial bodies and police leave family members little choice but to employ private security and insurance companies. This creates a growth industry based on safe return of victims.
At the international level, there has been increased attention, not only from the UN Economic and Social Council, but also from UN Secretary-General Ban Ki-moon (above right), who declared in 2009:

Kidnapping is an inhumane and unjustifiable crime, as well as a gross violation of international human rights and humanitarian law.

Among the related human rights at stake, one may cite:
► guarantees of liberty, physical integrity and security, and the prohibition of arbitrary detention, as detailed in Article 9 of the International Covenant on Civil and Political Rights;
► the right to life, as in Article 6 of the ICCPR;
► the prohibition against torture, in Article 7;
the ban on interference with family, Article 17; and
► protection against sexual violence, established in, for example, the November 16, 2009, judgment (available in Spanish) by the Inter-American Court of Human Rights in Gonzalez et. al. v. Mexico.
Indeed, the most relevant case law has emerged at the regional level, where the focus is on state responsibility for investigating and punishing kidnappers.
The Inter-American Court thus issued 2 notable provisional orders, in:
► In the Matter of the Communities of Jiguamiandó and Curbaradó, a case involving the kidnapping and murder of a manm allegedly via complicity by police and paramilitary; the order called for State investigation, identification of perpetrators, and punishment; and
► In the Matter of the United States of Mexico Digna Ochoa y Plácido et. al., in which the order called upon the State to protect the lives of human rights activists who had been subject to kidnapping.
Similarly, the Inter-American Commission on Human Rights has repeatedly condemned kidnapping by nonstate actors in countries including Colombia, Guatemala, El Salvador, Venezuela, and Brazil.
In like manner are decisions of the European Court of Human Rights:
► In the case of Avsar v. Turkey, the Court held Turkey to be in violation of Articles 2 (right to life) and 13 (effective remedy) of the European Convention on Human Rights, for failing to carry out adequate and effective investigation in a case involving the kidnapping and killing of a man by village guards with complicity by the state.
► The Court held Russia liable for violation of the same articles in Elmurzayev and others v. Russia and Khadzhialiyev and others v. Russia, cases involving kidnappings by “unidentified armed men” and subsequent delays by the state in investigation and proceedings respecting those crimes.
In large part, the international community’s response to the global threat of kidnapping is reflected in the innovative institutional trend towards horizontal and vertical cooperation across the public-private divide. Initiatives to combat the spread of kidnapping include assistance in border control, intelligence-sharing, police training, and management (seeking transparency, accountability, and professionalization), telecommunication interception, assistance in legislative amendments, extradition, and overview of financial transactions.
Furthermore, there are increased calls for strengthening citizen and community participation in the implementation of security plans. The European Council issued Recommendation 2007/562/EC of 12 June 2007, which requires states to share information in all terrorist kidnappings. Similarly, the need for international cooperation to address crime (including kidnapping) has been promoted by the Organization of American States Permanent Council’s Special Committee on Transnational Organized Crime and the Ministers Responsible for Public Security.

It is important to note issues of continuing concern:
► We still await the establishment of implementation mechanisms for the UN Convention Against Transnational Organized Crime; and
► None of these initiatives highlights the importance of asylum, for victims and their families, as an element of holistic protection.

Guidelines for Children Seeking Asylum

The United Nations High Commissioner for Refugees recently published guidelines for the treatment of child asylum seekers. Though not binding law, the document should be useful for those representing children in asylum claims, and hopefully for pushing forward the state of asylum law for children in the United States. Some highlights:

• The guidelines draw on principles established in the Convention on the Rights of the Child, namely State obligations to protect children's rights without regard to national origin and immigration status; the paramount importance of promoting the best interests of the child; States parties' duty to ensure the survival and development of the child; and the child's right to have her views taken into account when deciding matters that affect her.
  
• The child's age, stage of development, vulnerability, and knowledge and/or memory of conditions in the country of origin should all be taken into account when determining eligibility for asylum.
  
• The guidelines note that where the child is the principal applicant for asylum (e.g. a child seeking protection from FGM), the parents can be granted derivative asylum status based on the child's grant of asylum.
• When determining whether children have a well-founded fear of persecution, decisionmakers should consider that children may experience socioeconomic deprivation and psychological harm more severely than adults.
• Noting the growing consensus on the illegality of recruiting children under 18 into direct participation in armed conflict, the guidelines find that such forced recruitment by state or non-state actors constitutes persecution.
• Trafficked children at risk of re-trafficking or serious reprisals have a well-founded fear of future persecution. The use of children in slavery, forced labor, prostitution, pornography, and the drug trade are all instances of persecution.
• Domestic violence against children may be considered persecution and/or torture.
• "Children" may constitute a particular social group, as may street children, children affected by HIV/AIDS, and children recruited by an armed force or group.
  

Reviving the "Particular Social Group"

Two recent decisions have breathed new life into the particular social group ground for asylum, expanding the doctrine to cover claims that had previously appeared all but dead. Last week, an immigration judge granted asylum to Rodi Alvarado, (pictured below right) a Guatemalan woman whose domestic violence claim has been the centerpiece of a fourteen-year struggle over whether such cases should be protected by asylum law. On Tuesday, in the Benitez Ramos case, Judge Posner of the Seventh Circuit Court of Appeals eviscerated the Board of Immigration Appeals on two crucial points of law: first, that former gang members may constitute a particular social group, and second, that the "social visibility" requirement is not only incoherently applied by the BIA but is irrelevant in determining the existence of a particular social group.
The immigration judge's decision in the Rodi Alvarado case, about which we've posted here and here, marks the end of a very long battle by a woman and her lawyer, Karen Musalo, for the right to live in a society that protects women against domestic violence. This has been an unmistakably feminist struggle to regulate the "private sphere" internationally. If asylum law is political expression, the decision to include domestic violence claims within the particular social group category says loud and clear that the right to be free of physical violence does not end at the door of one's home, and that societies that fail to protect women from such violence are not only sexist but are enabling serious human rights abuses.
The Benitez Ramos case is similarly breathtaking in its impact. Asylum has been granted rarely to those fleeing persecution by gangs (even if they were never gang members), and almost never to former gang members. Posner rips apart the faulty legal reasoning that has created this situation, noting that former gang membership is an immutable characteristic and thus meets the definition of particular social group. He adds that former gang members may be excluded or barred from asylum or withholding of removal for violent activities related to their gang membership -- but that must be determined on a case-by-case basis, and their eligibility for asylum should be determined separately. Posner also destroys the BIA's nonsensical "social visibility" test for particular social group claims, noting:

“Visibility” in the literal sense in which the Board has sometimes used the term might be relevant to the likelihood of persecution, but it is irrelevant to whether if there is persecution it will be on the ground of group membership. Often it is unclear whether the Board is using the term “social visibility” in the literal sense or in the “external criterion” sense, or even whether it understands the difference.

Whether or not Benitez Ramos ultimately wins his case, this clearheaded approach will hopefully be adopted by other federal courts of appeals and even -- who knows! -- the Board of Immigration Appeals. Stranger things have happened.
It's important to note that these are both cases from Central America; the geopolitics of asylum law has traditionally frowned upon our neighbors to the south, and has given rise to convoluted law and unlawful policy decisions. Allowing claims by victims of domestic violence and former gang members (and presumably to all those fleeing gangs) could give rise to a "fear of the floodgates" and consequent backlash. It is still the right thing, legally and morally, for the Obama Administration to issue long-awaited guidelines for asylum claims based on domestic violence and to follow Posner's lead in expanding the availability of asylum for former gang members and those fleeing gangs.

Read On! Refugee Roulette by IntLawGrrl Jaya Ramji-Nogales et al.

(Read On! ... occasional posts on writing we're reading) Can't let any more time go by without noting the début this month of 0ur own Jaya Ramji-Nogales' latest book, Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform.
Co-authored with Visiting Professor Andrew I. Schoenholtz and Professor Philip G. Schrag, both at Georgetown Law, it features a foreword by Edward M. Kennedy, the longtime Democratic Senator from Massachusetts who passed away just weeks ago (prior post).
Loyal blog readers no doubt will recall the title: it was also the name of a Stanford Law Review article by the 3, on which Jaya (right) blogged back in 2007, the same day that The New York Times published a story about the findings of this empirical study of asylum judges.
Here's how NYU Press begins its description of the book that grew out of that earlier project:

Through the Refugee Act of 1980, the United States offers the prospect of safety to people who flee to America to escape rape, torture, and even death in their native countries. In order to be granted asylum, however, an applicant must prove to an asylum officer or immigration judge that she has a well-founded fear of persecution in her homeland. The chance of winning asylum should have little if anything to do with the personality of the official to whom a case is randomly assigned ...

That, however, is not the case, as the co-authors found:

[L]ife-or-death asylum decisions are too frequently influenced by random factors relating to the decision makers. In many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns the application to an adjudicator.

Analyzing decisions "at all four levels of the asylum adjudication process" -- the Department of Homeland Security, the immigration courts, the Board of Immigration Appeals, and the United States Courts of Appeals -- the authors identified "tremendous disparities in asylum approval rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country.

Having set out these data, the authors recommend reforms, and then present essays on same by Bruce Einhorn, Steven Legomsky, Audrey Macklin, M. Margaret McKeown, Allegra McLeod, Carrie Menkel-Meadow, Margaret Taylor, and Robert Thomas.

Heartfelt congratulations!

Ireland's Migration Dilemma

Martin Ruhs and Emma Quinn have just released a detailed report for the Migration Information Source describing the current challenges confronting Irish immigration policies. Ireland's relationship with migration is an unusual one. Historically famed as a country of emigrants, Ireland's financial boom during the 1990s led it to become a country of net immigration for only the second time in Irish history. Immigration flows increased from under 20,000 people per year in the late 1980s to over 100,000 people per year in 2006; over the same time period, emigration levels dropped from a high of over 60,000 people per year to just over 30,000 people per year. But then the financial crisis hit, and immigration numbers dropped dramatically (down to just over 80,000 in 2008) while emigration numbers slowly increased (to over 40,000 in 2008). As Ireland's unemployment rate -- a central cause of prior emigration flows -- increases, its immigrants will confront serious challenges that may be compounded by policy decisions made in response to the immigration spike of the early 2000s.
Faced with an unprecedented increase in immigration in the late 1990s, Ireland took several steps aimed at managing immigrant flows. First, it instituted a "safe country of origin" element into the asylum determination process. Though entirely without basis in international law or in the realities of persecution, such policies create a presumption that asylum seekers from "safe countries of origin" do not need protection and subject these applicants to expedited decision-making processes. Combined with legislation making carriers liable for transporting unauthorized migrants, this program led to a decline in asylum applications in Ireland after 2002 (a drop that coincided with declines in asylum applications throughout the developing world, likely linked to stricter border control policies in the wake of September 11).
Ireland also stepped away from its traditional jus soli citizenship policy that granted citizen status to anyone born in the country. Because the non-Irish parents of children born in Ireland could then apply for residence based on their child's Irish citizenship, Ireland amended its constitution to change its citizenship laws. Under the new policy, the Ireland-born children of non-Irish nationals obtain citizenship only where one of their parents resided in Ireland legally for three of the four prior years -- and asylum applicant status is not considered to be lawful for this purpose. Parents who meet these standards are eventually eligible for citizenship, but the process is significantly slower.
Unsurprisingly, the financial crisis has hit migrants harder; their unemployment rate in early 2009 was nearly 15%, compared to nearly 10% for Irish nationals. In the same time frame, migrants comprised nearly 16% of the Irish labor force, employed primarily in fields such as construction and retail trade that were most impacted by the crisis. While some efforts have been made to integrate immigrants, including the creation of a Junior Ministry for Integration in 2007, labor market discrimination and the barriers to obtaining lawful status described above remain. For migrants from within the European Union, these obstacles are less problematic, as they can return to their home countries and wait out the financial crisis. For non-E.U. migrants, the options are bleaker. And for Ireland, its hasty attempts to address a spike in migration may soon push it back down the path of net emigration.

Refugee Limbo

This week's Economist details disturbing trends in the situation of refugees globally. Over the past two decades, we've seen the rise of "Fortress Europe" and "Fortress America," aiming to keep out migrants of all types. Particularly in the wake of 9/11, it's become much harder to cross borders to seek protection, and asylum applications in the developed world have dropped. The ramifications of these policies for refugees may now be playing out on the global stage.

The Economist article reveals that those fleeing persecution are now less likely to cross borders in general, and even those who do struggle to find durable solutions to their plight. While refugee numbers have dropped over the past fifteen years, the number of internally displaced persons -- persons who are not entitled to the same international legal protections as refugees -- is on the rise:

► Nearly two-thirds of refugees are now in "protracted refugee situations," meaning that 25,000 or more refugees from the same country have been forced to remain in a host country for at least five years.

► About one-third of the over ten million refugees in the world today live in refugee camps; in Africa, the number is two in three.

► Eighty percent of all refugees live in poor rather than in wealthy countries.

Because host countries are now less likely to have the resources to care for refugees, these refugees become more and more dependent on handouts from the U.N. High Commissioner for Refugees. UNCHR's cause is a noble one, but it was not designed to provide longterm governance to large refugee populations; moreover, there are many institutional concerns with this state of affairs, including serious deficits of democratic participation and procedural due process.