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Jason Dzubow on Political Asylum


  1. India Needs an Asylum Policy

    India is one of the few remaining countries that has not ratified the 1951 Convention Relating to the Status of Refugees or the 1967 Protocol (the U.S. is a party to the Protocol, but not the Convention).* This means that India has no regular procedure for granting asylum to people fleeing persecution.* Nevertheless, according to UNHCR:
    [The] country hosts a large number of refugees and respects the principle of non-refoulement for holders of UNHCR documentation.* India continues to grant asylum to a large number of refugees from neighbouring States, protecting and assisting some 200,000 Tibetans and Sri Lankans. In the absence of a national legal framework for asylum, UNHCR registers asylum-seekers and conducts refugee status determination (RSD) in New Delhi, mostly for arrivals from Afghanistan and Myanmar.
    While this arrangement protects certain people seeking asylum, others who need assistance cannot get it, or are left to languish in refugee camps.*

    Even Bollywood endorses helping refugees (at least the good looking ones).

    In a recent editorial, writer Harini Calamur eloquently explains why India needs an asylum policy.* Ms. Calamur relates the story of Rinkle Kumari, a 19-year-old Hindu girl living in Pakistan.* Earlier this year, a group of Muslim men broke into Rinkle's home, kidnapped her, and forced her to convert to Islam and marry her neighbor.* The group of men was connected with a local Pakistani politician and the government failed to intervene.* After the case gained national attention, the Supreme Court of Pakistan sent Rinkle to a shelter where she could decide whether to remain with her husband or return to her parents.* She decided to remain with her husband.* Most observers believe that her decision was based on coercion-she feared that her family would be harmed if she returned home.
    Ms. Calamur asks what would happen if Rinkle escaped from Pakistan and sought asylum in India.* Given the absence of an asylum system, Ms. Calamur writes that in the best case, Rinkle would end up in a refugee camp:
    Refugees live in camps and have neither the right to free movement within India nor are they entitled to work. Most are in a state of suspended animation and have their lives at standstill. If Rinkle and her family escaped to India this is what they would face, and there is something terribly wrong and unjust about that.
    Ms. Calamur makes the case for India to adopt an asylum system:
    To be considered a world power, you don't just need a nuclear arsenal and growing prosperity. There needs also to be a measure of compassion, sharing and providing of refuge. India needs to start by offering asylum and citizenship to the persecuted minorities in its neighbourhood. There will be those who misuse this open policy, as they have in other countries. But the needs of the persecuted, the fate of one Rinkle, far outweighs the misuse of an asylum policy.
    Well said, Ms. Calamur.* I hope those in the West who question the need for an asylum system hear your words.
    Originally posted on the Asylumist:
  2. Albanian Informant and His Family Granted Asylum – Finally

    A decade ago, Edmond Demiraj agreed to testify against an Albanian mobster charged with human smuggling.* He claimed that, in exchange for his testimony, federal prosecutors promised to keep him and his family safe.* The mobster, Bill Bedini, fled the country before his trial, and so the federal government had no need for Mr. Demiraj's testimony.* He was deported to Albania.

    The Fifth Circuit decision means that if JR gets shot, the Ewings don't get asylum.

    In Albania, Mr. Bedini was waiting.* He kidnapped, beat, and shot Mr. Demiraj, who eventually recovered and made his way back to the U.S.* This time, he was granted Withholding of Removal.
    Meanwhile, an Immigration Judge and the BIA denied asylum to Mr. Demiraj's wife and son, and ordered them deported.* The pair reopened their case after Mr. Demiraj was shot in Albania and after Mr. Bedini kidnapped some other relatives and trafficked them to Italy.* The wife and son claimed that if they returned to Albania, Mr. Bedini would harm them on account of their particular social group-membership in the Demiraj family.* The case was again denied and finally reached the Fifth Circuit, which affirmed the BIA and ordered Mrs. Demiraj and her son deported to Albania.
    While the Fifth Circuit agreed that "family" could constitute a "particular social group," it reasoned that Mr. Bedini did not seek to harm Mrs. Demiraj and her son "on account of" her membership in the Demiraj family.* Rather, Mr. Bedini wanted to harm her and her son in retaliation for Mr. Demiraj's cooperation with the United States government:
    The crucial finding here is that the record discloses no evidence that Mrs. Demiraj would be targeted for her membership in the Demiraj family as such. Rather, the evidence strongly suggests that Mrs. Demiraj, her son, and Mr. Demiraj's nieces [who were trafficked to Italy] were targeted because they are people who are important to Mr. Demiraj--that is, because hurting them would hurt Mr. Demiraj. No one suggests that distant members of the Demiraj family have been systematically targeted as would be the case if, for example, a persecutor sought to terminate a line of dynastic succession.* Nor does the record suggest that the fact of Mr. and Mrs. Demiraj's marriage and formal inclusion in the Demiraj family matters to Bedini; that is, Mrs. Demiraj would not be any safer in Albania if she divorced Mr. Demiraj and renounced membership in the family, nor would she be any safer if she were Mr. Demiraj's girlfriend of many years rather than his wife. The record here discloses a quintessentially personal motivation, not one based on a prohibited reason under the INA.
    Mrs. Demiraj and her son filed a petition for certiorari with the Supreme Court.* They were supported by a number of amicus briefs, including one by former law enforcement officials.* That brief takes the position that Mr. Demiraj's family members are a "particular social group" and that they will be persecuted because Mr. Bedini seeks to harm all members of Mr. Demiraj's family.* Further, the brief expresses concern that "civilians very likely will not cooperate [with law enforcement officers] when they fear that doing so would put their families in danger."* The Fifth Circuit's decision would obviously discourage such cooperation.
    In the end, the petition for certiorari was withdrawn.* DOJ-after requesting 10 continuances to respond to the cert petition-finally agreed to grant asylum to Mr. Demiraj and his family.* The result is certainly a relief to the Demiraj family.* But the bad news is that the Fifth Circuit's exceedingly narrow definition of "family" as a "particular social group" remains on the books.
    Congratulations to*Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, LLP, who represented the Demiraj family.
    Originally posted on the Asylumist:
  3. Congress Considers Waiving the One-Year Asylum Deadline for Indonesian Christians

    Note to policy advocates: If you want Congress to pass a law helping immigrants, try to frame the law in a way that sticks it to the Muslims.* That is exactly what has been happening with a proposed bill (HR 3590) to help Indonesian Christians who were persecuted by Muslims in the late 1990?s.
    The bill would allow Indonesians who filed for asylum between 1997 and 2002, and whose cases were denied solely because they missed the one-year filing deadline, to reopen their cases and seek asylum (people seeking asylum in the U.S. are required to file their applications within one year of arriving here).* The bill has been pushed by advocates for Indonesian Christians, and there are currently 16 co-sponsors in the House of Representatives, where Muslim-bashing is all the rage.

    People of all faiths will celebrate if the one-year deadline is repealed.

    First, it must be said that many Indonesian Christians were persecuted by Indonesian Muslims during the late 1990?s and early 2000?s (I have represented several such people myself).
    My problem with what Congress is doing is not that they are helping Indonesian Christians by essentially waiving the one-year filing requirement.* Rather, I do not see why other groups who have suffered equal or worse persecution in their countries should not be afforded the same benefit as the Indonesian Christians.* In other words, since it is clearly unfair and ineffective at preventing fraud (the purported purpose of the deadline), why not just eliminate the one-year filing deadline for everyone?* I previously discussed this idea here.
    The reason-I believe-that HR 3590 has gotten some traction in Congress is because it protects Christians from Muslims, our current boogeymen.* This is the same reason why Congress passed various resolutions regarding Darfur but ignored a more severe genocide in the Democratic Republic of the Congo.* It is also the same type of reasoning that gave us the Cuban Adjustment Act-a law giving legal status to any Cuban who arrives in the United States even though country conditions in Cuba are not as bad as in other places.* In the case of the CAA, the driving force behind that law was our desire to stick it to the Commies.
    I suppose all this represents an underlying tension in asylum law between using that law to further our foreign policy goals (what I would call realpolitik) and simply applying international humanitarian law in a neutral way.* This point deserves further attention, and I will come back to it in a future posting.* For now, I will say only that I hope HR 3590 becomes law; not because I think Indonesian Christians deserve better treatment than other asylum seekers, but because I hope it will be a step towards eliminating the nonsensical one-year filing deadline for all asylum seekers.
    Originally posted on the Asylumist:
  4. Seeking Asylum at the U.S. Embassy in China

    When Chinese dissident*Chen Guangcheng escaped house arrest and fled to the U.S. Embassy in Beijing on April 22, it touched off an international crisis.* A high-level visit to China by Secretary of State Hillary Clinton and Treasury Secretary Tim Geithner was upstaged by the incident, which remains unresolved.

    You known your a dissident when you've been Shepard Fairey-ized.

    In some ways, when a prominent political activist seeks shelter at a foreign embassy, it seems like a classic case of political asylum.* Technically, though, an embassy cannot offer asylum to someone in his or her home country.* Asylum is only for refugees, and a refuge-by definition-is "any person who is outside any country of such person's nationality [and who has] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." See INA § 101(a)(42) (emphasis added).
    Since Mr. Chen never left China, he was ineligible for refugee status and could not have been granted asylum by the U.S. Embassy.* This does not mean that our government was powerless to help him after he arrived at the embassy.* United States embassies (indeed, all embassies) can offer protection to people on embassy grounds, as the host country is not permitted to violate embassy property.
    A well-known example of our government offering protection under similar circumstances was when another Chinese dissident, Fang Lizhi, fled to the U.S. Embassy after the massacre in Tienanmen Square.* Dr. Fang remained in the embassy for over a year, until the Chinese government finally agreed to allow him to leave the country.
    I suppose in Mr. Chen's case, the Embassy might have smuggled him out without getting permission from China, but that would have had serious implications for U.S.-China relations and for Mr. Chen, whose family had been threatened by the Chinese government on account of his actions.* Also, it seems, Mr. Chen had not yet made up his mind to leave the country.
    As of today, the Chinese government has apparently agreed to allow Mr. Chen to travel to the U.S. to attend New York University, which has offered him a visiting scholar position (I wrote about this idea in an article called Private Asylum for Refugee Academics).* If he really is permitted to leave, Mr. Chen can claim asylum once he reaches the United States.* He obviously has a strong case for receiving protection.* But until he actually departs from China, Mr. Chen's situation remains precarious.
    Originally posted on the Asylumist:
  5. Beautiful People Seeking Asylum

    Two Cuban actors who star in an award winning movie, Una Noche, have defected and will be seeking political asylum in the United States.* Coincidentally, the movie tells the story of three Cuban teenagers who try to escape Cuba on a raft in order to start a new life in America.*

    America's newest asylum seekers are also some of its most glamorous.

    Una Noche was a low budget film directed by Lucy Mulloy, a 32-year-old Brit who shot the movie in Havana.* She says that she was inspired by a tale she heard on a trip to the island nation 10 years ago.
    The film achieved unexpected success, and the three stars of the movie-all of whom are non-professional actors-traveled to Germany and later to the U.S. for film festivals.* In the U.S., the trio was scheduled to attend the Tribeca Film Festival in New York, where Una Noche won multiple awards.* However, two of the actors, Analin de la Rua and Javier Nuñez Florian, disappeared after they arrived in the United States and missed the festival (where Mr. Nuñez Florian shared an award for Best Actor in a Narrative Feature Film with the third co-star, Dariel Arrechada).
    Ms. de la Rua and Mr. Nuñez Florian played brother and sister in the movie, and (in a Brady Bunch-esque twist) fell in love in real life and decided to defect together.* They recently re-appeared in Miami, represented by attorney Wilfredo Allen, who indicated that they would file for political asylum "based on possible persecution if they return to Cuba."
    Although the couple seems not to have had problems in Cuba prior to their trip to the U.S. (and indeed, they returned to Cuba after a trip to Germany), the public nature of their defection possibly puts them in danger if they return and likely qualifies them for asylum.* Of course, under the Cuban Adjustment Act, even if they do not receive asylum, they would be eligible to apply for residency after one year of physical presence in the United States.* So either way, the couple should be able to remain in the United States.* We will be looking for them in Hollywood.
    Originally posted on the Asylumist:
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