Remembering Louis Henkin – Architect of the 1951 Refugee Convention

by Jason Dzubow

Louis Henkin, a leading scholar in international law and foreign policy, professor emeritus at Columbia Law School, and one of the principal architects of the 1951 Convention Relating to the Status of Refugees, died last week at age 92.

Louis Henkin (November 11, 1917 - October 14, 2010)

Prof. Henkin led a long and eventful life.  He was born Eliezer Henkin in 1917 in Belarus, the son of a prominent rabbi.  He and his family immigrated to the United States in 1923, and he eventually attended Harvard Law School. 

After law school, Prof. Henkin clerked for Judge Learned Hand before enlisting in the United States Army during World War II.  He served in the European Theater and was awarded a Silver Star for his efforts. 

After completing his military service, he clerked for Supreme Court Justice Felix Frankfurter.

Beginning in 1948, Prof. Henkin worked for the U.S. State Department in the United Nations Bureau.  There, he helped author the 1951 Refugee Convention, the key legal document defining who is a refugee, their rights, and the legal obligations of states.

Prof. Henkin left the State Department in 1956 and began a long academic career, mostly at Columbia University where he founded the university’s Center for the Study of Human Rights in 1978 and created the Human Rights Institute in 1998.  Prof. Henkin was considered by many one of the “founding fathers” of human rights law. 

Volker Türk, director of UNHCR‘s Division of International Protection, saluted Professor Henkin for his “fundamental contribution to the early development of international refugee law and his unwavering commitment to the protection of human and refugees’ rights.”  “It is no exaggeration to say that no American was more instrumental in the development of human rights law than Lou,” said Elisa Massimino, the president and chief executive officer of Human Rights First, an organization Professor Henkin helped found in 1978 under the name Lawyers’ Committee for Human Rights.  “He literally and figuratively wrote the book on human rights,” she said.

According to the New York Times, Prof. Henkin took a lofty view of his own government’s international responsibilities, but he often felt let down: “In the cathedral of human rights,” he wrote, “the United States is more like a flying buttress than a pillar — choosing to stand outside the international structure supporting the international human rights system, but without being willing to subject its own conduct to the scrutiny of that system.”

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Presidential Memo on Refugees, but What About IDPs?

by Jason Dzubow

In a Presidential Memorandum issued last Friday, President Obama has authorized the admission of up to 80,000 refugees in Fiscal Year 2011, which is pretty similar to the admissions numbers for recent years.  “Refugees” are defined as people who are outside their country of origin and have a well-founded fear of return to their homeland.  Internally displaced persons (IDPs), who have been forced from their homes but are still within the borders of their own country, do not qualify as refugees, and–with some exceptions–cannot come to the U.S. as refugees.

The distinction between refugees and IDPs has always struck me as somewhat arbitrary.  For example, it doesn’t get much attention, but according to UNHCR, there are over 3 million IDPs in Colombia.  This is significantly more than the number of IDPs displaced from more well-known conflict areas like Darfur (2 million) and Iraq (2.6 million).  The refugee admissions numbers do almost nothing to assist IDPs. 

My left foot is an IDP; my right foot is a refugee.

The only exceptions actually written into the law are for IDPs from Iraq, the former Soviet Union, and (surprise, surprise) Cuba.  Also, U.S. embassies are authorized to designate certain IDPs as refugees, but only in “exceptional circumstances.”  This means that–for example–Tutsis in Rwanda in 1994 would not qualify for admission to the U.S. as refugees by virtue of the fact that they are still in their home country.  Ditto for Jews in Germany during World War II.

I’m not necessarily advocating increasing the number of refugees admitted into the U.S. every year (though I do think we can probably admit more than 80,000, which is less than 0.02% of the 42 million people displaced by conflict).  That should be a function of world-wide need and our ability to pay for and absorb the refugees.  It is determined by Congress and the President.  However, I do think we should consider including IDPs in the pool of potential refugees that will be admitted into our country.  If a person really can demonstrate a well-founded fear of persecution in his country, he should not be prevented from resettling in the U.S. merely because he has not managed to escape from his home country.  IDPs and refugees should be treated the same for purposes of resettlement.

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Cuban Exiles in Spain Coming to the U.S.

by Jason Dzubow

In August, we reported that Spain and the Catholic Church had brokered a deal with the Cuban government to secure the release of dozens of Cuban political prisoners.  The Cubans were to be resettled in Spain.  The only problem: They wanted to come to the U.S., not Spain.  Now, it seems they will get their wish.

The AP reports that the Cuban dissidents will be coming to the United States where they will receive asylum:

The State Department is working to bring to the USA most of the 39 Cuban political prisoners exiled to Spain this summer… More than 100 family members would join them. [The] first case has been processed and nearly all are likely to accept the offer. [The] plan gets around a Catch-22 whereby Cubans who left the island were no longer considered in harm’s way, and thus not eligible for traditional asylum requests in the U.S.

Apparently, the Cubans preferred the United States because they had family and community ties here.  While I understand the desire to resettle in a country where you have connections, this is a deal that would likely not be available to asylum seekers from other countries.  Normally, once a person has asylum in one country, he is not eligible to receive asylum in the U.S.  This case reminds us that politics (here, our dislike of the Cuban government) can play a role in the asylum system. 

I have a case similar to this, where the United Nations resettled my client as a refugee in a country where the client had no community ties or friends, no knowledge of the language or culture, and no prospects for a job.  The client came to the U.S. and is now seeking asylum here.  We’ll see if the Immigration Court is as generous to my client as the State Department has been to these Cuban exiles. 

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Mexican Asylee Sues His Home Country

by Jason Dzubow
Rodolfo Montiel

In the 1990’s, Rodolfo Montiel worked to prevent logging companies and land barons from destroying the ecology of his home state of Guerrero, Mexico.  For his trouble, he was arrested and tortured by the Mexican military.  Eventually, he made his way to the United States, where he received political asylum in 2005. 

Now, Mr. Montiel has a lawsuit that is currently before the Inter-American Court of Human Rights.  He is seeking reparations from the Mexican government and punishment of those responsible for torturing him.  He also hopes to clear his name.  In a telephone interview with the Los Angeles Times, Mr. Montiel said he was optimistic that the court would find in his favor, though not so sure the Mexican government would heed the judgment, even though Mexico recognizes the authority of the court and its rulings are binding.

Mr. Montiel’s case is the fifth case brought against Mexico in the past 18 months.  Four of those cases claimed that the Mexican army was responsible for human rights abuses.  In the two cases decided so far, Mexico lost.

According to the LA Times, these cases demonstrate a “pattern of abuse by the military that far predates Mexican President Felipe Calderon’s drug war, in which the number of allegations of human rights violations has soared.”  “And the case highlights flaws in the judicial system that persist today… including the use of confessions obtained under torture, the denial of basic rights to detainees and the refusal of authorities to seriously investigate allegations of mistreatment by the army.” 

It’s rare that an asylee sues the government that abused him.  Soon we will see whether the Human Rights Court grants him the vindication that he seeks.

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Cuban Dissidents Choose Between Spain and the United States

by Jason Dzubow

Last month, Cardinal Jaime Ortega reached a deal with Raul Castro and the Cuban government to free 52 political prisoners who have been held since a 2003 government crackdown.  Under the agreement, the released Cubans would go to Spain and receive political asylum.  Twenty have already been freed and left Cuba for Spain, along with more than 100 relatives.  More are expected to travel to Spain over the next few months.

WWCheD?

The problem is, many of the Cuban dissidents would prefer to come to the United States, where they have relatives and community ties.  Originally, the political prisoners and their families believed that they could accept exile in Spain and then travel to the United States.  A State Department spokesman last month said that the Cubans would be “absolutely” welcome in the U.S.  Now, however, the State Department has informed dissidents that if they accept exile in Spain (and the legal status that comes with it), they would not be eligible for asylum in the U.S.  Instead, they would have to immigrate based on family or employer petitions, a slow process that may not be available to many of the dissidents.

While such aliens would likely not qualify for asylum in the United States (since they are “firmly resettled” in Spain), they should qualify for permanent residency under the Cuban Adjustment Act.  This would require them to arrive in the United States and remain here for one year.  After a year, they could obtain their permanent residency.  Of course, not all of them would be able to come here, but those who want to live in the U.S. at least have a viable option. 

The case of these Cubans raises a broader question about choosing a country to seek refuge.  Many asylum seekers travel through third countries before arriving in the U.S.  Indeed, I have represented some asylum seekers who have traveled across three continents and a dozen countries before they arrive in the U.S.  Why should we allow such people to seek refuge here when they have skipped over other countries where they could live safely?  It’s a fair question. 

For me, escaping from persecution is only part of the equation.  People are searching for a safe, stable place to re-start their lives.  They may not find that in a country that does not normally accept immigrants or where they have no friends or family.  Refugees also need community support and jobs.  They may need financial assistance, medical care, and mental health care.  Many countries–including many countries that refugees pass through–cannot offer these types of assistance.  For these reasons, some of the Cuban dissidents would rather remain detained in Cuba (while hoping to come to the U.S.) than relocate to Spain, a country where they have no family members or community support.

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Help for Afghanis “Outed” by Wikileaks

by Jason Dzubow

The website Wikileaks, which exists to make public “sensitive material,” recently published the Afghan War Diary, a collection of 75,000 classified documents from the U.S. military detailing ground-level operations in Afghanistan.  Among the information released are names and villages of Afghanis who assisted the United States.  Now, Newsweek magazine reports that a Taliban spokesman has threatened vengeance against the exposed “collaborators.”  A few days after Wikileaks published the documents, numerous tribal elders received threatening letters.  One elder was murdered.  The magazine reports:

The frightening combination of the Taliban spokesman’s threat, [Tribal Elder] Abdullah’s death, and the spate of letters has sparked a panic among many Afghans who have worked closely with coalition forces in the past….  [There are] reports of Afghans rushing to U.S. and coalition bases in southern and eastern Afghanistan over the past few days, seeking protection and even asking for political asylum.

(To be fair to Wikileaks, there is a debate about whether the leaked documents have made any difference.  Some argue that the Taliban already know the “collaborators.”  Wikileaks has confidential U.S. documents, but not confidential Taliban documents, so Wikileaks does not know whether the Taliban was aware of all the collaborators listed in the exposed documents.  Given this lack of knowledge, it seems to me that the failure to redact the Afghani names from the leaked documents was incredibly irresponsible.)

A Taliban fighter checks out Wikileaks.

What then can be done about Afghanis who have been “outed” by Wikileaks?  One possibility is the Afghan Allies Protection Act, which authorizes 1,500 visa each year for Afghanis “who have been employed by or on behalf of the United States Government in Afghanistan on or after October 7, 2001, for a period of not less than one year, and who have experienced or are experiencing an ongoing serious threat as a consequence of that employment.”  Whether the people named in the Wikileak documents were employed by or on behalf of the U.S. government for at least one year is an open question.  If not, this law will not help them. 

If it turns out that the Taliban’s threats are serious, Congress should consider amending the law to permit endangered Afghanis to come to the U.S., at least temporarily, even if they do not satisfy all the requirements of the Afghan Allies Protection Act.  It’s good policy to show our allies that we protect them, especially when they were endangered by our own security failing.  More than that, protecting such people is the right thing to do.

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European Court Fines Switzerland for Violating Asylum Seekers’ Rights

by Jason Dzubow

Last week, the European Court for Human Rights fined Switzerland for denying the requests of two Ethiopian asylum seekers to live with their husbands.

The applicants–Ms. Mengesha Kimfe and Ms. Agraw–and their husbands entered Switzerland illegally on different dates between 1994 and 1998 and sought asylum there.  In accordance with the Federal Asylum Act, which provides for asylum-seekers to be assigned to live in a particular canton (region), the Federal Office for Refugees assigned the applicants and their husbands to different cantons.  The couples were not married at the time.

It's a tough job keeping those feisty European states in line.

After their applications for asylum had all been refused, the asylum seekers were ordered returned to Ethiopia and placed in reception centers for refugees pending deportation.  They remained in Switzerland, however, because the Ethiopian authorities prevented their return.

The applicants got married in 2002 and 2003 respectively, but the authorities refused their requests to be assigned to the same cantons on the ground that “unsuccessful asylum seekers in respect of whom the departure date initially fixed for leaving Switzerland had elapsed [could] not be assigned to a different Canton.” 

After her marriage, Mengesha Kimfe mainly lived with her husband, illegally.  After being summoned to the police station, she was immediately taken back to her assigned canton, handcuffed.  Her application for family reunion was initially refused and subsequently granted in 2008, when she was issued a residence permit to live in the same canton as her husband.  As for Ms. Agraw, in 2005, she gave birth to a child, who lived with her, separated from his father.  Her application for a residence permit for her husband’s canton was finally granted in 2008 on the grounds of family unity.

The two women brought their complaints to the European Court of Human Rights in 2005 and 2006 respectively.  They did not contest their deportation.  Rather, they claimed that the Swiss government violated their rights by refusing to allow them to cohabitate as married couples.  The Court observed that the possibility of leading a life as a couple was one of the essential elements of the “right to respect for family life,” as protected under the European Convention on Human Rights.  The Court noted that the applicants had been prevented from constructing a family life outside Swiss territory because the Ethiopian authorities refused to allow them to repatriate.  Finally, the Court weighed the public and private interests (i.e., the Swiss right to assign asylum seekers to different cantons vs. the couples’ right to live together), and found that the private right outweighed the state interest.  Under Article 8 of the Convention (the right to respect for private and family life), the Court fined Switzerland 5,846 Euros in Ms. Mengesha Kimfe’s case and 5,526 Euros in Ms. Agraw’s case.

While a supra-national court is vital in countries where the rule of law is weak, it’s hard to imagine the United States ever submitting to international review of its legal decisions.  I for one trust our own courts more than I trust most international bodies in such matters.  Theoretically, though, the idea of enforcing international norms using legal processes is quite attractive.  The idea, of course, is to bring international courts up to (at least) the level of American courts.  If that happens, it will be easier to make the argument for international review in cases such as the one here.  I just don’t expect that to happen anytime soon.

The European Court’s press release and links to its decisions (in French only) are available here.

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Charles Taylor’s Son Attempts to Invalidate the Torture Convention in Order to Save Himself

by Jason Dzubow

Attorneys who specialize in political asylum generally think of the United Nations Convention Against Torture (“CAT”) as a defense to deportation.  If an alien does not qualify for asylum, he may qualify for relief under the CAT.  But a recent Eleventh Circuit decision reminds us that the CAT is a sword as well as a shield.

Glamour shot of Chuckie Taylor

On July 15, 2010, the Eleventh Circuit upheld the torture convictions and 97-year sentence imposed on the son of former Liberian President Charles Taylor, who led a notorious paramilitary unit during his father’s bloody rule.  According to the Associated Press, the younger Taylor, Charles McArthur Emmanuel, also known as Chuckie Taylor is– 

a 33-year-old U.S. citizen born in Boston while his father was a student there, [and] was convicted in 2008 of torturing or ordering the torture of dozens of the Taylor government’s political opponents with numerous gruesome techniques. These included electric shocks; bayonet stabbing; burning with cigarettes, clothes irons, melted plastic and scalding water; shoveling of biting ants on people’s bodies; and imprisoning people in water-filled holes covered by iron bars.

For his crimes, which are detailed in the Eleventh Circuit’s decision, “Chuckie” Emmanuel was sentenced to 97 years in prison.  The Court notes that his was the first prosecution under the Torture Act and sets forth the basis for the appeal:

Emmanuel, who is the first individual to be prosecuted under the Torture Act, 18 U.S.C. § 2340-2340A (“the Torture Act”), seeks reversal of his convictions on the ground that the Torture Act is unconstitutional. Primarily, Emmanuel contends that congressional authority to pass the Torture Act derives solely from the United States’s obligations as a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (the “CAT”); he says the Torture Act impermissibly exceeds the bounds of that authority, both in its definition of torture and its proscription against conspiracies to commit torture.

So let’s get this straight, in an effort to avoid punishment for his crimes, Mr. Emmanuel–a man who tortured and murdered countless individuals–is attempting to limit or invalidate the CAT, a law used primarily to protect people who fear torture in their home countries.  Nice.  Fortunately, the Court soundly rejected his arguments:

After thorough review, we conclude that all of Emmanuel’s convictions are constitutional. The United States validly adopted the CAT pursuant to the President’s Article II treaty-making authority, and it was well within Congress’s power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture. Furthermore, we hold that… the Torture Act [applies] to extraterritorial conduct, and that [its] application in this case was proper…. Accordingly, we affirm Emmanuel’s convictions and sentence in all respects.

Mr. Emmanuel is currently serving his sentence in a federal prison in Kentucky.

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Guantanamo Detainee Deported to Algeria Fears Persecution

by Jason Dzubow

According to Al Jazeera: “A prisoner who chose to remain in Guantanamo Bay rather than face possible persecution in Algeria has been forcibly repatriated by the US government….  The US military announced on Monday that Abdul Aziz Naji, 35, had been sent back to Algeria after eight years behind bars, the first involuntary transfer from the prison under the Obama administration.”

Apparently, Mr. Naji fled from Algeria, where he feared persecution from the government and from terrorist groups.  He was arrested in Pakistan in 2002, but he was never charged with or convicted of a crime.  In May 2009, a review team tasked with deciding the fate of prisoners held in Guantanamo cleared Mr. Naji for release.

“The Obama administration recognizes how essential it is to close Guantanamo by releasing detainees it has cleared,” said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch.  “But a detainee who fears being returned home should first have a genuine opportunity to demonstrate the danger he faces.”

Other Algerian detainees have “expressed fear at being forcibly returned to Algeria; one said he would rather spend the rest of his life in US custody than return to Algeria.”  After Mr. Naji’s removal, five other Algerians remain detained at Guantanamo Bay.

Mr. Naji had sought to bring his claim of feared persecution before a court, and a federal judge stopped his deportation.  However, the U.S. Court of Appeals for the DC Circuit overruled the lower court decision earlier this month.  The U.S. Supreme Court refused to stay his transfer pending further appeal.

According to HRW, the United States claims detainees can be returned to Algeria safely:

US officials say that the country’s human rights record has improved significantly over the past decade, and… they have asserted that the Algerian government has provided so-called “diplomatic assurances” – promises to treat returned detainees humanely.  Human Rights Watch’s research has shown that diplomatic assurances provided by receiving countries, which are legally unenforceable, do not provide an effective safeguard against torture and ill-treatment.  Algerian human rights groups report that torture and other cruel, inhuman, or degrading treatment are at times used on those suspected of terror links.

Algerian detainees previously returned to Algeria have not reported serious abuse.  However, some of the remaining detainees, though never accused of any crime, might be perceived by the Algerian government as more dangerous than those who previously returned.  Therefore, HRW argues, each case must be examined individually.

In Mr. Naji’s case, it seems he originally left Algeria to escape persecution by the government and armed groups.  Now, he may face persecution on account of these original threats, as well as because the Algerian government perceives him as a terrorist (based on his detention at Guantanamo).  It seems outrageous that his applications for asylum or relief under the UN Convention Against Torture have not even been heard.  I recently represented an Algerian man in an asylum case.  Asylum was granted in that case based on my client’s fear of persecution from armed militants.  At the minimum, a U.S. court should have reviewed Mr. Naji’s claim before he was returned.

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Accused Russian Spy Was an Asylee

by Jason Dzubow

Among the 10 people arrested and accused of “conspiring to act as unlawful agents of the Russian Federation within the United States” and “conspiracy to commit money laundering” are “Vicky Pelaez and the defendant known as ‘Juan Lazaro,'” her husband, both residents of Yonkers, New York. 

Ms. Pelaez is a journalist and a native Peruvian.  While working as a journalist in December 1984, members of the Tupac Amaru Revolutionary Movement kidnapped Ms. Pelaez and her cameraman.  She was released a day later after her TV station agreed to air a propaganda piece by the guerilla movement.  Before she was released, she apparently persuaded one of the group’s leaders to let her interview him.  The interview later appeared in a left-leaning newspaper. 

Only one man can stop the Commies and still look this good.

After the kidnapping, Ms. Pelaez and her husband came to the United States where she applied for asylum.  Her case was granted, and she went on to become a U.S. citizen and a popular writer for a Spanish language newspaper in New York.  Apparently, Ms. Pelaez has been supportive of socialist governments in Latin America, including Cuba, Venezuela and Bolivia.  She has also opposed the U.S. wars in Iraq and Afghanistan and supported the rights of Indigenous peoples and undocumented immigrants in the United States.

Ms. Pelaez’s husband, “Juan Lazaro,” admitted that the Russians paid for his home and that he passed letters to their intelligence service, but he has refused to reveal his true name, according to prosecutors.  It seems that Ms. Pelaez’s attorney is disputing this account, and I have not verified it.

All the defendants, including Ms. Pelaez’s husband, are being held without bail, except Ms. Pelaez, who is expected to be released today, although she will be confined to home detention.  It seems that she is the only member of the group that did nto receive “spy training” from the Russians.  

Ms. Pelaez’s political views have led some to believe that this is a case of political persecution by the U.S. government.  Her criminal attorney describes a conversation he had with her:

“When I first met Vicky I asked her: if you are innocent why the U.S. government would bring this charges against you.” Vicky Pelaez believes that her criticism against the U.S. policies have converted her in a target for many people “that are very angry” at her political views.

An interesting side issue is the status of her husband.  Whether he was granted asylum or came here as her derivative (or came here in some other way) is unclear.  If he received asylum himself or entered the U.S. as Ms. Pelaez’s derivative, his entry into the U.S. represents a failure of the background security check: he entered using a false name and he was apparently not born in Uruguay, as he had claimed.  Of course, the husband came to the United States 25 years ago, and the security systems have (hopefully) improved since then. 

As we learn more about this strange case, maybe the details of Ms. Pelaez and her husband’s entry into our country will be revealed.  Time will tell if there are lessons to be learned.

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Rwandan Woman Who Became US Citizen Is Accused of Genocide

by Jason Dzubow

Beatrice Munyenyezi, 40, of Manchester, New Hampshire was indicted last week on two counts of lying to obtain her U.S. citizenship.  According to a report from the Associated Press, Ms. Munyenyezi left Rwanda in 1994 after the genocide that killed over 800,000 people.  She entered the U.S. as a refugee in 1998 and became a permanent resident one year later.  In 2003, she was sworn-in as a U.S. citizen.  In all her applications, Ms. Munyenyezi denied any involvement in the genocide.

Now federal authorities have arrested her and issued an indictment.  According to a press release from the United States Attorney’s Office:

The Indictment alleges that MUNYENYEZI obtained her U.S. citizenship unlawfully after making material misrepresentations on a number of occasions before and after she came to the United States from the country of Rwanda. In particular, the Indictment alleges that MUNYENYEZI participated, committed, ordered, oversaw, conspired to, aided and abetted, assisted in and directed persecution, kidnapping, rape and murder during the Rwandan genocide of 1994. It is alleged that MUNYENYEZI misrepresented these facts in order to obtain immigration and naturalization benefits.

If the blogosphere is to be believed, Ms. Munyenyezi’s guilt is far from certain, and the U.S. government along with corrupt U.S. government agents are complicit in an international effort to frame her and other Hutus, while ignoring atrocities committed by the Rwandan Patriotic Front (the Tutsi rebel group who put an end to the genocide).  While I can accept that Rwandan government leaders do not have clean hands, the effort to re-write history sounds pretty dubious to me.  At the time of the genocide, I was an intern in the Bureau of Population, Refugees, and Migration at the U.S. State Department.  We were closely following events in Rwanda, and I don’t remember there being many questions about who was murdering whom.  That said, the U.S. government bears the burden of proving that Ms. Munyenyezi lied on her applications, and it will have to submit evidence of her involvement in the persecution.   

Ms. Munyenyezi is not the only person in her family accused of human rights violations.  A United Nations tribunal has also charged her husband and her mother with involvement in the mass murder.  If convicted in the U.S., Ms. Munyenyezi faces up to 10 years imprisonment, followed by 3 years of supervised release and a $250,000 fine, along with revocation of her U.S. citizenship.

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Help for the Stateless?

by Jason Dzubow

According to a recent report, about 4,000 people known to be stateless are living in the United States.  Probably, many more are living here under the radar.  Refugees International reports that there are over 12 million stateless people world-wide: “Statelessness results from factors such as political change, border demarcation or secession, forced expulsion, discrimination, nationality based solely on descent, and laws regulating marriage and birth registration.”  Stateless people have “limited access to health care and education; prospects for employment are poor, leading to generations of poverty; and their right to freedom of movement is routinely violated. Stateless people face social exclusion, harassment, and violence.”

Current U.S. law does not provide stateless people with any legal status.  Unable to return to their former countries, stateless individuals living in the United States risk being detained and must apply annually for permission to work.  They also face travel restrictions and are often required to report regularly to immigration officials–a requirement that can last indefinitely. 

When the Dan Glickman of Refugees International testified before Congress last month, he gave the example of Tatianna, a stateless woman from the former Soviet Union:

Tatianna is a 61 year-old mother and grandmother, a piano teacher who has lived in the United States for over 20 years.  She was born in Russia during Soviet times and eventually moved to what is now Ukraine.  In 1992, after being persecuted by the authorities for her political beliefs, she came to the United States with the younger of two sons and applied for asylum.  Their case was denied in 1997.  Following its independence Ukraine passed a law requiring people to have resided in Ukraine for two years following independence to be eligible for citizenship. Tatianna had fled before having lived in Ukraine for two years and she is therefore not recognized as a Ukrainian citizen. Russia doesn’t recognize Tatianna as a citizen either because Russian nationality laws require individuals to have lived in Russia after the collapse of the Soviet Union, which Tatianna did not.

This means that the United States had nowhere to return Tatianna after denying her asylum claim. Tatiana and her son are stateless.  No country recognizes Tatianna as a citizen. She has no nationality, and there is no legal pathway for her to acquire citizenship in the U.S.  She lives in limbo and is unable to fully participate in society.  She has no travel documents and no means to acquire them.  She has been separated from some of her closest family members for decades.  And although she and her son have paid taxes in the United States since they arrived 20 years ago, she is not eligible for social security.  Tatianna must check in with the Department of Homeland Security (DHS) every month by telephone and every six months in person.  She never knows what might happen when she goes to DHS and lives in fear that she could be arbitrarily jailed.

The proposed Refugee Protection Act addresses the problem of statelessness and provides a path for stateless residents of the U.S. to obtain their permanent residency and ultimately their citizenship.  Hopefully, support for the RPA will gain momentum and provide help to stateless people in the United States.

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American Academy of Pediatrics Eases Up on FGM

by Jason Dzubow

The American Academy of Pediatrics has issued a revised policy statement on Female Genital Mutilation (also called Female Genital Circumcision or Cutting).  The new statement reads as follows:

The traditional custom of ritual cutting and alteration of the genitalia of female infants, children, and adolescents, referred to as female genital mutilation or female genital cutting (FGC), persists primarily in Africa and among certain communities in the Middle East and Asia. Immigrants in the United States from areas in which FGC is common may have daughters who have undergone a ritual genital procedure or may request that such a procedure be performed by a physician. The American Academy of Pediatrics believes that pediatricians and pediatric surgical specialists should be aware that this practice has life-threatening health risks for children and women. The American Academy of Pediatrics opposes all types of female genital cutting that pose risks of physical or psychological harm, counsels its members not to perform such procedures, recommends that its members actively seek to dissuade families from carrying out harmful forms of FGC, and urges its members to provide patients and their parents with compassionate education about the harms of FGC while remaining sensitive to the cultural and religious reasons that motivate parents to seek this procedure for their daughters.  

The highlighted language is new, and represents a step back from the AAP’s previous position, which opposed FGM under all circumstances. 

Since the landmark Kasinga case, women and girls have been able to qualify for asylum in the United States based on a fear of FGM.  Whether the AAP’s watered-down position will impact such asylum seekers remains to be seen.

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UN to Review US Detention System

by Jason Dzubow

In November 2010, the United States will undergo its first Universal Periodic Review (UPR) with the United Nations Human Right Council.  This human rights mechanism, established in 2006, periodically reviews all member states regarding their compliance with their human rights obligations and commitments.  The UPR offers an opportunity to pressure the U.S. government to comply with those obligations. 

Fine dining in Batavia, NY

In preparation for the review, a number of U.S. NGOs have prepared a report about detention of immigrants in the United States.  From the report:

 The U. S. immigrant detention system lacks due process and subjects noncitizens to arbitrary detention and inhumane treatment, in violation of U. S. obligations under international human rights law.  To comply with the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR), the United States must:

(1)  Provide individual custody determinations, assessing if a noncitizen’s particular circumstances require detention; 

(2)  Provide judicial review over custody decisions; and 

(3)  Ensure that conditions in immigrant detention facilities reflect the civil nature of the government’s detention authority.

While we are thinking about improvements to the detention system, here are some items on my wish list:

 (1) Better access to counsel.  It’s bad enough that detention centers are in remote locations, but worse than that is the lack of communication with detained aliens.  Immigration detention is civil.  Therefore, aliens in detention should have access to phones (and why not cell phones?), computers, and faxes.  The problems caused by distance when preparing a case are multiplied exponentially by the inability to communicate with clients by phone and email.  This problem is particularly bad for asylum seekers, who often need to gather information from overseas, and who may not have family or friends in the United States to help prepare an asylum case.

(2) More procedural protections.  ICE personnel routinely convince detained aliens to “sign papers” agreeing to removal.  I have received many calls (as recently as last Friday) where family members relate how their detained relative was tricked or coerced into agreeing to removal.  Such aliens are rarely informed of their rights or questioned about any fear of return. 

(3) Better trained guards.  Poor training leads to many problems at the detention centers.  For example, several years ago, I represented a few immigrants detained at a facility in Virginia.  One guard at the facility routinely punched the detainees in the groin whenever he performed a pat down.  One man was injured so badly that he had to be hospitalized.  Despite repeated complaints, nothing was done about the guard.  Finally, I contacted an acquaintance on the House Oversight Committee for ICE Detention (one of the benefits of living in DC) and began cc’ing him on all my emails to the detention center.  The abuse promptly stopped, though as far as I heard, the guard was never punished.  Better training and oversight of detention center personnel would help to reduce abuse at the detention centers.

Nothing will make detention pleasant, but these suggestions would help to improve conditions and ensure the procedural protections that are integral to our system of justice.

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Britain’s Detained Asylum Seekers

by Jason Dzubow

The U.S. is not the only country that detains asylum seekers.  Nor is it the only country where asylum seekers allege abuses during detention.  Four female asylum seekers in Great Britain have brought suit claiming that they were abused at that country’s Yarl’s Woods detention center, a 405-bed detention facility for women and families.  The Guardian reports that the four women allege physical and sexual abuse, separation of children from parents, and poor living conditions resulting in illness:

Last month, the High Court ruled that it would hear the women’s claims, a development that means the Home Office will be obliged to demonstrate in open court how Yarl’s Wood complies with the UK’s obligation to asylum seekers and to defend the centre against charges that its treatment of asylum-seeking women and children constitutes a “systematic disregard for human dignity.”

Yalr's Woods houses women and children asylum seekers
For its part, the Home Office maintains that all four “have attacked and abused our staff,” and that “Yarl’s Wood is a well run centre with highly professional and caring staff.” Earlier this year, the facility was the scene of a hunger strike to protest the long periods of detention for women and children at the center. A recent report from the UK Children’s Commissioner found that children held at Yarl’s Woods face “extremely distressing” arrest and transportation procedures, and are subjected to prolonged and sometimes repeated periods of detention.  The report further noted that healthcare problems include a failure to assess “even at an elementary level” the general psychological well being of a child on arrival and a failure to recognise psychological harm when faced with dramatic changes in a child’s behaviour.  Britain detains about 1,000 children per year at the Yarl’s Woods detention center.

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