Private Asylum for Refugee Academics

by Jason Dzubow

A recent editorial in the science journal Nature calls for increased assistance to academics fleeing persecution.  In many parts of the world, the editorial notes, “academics and their families can face discrimination, prison, or worse, for speaking out about or studying issues that threaten dominant policies or ideologies.”  “They can also be persecuted for their politics, or for belonging to a particular ethnic group.”

The most famous refugee also had a great set of gams.

A number of organizations exist in the U.S. and abroad to assist threatened academics.  Probably the most venerable such group is CARA–the Counsel for Assisting Refugee Academics.  Founded in the UK in the 1930s to help scientists in continental Europe fleeing the Nazis, CARA supported some 1,500 academics in those dark years, 16 of whom went on to win Nobel prizes.  It currently aids around 200 refugee academics annually.  At a CARA event earlier this year, Rowan Williams, the Archbishop of Canterbury, summed up what is at stake: “Defending intellectual freedom is defending the possibility not only of a free academy but of a society willing to learn — and thus a society willing to see itself critically.”

In the United States, two groups that assist endangered academics are Scholars at Risk and the Scholar Rescue Fund.  Among other things, these groups protect threatened scholars by bringing them to universities in the United States and support academic freedom in countries throughout the world. 

It is interesting that these NGOs are able to circumvent the normal refugee/asylum process for the people they are assisting.  Rather than applying for refugee status abroad or seeking asylum in the United States, the academics are offered positions at host universities.  They can then travel to the U.S. (or whichever country is hosting) using a regular visa (maybe an H1-B visa or a J visa, for example) and remain in legal status while they work at the university.  Of course, once they are here, the scholars could apply for asylum if necessary.

I wonder whether this model–of private organizations bringing refugees into the country using the immigration tools at their disposal–could be applied to other groups who are ill served by our immigration laws: gay and lesbian partners of U.S. citizens, for example, or victims of domestic violence, or others who face persecution but cannot establish that the persecution is “on account of” a protected ground.  I know professors are a special category–highly educated and employable under different immigration categories.  But perhaps this type of “private political asylum” could be used to help others in need.

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Amicus Brief on Sexual Violence as Torture in Argentine Case

by Jason Dzubow

Earlier this month, the European Center for Constitutional and Human Rights submitted an Amicus Brief titled Sexual Violence as Torture in several cases stemming from the military dictatorship in Argentina.

In a 1976 coup, the Argentine military seized power and ruled until 1983.  During those years, the government violently suppressed dissent.  As part of the repression, government officers committed sexual violence against women (and men).  These crimes were generally committed in clandestine detention centers as part of a systematic and deliberate plan, orchestrated within the highest government levels.  The Amicus Brief argues that these actions are crimes against humanity.  From the brief:

This amicus curiae brief is submitted in order to call the Court’s attention to the universal acceptance of sexual violence and rape – as a special form of it – as torture when committed by state agents in the context of military repression, when those actions are perpetrated as a part of an orchestrated plan of repression.  It is also important to note that an interpretation and application of the crime of torture excluding the gender perspective, and in this case, excluding the sexual violence would be discriminatory and would have a substantially negative impact on international law and international human rights law.

The brief states that in the present case, Argentina has the opportunity to “develop model case law that can assist the international community and other countries undergoing similar historical proceedings, based on the notion of state sponsored sexual violence against women as torture.”

The brief notes that international law concerning sexual violence is a relatively recent development: “When the International Criminal Tribunals for Former Yugoslavia and for Rwanda began their work, they encountered a lack of definition of sexual violence under international treaty and customary law and accordingly made great efforts to build a definition in accordance with international standards defining these crimes in such a way that they cover acts which were previously considered lesser offences, sexual assaults or indecent actions under national laws.”

The following principles have emerged from international humanitarian law: (1) Sexual violence is not limited to the sexual act of penetration, but could include other behaviors; (2) Rape may be understood as a serious crime of sexual violence; (3) Women as well as men can be victim of these crimes given that the established elements are gender neutral; (4) Coercion should be interpreted broadly, and not only in regard to physical strength, because there may be coercive circumstances in situations of abuse of power or psychological oppression, where it is not necessary to mediate physical strength; and (5) Coercion presumes a lack of consent on the part of the victim, thereby rendering the conduct illegal.

While the ECCHR Amicus Brief has been filed in a criminal case, the principles could be applied to asylum and Convention Against Torture claims, and help to establish that sexual violence is a form of torture.

I have a copy of the brief (English version), but it is not available on-line.  Feel free to contact me if you would like a copy.

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Actor Randy Quaid Seeks Asylum in Canada

by Jason Dzubow

Carl Jung said, “There are no coincidences.” 

Yesterday, I wrote about American citizens who seek asylum overseas (American Citizens Seek Asylum in Great Britain).  Now, we learn that Randy Quaid and his wife Evi are seeking asylum in Canada. 

Randy Quaid in Independence Day - Just because you're paranoid doesn't mean they're not out to get you.

It seems that the couple had legal trouble in the U.S., stemming from a property dispute.  As a result of the dispute, the couple was arrested in California and released on $50,000.00 bond each.  They then traveled to Canada where Mr. Quaid was scheduled to receive an award from a Canadian film critics group.  When they failed to appear at a hearing in California, they were arrested in Canada.  Rather than quietly returning to the U.S., the couple has sought refugee status in Canada.

The basis for the claim is not entirely clear.  Mrs. Quaid says that eight of their friends, including actors David Carradine and Heath Ledger, have been “murdered” under mysterious circumstances and she’s worried something will happen to her husband next.  “We feel our lives are in danger,” she said.

According to my favorite website, TMZ, the Quaids have had a troubled history and have made some pretty outrageous claims involving different conspiracies against them.  Although the Immigration and Refugee Board of Canada has released them, they are being kept on a pretty tight leash, and will have to appear again for a hearing later this week.  Whether they follow through with their asylum claim, we will have to wait to see.  If they succeed on the claim, they will become two of the handful of U.S. citizens who have successfully claimed asylum in another country. 

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American Citizens Seek Asylum in Great Britain

by Jason Dzubow

We usually think of the United States as a country where people fleeing persecution come to seek asylum.  But sometimes, American citizens flee their country in search of safety elsewhere. 

The British Daily Mail reports that five Americans currently have asylum cases pending in the UK.  The cases came to light earlier this month when a whistleblower, Rory Clarke of the National Asylum Support Service, made the information public.  According to Mr. Clark, the Americans are in Great Britain to take advantage of the posh benefits available to asylum seekers.  These benefits include free housing and healthcare, and £35 per week.  In some cases, asylum seekers can receive benefits for years before their claims are rejected.  Mr. Clarke says that he was so shocked by this abuse of the system that he resigned his job.

Asylum Seekers in the UK enjoy government-sponsored meals and accommodation.

The five Americans are not the only U.S. citizens to seek asylum abroad.  The Guardian reports that between 2004 and 2008, 45 Americans (and 15 Canadians) filed for asylum in the UK.  All 60 cases were rejected.

The basis for most claims was not revealed.  However, a US government source said the American applications pokies online were most likely submitted by self-declared “political refugees” claiming they faced discrimination under the administration of President Bush.  An on-line posting by an alleged American refugee claimed that he was seeking sanctuary in Scotland because he had been “persecuted as a political dissident against US government war-mongering.”

According to the Guardian:

A small number of Americans have successfully claimed asylum abroad over the past few decades. In 1997 the Netherlands granted asylum to Holly Ann Collins, together with her three children, when they claimed to be fleeing domestic abuse. The family had spent three years living in four different Dutch refugee camps before their application was approved [she returned to the U.S. in 2008 where she pled guilty to contempt of court].  In June 2008 Texan mother Chere Tomayko and her two daughters were granted asylum in Costa Rica, also on the grounds of abuse.

There also have been cases recently of Americans seeking asylum in Canada in order to avoid service in Iraq and Afghanistan.  In fact, there is a website devoted to war resisters in Canada.

While the idea of U.S. citizens seeking asylum abroad seems a bit suspect, I suppose I agree with Donna Covey, the chief executive of the Refugee Council in the UK, who says: “No country is safe for every person all of the time. Those with a genuine need for protection, whatever country they are from, should have the right to claim asylum in a place of safety.”

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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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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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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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Great Britain Rules to Protect Gay Asylum Seekers

by Jason Dzubow

From the New York Times:

The British Supreme Court on Wednesday upheld the right of gay asylum seekers not to be deported if they could show that they faced persecution in their home countries. The court ruled unanimously in favor of two men — a Cameroonian who fled his country after being attacked by an angry mob, and an Iranian who was attacked and expelled from school when his sexuality was discovered — who had lost appeals against deportation in a lower court. The lower court judges had ruled that the men could live “reasonably tolerable” lives in their home countries if they concealed their sexuality. The Supreme Court said that “to compel a homosexual person to pretend” that his sexuality does not exist amounted to denying “his fundamental right to be who he is.”

The coalition Conservative-Liberal Democrat government embraced the ruling, which reversed the policy of the former Labour government.

According to the Guardian, “Stonewall, the lesbian, gay and bisexual charity, said there were 80 UN member countries where consensual homosexual sex was still illegal, including six that imposed the death penalty.”  Anti-immigration groups feared that the ruling “could apply to millions of people around the world.”  However, (the aptly named) Lord Hope, one of the judges on the panel, stated that the ruling was necessary since anti-gay sentiment had dramatically worsened in some places, fanned by “the rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of sub-Saharan Africa” and “the ultra-conservative interpretation of Islamic law that prevails in Iran.”

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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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Mexican Violence Challenges US Asylum System

by Jason Dzubow

According to the Brownsville (Texas) Herald, “tens of thousands of Mexican nationals, including many journalists, officials and business leaders… have relocated to the United States since Mexican President Felipe Calderón launched a sweeping offensive against drug organizations in 2006.  But because the legal standards of asylum are so high — and some researchers say even outdated — many… face devastating challenges when it comes to reaching a safe haven in the United States.”

The number of succesful asylum seekers from Mexico is small.  According to the Executive Office for Immigration Review, in 2009, only 62 out of 2,816 (or 2.2%) of Mexican asylum seekers received asylum in the U.S.  The numbers are relatively unchanged from previous years: In 2008, we granted 2.1% of claims and in 2007, we granted 1.6%. 

“The reason so many petitions are rejected is that asylum standards were set in an older time period,” said Susan Ginsburg of the Migration Policy Institute.  “Most people who have qualified for the status have fled communist regimes, dictatorships and civil wars — not criminal violence or genuine fear of violent death at the hands of drug gangs.”

“We are used to seeing the need for protection from governments and states, and this (the migration we are seeing now) is a fear of persecution from nonstate actors, criminal gangs that have taken control of areas of the country.”  If the crisis continues to escalate, perhaps we will need to rethink our asylum policies.

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Criticizing the DOS Critics

by Jason Dzubow

Now that the State Department Report on Human Rights Practices is out, the critics are weighing in.  Mark Weisbrot writes in the Guardian that “After Abu Ghraib, Gitmo and extraordinary renditions, other countries now challenge America’s standing on human rights.”  In his piece, “Who is America to Judge?,” Weisbrot writes:

Clearly, a state that is responsible for such high-profile torture and abuses as took place at Abu Ghraib and Guantánamo, that regularly killed civilians in Afghanistan and Iraq and that reserved for itself the right to kidnap people and send them to prisons in other countries to be tortured (“extraordinary rendition”) has a credibility problem on human rights issues.

In other words: Who are we to cast the first stone?  I suppose I don’t quite get his point.  The report speaks for itself.  Whether our own human rights record is spotless or horrible is not the issue.  The issue is whether the report is accurate.  If there exists inaccuracies in the report (which undoubtebly there are), those inaccuracies can be examined.  But the fact that America is imperfect is not a valid basis to reject the State Department’s conclusions.

One government that has been particularly sensitive to U.S. criticism is the People’s Republic of China.  After the 2008 Human Rights Report was released, the Chinese government issued a report of its own, discussing human rights in the United States.  The introductory section of the report reveals the report’s main purpose, which seems to be payback for the State Department’s negative comments on China:

The State Department of the United States released its Country Reports on Human Rights Practices for 2008 on February 25, 2009. As in previous years, the reports are full of accusations of the human rights situation in more than 190 countries and regions including China, but mentioned nothing of the widespread human rights abuses on its own territory. The Human Rights Record of the United States in 2008 is prepared to help people around the world understand the real situation of human rights in the United States, and as a reminder for the United States to reflect upon it s own issues.

The Denying Duo: Meles Zenawi and Hu Jintao

The Chinese accusation of U.S. hypocricy rings hollow for several reasons.  First, the Chinese government has issued its human rights report about the United States, but not about any other country.  It seems, then, that the PRC is more concerned with retaliating against the U.S. than promoting human rights.  Second, the Chinese report demonstrates a fundamental misunderstanding of the State Department Report.  The State Department reports on foreign governments, not on the internal situation in the United States.  We have other agencies to do that.  Indeed, much of the Chinese report is culled from United States government agencies that have issued reports on the domestic situation.  The premise of China’s report–that the U.S. criticizes others without looking inward–is simply wrong.  It’s just that the list of agencies that examine human rights inside the United States does not include the State Department.  Finally, the Chinese government has not responded to the substantive accusations in the DOS report.  Rather than examine its own substantial problems, the PRC government has tried to distract attention by shooting the messenger.  On one point, however, I agree with China: We in the United States would do well to reflect on our own human rights record.  Of course, given the myriad reports from different U.S. government agencies, we can do that very well without the help of the Chinese government.

Another government that has been critical of the DOS report is Ethiopia.  The Voice of America (which, by the way, is being jammed by the Ethiopian government) reports:

Ethiopia’s Prime Minister Meles Zenawi has blasted the latest U.S. State Department human rights report, saying it is full of lies and loopholes that expose its authors to ridicule…  The prime minister accused the State Department’s human rights investigators of sloppy work in compiling the 61-page annual report on Ethiopia.

As opposed to China, at least Mr. Meles has pointed to some alleged inaccuracies in the report: “one person listed in the report as ‘disappeared’ could easily have been found alive and well at his workplace,” said the Prime Minister.  “Acting US Ambassador to Ethiopia John Yates said experts had gone to great lengths to ensure the document’s accuracy, and rejected information that could not be verified.”  Having litigated over 100 asylum cases from Ethiopia, I’ve spent considerable time examining different sources on that country’s human rights record.  It’s not just the DOS that has criticized Ethiopia.  Even if there are inaccuracies in the report, my guess is that the report is closer to reality than Mr. Meles cares to admit.

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UN Asylum Statistics for 2009

by Jason Dzubow

The United Nations has released a new report on Asylum Levels and Trends in Industrialized Countries for 2009.  Some of the report’s key findings:

Afghani Refugee
  • Compared to 2008, the overall number of asylum-seekers remained the same with 377,000 applications, despite significant regional disparities highlighted by the report.
  • Afghans topped the list of asylum applicants with 26,800 submissions representing a 45 per cent increase over 2008. Iraqis dropped to second place with some 24,000 claims, while Somalis moved to third position with 22,600 asylum applications. Among the top countries of origin were also the Russian Federation, China, Serbia, and Nigeria. 
  • In terms of regions of origin, nearly half of the total 377,000 applicants originate from Asia and the Middle East (45%), followed by Africa (29%), Europe (15.5%), and the Americas (9%).
  • The United States stayed the main destination country for the fourth year, with 13 percent of the claims representing an estimated 49,000 people, in particular from China. Second was France, receiving 42,000 new applications in 2009, a 19 percent hike compared to 2008, due to increasing claims from citizens of Serbia originating predominantly from Kosovo. Canada, while still ranking third among receiving countries, saw the number of asylum applications decrease by 10 percent in 2009 down to 33,000 after a drop in Mexican and Haitian claims. Following was The United Kingdom which also registered a drop in claims with 29,800 applications, one of the lowest in 15 years. On the other hand, claims in Germany increased by 25 percent with 27,600 applications recorded in 2009, making it the fifth largest receiving country. Together, these five top destination countries received 48 percent of the total claims recorded in 2009.

    • The overall stability in the number of asylum seekers belies regional increases and decreases.  For example, countries in southern Europe (like Italy, Turkey, and Greece) experienced a 33% decrease in the number of asylum seekers from 2008 to 2009.  The Nordic countries experiences a 13% increase and Australia and New Zealand reported increases of 30% over the previous year.  The United States experienced a small decrease (49,600 in 2008 compared with 49,000 in 2009), and Canada reported a 10% decrease.

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