Tag Archive | "asylum"

Gender-Based Asylum Claims: Why the United States Approves So few

somali_woman2

Somali woman and child

Under current asylum law, gender is not a protected ground for asylum. The United States, as well as many other countries around the world, first committed to the international community to protect the rights of refugees when it signed the Refugee Convention in 1951, the controlling international convention in refugee law.  A refugee, according to the Refugee Convention Article 1(A)(2) is an individual “who is outside his or her country of nationality or habitual residence and is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.”

Any individual bringing a claim for gender-based asylum must do so under “membership in a particular social group.”  However, merely stating that the individual’s “gender” constitutes as a social group is not enough. The social group cannot be based on the persecution the individual faced, and has to be specific, immutable, and socially visible. There is a fear that if an immigration judge allows a social group that is too broad, it will set precedent for a flood of women to come and claim asylum in the United States.  Women, therefore, have had to describe their social group in convoluted and intricate ways, in order to be as specific as possible to be acceptable to immigration judge.  As one scholar notes, “applicants often define groups in ‘overly complicated and unnecessarily detailed’ ways, including characteristics such as marital status, age, education level, the absence of male protection, opposition to abuse, transgression of social/cultural norms, and past experiences of harm.” These social group formulations are very narrow, sometimes illogical, and almost comical in length.

Claims are especially difficult to bring when the persecution occurs within the private sphere—this means, the government of the country did not conduct the persecution, but instead, the members of the government refused to protect the individual from the violence.  When the persecution occurs within the private sphere, the persecution must be on account of that social group; the persecutor either has or will inflict harm or suffering “in order to punish him [or her] for possessing a belief or characteristic [the] persecutor[seeks] to overcome.”  The asylum seeker must show that the persecutor wanted to persecute her on account of her social group by providing evidence that the persecution occurred, which is often difficult within the private sphere, because there is often no witnesses or evidence.  Women around the world suffer violence, such as female genital mutilation, honor killings,  or domestic violence,  at the hands of their fellow community members because it is “culturally acceptable;” however, when they flee to the United States to avoid this violence, they face many obstacles in getting their asylum applications approved.

Kitty Robinson is a 3L at the University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

 

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Critical Analysis: Accusations Against Australia’s Border Protection Policies

Over the past month, Australian navy and customs officers have been accused of towing or turning back boats carrying Indonesian asylum-seekers. Australian Prime Minister, Tony Abbott, has reported little about Australia’s asylum-seeker policies, fearing that exposing such information may create a tactical advantage in a wartime scenario. The United Nations High Commissioner for Refugees (UNHCR) has previously expressed concerns over how Australian policies of border protection might violate international responsibilities.  These new reports of towing and turning back Indonesian asylum-seekers now raises questions surrounding Australia’s adherence to international conventions and laws protecting refugees.

Prime Minister Tony Abbott fails to open up about the border protection policies in Australia. Image Source: Getty Images/AFP

Prime Minister Tony Abbott fails to open up about the border protection policies in Australia. Image Source: Getty Images/AFP

Australia is just one of 144 states to have ratified the 1951 Convention relating to the Status of Refugees (Convention) and the 1967 Protocol amendment. In January of 1951, the United Nations General Assembly created the Office of the UNHCR to provide “international protection” to refugees.  The Convention became effective in 1954 and played an important role in the UNHCR’s international refugee policies and protections.

The Convention establishes several obligations that signatory countries must follow in order to provide appropriate protection and potential solutions for refugees. One such obligation is “non-refoulement,” a concept stating that “no refugee should be returned in any manner whatsoever to any country where he or she would be at risk of persecution.” Under this principle, countries party to this Convention should not return refugees to any country where they may face persecution, whether it is their home country or not.  Furthermore, the Convention provides refugees an exemption from penalties for illegal immigration and provides them with protection from expulsion from the country.

While Australian government officials have remained quiet on border protection policies, these reports and accusations of towing and turning back boats questions whether the Australian government is adhering to its obligations under the Convention.  Prime Minister Abbott and his staff maintain silence surrounding the details and/or accuracies of these accusations.  In response to questions surrounding the nation’s border control policies, Abbott stated “I’m pleased to say it is now several weeks since we’ve had a boat, and the less we talk about operational details on the water the better when it comes to stopping the boats.”

In addition to reports of towing and turning back boats, the Australian government has also been accused of purchasing lifeboats to be used in ushering asylum-seekers back to Indonesia.  Australian Operation Sovereign Borders commander Angus Campbell has admitted to the purchase of lifeboats, but mimicking Prime Minister Abbott’s policy of secrecy over government operations, has not stated the intended purpose for the devices.

Even Indonesian officials are angered by Prime Minister Abbott’s failure to open up about the specifics of the country’s border protection policies. Although Abbott has denied some of these allegations, he has failed to make reports on the details of the Australian immigration control policies.  Mark Dreyfus, active immigration spokesman for the Australian Labor Party, stated, “I’m not going to speculate because it’s for the government to explain the circumstances. It’s for the government to reassure Australians that everything that’s been done does comply with international law, that everything that’s been done complies with our obligations under the refugees convention.” Until the Australian government reveals the truth about their border protection operations, the rest of the world will continue to question the legality of their actions. 

Stacy Harper is a 3L at Denver Law and Marketing Editor for the Denver Journal of International Law and Policy.

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Snowden in an interview

Critical Analysis: Does Snowden have a “Right to Asylum?”

Edward Snowden has become America’s newest celebrity.  The former National Security Agency employee has been charged with espionage by the United States after leaking top secret documents on U.S. surveillance program PRISM.   Snowden left Hong Kong in late June, looking for a safe haven, arriving in Moscow’s Sheremetyevo Airport on June 23.  Since then, he has asked twenty-six countries for asylum and gotten a positive reply from only three: Nicaragua, Bolivia and VenezuelaIn a letter released July 1 by Wikileaks, Snowden blames the leadership of the United States:

“For decades the United States of America has been one of the strongest defenders of the human right to seek asylum.  Sadly, this right, laid out and voted for by the U.S. in Article 14 of the Universal Declaration of Human Rights, is now being rejected by the current government of my country. . . . Without any judicial order, the administration now seeks to stop me exercising a basic right.  A right that belongs to everybody.  The right to seek asylum.”

Snowden’s words in this letter may be powerful, but are they correct?  Does he, and everyone else, have a right to seek asylum?  And even if he has a right to seek it, does he have an automatic right to receive asylum?

The “right of asylum,” sometimes called “political asylum” is embodied in Article 14 of the Universal Declaration of Human Rights: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”  Even though the wording of the article itself says people have the right to enjoy asylum from persecution, this is generally considered just to grant a right to apply and not an absolute right to receive asylum.  A basic “legal benchmark” that asylum-seekers must meet is having “a well-founded fear of persecution in their home country due to race, religion, nationality, membership in a particular social group or political opinion.”  Without one of these qualifications, an asylum-seeker is unlikely to enjoy asylum in another country.

Later, United Nations Conventions further explained what the right to seek asylum embodies.  Provision F of the U.N.’s 1951 Convention Relating to the Status of Refugees clarifies that the rights of an asylum seeker do not apply to people who have committed serious non-political crimes.  Generally, violent crimes or crimes in which “the seriousness of the criminal act outweighs the political aspect of the conduct,” are considered non-political.  Those who have committed such crimes have committed non-political acts and are not protected by the right of asylum.

Snowden in an interview

Snowden certainly hopes there is a right to asylum (The Guardian)

So what do these international laws mean for Snowden?  Certainly, Snowden has the right to seek asylum, but he may have trouble meeting the basic legal requirements that would grant him the right to receive asylum.  First, he must need a fear of legitimate persecution based on membership in a particular social group or political opinion.  However, if he is being prosecuted for the leaks themselves rather than persecuted for the social beliefs that drove him to leak the information, he may have trouble arguing persecution.  Although leaking information is not necessarily a violent crime, various states could decide that he is being hunted for that non-political crime, negating his qualification for asylum.  Snowden’s best argument is that he is a member of a persecuted social group – the social group of whistleblowers.  To succeed in this claim, though, Snowden has to find a country that considers “whistleblowers” a protected class. And although Nicaragua, Bolivia and Venezuela have tentatively offered him asylum, he has one more hurdle: getting there.  Many of the other states that Snowden has written in his quest for asylum require an asylum-seeker to be on national soil – whether that be in the country or in an embassy.  In the transit zone of the Sheremetyevo Airport, Snowden is not on the soil of any of these places. Coupled with not having a valid passport, his traveling options are limited.

The world continues to watch as state after state refuses Snowden’s asylum request, narrowing the options for the whistleblower.  If Snowden stopped releasing information on the NSA, Russia might be willing to take him in, but is not willing to do so if he continues with his criminal activity.  Stopping the leaks would solidify Snowden as a political refugee, persecuted for what he’s done, but allowing Snowden in while he continues in allegedly criminal activity would make his actions more criminal than political, weakening his status as an asylum-seeker.  Snowden originally thought he had a friend in Ecuador, who has granted political asylum to Wikileaks founder Julian Assange, but Ecuador’s official stance (after a conversation between United States Vice President and Ecudaor’s President Rafael Correa) is that Snowden must make his way to Ecuadorean soil before his application for asylum can even be considered.  Snowden’s next hope looks like Venezuela, but President Nicolas Maduro claimed on July 2 that he had not even received Snowden’s request yet.  Perhaps it will be the state that determines either that whistleblowers are protected or that Snowden’s actions were more political than criminal, but if it does not, Snowden’s rights have not been violated.  His right to seek asylum has been fulfilled.  Whether he gets to enjoy asylum depends on whether any states think that he has been persecuted – and are willing to step up and say so internationally.

Samantha Peaslee is a rising 2L and Managing Editor for the Denver Journal of International Law and Policy.

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jet carrying Bolivian president

Critical Analysis: An “Imperial Skyjacking”

After attending a conference in Moscow, Bolivian president Eva Morales boarded a private airplane and began his journey home. However, shortly after departure, the plane was diverted to Vienna, Austria, a detour not originally planned by the president or his crew. Upon landing, it was reported that France, Portugal, Italy, and Spain had refused to allow Morales’ plane to pass through their airspace or, alternatively, conditioned passage on getting consent to search Morales’ plane once it was on the ground. Without a viable place to refuel, Morales was forced to land his plane in Vienna, where, allegedly without Bolivia’s permission, his plane was searched by airport police officers.  Nothing – or no one – of interest was found. As a result, Bolivian officials are alleging their president was “kidnapped by imperialism” and that certain European countries had violated international law.

jet carrying Bolivian president

President Morales following his unscheduled layover in Vienna (Patrick Domingo/AFP/Getty Images)

The root cause of the incident can be traced back to an interview of Morales in Moscow, just days before he was scheduled to fly home, in which the president indicated that Bolivia would “consider the idea” of granting asylum to Edward Snowden, the infamous whistle blower wanted by the United States for espionage. The United States, seemingly unable to compel cooperation from its allies, attempted to downplay international support of the former 30-year-old NSA contractor by saying it would not “scrambl[e] . . .  jets or engag[e] in high-level diplomatic bartering” to have Snowden returned to the states. Technically, it has done neither of those things. But pressuring European countries to deny the passage of any plane that might be carrying Snowden, a tactic that arguably threatened the safety of Bolivia’s president, may be just as serious.

Already, the Union of South American Nations (Unasur) has agreed to hold an emergency meeting on the matter, and Bolivia’s UN ambassador has announced that the country will file a formal complaint with the UN, calling the incident an act of aggression. What exactly Bolivia plans to allege in its complaint is still unclear. It could narrowly define the incident as a breach of diplomatic protocol, or it could refer to the situation more generally, alleging that all states have the right to consider an application for political asylum free of pressure from more powerful states. Some are even calling it an act of piracy. Whether the actions of France, Portugal, Italy, and Spain are sanctionable remains unclear, but Bolivia feels strongly that, regardless, UN Secretary-General, Ban Ki-moon, should intervene.

As details of the incident continue to surface, one thing is clear; Snowden has done more than expose secret U.S. surveillance programs. He set off a chain of events that has helped emphasize the need for a strong international legal system in a world that has become increasingly interconnected. After all, it is international law that “provides . . . stability and order and . . . a means of predicting the behavior of those with whom we have reciprocal legal obligations.” Hopefully the United Nations will take this into account as the world watches to see how it responds.

J. Matt Thornton is a second year law student and a Staff Editor on the Denver Journal of International Law and Policy. 

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