Friday, March 30, 2012

Updates: Statelessness

Photo by Balarama Heller, check out the full portfolio here
As we noticed yesterday with Greece, states tend to repeat their mistakes when it comes to immigrants. Well, what goes around, comes around. Here's some more updates on issues that have previously been addressed on this blog that are back in the limelight:

Issue: Retroactive De-Nationalization of Haitians in the Dominican Republic
Update: Jesuit Refugee Service Calls for an end to the retroactive application of the citizenship law and immediate re-issuance of birth certificates to people effected.

Issue: Kuwait deals harshly with its Stateless Bidoons
Update: According to Zahra Albarazi at the Statelessness Programme Blog, the issue is creeping into parliamentary debate and there is some talk of granting rights.

Issue: On the border of India and Bangladesh live many stateless "enclave people" without access to basic rights
Update: Some ethnic Indians living in Bangladesh demand merging with the country of their residence and receiving Bangladeshi citizenship- they even celebrated Independence Day.

Thursday, March 29, 2012

Deja Vu: Greek Immigration Crackdown

Last year I wrote about Greece and the pressure they are facing to get their immigration system to conform with international standards, while dealing with a giant backlog of asylum cases and daily influx of new immigrants. I noted at the time that the current system was at the same time too slow and too cursory to be able to properly consider asylum claims, and that a large new grant from Norway might help them attempt to reform this system.

Evidently, they've taken a different tact.
Police in the Greek capital said they have detained 501 people in an operation they say will be repeated "on a daily basis" to combat illicit trade, illegal immigration, drug dealing and other criminal activities.
The majority of those detained were foreign nationals in a sweep of central Athens.
 As was noted previously, hundreds of asylum seekers in Athens sit in legal limbo waiting for their applications to be processed, some having waited 10 years or more. More than likely, some of these individuals have been caught up in the mass arrests and detained. 

This may be a popular activity among anti-immigrant crowds, who think all crime derives from foreigners, but it doesn't do anything to solve the essential issues: a huge back-log, arbitrary procedures, and wrongful detention.  Not to mention its hugely expensive and engages tons of government employees who could be, just to pick an example at random, going through asylum claims or granting residence permits to those entitled to one.

There are different ways of getting people off the street than throwing them in jail.

500 Detained in Athens Crackdown

Friday, March 23, 2012

The Way to be in a PSG: Obama's new Guidelines on LGBTI Asylum

As promised, I wanted to highlight some of the guidelines offered by USCIS in their new training module on handling asylum claims of Lesbian, Gay, Bisexual, Transgendered, and Intersex persons. I've discussed LBQT (but not Intersex) asylum claims on this blog before, and one of the big themes encountered was the phenom of being"not gay enough for the USA"- individuals being turned down for asylum claims because their outward behavior did not match preconceived notions of what gay people act like. (For example, a lesbian with a child from a previous marriage, a man not "out" to his friends or family.) Let's check out how the new training addresses these and other important issues.

Defining LGBTI
Towards the beginning of the guidelines there is a set of definitions which does an excellent job of dispelling certain myths and the LGBTI community. For example, the section differentiates between sexual orientation, sex, and gender identity, and defines intersex and transgender deftly as well, being sure to not lump all categories into one.
 "Transgender is a gender identity, not a sexual orientation. Thus, like any other man or woman, a transgender person may have a heterosexual, bisexual or homosexual sexual orientation." (at 13)
Additionally, the module lumps in HIV and AIDs issues- both because persons with AIDs are sometimes persecuted for being gay (even when they are not) and persons who are gay are sometimes persecuted for having AIDs (even when they do not.) 

Havana Social Club- Does being gay put you in a "particular social group?"
As you may recall, to qualify as a refugee under the 1951 convention you must demonstrate a well-founded fear of persecution in your home country on the basis of your race, national origin, religion, membership in a particular social group, or political opinion. LGBTI asylum claims have long been handled under the "membership in a particular social group" (PSG) portion of 1951, and the case that is most relied on is Matter of Acosta. (I previously reviewed Acosta here.)

The guidelines make a point of adding to Acosta a newer precedent relevant in making immigration decisions for the LGBTI crowd: Matter of Toboso Alfonso (1990), a case involving a Cuban national claiming persecution for being gay. In Cuba, the government would force him to appear for forced exams where he was probed about his sex life, detain him on occasion, and tolerate harassment and violence against him and other gays, culminating in being chased out of Cuba by what amounted to an angry mob. In the case, TA had been convicted of several crimes making him ineligible for asylum, but the judge granted "leave from deportation" (which has similar criteria) on the basis of his past persecution in Cuba, where he was overtly targeted as a homosexual. The INS appealed, stating (rather heartlessly, even for back then),"socially deviant behavior, ie, homosexual activity is not a basis for finding a social group within the contemplation of the act." They went on to explain that such a decision would pave the way for people to be awarded protection for deviant, even illegal behavior in their home country. Are we going to start granting asylum to people that broke their country's law and don't want to go to jail?

The BIA disagreed, finding that TA was targeted not so much due to his illegal or deviant behavior, but because of his status as a homosexual, an "immutable characteristic" that he could not, and should not be required to change. Thus we have it: a game-changing BIA decision filing "gay" as a potential particular social group under the refugee convention as well as the US's own laws.

Now, this was a specific case with a man whose story left very little room for doubt that he was being persecuted on the basis of his "status" as a gay man. However, the guidelines now set out to make it crystal clear that this decision was not just about gay male Cubans. PSGs might be also be comprised of transgendered persons (gay or straight), "closeted" gays and lesbians, HIV+ persons, persons viewed by society as not fitting gender roles (eg, being an effeminate male) AND (in case you aren't getting it) people who are NOT EVEN from Cuba. (at 15.) The point is, the kind of neanderthals that want to beat up sexual minorities are not going to care if you're not actually a sexual minority. And that doesn't mean you shouldn't get protection.

So it covers people that might look or act gay (through the persecutor's eyes) but aren't. But it also effectively states that you don't have to "look or act gay"to fit into the precedents of TA or Matter of Acosta.
When analyzing the PSG issue, you must not only make a finding regarding immutability or fundamentality, you must also determine social visibility or social distinction, i.e., whether the actual or imputed characteristic is "easily recognizable and understood by others to constitute a social group." Some adjudicators mistakenly believe that social visibility or distinction requires that the applicant “look gay or act gay.”  In this context, social visibility or distinction does not mean visible to the eye. Rather, this means that the society in question distinguishes individuals who share this trait from individuals who do not. (at 16.)
 In other words, the Obama administration is promulgating as US law an important, and possibly life-saving principle: when it comes to the LGBTI community, one's membership in a PSG is all in the eyes of the persecutor.

Wednesday, March 14, 2012

Non-Citizen News Round-Up



Refugee Camp in Boynuyogan, Turkey in June (via MSNBC

Italy: The European Court of Human Rights issues a major smackdown to Italy this week, ruling in Hirsi Jamaa and Others v. Italy that the policy of intercepting migrant boats at sea and returning them (most often to Libya) breached their various obligations of non-refoulement. (Not exactly tough to see why.) This case is HUGE because its one of the rare instances the Court has ruled on the prohibition against mass-expulsion, as well as adding to already strong migrants and refugee rights jurisprudence at the court. Check it out!
Case of Hirsi Jamaa and Others v. Italy (ECtHR) 
Yet Another Mala Figura: Italy Breached Non-Refoulement Obligations (EJIL Blog)

USA: In news welcomed by LGBQT Refugee advocates, the Obama administration has published clarified rules for courts and asylum officers on adjudicating asylum claims based on membership in one of these persecuted social group. I will probably do a full post on this later but for now there is every reason to be pleased at this news, particularly since the glance I've taken shows the gov moving away from the "married/pregnant/ straight-looking people can't be persecuted as gay" techniques that characterized past cases in the US.
Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex Refugee and Asylum Claims (USCIS) (pdf)
LBQT Asylum in US Made a Little Easier (Care 2)


Turkey: Of course, more than any other story this week, focus should be on the Syrians streaming into Turkey fleeing increasing violence. There are now reports that landmines have been laid across escape routes to prevent would-be refugees from escaping. Meanwhile, in response to the emergency UNHCR has appointed a special coordinator for the region's refugees and internally displaced.
On the Turkish Border, a Stream of Fleeing Syrians (Reuters)
Syria: Army Planting Banned Landmines (Human Rights Watch)
UNHCR appioints regional refugee coordinator for Syrian Refugees (UNHCR)