New Israeli Regulation Bars Some Non-Citizens from Filing Lawsuits

Child of a migrant worker in Israel, photo via Global Post

 The Jerusalem Post reported Tuesday that the Israeli Justice Minister has signed a new regulation requiring an Israeli ID or a foreign passport number to anyone wishing to file a lawsuit. If true, this law would seem to flagrantly violate many international human rights norms by preventing stateless persons, refugees and asylum seekers from having their day in Court.

Just to refresh your memory, the 1954 Statelessness Convention, to which Israel is a signatory, touches on the topic at article 16. 

Article 16: 1. A stateless person shall have free access to the Courts of Law on the territory
of all Contracting States.
2. A stateless person shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.

The Universal Declaration of Human Rights also discusses access to Courts in several articles (see, e.g. Art.6-10), and the sentiment of right to legal personhood is echoed continuously throughout the human rights cannon. In other words, Israel could not possibly have failed to notice that a law like this would raise eyebrows, to say the least.

When pressed, the government has responded that,

"amendments were purely technical in nature, and ensured that litigants in possession of an Israeli ID number or foreign passport specified those details on court documents so that court registrars could be certain that they were dealing with the correct individuals.

“The regulation does not alter therefore the current legal situation regarding the basic right to access the courts,” wrote Dr. Peretz Segal, head of the Justice Ministry’s Legal Counsel department. (JPost)

Hmm. So either we have a regulation that would prohibit Palestinians, who de facto do no often possess a government-issued passport, along with a host of other non-citizens, from accessing basic Court procedures, OR we have a meaningless administrative hurdle that does not change the law. If so, why pass it in the first place?

After a few days of back and forth with the government (while Israel steadily garnered increasing attention from the media for this rule, see here, here and here) the Justice Ministry has agreed to review the rule, but is sticking to the story that this does not change anything, really.

Au contraire, says the Association for Civil Rights in Israel, among others.

Attorney Oded Feller of the Association for Civil Rights in Israel warned Neeman the regulations will immediately deprive Palestinian residents of the territories, migrant workers and stateless individuals who have no passports the right to file claims in Israeli courts. ..."Technical matters become fundamental when they specify explicitly who will not be able to file claims in court."

Hopefully the negative attention this rule has attracted in advance of its debut in September will force the Israeli government to reconsider whether this is a step they really want to take. If not, I predict we will see continuing major action on the subject in the Fall. 

Non-Citizen News Roundup

Protestor in Hungary- photo via ENAR

Kuwait: After last week's promise to grant citizenship to 3000 of the 100,000 stateless residents of Kuwait, the Bidoons are in the spotlight again for protests against the government. At a protest on Tuesday police used force, including batons, to disperse the crowd of over 200 and accused the protestors of violence against the police. The protestors were angered by a promise of identification that would have indicated their stateless status, thereby ensuring discrimination.

 Meanwhile, still convinced that this is not really their problem, the Kuwaiti government has requested some 42,000 passports for Bidoons from Iraq so that they can be issued work documents. (I'm sure Iraq was all, "Totally, we'll just send those right over!") Facing arrests, deportation and jail time the protestors continue on, which demonstrates that this problem is not going to go away without serious efforts by the government.

Kuwait say stateless protestors carried out criminal acts (via Chicago Trib)

Kuwait asks Baghdad to issue passports for 42,000 Bedoons (via Kuwait Times)

Coverage from this blog

Hungary: As part of the continuing effort to shock the EU with their human-rights deviant behavior, Hungary is now being accused of locking up asylum seekers alongside criminals for months after arrival. Some have apparently been beaten and denied the opportunity to apply for asylum. If Hungary is indeed violating human rights norms on detention and refoulement, let's hope they manage to straighten out the system before 800 more ECtHR cases are filed against them. (Strasbourg must be SO sick of getting cases from Hungary..)

UN Accuses Hungary of Locking Up Asylum Seekers (via Euronews)

Hungary as a Country of Asylum (PDF via RefWorld)

And in short: 

Israel: Are asylum-seekers, particularly from Africa, facing discrimination and violence?

From Asylum Seeker to Community Leader (via Haaretz)

Australia: Politicians offer an idea for their asylum woes: Pay citizens to host asylum families. Well, its a better idea than detention or return, but will Aussies go for it?

Govt Defends Asylum Seeker Homestay Plan (via Sydney Morning Herald)

Afghanistan: Following a (fund-raising) conference in Geneva held by UNHCR, several countries have agreed to contribute $1.9 billion to support the return of refugees to Afghanistan. Wonder how much the US chipped in?

Countries Agree on 1.9B Afghan Refugee Strategy (via AP)

ECtHR backs deportation of settled migrant in Balogun v. UK

Yesterday the European Court of Human Rights released a disappointing decision in the case Balogun v. UK. The headline out of the case is that the UK may deport long-term settled migrants for sufficiently serious offenses without violating Article 8. Let's dig a little deeper and see what the implications of this ruling may be.

Facts: The applicant, B, is a Nigerian immigrant who was born in '86 and has been in the UK since the age of 3 (this is debated a bit, but at least since age 5.) He lived with an allegedly abusive Aunt and was granted indefinite leave to remain after being kicked out of her house, and entered the foster care system until age 18 when he began to live by himself. From then on he has a criminal record of several counts of theft and possession of controlled substances (all occurring before he reached the age of 21). After a final count of possession with intent to distribute, he was sentenced to 3 years in prison and put into deportation proceedings. He appealed on human rights ground, and the first instance court found that, since he didn't have a significant private life in the UK, his deportation was proportional to the crime.

 With regard to his private life, while it was accepted that he had been in the country since a young age and had been educated there, as well as gaining some work experience, it was not considered that these ties were sufficiently strong to render his deportation an interference with his private life. It appeared that his mother still lived in Nigeria and, even if contact had been lost, as claimed by the applicant, there was no reason why it could not be re-established. Whilst the applicant would have practical difficulties in relocating to Nigeria, he could re-establish his private life there.

Several appeals and a suicide attempt later, we end up at Strasbourg debating whether this deportation violates article 3 (prohibition against torture) or article 8 (freedom from interference with family life).

Ruling: Article 3 is thrown out for being "manifestly unfounded" and I don't care to debate that since this is not an issue involving refoulement. 

Article 8, on the other hand, is where it gets interesting. Both the applicant and the UK spend their time arguing about the nature of the applicants connections to the UK. B claims that he has a long-term girlfriend, his Aunt is like a mother to him, and he has friends and employment connections that he may utilize now that he out of jail and off of drugs. The UK meanwhile contends that B has no significant friends and family interests, at least nothing serious enough to outweigh the public interest served by deporting a threat to public order.

The Court more or less agrees. Having a girlfriend and a few scattered relatives with whom you are on bad terms does not amount to a family life (um, guys, isn't that what most families look like?) but it does make a private life. And importantly, the Court recognizes that the length of time spent in the UK, and having grown up almost exlusively in the care of UK social services means that he has significant ties to the country and will be strongly effected by deportation. However, his criminal record ultimately outweighs these considerations.

He was left at the age of three with an aunt who, according to the applicant and to social services, ill-treated the applicant. He was thrown out by this aunt at the age of fifteen and was thereafter taken into foster care. He has therefore not only spent by far the greater part of his childhood in the United Kingdom and been entirely educated in that country, but has been partly brought up in the care of the United Kingdom’s social services. These elements of the applicant’s background contribute significantly to the Court’s finding that his ties to the United Kingdom are stronger than those to Nigeria. However, while the Court views with sympathy the circumstances of the applicant’s formative years, the fact remains that he is responsible for his own actions. Particularly in light of the fact that the majority of the applicant’s offences were committed when he was already an adult, the Court finds that the applicant cannot excuse his past criminal conduct by reference to his upbringing.

 Even with the impact on his private life, the UK's deportation of B does not violate article 8.

Response: It is obvious from the slant of this blog that I would disagree with this ruling. Legally, I don't think this is a totally outrageous ruling (reasonable people can always disagree), but the underlying premise is one that I think is extremely damaging and unfair.

Someone that lived in the UK since the age of 3, and was raised more or less by the system, is a product of that country. Deporting them to Nigeria is a non-sequitor and obliterates the chance for such a troubled individual to ever lead a normal life. It punishes him for the actions of his parents or parents in moving illegally to the UK, that he could not help or influence. It punishes Nigeria by sending back a bitter individual with a criminal history that will have a hard time adjusting to a completely foreign life. It violates the individual's right to a private life, and it encourages the UK to dump problematic foreigners back to countries they have hardly any connections with.

Its a bad decision and is not justified by out-dated drug charges for which the individual has already served time. B was not a drug dealer at age 3, but became one after spending his entire childhood in the UK. This is a home-grown problem, and regardless how many criminals the UK deports, they will find new ones that they cannot.

As ever, it is my opinion that deportation is not the only, nor the best solution.

ECtHR: Case of Balogun v. the United Kingdom 

And here's a nice fear-mongering Telegraph article pushing for more deportations.

Non-Citizen News Roundup

Greece police roundup immigrants this week, via LA Times

There's a lot going on in world of non-citizens this week!

Greece: Last week I noted the alarming news out of Athens, where police arrested some 500 people during an "immigration sweep" in the Capitol that they announced would be continued regularly. Amnesty International has added their voice to the growing concern about the practice, noting:

There are no appropriate facilities at Greece's borders for the identification of those in need of international protection, such as victims of torture and unaccompanied or separated asylum-seeking children.

Detaining people arbitrarily in massive "sweeps" without the necessary protective measures for persons entitled to different forms of protection violates Greece's international obligations and contributes to stigmatization of a group that is already at risk in the country. I said it before and I'll see it again: Greece would be far better off using the resources needed for such massive police actions on clearing through their backlog of immigration cases and regularizing the status of those who are entitled to it.

Amnesty: Greece plans sweep of migrants and asylum seekers

USA: Despite the Obama administration's ambitious new immigration guidelines for LGBTI persons, they aren't out of the water on gay immigration issues yet. A class action suit filed Monday by 5 same-sex couples will challenge DOMA (the Defense of Marriage Act) - a 1996 law that bars the federal government from recognizing same-sex marriages. Since immigration and citizenship are the realm of the federal government, the impact is that even couples who marry legally (e.g., in NY) cannot access immigration benefits such as a green card for the foreign partner. Obviously this causes many heart-rending situations where a married couple may have to constantly fear that one spouse will be deported.

The case is being brought by a non-profit called Immigration Equality, and I will definitely be following it closely here as it proceeds through the legal system. This could be a landmark case for immigration equality in the United States and since the Obama administration has already announced that they consider DOMA to be unconstitutional it could be a slam dunk. I'm excited about this one, guys!

Immigration Equality: Taking our Case to Court

NY Times: Noncitizens Sue over US Gay Marriage Ban

Ghana/ Liberia: There's been talk for years (at least since 2008) of Ghana activating the cessation clause and closing down refugee camps housing Liberians who fled during years of civil war. (Recall that they cessation clause of the 1951 Convention comes into effect when the situation that produced the potential for refoulement to the home country ceases to exist.) Annnnd now the talk continues, with the Ghanaian government planning to activate the cessation clause June 30th but hoping that most refugees will opt for voluntary repatriation before then. For many of the refugees who have lived in the country for years, returning to Liberia is simply not an option, and they will seek options to regularize their status before being kicked out. I'll be sure to post developments. 
Relief Net: Days numbered for Liberian Refugees

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

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.

South Africa: Legal Changes Hurt Asylum Seekers

It's another case of a huge backlog of asylum seekers persuading the government to make decisions that are not well thought out.

South Africa has a huge number of asylum seekers- UNHCR estimates just under 230,000- most of whom originate from Zimbabwe, supplemented by others from the Great Lakes region and the Horm of Africa. Starting in 2009, (perhaps overwhelmed by the numbers) the South African government took a generous policy towards Zimbabweans fleeing Mugabe's regime. Under a "special dispensation," refugees were entitled to remain in S.A. for 6 months, seek employment, and take advantage of educational and healthcare opportunities while their asylum applications were being processed, all without any form of documentation. (Although the dispensation was designed to assist Zimbabweans, as you might be able to guess, the "no documents" feature enabled a range of different nationalities to take advantage of the law.)

Now the government is back-tracking, concerned that economic migrants are abusing a system designed to protect "real" refugees. The department of Home Affairs has resumed deportations, and in the following weeks they will launch an inquiry to the minimum rights asylum-seekers are entitled to, and likely lift the dispensation for Zimbabweans as well as block rights to education and employment. The result could be thousands of asylum seekers in legal limbo, awaiting the outcome of their asylum application while unable to work or study. These developments, in conjunction with harsh announcements from the government and the closing of two refugee facilities, seems to signal a shift towards a harsher asylum regime in South Africa. As one government spokesman stated:

"South Africans must feel safe. If we're not able to control our illegal immigration, people won't feel safe."

It is understandable that providing education and/or employment for thousands of refugees is a costly measure. But the opposite can be ultimately be more expensive: thousands of individuals awaiting the outcome of their claim, turning to begging, crime, or black market employment to make ends meet. Which option do you think is safer for the people of South Africa? And in the event that the move forces massive returns to Zimbabwe as some fear it might, there is the question of whether S.A. is meeting its treaty obligations, particularly as pertains to non-refoulement.

In the end, the real question for South Africa is: is there a middle ground between all or nothing for Zimbabwe's asylum seekers?

Is it a good thing? Sweeping changes to US ICE

The NY Times is reporting  that they have obtained a document describing the new immigration priorities policy that Homeland Security will kick off this week- and it is a big deal, effecting some 300,000 cases. Let's break it down.

The policy will be aimed at instructing all actors in the deportation process- from immigration agents, to judges, to prosecutors- to streamline their cases to fit the following priorities: close out cases of non-dangerous undocumented immigrants, and speed up deportations of criminals. According to the Times, the policy is intended to:

scale back deportations of illegal immigrants who were young students, military service members, elderly people or close family of American citizens, among others.

For immigration agents, this means releasing (or perhaps not catching in the first place) people that are not dangerous criminals, repeat offenders, or national security risks. For prosecutors, this means exercising discretion in which cases to bring before the judges. And for judges, this means a more lenient approach to immigration law violators. Sounds like a good deal, right? Particularly in comparison to the heavy-handed approach the Obama administration has taken in ordering over 400,000 deportations (the most of any President in recent memory) in each of the first three years of his presidency. Perhaps that was an effort to clear out the courts to make way for this more liberal policy?

However, there is still much to be concerned about. I visited an immigration detention facility not  long ago, where most individuals held were repeat offenders or criminals. However, the most frequent crime was "loitering," that is, dwelling outside of a hardware store or similar, waiting for work. Will the new policy consider people like this to be deportable?

In addition, while Homeland Security pushes a discretionary, flexible approach, the states are in some cases pushing the opposite message. Alabama, Georgia, Arizona and other states have laws on the books making police officers responsible to some degree for enforcing immigration laws- will they also get the memo that passing non-violent undocumented youth into federal hands is likely to lead to an eventual release? And which level- state or federal- is more likely to have the more immediate impact on immigrant's lives?

At the end of the day, the mish-mash of approaches taken by the US government in the last few decades leads to fear and confusion among immigrants primarily, but also to ample confusion among the law enforcement professionals meant to interpret these laws and policies on every level. It is encouraging to see the Obama administration taking the heat off non-criminal and youth immigration law violators, but until we see Comprehensive Immigration Reform it seems hard to believe that everyone that needs to know will get the message.

US to Review Cases Seeking Deportation (via NY Times)

Two New Lawsuits Shed Light on Immigrant Injustice in the States

On the same day last week two major non-profit organizations filed suit in the US over fairly shocking circumstances relating to immigrants and refugees. If they win, we could see some excellent new case law on immigrant rights. Here's a quick run-down.

Florida Tuition Inequality
In Ruiz v. Robinson (complaint) the Southern Poverty Law Center is suing the Florida Board of Education for a policy that, according to the suit, "treat[s] United States citizen students who reside in Florida as “non-residents” solely because their parents are undocumented immigrants." The effect of this policy is to hike tuition prices up to out-of-state rates (i.e., triple the cost for residents), and moreover, to discourage children of undocumented immigrants from attending college. Here's an example of the effect of the policy, as seen through plaintiff Caroline Roa:

...After Caroline was accepted to Miami Dade College, school officials informed her that she did not qualify for in-state tuition, even though she had resided in Miami-Dade County since birth. School officials explained to Caroline that her residency for tuition purposes was based on her father’s legal residence. Because Caroline could not show proof of her father’s legal immigration presence in the United States, she could not qualify for in-state tuition rates. Unable to afford non-resident tuition rates, Caroline has not enrolled in college. Instead, she works two jobs in the hope of one day being able to afford college.

Interestingly, the class action suit takes a dual legal track- SPLC challenges the policy under the 14th amendment's equal protection clause, but they also bring a federal preemption claim under the Supremacy Clause. In other words, they argue Florida's attempts to deny residency to the children of undocumented immigrants represents an impermissible attempt to regulate immigration- a field squarely within the exclusive domain of the federal government.

In my opinion, the equal protection argument is a slam dunk- these children are clearly being treated differently then other similarly situated children on the basis of their parent's immigration status... its going to be difficult for Florida to come up with a compelling justification for that which makes logical sense. The federal preemption argument, on the other hand, is a touchy subject. It has been a bumpy road for cases using this claim before, and now more than ever, with so many pending challenges to state statutes regulating immigration in some way, it will be interesting to see how the argument fares. One could suspect this case makes the point clearly, that when states try to regulate immigration they end up doing things that hurt citizens as well as non-citizens.

Sex Abuse in Immigration Detention
The second case is being brought by the ACLU against a Texas corrections facility, workers there, and the ICE for allegations of sexual assault against immigrants detained there. (Oy.) Essentially, the ACLU found hundreds of such allegations after filing a Freedom of Information Act request with ICE and Homeland Security. Although such allegations were found in every state, Texas had by far the most, and is thus the focus of the suit. An example of one of the stories can be found here. (Warning: graphic.)

Even more tragically, the plaintiffs named in the suit were asylum seekers escaping sexual violence in their home countries. It is ridiculous that people have to face this additional hardship in detention centers and it is obviously a violation of their human rights and basic tort law. I think this case will have no problem succeeding, but it remains to be seen how to protect the thousands of immigrants in custody all over the US from such horror. One way may be a legislative angle- extending the Prison Rape Elimination Act to immigrant detainees. The Act, passed by President Bush in 2003, establishes a national commission to prevent prison rape, assists with data sharing, and makes prevention a major priority for each prison system-- except for in immigration detention.

Here is a petition from the ACLU to President Obama asking them, as a first step, to extend the Prison Rape Elimination Act to all prisoners in the US: "President Obama: Protect Women Held in US Custody from Rampant Sexual Abuse"

****
What these two cases have in common is that they focus on rather non-contentious ways of preventing discrimination against immigrants. After all, the first case actually focuses on US citizens (though it arguably helps their undocumented parents), and the second reiterates a minimum standard for detention that should not even really be at issue, bodily integrity. There are much deeper problems facing the  American immigration system at the moment, but these two cases will hopefully be big wins that pave the way for more aggressive strategies in the fight to protect undocumented immigrants.

Retroactive Denationalization of Haitians in Dominican Republic

Haitian men sell hats in a Dominican Market -Photo by Dominic Arizona Bonucceli

Between dictators, natural disasters and crushing poverty, life in Haiti has been incredibly rough for years. (Maybe even the last 400 years or so, but you can ask France about that.)  So its no surprise that the country sees a number of migrants leave its borders seeking a better life. Perhaps no country is more aware of this than neighboring Dominican Republic, home to a large Haitian migrant community as well as to a significant population of people of Haitian descent. Now, in an effort to cut down on illegal immigration, the Dominican Republic has taken drastic measures that have rendered many from this population effectively stateless.

The border between the two countries is very porous, and for decades there has been significant labor migration from Haiti to Dominican Republic (often legally and by invitation). There was seasonal migration between to the two countries, particularly for seasonal sugar-cane workers, but many other families in the last century have settled permanently in the DR. These families benefitted from a generous nationality acquisition policy: descendents were entitled to citizenship based on jus soli, i.e., being born on the territory made them Dominican citizens. However, in January 2010 there was a change to the Dominican constitution that effectively put a grandfather clause on citizenship.

Article 18: Nationality. They are citizens:
...(3) Persons born on natural territory, with the exception of sons and daughters of foreign members of diplomatic or consular services, foreigners that are in transit or reside illegally in Dominican territory. They are considered in transit all foreigners as defined in the laws of the Republic. (Translation mine.)

Now, in order to take advantage of D.R.'s jus soli territorial citizenship, one must not only be born in the country, but also born to legally residing Dominican parents. The effect was to instantly render up to 1 million people stateless, including many whom are 3rd and 4th generation Dominican residents.

Understandably given the magnitude of the population, this policy has been difficult to implement in practice. After all, many of Haitian descent already have identity documents, were registered at birth, and until this time considered themselves Dominican citizens. The government now seems to be using piecemeal tactics to denationalize- denial of document renewal, refusal to issue copies of birth certificates, erasure from civil registries, and other insidious means to take rights away from people of Haitian descent. 

But although the tactics are sporadic, Haitian-Dominicans are feeling the effects. Without access to documents they have limited freedom of movement, can't attend to college, drive, or marry. In short, they are deprived of the right to a legal personality.

There has been a recent upswing in attention to this issue. In fact, today there is a brief hearing on the subject at the Inter-American Commission on Human Rights with appearances by the government and representatives of NGO's. In a few days there will be a conference at Georgetown University on the same subject. Also there will apparently  be a conference at the end of the year in concert with UNHCR aimed at reducing statelessness. However, where I'm standing, this case is very similar to Kuric (the civil registry erasure case) and is ripe for litigation under any number of international legal documents which the Dominican Republic is clearly and wantonly violating.

Here is the 2010 Constitution of the Dominican Republic (in spanish): Consitution de la Republica Dominicana

Here's a very enlightening PBS video on the subject: In Dominican Republic, Haitians Grapple with Stateless Limbo
***Update: Here is the press release from the State Dept. after the event at Georgetown University: Statelessness and the Dominican Republic

Non-Citizen News Roundup

Map showing border enclaves, via The Economist

 India/ Bangladesh: People living on the border region's "enclaves" have been stateless and living in destitute poverty for nearly 60 years, but have seen their living conditions deteriorate even further as river waters rise and engulf their villages. Now, villagers from both sides are protesting to ask the government to implement a border enclaves exchange that will swap territories and make it possible for people to gain citizenship and access to basic public services.
People Stateless at India-Bangladesh border (with video) (via IBN)
Border Agreements- The End of the Enclaves  (via The Economist)

 Australia: Everyone is still miffed about the abandoned Malaysian Refugee Swap solution. The public is angry about the alleged $4.6 million in preaparatory costs for the plan. Tbe Prime Minister isn't thrilled about leaks about the plan from the cabinet making its way to the media. And would-be refugees are probably pissed that the shelving of the deal also means an additional 1000 yearly spots for refugees in Australia are off the table. In sum, what a disaster.
 Government defends cost of Malaysia Solution (via ABC Sydney)
 PM Guillard warns against cabinet leaks (via Sydney Morning Herald)

California: Governor Jerry Brown signs in a new package of laws aimed at helping undocumented migrants. Most importantly, he signed a state-version of the DREAM Act that makes it possible for undocumented students to apply for student aid. As the NY Times puts it,  "With these new laws, California is telling immigrants not to stay hidden but to get educated and keep working hard." What a contrast to the message being sent in Alabama.
Brown Signs California Dream Act (via LA Times)
A Sensible Path in California (via NY Times)

Human Rights Watch on Immigrant Injustice in the US

Grace Meng, a researcher from Human Rights Watch, has a great commentary today about the decline in living conditions for undocumented immigrants in the United States.
We already know that the conditions in states that have passed punitive immigration laws (eg: Alabama) have deteriorated significantly, but Meng points out that the Obama administration's stance has the ICE tormenting undocumented people all over the country.

Undocumented immigrants have long been afraid of government officials, but that fear is now translating into a fear of the justice system. Immigrants avoid going to court in communities from Fresno to Rochester, even to pay traffic tickets or to help a family member with translation, because Immigration and Customs Enforcement agents like to hang out by the courthouse. In North Carolina, a victim of domestic violence told me she would never again call the police for help after being questioned more about her immigration status than her safety the first time she called.

Naturally, this fear is likely to continue until Congress passes some form of Comprehensive Immigration Reform. In the meantime, we will have to hope that SCOTUS gets its hands on the Alabama law or one like it and strikes down punitive laws like this for good.

Denmark: Points and Palestinians

Denmark's ousted Immigration Minister

For the last few weeks Denmark has been rocked by a political scandal featuring leaked documents, intrepid reporting, a shady minister and... stateless Palestinians?

That's right. Denmark, being a signatory to the 1961 Convention on the Reduction of Statelessness, is required to offer citizenship to children born in the country who would otherwise be stateless. On the contrary, it was recently revealed that a number (36, to be exact) of youngsters of Palestinian heritage had been rejected when they applied for citizenship- and that far more had never been informed about their right to become Danish.

Worse, it turns out that this human rights violation was more than just an oversight. The Immigration Minister, Birthe Hornbech, when questioned earlier in the month about her possible involvement, denied any prior knowledge of the mistake and claimed the rejections occurred under earlier administrations.  However, leaks soon made their way out that confirmed that Hornbech knew about the error- as far back as 2008- and failed to inform anyone. She even asked for and recieved legal advice that directly contradicted Denmark's procedure. Now, being forced to file a report at the prompting of a media investigation, Hornbech has been fired as the government tries to distance itself from her actions. But so long as its just an isolated incident, alls well that ends well, right?

Or, one could see this in the context of further worrying anti-immigrant developments that have been occurring in the country in the last year. For instance, in January the government announced a new point system that would make the country's already strict requirements for foreign spouses even tougher. It requires, among other things, that the Danish spouse put up a large sum of money, that both spouses be 24 years old, and that the foreign-born spouse pass a language and knowledge test. In other words, they are trying to make it extremely difficult for Danes to marry foreigners, and possibly violating the ECHR by interfering in the right to private and family life.

These developments are worrying, and are significant of a larger swing to the right throughout Europe. The question is, to what extent can countries' prior generous human rights commitments restrain them from making the temporarily popular decisions that violate them? Denmark would be a good case to watch.

UK to opt-out of EU Asylum Directive?

According to an article in the Guardian, the United Kingdom is considering opting out of the 2003 asylum procedure directive ("minimum standards directive") . By doing so, they could avoid having to give individual interviews to asylum seekers, and keep their "fast track" asylum procedure in place.

"Ministers fear the EU directive, which forms a key part of developing a common asylum policy, will also block deportations of "manifestly unfounded" failed asylum seekers before they can appeal. About 150 failed asylum seekers a year are told that lodging an appeal against their claim being turned down will not halt their deportation and they can only appeal once they have left Britain."

Not only that, but it would be expensive to implement. (The Home Office lists 37 million pounds, though I'd love to know how they came up with that.)

 We'll have to keep an eye out for further developments on this story... is the UK about to become an even unfriendlier destination for asylum seekers?

Aleinikoff and Kluysmeyer on Migration-friendly Citizenship Policies

*I will be presenting occasional notes/ reviews of important old and new scholarly articles in migration studies/ law/ political science. When possible I will link to the article*
(Also, this review was submitted for a class at my university)

Article: T. Alexander Aleinikoff and Douglas Klusmeyer. Executive Summary: Citizenship Policies for an Age of Migration Except available online at CEPS.

In the Executive Summary for their book Citizenship Policies for An Age of Migration, Aleinikoff and Klusmeyer layout their back-door plan for creating more immigrant friendly societies: adapt humane and pro-immigrant citizenship legislation. By altering citizenship policies, the “tension and anxiety” (3) caused by migration influxes can be partially eased, while avoiding the political landmines of migration politics. While this is likely partially true, this brief overview fails to take into account two factors: first, that processes of determining citizenship are likely to be as political or more so then the other types of national legislation that deals with migrants. Second, the possession of legal citizenship does not necessarily lead to integration, social rights, or a feeling of belonging among migrants, or for that matter, other groups in society.

Many of the policy recommendations outlined by Aleinikoff and Klusmeyer are creative and humane; an accomplishment considering how often progressives are criticized for offering problems but no solution. For instance, the concept of changing the discourse of comparative citizenship by identifying countries policies not by their key requirement but by the practical number of generations required to acquire citizenship is a step towards recognizing the injustice of the traditional systems. It also allows for recommendations common to both to be identified more clearly (such as the concept of 1st generation citizenship for children raised in the host state from an early age.) Even those requirements which are not so creative, such as eradicating barriers to holding dual citizenship, are still certainly proposals that deserve implementation.
However, as the dual citizenship example demonstrates, these are highly controversial and inherently political proposals and do not necessarily present an easy path to integration. For example, the suggestion that parties should “refrain from campaigns that stigmatize ethnic minorities” (9) is something that most people would agree with, and yet sounds hopelessly naieve. Stigmatizing ethnic minorities and immigrants is a long-cherished political tradition that is so widespread that a suggestion to “refrain” from it can hardly be considered a policy proposal. Similarly, the suggestion that citizenship not be regarded as the gateway to welfare and other social benefits is likely to be met by massive skepticism by policy makers.

A nation’s citizenship policies reflect a lot about its conception about itself, and so those policies are bound to be controversial, regardless of how reasonable reforms may be. Even simple shifts can call into question issues of national identity. For instance, the removal of vague requirements like “good moral character” that Aleinikoff and Klusmeyer recommend could awaken a sleeping monster. One can imagine the headlines: “Good Moral Character no longer required to become citizen!” The problem is that reason and fairness has so much less to do with citizenship policies than does that intangible “spiritual principle” described by Renan. If citizens cannot put their finger on what exactly makes them belong, its hard to be rational about what qualities in others should distinguish them enough to join.

Of course, even within a relatively heterogeneous society there are bound to be outsiders of some sort creating tension and anxiety by their presence. These people are not necessarily non-citizens, and citizenship, even with all of the enlightened proposals in the world, does not always eradicate these problems. Ultimately citizenship, even bolstered by the wisest policies unimpeded by political barriers, is only one aspect of the tension and frissures created by diverse modern societies.

These points are more than likely considered by the authors within the full text of their book. And in general, the proposals presented by Aleinikoff and Klusmeyer are refreshingly well-balanced and no doubt effective in achieving the stated goal of promoting inclusion, and a liberal-minded person could almost not help but agree with them. However, the reformation of citizenship policy is not a simple thing. On the contrary, it involves grappling with some of the most fundamental and political questions in any society. It just seems to me that any society that was able to unproblematically implement the reforms suggested in the Executive Summary may not need them anyways.