David Weissbrodt, Joan Fitzpatrick, and Frank Newman, International Human Rights—Law, Policy, and Process (3d ed. 2001).
Supplement to Chapter
15: Refugee and Asylum Law (January, 2004)
On March 1, 2003, the United States Congress transferred the responsibility for providing immigration-related services and benefits such as naturalization and work authorization from the Immigration and Naturalization Service (INS) to the U.S. Citizenship and Immigration Services (USCIS), a bureau of the Department of Homeland Security. Almost all the Attorney General’s responsibilities with respect to immigration have been transferred to the Secretary for Homeland Security.
Section A. Introduction (Coursebook at 824)
Estimates of the number of internally displaced persons (that is, persons who have fled from persecution, violence or natural disaster but who have not crossed an international boundary) are difficult, but the most recent estimate suggests that 21.8 million persons share this plight. U.S. COMMITTEE FOR REFUGEES, WORLD REFUGEE SURVEY TABLE 1 (2003). Available at <http://www.uscr.org/downloads/wrs03/SSKeyStatistics.pdf> (last visited January 16, 2003).
Section B. Questions (Coursebook at 828)
To adjust to the amendments mandated by IIRIRA that an application for asylum be filed within a year of arrival in the United States it is necessary to change Awata’s length of stay. The hypothetical should now state that she recently finished a two-semester masters program at the University of Minnesota, beginning in September and ending in May.
Further Information on Ghanaian FGM laws (Coursebook at 828)
NGOs advocated legislation to extend criminal responsibility to persons who aid in carrying out FGM inside or outside Ghana. In September 2002, the police arrested two women in Kpatia, Upper East District, for assisting another woman in the circumcision of five of her teenage grandchildren. The women cooperated with police; by year's end, however, the woman who performed the circumcision could not be found. In some cases in which FGM was performed, young women requested FGM to become ready for marriage.
The U.S. State Department released a report on FGM in Ghana in June 2001. It is available at <http://www.state.gov/g/wi/rls/rep/crfgm/10100.htm>
Further Information on Domestic Violence in Ghana (Coursebook at 828)
Violence against women, including rape and domestic violence, remains a significant problem in Ghana. A 1998 study revealed that in low-income, high-density sections of greater Accra, at least 54 percent of women had been assaulted in recent years. Studies indicated that 95 percent of the victims of domestic violence were women. These abuses usually went unreported and seldom came before the courts. Although the police tended not to intervene in domestic disputes, the police administration’s Women and Juvenile Unit (WAJU) did handle a larger number of cases involving domestic violence, child abuse, and juvenile offenses than in previous years, but those cases represented a small percentage of the estimated number of incidents that occurred. With offices in nine cities around the country, the WAJU worked closely with the Department of Social Welfare and the Legal Aid Board. As of September 30, 2002, WAJU recorded a total of 3,155 cases, including 1,052 instances of assault, 380 cases of defilement (that is, sexual assault not qualifying as rape), 113 rapes, and 53 abductions. The country’s first domestic violence bill was sent to the Director of Legislative Drafting of the Parliament, who was responsible for converting proposed bills into proper legislative format for eventual consideration by Parliament. On November 11, the Attorney General’s office held a public consultative forum on the draft bill; it is currently in Parliament awaiting fine-tuning and a vote on its passage. See U.S. DEP’T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2002 at http://www.state.gov/g/drl/rls/hrrpt/2002/18206.htm. The WAJU website with relevant statistics is available at <http://www.ghanapolice.org/waju/index.htm>.
Section C.1. Definition of a Refugee
Ratification Status of the U.N.
Protocol of 1967 Relating to the Status of Refugees, 606 U.N.T.S. 267:
The U.S. ratified the Protocol on November 1, 1968. As of January 2004, 141 countries had ratified the Protocol.
Section C.2. Interpreting the Refugee Definition: Exactly What is a Well-Founded Fear of Persecution? (Coursebook at 831)
There is a newer edition of the HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS, U.N. Doc HCR/IP/4/Eng/REV1 (1992), re-edited January 1992, available at <http://www.unhcr.ch/cgi-bin/texis/vtx/publ>.
Section C.3. Procedural Issues: Claiming Refugee Status
Updating the information in DEBORAH E. ANKER, LAW OF ASYLUM IN THE UNITED STATES 2-7, 523-24, 528-30, 533, 537-39, 570-71 (3rd ed. 1999) (Coursebook at 841):
President George W. Bush set the refugee admission ceiling for fiscal year 2004 (i.e., October 1, 2003 - September 30, 2004) at 70,000 admissions, which was the same number of refugee admissions authorized in 2002. For 2004, the President allocated the total number regionally as follows: Africa (25,000 admissions), East Asia (6,500 admissions), Europe and Central Asia (13,000 admissions), Latin America/Caribbean (3,500 admissions), Near East/South Asia (2,000 admissions) and 20,000 reserve. The regional allocations do not reflect the distribution of refugees throughout the world, but instead, illustrate U.S. foreign policy interests. Unused allocations may be transferred to regions where needed. Because of security concerns and bureaucratic burdens the number of refugees actually entering the United States was far fewer in 2002 and 2003 than authorized by the President. For example, in FY 2002, President Bush set the number at 70,000, but only 27,058 refugees were actually admitted.
Note 4: The Convention against Torture in the U.S. and the definition of “acquiescence” (Coursebook at 845)
Although the BIA has made many CAT decisions, the federal courts have ruled that they too have jurisdiction to consider CAT claims. See Saint Fort v. Ashcroft, 329 F.3d 191 (1st Cir. 2003). For example, the Ninth Circuit recently disagreed with the BIA’s “acquiescence” definition in In Re S-V- and held that Congress intended to “require only ‘awareness’ [by the authorities of the use of torture] and not to require ‘actual knowledge’ or ‘willful acceptance’ in the definition of acquiescence.” Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003).
Section D.1. The Role of The UNHCR: Purpose, Function, and Responsibility
Note 5: Temporary Protected Status in the United States (Coursebook at 849)
Under the Homeland Security Act,
administration of this program was transferred from the Attorney General to
the Secretary for Homeland Security. The Secretary possesses the discretion
to make TPS designations, which may be granted for up to eighteen months,
and the Secretary’s decision to designate a country for TPS is not subject
to judicial review. Soon after the 1990 Act, Kuwait (terminated March 1992),
Liberia (terminated March 1998, redesignated October 2002, extended through
October 2004), and Lebanon (terminated March 1993), received TPS designations.
56 Fed.Reg. 12745-47. Bosnia-Herzegovina (terminated August 2000), Burundi
(extended until November 2004), Rwanda (terminated 1997), Sierra Leone (termination
effective March 2004), Somalia (extended until September 2004), and Sudan
(extended until November 2004) have also received TPS designation. Most recently,
Liberia was designated for TPS in 2002 (extended until October 2004) because
of fighting between the government and Liberians United for Reconciliation
and Democracy. Each of the TPS countries has experienced civil war or armed
conflict. TPS, however, may also be granted for other reasons such as natural
disasters. The 1997 designation of TPS status for Montserrat (extended until
August 2004) for the consequences of a volcanic eruption was the first example
of TPS being granted for victims of natural disaster. In 1999, Nicaragua and
Honduras were also granted TPS as a result of the flooding in those countries.
Further discussion of the contemporary role of the UNHCR (Coursebook at 848)
GIL LOESCHER, THE UNHCR AND WORLD POLITICS: A PERILOUS PATH. (2001).
CENTER FOR MIGRATION STUDIES, UNHCR AT 50 : PAST, PRESENT AND FUTURE OF REFUGEE ASSISTANCE (2001).
During the 50th anniversary of the 1951 Refugee Convention, the UNHCR organized Global Consultations on Refugee Protection to explore its role and difficult issues of interpretation and application of the refugee treaties. Documents produced for the Global Consultations can be found on the UNHCR website at <http://www.unhcr.ch/cgi-bin/texis/vtx/global-consultations>.
Further Resources from the UNHCR (Coursebook at 850)
Guidelines on International Protection No. 1: “Gender-Related Persecution” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/01). Available at <http://www.unhcr.ch/cgi-bin/texis/vtx/publ>, follow the link to “Protection Publications” (last visited January 16, 2004).
Guidelines on International Protection No. 2: “Membership of a Particular Social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/02). Available at <http://www.unhcr.ch/cgi-bin/texis/vtx/publ>, follow the link to “Protection Publications” (last visited January 16, 2004).
Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative” within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (HCR/GIP/03/04). Available at <http://www.unhcr.ch/cgi-bin/texis/vtx/publ>, follow the link to “Protection Publications” (last visited January 16, 2004).
Guidelines on International Protection No. 5: “Application of the Exclusion Clauses”: Article 1F of the 1951 Convention relating to the Status of Refugees (HCR/GIP/03/05). Available at <http://www.unhcr.ch/cgi-bin/texis/vtx/publ>, follow the link to “Protection Publications” (last visited January 16, 2004).
Section E. Gender-based Refugee Claims
The cases noted below illustrate the manner in which FGM has been treated since Kasinga. (Coursebook at 851). The cases have extended the social group in Kasinga to women in fear of FGM, although there is some requirement of a showing that such a practice exists in the area from which the woman is fleeing. The issue of severity does not appear to have been raised, as long as the practice can be identified as within the generally accepted definitions of FGM. The main issue that remains is that of past persecution. Since the FGM, rather than gender per se is the persecution, a woman who has already been subjected to FGM may find it difficult to establish membership in a social group based on fear of future persecution based FGM alone.
The following are recent immigration
cases involving FGM claims:
Moshud v. Blackman, 68 Fed.Appx. 328, 2003 WL 21404334 (3rd Cir. 2003) (unpublished). Moshud contended that if she were returned to Ghana, the man to whom she was engaged to be married would force her to undergo FGM. The Immigration Judge granted her asylum on this ground but the Board of Immigration Appeals reversed and ordered her deported. The Court found “that [the BIA] reversal of the IJ’s credibility determination and its finding that Donkor had not established a well-founded fear of persecution are unsupported by substantial evidence and will remand for further proceedings on her asylum application.” The court implicitly accepted the premise that credible fear of FGM was a proper basis for granting asylum.
Update on Aguirre-Cervantes v. INS, 242 F.3d 1169 (9th Cir. 2001) in Coursebook at 872: The 9th circuit decided to rehear the case en banc on October 23, 2001. On stipulation of the parties, the decision of the three-judge panel was vacated and remanded to the BIA for the reopening of administrative proceedings. Aguirre- Cervantes v. INS, 273 F.3d 1220 (9th Cir. 2001).
Update on the Proposed Regulations on Asylum and Withholding Definitions, 65 Fed. Reg. 76588 (2000) in the Coursebook at 884. The proposed rule has been in the final stage of the rule-making process since the end of the comment period on January 22, 2001. According to the most recent publication of the Unified Agenda of Federal Regulatory and Deregulatory Actions, 68 FR 30304-01, § 1029, Tuesday, May 27, 2003, no further action has been taken. The most recent deadline for final action on the rule was October 2003.
Note 6 in the Coursebook at
Guo Chun Di v. Carroll, 842 F. Supp. 858, 861 (E.D. Va. 1994) was vacated and remanded by Guo Chun Di v. Moscato, 66 F.3d 315 (4th Cir. 1995), on the basis that opposition to the one child policy was not a political opinion for which one could be persecuted.
Additional reading on domestic violence as grounds for asylum:
Shanyn Gillespie, Terror In The Home: The Failure of U.S. Asylum Law to Protect Battered Women and a Proposal to Right the Wrong of In Re R-A-, 71 GEO. WASH. L. REV. 131 (2003).