Refugee Law and Policy: A Comparative and International Approach

Second Edition

2005 Supplement

by Karen Musalo University of California Hastings College of the Law Jennifer Moore University of New Mexico School of Law Richard A. Boswell University of California Hastings College of the Law

Carolina Academic Press Durham, North Carolina

Copyright, 2005 by Karen Musalo, Jennifer Moore and Richard A. Boswell. All Rights Reserved.

 Copyright, 2004 Karen Musalo, Jennifer Moore and Richard A. Boswell

All Rights Reserved

Refugee Law and Policy: International and Comparative Approach Second Edition 2005 Supplement

Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493 5668 E-mail: cap@cap-press.com www.cap-press.com
Printed in the United States of America

Table of Contents
Chapter 1 The International Origins of Refugee Law ........................................................... 1 No Man's Land: Government Mistreatment of Palestinian Asylum Seekers .............................................................................................................. 1 Chapter 2 International Norms and State Practice ...................................................................... 7 Order Expanding Expedited Removal 67 FED. REG. 68,924 (2002) ................................................................................. 7 Final Draft Text - Safe Third Country Agreement ......................................................... 12 Chapter 5 The Nexus Requirement .............................................................................................. 19 The Real ID Act, Sec. 101a(3)(B)(i) [Nexus] .............................................................. 19 Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) ...................................................... 19 Chapter 7 Persecution on Account of Religion ........................................................................... 33 Guidelines on International Protection: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees ...................................................... 33 Chapter 8 Persecution Based on Race or Nationality ................................................................. Lie v. Ascroft, 396 F.3d 530 (3rd Cir. 2005) ................................................................ Lolong v. Gonzales, 400 F.3d 1215 (9th Cir. 2005) ..................................................... Baballah v. Ashcroft, 335 F.3d 981 (9th Cir. 2003) ..................................................... Knezevic v. Ashcroft, 2004 WL 1146280 (9th Cir. 2004) ............................................ Jennifer Moore, Stop Genocide and Protect Civilians in Darfur, Sudan The Albuquerque J., Dec. 6, 2004 ................................................................... 47 47 53 61 71 77

Chapter 9 Persecution Based on Membership in a Particular Social Group ................................................................................. 81 Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005) ..................................................... 81 Proposed Asylum Regulations: Asylum and Withholding Definitions 65 FED. REG. 76,588-98 (2000) ............................................................................. 90 Thomas v. Ashcroft, 359 F.3d 1169 (9th Cir. 2004) ..................................................... 112 Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. 2005) ........................................... 122 United Nations High Commissioner for Refugees, Guidelines on International Protection: Membership in a Particular Social Group ................................................................................................... 135

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TABLE OF CONTENTS

Chapter 10 Gender-Related Claims to Refugee Status ............................................................... United Nations High Commissioner for Refugees, Guidelines on International Protection: Gender-Related Persecution .......................................................................... Mohamed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) ............................................... Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004) .......................................................... In the Matter of Maria T. .............................................................................................

141 141 153 165 177

Chapter 11 Qualifications Upon Protection ............................................................................... 187 The Real ID Act, Sec. 103(a)(i); (b)(iv); (c)(vi) [Terrorism] ..................................... 187 Chapter 12 The Process and Rights of Asylum Seekers ............................................................. Asylum Procedures (Chart) .......................................................................................... 8 C.F.R. 1003.1 ......................................................................................................... INS v. Ventura, 537 U.S. 12 (2002) ........................................................................... 191 191 192 201

Chapter 13 Proving the Claim: Establishing the Facts in Asylum and Restriction on Removal Proceedings ......................................................... 205 The Real Act, Sec. 101(a)(3)(B)(ii), (iii); (c) [Burden of Proof] ............................... 205

Chapter 1 The International Origins of Refugee Law

F. The U.N. Relief and Works Agency for Palestine Refugees No Man's Land: Government Mistreatment of Palestinian Asylum Seekers* Jeff Handmaker and Adri Nieuwhof Governments should be allowing Palestinians the opportunity to claim political asylum, but they are failing to do so and mistreating Palestinians in the process. In this article, the writers consider international law in relation to this. They also examine the case of Khalil, who has -contrary to international law -- not been given an effective opportunity to claim refugee status in the Netherlands and instead has been confined to a bureaucratic 'no man's land', with severe personal consequences.1 What international law used to say Historically, Palestinians were considered to be excluded, in international law, from the provisions of the United Nations Refugees Convention under article 1D of the Convention. This exclusion occurred because the United Nations Relief and Works Agency (UNRWA) and the United Nations Conciliation Commission on Palestine (UNCCP) had been designated to provide, respectively, humanitarian assistance and protection to Palestinian refugees. While the UNCCP effectively ceased operations after only a few years, the UN Refugees Convention did not take this into account, leaving Palestinian refugees without an organisation advocating for their legal protection. The UN's refugee agency, UNHCR, has maintained it has no mandate to provide assistance

This article was published in The Electronic Intifada, 26 May 2005. Copyright 2005 by the Electronic Intifida. Reprinted with permission. All Rights Reserved. The full article is available at http://electronicintifada.net/v2/article3883.shtml. Jeff Handmaker served as legal advisor to the Dutch Refugee Council (Delft) in 1997 and now works as an independent advisor as well as a PhD researcher at the Netherlands Institute of Human Rights (SIM) at Utrecht University. Adri Nieuwhof served as director of the Dutch Refugee Council (Delft) for nearly 10 years and now works as an independent advisor.
1

United Nations Convention on the Status of Refugees, 1951.

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REFUGEE LAW AND POLICY 2005 SUPPLEMENT

or even to advocate for legal protection on behalf of Palestinian refugees, although the 1979 UNHCR Handbook on Protection, which was re-edited in 1992, stated that Palestinian refugees outside one of UNRWA's areas of operation may apply for status under the Convention.2 Despite this clarification, most countries have not granted Palestinians refugee status on the basis of article 1D. What international law says now With a growing number of Palestinians seeking protection outside of the areas in which UNRWA has operated, including countries as far away as Europe and the USA, it was clear that the UNHCR needed to clarify its position on article 1D. This clarification came in 2002, with a 'Note on the Applicability of Article 1D'.3 Such a clarification was possible since article 1D provides in its second paragraph that "When such protection or assistance has ceased for any reason ...these persons shall ... be entitled to the benefits of this Convention."4 In this 2002 Note, the UNHCR stated that while article 1D was clearly aimed at Palestinians assisted by UNRWA and that the intention of the Convention was to avoid "overlapping competencies." It was also to ensure "the continuity of protection and assistance of Palestinian refugees as necessary." The Note confirmed that two groups of Palestinians were in principle entitled to broader, legal protection. Firstly, Palestinians who were never considered as 'Palestine refugees' or 'displaced persons' in the context of UN General Assembly Resolution 194 of 1948 or Resolution 2252 of 1967 could potentially qualify as refugees under the 1951 Refugees Convention on the basis that UNRWA was not in a position to assist them. To qualify as a 1951 Convention Refugee they must also establish -- like all other refugees -- that they suffer a "well-founded fear of being persecuted for reasons of race, religion, membership of a particular social group or political opinion". Such Palestinians must furthermore be "outside the Palestine territories occupied by Israel since 1967" and be "unable or unwilling to return there."

Thanks acknowledgement to Terry Rempel at BADIL Resource Center for Palestinian Residency and Refugee Rights, <www.badil.org>, for this insight. 'Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian refugees', United Nations High Commissioner for Refugees, Department of International Protection, October 2002. See BADIL Resource Center for Palestinian Residency and Refugee Rights, Commentary, A Critical Analysis of the Revised UNHCR Interpretation of the Status of Palestinian Refugees under International Refugee Law, November 2002, <http://www.badil.org/Publications/Other/Comment-1DRev02.html>.
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THE INTERNATIONAL ORIGINS OF REFUGEE LAW

Secondly, states should consider the possibility of non-returnability of Palestinians to UNRWA-assisted areas where there are "threats to his or her physical safety or freedom" or if a country's authorities refuse readmission or renewal of their travel documents. In this second situation, states should consider alternative forms of legally protected status. In short, if a Palestinian finds himself outside of the areas in which UNRWA offers assistance, for example the Netherlands, then that government is obliged to consider whether he or she is entitled to 1951 Refugee Convention status or if he or she is entitled to another form of protected status on the ground of non-returnability. Safe haven for Palestinians in South Africa The South African government has permitted Palestinians to apply for refugee status and, officially, is correctly interpreting article 1D. The government has demonstrated a willingness to grant refugee status to Palestinians, although not all Palestinians who could potentially do so have lodged political asylum claims with the government. What governments are (not) doing With the notable exception of South Africa, most countries still maintain the 'old' policy of denying Palestinians access to refugee status, including the Dutch government. The policy of the Dutch government appears at first to be progressive: In the event that a Palestinian cannot call upon UNWRA for assistance (he/she) can be awarded a residence permit for a specific period of time. ...this applies to all cases.5 However, this position, contrary to UNHCR's 2002 Note, does not oblige the government to grant this permit, nor does it oblige the government to consider an individual claim of persecution that might lead to refugee status, as the story of Khalil6 illustrates. The story of Khalil We spoke to Khalil on a sunny day in the Netherlands in May 2005. Forty years ago, Khalil was born in Ein el-Hilweh refugee camp in Lebanon. The population of the camp varied in its early days between 4,000 to 10,000 refugees, depending on the intensity of the shelling by the Israeli and Lebanese army. The camp is now the largest in Lebanon, with over 45,000 refugees registered by

Official Gazette, Government of the Netherlands, 6 May 2003, Number 86, p. 71. Not his real name.

REFUGEE LAW AND POLICY 2005 SUPPLEMENT

UNRWA.7 Palestinian refugees in Lebanon live in quite a desperate situation, isolated from the Lebanese community, with very limited access to jobs, no opportunities to build houses and only a temporary permit to stay as a refugee. At one stage, only Christian Palestinians were given the chance to apply for Lebanese citizenship. Khalil joined the struggle for a free Palestine, but he encountered serious problems, including two attacks on his life. In one such attack, Khalil was not present, but his house was burnt down, killing a family member. He was not safe in Lebanon and he had to flee the country. In 1993, Khalil arrived in the Netherlands and applied for asylum. Within half a year he received a negative, written decision from the Ministry of Justice. In 1995, his case was brought before an immigration court and the decision was confirmed as negative on the Dutch government's assessment that, firstly, he came for economic reasons and secondly, because there was a lack of clarity about his identity. The copy of Khalil's identity document was declared 'fake'. The Dutch government requested him to produce his UNRWA card, but this document had long since disappeared when his house was attacked. Khalil was then asked to leave the Netherlands. In 2000, Khalil went well prepared to Ter Apel, a deportation centre in the Netherlands that was set up to send back people who have not been granted asylum. Khalil challenged his deportation with letters from the Lebanese and Israeli embassies confirming that he was not welcome in those countries. The expected response from the Dutch government at this stage would have been to grant Khalil a permit to stay in the Netherlands. It came as a surprise to Khalil, therefore, that he not only had to prove he could not be deported to Lebanon or Israel, but that he also had to prove he had no family connections in any country, making clear he had nowhere to go. This is, indeed, a virtually impossible task for anyone. More protection needed The lack of protection accorded to Palestinians is of growing concern to NGOs. At the 2004 meeting of the executive committee of UNHCR in Geneva, NGOs released the following statement:8

Source: UNRWA, <http://www.un.org/unrwa/refugees/lebanon.html>.

NGO Statement, presented to the 55th Session of the UNHCR Executive Committee of the High Commissioner's Programme, Palais des Nations, Geneva, 4 - 8 October 2004.

THE INTERNATIONAL ORIGINS OF REFUGEE LAW

NGOs reaffirm that protection is the primary responsibility of states. NGOs wish to draw the Executive Committee's attention to the ongoing plight of millions of forcibly displaced Palestinians. Their situation is unique amongst forcibly displaced persons, as millions of them fall into a protection gap with no access to any form of international protection. In this regard, we call upon UNHCR and governments to ensure protection under the 1951 Convention to Palestinian asylum seekers, in light of article 1D. We also support efforts of the Council of Europe9 and a growing number of states to give effect to this recommendation. The Netherlands is obviously not the only country that is denying Palestinians their rights in international law by not granting them an effective opportunity to claim refugee status. Many other governments most certainly ought to be criticized for their failure to correctly interpret article 1D.

In the NGO Statement (above n. 3) NGOs referred to the Council of Europe Parliamentary Assembly, Situation of Palestinian Refugees, Recommendations 1612 (2003).