This blog has been following the civil lawsuit for money damages in U.S. federal court against Ernesto Zedillo, the former President of Mexico, for his alleged involvement in a 1977 massacre in a Mexican village and his claim for immunity from same.
That request for immunity has prompted another lawsuit, this in a Mexican court, over the legality of the request under Mexican law. In early March 2013 the Mexican court decided that the request for such immunity by the Mexican Ambassador to the U.S. State Department was illegal, and on March 28th that Mexican court decision was filed with the U.S. court.
The latest move in this duel between the two court systems took place on April 12th when Mr. Zedillo told the U.S. court that it should just ignore the Mexican court.
That was the bottom line in the Defendant’s Response to Plaintiffs’ Notice Regarding Mexican Trial Court Decision that was filed that day in the U.S. District Court for the District of Connecticut.
Although Mr. Zedillo in this document noted that his pending appeal of the Mexican court decision had been joined by the current Mexican President and Secretary of Foreign Affairs, that decision is asserted to be “irrelevant” to the U.S. case, and the U.S. court should “promptly and finally” dismiss the U.S. case. This conclusion purportedly follows from these premises:
The U.S. Department of State decides whether immunity for a foreign official advances U.S. interests and U.S. law.
The U.S. Department of State does not judge whether a foreign nation’s request for immunity for one of its former officials is in accordance with that country’s laws.
The U.S. Department of State already has decided that immunity in the U.S. case for Mr. Zedillo is in accordance with U.S. law and foreign policy and so advised the U.S. court.
Under U.S. law, U.S. courts are required to honor the U.S. Department of State’s decisions on immunity of former foreign officials.
Although I do not quarrel with these premises, I do not think that they support the conclusion put forward by Mr. Zedillo.
If the Mexican trial court decision is sustained on appeal in Mexico, then that should result in the Mexican government’s rescission of the earlier request for immunity by its Ambassador. That hypothetical situation, to me, looks like the case where the State Department recently refused to support immunity in a U.S. case for a former Somali official because there was no Somali government that could ask the Department for such immunity.
In any event, if I were the U.S. judge in the Zedillo case, I would postpone making any decision on immunity for Mr. Zedillo until after the Mexican case was concluded and the U.S. State Department had expressed its views on the impact of the Mexican case. Perhaps I would now ask the State Department for its views before the Mexican case had concluded, but I anticipate the Department would say it was waiting for a final judgment in the Mexican case before it expressed its views.
This blog will continue to watch for further developments in these cases.
In September 2011 Ernesto Zedillo, a former president of Mexico, was sued in the federal court in Connecticut for money damages for his alleged complicity in a massacre in the Mexican village of Acteal in 1997. In September 2012, the U.S. government asked the court to grant immunity to Zedillo and dismiss the case based upon the Mexican government’s request to that effect and the subsequent similar request by the U.S. Department of State. These matters were covered in prior posts (here and here).
The U.S. court has not yet resolved the immunity or any other preliminary issues in the case, and the latest dockets sheets reveal no activities whatsoever since early February this year.
In March 2013 a Mexican court decided that the Mexican request to the U.S. State Department requesting such immunity was legally insufficient, as discussed in a prior post.
Subsequently a Mexican lawyer and friend, Juan Carlos Arjona Estévez, has provided me with additional comments about the Mexican court decision that prompt these additional thoughts about Mexican and U.S. legal issues in the case.[1]
The Mexican Court Decision
The Mexican court said the Mexican Ambassador’s letter to the U.S. Department of State requesting such immunity was legally deficient.[2] First, it was a letter from the Ambassador in his diplomatic capacity, not an official communication of Mexican government policy. Second, the letter did not cite to all the Mexican legal provisions relevant to the case. Third, the letter did not explain why immunity for Zedillo in the U.S. case was appropriate under those Mexican legal authorities and why such immunity would not affect Mexican ethnic groups’ right to access justice.
Moreover, there is no basis in the Mexican constitution for immunity for a former president or other government officials. Such immunity under Mexican law applies only when such individuals are in office.
This court decision could be appealed in Mexico by the Mexican Minister of Foreign Affairs, but reversal does not seem likely because the defense in the Mexican case is that the action of the Ambassador was not an “authorized act” that can affect the human rights of Mexicans, but only a diplomatic action.
If the decision is appealed, the three-magistrate appellate tribunal could affirm the decision and also refer to the provision in the Mexican Constitution stating that Mexican foreign policy has to promote human rights and that the request for Zedillo immunity for alleged human rights violations is contrary to such promotion.
Another possible outcome is for the Mexican Ambassador to rescind his request for immunity and to send a new letter to the U.S. Department of State saying that Senor Zedillo has not been sued in Mexico for the same claims and that Mexican courts should have the first opportunity to deal with these issues.
Related U.S. Legal Issues
These developments in Mexico raise at least two issues for U.S. law.
1. With or without a rescission of the original Ambassador’s letter, should the U.S. court grant immunity to Zedillo?
The original September 2012 letter from the U.S. State Department to the U.S. Department of Justice said “a sitting head of state’s immunity is based on his status as the incumbent office holder and extends to all of his actions.” (Emphasis added.)
On the other hand, the State Department letter went on, the “residual immunity of a former official . . . is based upon the character of that official’s conduct and extends only to acts taken in an official capacity. . . . [The] Department of State generally presumes that actions taken by a foreign official exercising the powers of his office were taken in his official capacity. This . . . is particularly appropriate when a former head of state is sued, because holders of a country’s highest office may be expected to be on duty at all times and to have wide-ranging responsibilities.” (Emphasis added.)
The State Department letter mentioned the Mexican Ambassador’s request for immunity based upon his assertion that “any actions [by Zedillo] . . . in connection with the events alleged in the complaint were taken in the course of his official duties as head of state.” This Mexican government assertion, the State Department letter says, corroborates its assessment to the same effect. In addition, the plaintiffs have not rebutted this assessment.
Therefore, the State Department’s letter concluded that Zedillo’s “alleged actions were taken in an official capacity, and he enjoys immunity from this lawsuit.”
This letter, taken by itself, might suggest that immunity might still be open even if the Mexican Ambassador’s letter were rescinded as it only corroborated that Zedillo was acting in his official capacity.
However, when the State Department in another case declined to request immunity for a former Somali official, it said any immunity protecting foreign officials for their official acts ultimately belongs to the sovereign, not the official. Thus, the foreign state must claim or waive any such immunity for the official. Where there is no recognized government, as was the case for Somali at the time, there was no one that could assert such a claim or make such a waiver. As a result, the State Department concluded that the former official did not enjoy immunity, and the court endorsed that conclusion and rejected the immunity claim.
Thus, if the Mexican Ambassador’s letter to the State Department is rescinded and not replaced by another request for immunity, the principles enunciated in the Somali case suggests that Zedillo would not be entitled to immunity.
2. Failure To Exhaust Mexican Remedies.
Another U.S. issue is whether the plaintiffs have failed to exhaust whatever remedies they have in Mexico.
Some of the claims in the U.S. case are asserted under the Torture Victims Protection Act (28 U.S.C. § 2350 note), which provides, in part, “A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred [here, Mexico].” There is no similar provision in the Alien Tort Statute, under which some of the claims are also asserted, but the U.S. Supreme Court in Sosa v. Alverez-Machain suggested that failure to exhaust remedies in the other country could be a limitation on ATS claims.
Thus, the issue for the U.S. court in such a hypothetical situation would be whether the claims under Mexican law are “adequate and available” and whether the plaintiffs had exhausted whatever Mexican remedies they had. [3]
Conclusion
I would anticipate that the plaintiffs’ lawyers in the U.S. case will advise the court in Connecticut of the Mexican court decision;[4] that the U.S. court will wait until there is a final resolution of the Mexican case before doing anything, and if the recent Mexican decision is not reversed, request the views of the State Department on the significance of the former; and thereafter the U.S. court will make a decision on whether or not to grant immunity to Zedillo.
[2] Because of the significance of the Mexican Ambassador’s letter, its text is attached at the conclusion of this post.
[3] There also should be a U.S. procedural problem if Zedillo now tries to raise the plaintiffs’ alleged failure to exhaust Mexican remedies as a defense in the U.S. case. The original U.S. complaint anticipated such a defense with the allegation that the plaintiffs do not have adequate remedies in Mexico and that they have exhausted their available Mexican remedies. Zedillo’s U.S. motion to dismiss the complaint only asserted immunity, and Rule 12(g) of the Federal Rules of Civil Procedure should prevent him from now raising this affirmative defense by motion.
[4] One of the plaintiffs’ attorneys has said they would so advise the U.S. court and ask it to request the State Department for reconsideration of the immunity issue.
=================================================
EMBASSY OF MEXICO
07654
Washington, DC, on November 4, 2011.
Madam Secretary:
On behalf of my Government, I have the honor to refer to the case v Doe et al. Zedillo Ponce de León, filed with the U.S. District Court for the District of Connecticut as No. 3:11-cv-01433, in place of the former President of Mexico, Ernesto Zedillo Ponce de León.
In this regard, I wish to express my Government’s rejection of any internal process that violates the sovereignty of Mexico, to exercise jurisdiction over alleged acts occurred in territory in which he allegedly spoke the President in his official capacity. In this regard it should be noted that any other act performed by former President Ernesto Zedillo regard to the facts in the lawsuit that gave rise to the case of history, took place in the course of his official duties as head of state and is Therefore, to rule in some sense, the Court would be deciding on actions the government of Mexico sovereign within their own territory.
In light of the above, I would sincerely request the intervention of the Department of State through the Department of Justice before the U.S. District Court for the District of Connecticut, by a suggestion of immunity to former senses of Mexico. In this regard, I note that the recognition of immunity enjoyed by foreign officials for acts performed in their official capacity is largely rooted in a principle of customary international law, whose application has been confirmed many times by the U.S. government, particularly in situations involving heads of state. There are also precedents in American jurisprudence that confirmed the practice.
In this regard, I quote Gemisen v cases. De la Madrid v Habyarimana. Kagame, Giraldo v. Drummond Co., Wei Ye v. Jiang Zemin and Lafontant v. Aristide, as a sign of the instances in which the State Department has intervened in the past the U.S. courts to reaffirm its position on immunity accompanying heads of state, even after completing your order. Enclosed is a legal memorandum that contains more elements on those precedents.
Similarly, I wish to present it as a process which aims to substantiate against former President of Mexico affect the bilateral relationship between Mexico and the United States, in dismissing the action of various national authorities in response to the event that occurred in the village of Acteal, Chiapas in December 1997, the Government made strongly condemned in turn, immediately abocándose research and presentation of those responsible to the law enforcement bodies.
In thanking Your Excellency in advance for your valuable support for the State Department’s intervention in the case of history, I do own the opportunity to renew the assurances of my highest consideration.
As discussed in a prior post, on February 15, 2011, the U.S. District Court for the Eastern District of Virginia decided that a former Somali General, Mohamed Ali Samantar, was not entitled to the former foreign government official immunity under federal common law.[1]
On November 2, 2012, the U.S. Court of Appeals for the Fourth Circuit affirmed this decision in an opinion that provided an interesting analysis of the role and power of the U.S. Department of State and of the federal courts in making decisions on immunity of foreign officials in civil lawsuits.
First, the appellate court said that there was common law immunity for a foreign head-of-state and that the courts must give “absolute deference” to the State Department’s position on such claims. This conclusion was based on the U.S. Constitution’s assignment in Article II, § 3, of the power to “receive Ambassadors and other public Ministers” to the Executive Branch. The State Department, however, has never recognized Samantar as the head of state for Somalia. Therefore, this type of immunity was not applicable in this case.
Second, the Fourth Circuit held that federal common law also provided immunity for foreign government officials who were not heads of state and that State Department’s determinations on such claims carried “substantial weight” for the courts, but were “not controlling.”
The latter type of immunity, said the Fourth Circuit, is based on the “foreign official’s actions, not his or her status, and therefore applies whether the individual is currently a government official or not.” But not all such actions are entitled to such immunity. Indeed, the court concluded that “under international and [U.S.] domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.”
The appellate court correctly observed, “A jus cogens norm, also known as a ‘preemptory norm of general international law,’ can be defined as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Moreover, “Prohibitions against the acts involved in this case–torture, summary execution and prolonged arbitrary imprisonment–are among these universally agreed-upon [jus cogens] norms.”
In this case, the Fourth Circuit added, the State Department suggested to the court that Samantar was not entitled to the foreign official immunity because there was no Somali government to assert this immunity for him and because he was a permanent resident alien of the U.S. These are additional factors supporting the denial of this immunity to Samantar.
Therefore, Samantar was not entitled to the latter type of immunity.[2]
[1] Thereafter the district court held him liable for $21 million of compensatory and punitive damages in a civil lawsuit under the U.S. Alien Tort Statute and Torture Victims Protection Act.
As discussed in a prior post, the U.S. Supreme Court in 2010 decided that former Somali General Mohamed Ali Samantar was not covered by the immunity provisions of the Foreign Sovereign Immunities Act (FSIA) and remanded the case to the U.S. District Court for the Eastern District of Virginia to determine if he was entitled to common law immunity.
This was in a case brought by four Somalis against Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA). The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]
U.S. District Court, Alexandria, VA
After remand, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia in Alexandria [2] first decided that Samantar was not entitled to any common law immunity. She then decided that $21 million of compensatory and punitive damages were appropriate. Those decisions will now be reviewed.
No Common Law Immunity
On February 14, 2011, the U.S. Government provided the court with a letter from Harold Koh, the State Department’s Legal Adviser, stating that the Department had determined that Samantar did not enjoy immunity from this lawsuit. The key reason for this decision was the lack of any recognized Somali government that could assert or waive any immunity he might enjoy.
The formal U.S. filing with the court provided the relevant common law of immunity for former foreign government officials or what the filing called “Foreign Official Immunity Doctrine.” Here are the key points of that common law or doctrine without the filing’s citations of legal authority:
Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.'”
“This deferential judicial posture was not merely discretionary [for the courts], but was rooted in the separation of powers.” Under the Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
“The immunity of a foreign state was, early on, generally understood to extend not only to the state, heads of state, and diplomatic officials, but also to other officials in an official capacity.”
Any immunity protecting foreign officials for their official acts ultimately belongs to the sovereign, not the official. Thus, the foreign state must claim or waive any such immunity for the official. Where there is no recognized government, there is no one that can assert such a claim or make such a waiver.
When a former foreign official becomes a resident of the U.S., as Samantar had since 1997, the U.S. has a right to exercise jurisdiction over that individual.
The U.S. Supreme Court in this case agreed with the government’s position that FSIA did not apply to the issue of immunity for current or former foreign government officials. Instead, that issue was left to the State Department, whose decisions should be accepted by the courts.
Judge Leonie Brinkema
On February 15, 2011 (the day after the above government filing), Judge Brinkema issued a one-page order. It stated, “The government has determined that the defendant does not have foreign official immunity. Accordingly, defendant’s common law sovereign immunity defense is no longer before the Court . . . .” The court then directed the parties to agree upon a date to argue the remaining issues in the defendant’s dismissal motion.
Samantar’s motions for reconsideration of this order and for a stay pending appeal were denied. Nevertheless, he appealed to the Fourth Circuit (No. 11-1479), and on May 16, 2012, the appeal was argued to the appellate court, which as of September 13th had not yet issued its decision. In my opinion, he has virtually no chance of success on this appeal.
The Court’s Determination of Damages
The district court on August 28, 2012, determined that each of the seven plaintiffs was entitled to $1 million of compensatory damages plus $2 million of punitive damages for a total judgment of $21 million. How the court came to this determination is a fascinating story.
After the court’s rejection of his immunity defense, Samantar moved for summary judgment on the grounds that the latest complaint failed to state a claim for his secondary liability, that the TVPA did not retroactively apply to acts before 1991 and that the claims were untimely and nonjusticiable. That motion was denied on December 22, 2011.
Two days before the scheduled start of a jury trial on February 21, 2012, Samantar advised the court that he had filed for bankruptcy in the Eastern District of Virginia (1-12-bk-11085). The automatic stay of this case by the bankruptcy filing was soon lifted, and the start of the jury trial in the main case was rescheduled for February 23rd.
On February 23rd Samantar’s attorney informed the court that Samantar intended to take a default rather than contest liability and damages. The court then asked the defendant questions about this decision and was satisfied that he knowingly and voluntarily had conceded liability.
On August 28th the court filed its Memorandum Opinion that made extensive findings and legal conclusions regarding Samantar’s liability under theories of aiding and abetting and command responsibility.
After noting that compensatory damages were recoverable for physical and psychological injuries, the court found that the plaintiffs had provided the following “credible and compelling testimony of cognizable injuries stemming from the alleged violations:”
Plaintiff Yousuf had endured torture and seven years of imprisonment, largely in solitary confinement that had affected his memory and emotional health. He suffers from depression and nightmares and still relives the five-step length of his cell.
Plaintiff Baralle was tortured and barely escaped execution. He continues to experience pain and occasional shaking on the left side of his body as well as flashbacks. His two brothers were executed, and Baralle and his family have taken responsibility for raising his brothers’ children.
Plaintiff Gulaid went before a firing squad, but escaped death. He continues to suffer nightmares, flashbacks and anxiety, memory loss, high-blood pressure and poor vision.
Plaintiff Aziz and his sister testified about the extrajudicial executions of their father, who was the family’s breadwinner, and their brother.
The court then found that each of the three plaintiffs suing in their own capacity and each of the four decedents’ estates would be awarded compensatory damages of $1 million.
After finding that there was evidence of Samantar’s conduct having been intentional, malicious, wanton and reckless and that ATC and TVPA cases commonly awarding punitive damages, the court determined that $2 million of such damages for each of the seven claimants was appropriate. Such amount, said the court, reflected the “seriousness of [his] . . . uncontested conduct;” [eased] . . . any burden on plaintiffs in having to bring this case;” and recognized the award of substantial compensatory damages, the lack of any financial gain by Samantar and his prospective bankruptcy.
The execution of the judgment was stayed pending resolution of the bankruptcy case.
Conclusion
The ability of the plaintiffs to collect any significant amount of their $21million judgment is highly questionable. On April 3, 2012, the Chapter 7 Bankruptcy Trustee reported Samantar had no assets available for distribution to creditors, but for unknown reasons that report was withdrawn on June 11th.
On August 23rd the plaintiffs commenced an adversary proceeding against Samantar in the bankruptcy court to have his judgment debt to them determined to be a non-dischargeable debt for willful and malicious injury under Bankruptcy Code § 727 (1:12-ap-01356). If the bankruptcy court agrees, this merely keeps open the possibility of future collections on the judgment if Samantar obtains any future assets or income.Judge L:
[1] This case was supported by the Center for Justice and Accountability, an human rights NGO based in San Francisco, California.
[2] Judge Brinkema presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks. I appeared before her in another case, one involving Scientology.
As discussed in a prior post, the U.S. Foreign Sovereign Immunities Act (FSIA) codifies the conditions for a U.S. court’s deciding that a “foreign state” as defined in that statute shall be granted immunity from a lawsuit in the U.S. courts.
Somali plaintiffs
The issue of whether the FSIA applied to individuals who had been officials of a foreign state was raised in a case brought by four Somalis against former Somali General Mohamed Ali Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA).
Mohamed Ali Samantar
The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]
U.S. District Judge Leonie Brinkema of the Eastern District of Virginia[2] in August 2007 dismissed the case on the ground that Samantar was an “agency or instrumentality of” the state of Somalia and, therefore, entitled to immunity under FSIA (2007 U.S. Dist. LEXIS 56227). This judgment was reversed in January 2009 by the U.S. Court of Appeals for the Fourth Circuit (552 F.3d 371) on the ground that the FSIA did not cover individuals, after which the U.S. Supreme Court agreed to review the case.
In Yousuf v.Samantar, 560 U.S.__, 130 S. Ct. 2278, 176 L.Ed.2d 1047 (2010), the Supreme Court decided, 9 to 0, that the FSIA did not apply to government officials and that the immunity of such individuals was a matter of federal common law.[3]
In an opinion for the Supreme Court by Justice Stevens that was joined by Chief Justice Roberts and five Associate Justices (Kennedy, Ginsburg, Breyer, Alito and Sotomayor), Justice Stevens said there was nothing in the FSIA suggesting that “foreign state” should be read to include an official acting on behalf of that state. Indeed, according to the opinion, FSIA specifies that a foreign state “includes a political subdivision . . . or an agency or instrumentality” of that state, §1603(a), and specifically delimits what counts as an “agency or instrumentality,” §1603(b). Moreover, the statutory “agency or instrumentality” definition militates against its covering individuals.
The Court’s opinion also stated that FSIA’s history and purposes do not support an argument that the Act governs individual immunity claims. There is little reason to presume, said the Court, that when Congress codified state immunity, it intended to codify, sub silentio, official immunity. [4]
The Supreme Court remanded the case to the district court for its determination in the first instance as to whether Samantar was entitled to any common law immunity.
Upon remand, as will be discussed in a subsequent post, the district court decided that Samantar was not entitled to common law immunity and awarded the plaintiffs compensatory and punitive damages of $21 million.
[1] This case was supported by the Center for Justice and Accountability, a human rights NGO based in San Francisco, California.
[2] Judge Brinkema presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks. I appeared before her in another case, one involving Scientology.
[3] According to John B. Bellinger, III, a former Legal Adviser to the U.S. State Department, this Supreme Court decision vindicated the position of the Department’s Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by federal common law and customary international law as articulated by the Executive Branch, rather than by FSIA. But, says Bellinger, the decision will place a burden on that Office, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the U.S.
[4] Justices Alito, Thomas and Scalia each filed concurring opinions to say that the Court’s references to FSIA’s legislative history were unnecessary.
Tonight, June 21st, a Somali immigrant, Ifrah Jimale, met Mike Farrell, the actor who played Captain B.J. Hunnicutt on the long-running, popular U.S. TV series “M*A*S*H.” The occasion was the annual fund-raising dinner and celebration for the Minneapolis-based Advocates for Human Rights.
Ifrah Jimale
Ms. Jimale told her amazing and moving personal story to the audience of 1,000 people.
In the Somali nomadic tradition, she was sent by her family to the U.S. to see if it was a place where the family could live in peace and security.
Her initial impressions of the U.S. were not positive. At the Cincinnati airport, when she told a U.S. immigration agent that she was a “refugee,” Ifrah was immediately detained and jailed and forced to wear a red jump suit. After a considerable period in a Cincinnati jail, she was told that she was being transferred to another immigration detention facility in Atlanta. She had no idea where that was; she thought it might be in Mexico. In Atlanta she was kept in that detention facility for another period of time. Finally she was released into the care of a relative.
She then came to Minnesota, where she was put in touch with Advocates. The organization provided her a pro bono (no fee) attorney, who helped her obtain asylum in the U.S.
Ifrah was illiterate when she came to the U.S., but she found a Minnesota teacher who taught her how to read and write. Eventually Ifrah obtained a college degree at the University of St. Thomas in St. Paul, Minnesota. She now is a journalist with a blog for the Twin Cities Daily Planet called “Ask a Somali.” Earlier this month the Minnesota Society of Professional Journalists awarded her blog second place in the independent news blog category.
Her June 12th blog posting is a good example of her writing. The question was, “I keep seeing Somali women with cellphones tucked into their headscarves. Is this a common thing?” She answered that it is now common in the Twin Cities, but she advised her Somali sisters “to take a lesson in looking ridiculous from Somali men, and walk around with a bluetooth headset everywhere you go.” In an aside that was educational for we non-Somalis, Ifrah said, “If you don’t think that women wearing hijabs care about fashion, take another look at all of the beautiful colors and ways of wearing them.”
Ifrah with a big smile thanked Advocates for helping her to find her life in the U.S.
Mike Farrell
Mike Farrell, a native of St. Paul, Minnesota, was this year’s recipient of the Don and Arvonne Fraser Human Rights Award. I discovered that he is a long-time activist for human rights and social justice, especially against the death penalty. He is the President of Death Penalty Focus. It “is one of the largest nonprofit advocacy organizations in the nation dedicated to the abolition of capital punishment through public education; grassroots and political organizing; original research; media outreach; local, state and nationwide coalition building; and the education of religious, legislative and civic leaders about the death penalty and its alternatives.”
Farrell concluded the program with an eloquent, passionate call for everyone to stand up and take action to protect human rights. (I hope that the speech will be published and that I can add it in a Comment to this post.)
My May 20, 2011, post, “Two Women “Shakers” Rock Minneapolis Dinner,” reported on last year’s annual dinner for Advocates for Human Rights.
As discussed in a prior post, a “refugee” under international law is “any person who owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The principal U.N. agency concerned with such refugees is the Office of the United Nations High Commissioner for Refugees (UNHCR), which was established by a December 1950 resolution of the U.N. General Assembly. Its purpose is to safeguard and protect the rights and well-being of refugees and the right to seek asylum. Over time its mandate has broadened to include internally displaced people (IDP) and stateless people. Every year it publishes detailed statistics on all of these people of concern to UNHCR.
For 2010 there were 33,924,000 people of concern to UNHCR in the following categories:
Category
Number
Refugees
10,550,000
Asylum-seekers
837,000
IDP’s
17,621,000
Other
4,916,000
TOTAL
33,924,000
Nearly 80 % of these people were hosted in developing countries, including some of the poorest countries in the world while the U.S. had 271,000. The major sources of these people in 2010 were the following countries:
Country
Number
Afghanistan
4,404,000
Colombia
4,128,000
Iraq
3,387,000
Democratic Repub. Congo
2,719,000
Somalia
2,257,000
Pakistan
2,199,000
Sudan
2,185,000
Other
12,645,000
TOTAL
33,924,000
The overall statistics for 2011 should be published by UNHCR in June 2012. Just recently it published its report on one part of this new set of statistics–asylum applications in 2011 in 44 industrialized countries, including the U.S. The total of new applications was 441,300, which was 20 % more than in 2010 (368,000). The 2011 level is the highest since 2003 when 505,000 asylum applications were lodged in the industrialized countries. With an estimated 74,000 asylum applications, the U.S. was the largest single recipient of new asylum claims among the 44 industrialized countries. France was second with 51,900, followed by Germany (45,700), Italy (34,100), and Sweden (29,600).
There are many ways one may make U.S.-tax deductible financial contributions to organizations that help these people. These organizations include the following:
USA for UNHCR, which supports UNHCR’s humanitarian work to assist refugees around the world;
U.S. Committee for Refugees and Immigrants, which seeks to protect the rights and address the needs of persons in forced or voluntary migration worldwide by advancing fair and humane public policy, facilitating and providing direct professional services, and promoting the full participation of migrants in community life;
International Rescue Committee, which was founded at the request of Albert Einstein to offer care and assistance to refugees forced to flee from war or disaster;
American Refugee Committee (Minneapolis, Minnesota), which works to provide opportunities and expertise to refugees, displaced people and host communities around the world;
Center for Victims of Torture (Minneapolis, Minnesota), which helps torture-survivors from around the world heal and rebuild their lives;
Advocates for Human Rights(Minneapolis, Minnesota), which, among other things, provides pro bono attorneys for asylum-seekers;
Immigrant Law Center of [St. Paul] Minnesota, which provides quality immigration legal services, law-related education, and advocacy to meet the steadily increasing needs of Minnesota’s immigrant and refugee communities;
Because U.S. immigration law was in the background of the Sanctuary Movement case in which I was involved in the mid-1980’s,[1] I sought to obtain some knowledge of this area of law by taking a training course in asylum law from a Minneapolis NGO–Advocates for Human Rights.[2]
I learned that there is a legitimate claim for asylum under U.S. and international law if an alien establishes that he or she is a “refugee,” i.e., he or she has been persecuted or has a “well-founded fear of [future] persecution [in his or her home country] on account of race, religion, nationality, membership in a particular social group or political opinion.”[3]
I then volunteered to be a pro bono (no legal fees) lawyer for Jorge, a young Salvadoran asylum seeker, and started to learn about his country. He had participated in demonstrations against his government at the national university in San Salvador and feared he would be persecuted for his political opinions by the government if he returned to his country. With the aid of an experienced immigration lawyer, I tried his case before an immigration judge who denied his application, which was typical for the time. We immediately filed an appeal to the Board of Immigration Appeals, and under the law at that time he had legal permission to remain and work in the U.S. while the appeal was pending.
In 1988 I volunteered to take another pro bono Salvadoran asylum case. My client had a middle class background. He had held a position in the Salvadoran government and had publicly protested about corruption in her military forces. As a consequence, he was imprisoned and severely tortured in El Salvador, and one of the reasons he came to Minnesota was to receive treatment at our Center for the Treatment of Victims of Torture.[4] He had been persecuted, and he and members of his family feared future persecution by the Salvadoran military for their political opinions. He and his family members subsequently were granted asylum.
I was now on my way to becoming a pro bono asylum lawyer.
Thereafter I was a lawyer for successful asylum applicants from Somalia, Afghanistan, Burma and Colombia. (Later, in 2002, I became an Adjunct Professor at the University of Minnesota Law School, where I taught refugee and asylum law as part of an international human rights course.)
The asylum work enabled me to get to know, and to help, interesting, brave people. I also learned a lot about conditions in these countries. In the process, I was weaned away from accepting what our government said about conditions in other countries at face value and from avoiding making my own judgments about those questions because there was no way that I could know as much as our government knew. As an asylum lawyer I had to investigate conditions in these other countries and come to my own conclusions on such issues and then advocate for individuals as to why they had well-founded fears of persecution (death, physical harm, imprisonment) due to their political opinions or other grounds protected by refugee law.
Moreover, the Sanctuary Movement case and my pro bono asylum work liberated me from the narrow vision and focus of a practicing lawyer concentrating on the laborious development of detailed factual records and legal analysis and arguments in the succession of individual cases. In this prior life I had little time and inclination to be concerned about, or interested in, broader concepts of law or the plight of people around the world who lack a trustworthy legal system to protect them from assassinations, “disappearances,” torture or even mere injustice. To the extent I thought about such things at all, I regarded international human rights as touchy-feely mush that did not qualify for the important “real world” things that corporate lawyers like myself were concerned about.
I also was liberated from the notion that was fostered by the life of a corporate litigator in our secular society that churches and religious people rarely had major impact on our lives in the U.S.
As a result, I often refer to this experience as El Salvador’s liberation of an American lawyer.[5]
[1] See Post: The Sanctuary Movement Case (May 22, 2011).
[3] E.g., David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, ch. 15 (4th ed. 2009); Convention [Treaty] Relating to the Status of Refugees, 189 U.N.T.S. 137; Protocol of 1967 Relating to the Status of Refugees, 606 U.N.T.S. 267; U.N. High Commissioner for Refugees, http://www.unhcr.org/cgi-bin/texis/vtx/home; Refugee Act of 1980, 8 U.S.C. § 1101 (a)(42).
[5] Krohnke, And Then There Was Light, Minnesota’s Journal of Law & Politics, at 10 (Jan. 1992); Krohnke, The Liberation of a Corporate Lawyer, LXXXI Am. Oxonian 146 (1994).
