Why German homeschoolers get asylum and torture survivors don’t

I don’t know, actually. Maybe Uwe Romeike got lucky?  Maybe asylum is starting to change? Maybe judges like evangelicals?  Or white people better than black people?  Or maybe we just really, <em>really</em> hate the European Court of Human Rights?

In late January, A US immigration judge in Memphis, Tenn., recently granted asylum to a German couple that wants to home-school their kids. That’s illegal in Germany, and after repeated warnings from the German government, police showed up at the Romeike home and tried to remove the children to social services.

I’m a little behind on this one — late Jan and all — but I just read about it in the CSM weekly magazine.  And then I Googled and learned:

According to TIME (which attributes this info to Hannelore Romeike, the mother of the kids), the asylum claim was the idea of a Virginia-based homeschool advocacy association, which the magazine says is trying to get more international. Why Germany? Well, the ban on homeschooling is a start, and surely this test case benefits from legal-ease.  German asylum seekers have something going for them that, say, Eritreans or Guineans or even Poles don’t: Germans don’t need visas to get here.

How to get asylum without really trying.

You can’t, of course. Here’s how it works, as I recall. First the requisite caveats: I’m not a lawyer of any type, nor an immigration or asylum expert. But I did learn a lot about asylum when I wrote my Best American Science Writing piece about doctors who treat torture survivors, and I’ve done a few things on asylum since.

There are (to my memory) three ways to get asylum: You can win it abroad, usually in a refugee camp. If that’s your strategy, good luck; only 1 percent of refugees are resettled to third countries. In 2007, the U.S. took in just over 48,000 refugees. That’s the most of any country in the world. On the other hand, there are 11.4 million refugees in the world. So I’m not sure that as a hypothetical future refugee, you want to put your eggs in that particular basket. (That’s 2007 data because it’s the newest UNHCR has at the moment.)  Then again, I’m not sure if, as a hypothetical refugee, you get eggs.

Second way to do it? Show up in the States and say “asylum!” at the airport. If that is your strategy, be strong; they will haul you straight to non-jail jail (they call it “detention“).*

The third thing you can do is show your passport to the immigration guys, don’t look too nervous, and then get admitted to the US. Then you have a certain amount of time (one year, as I recall, but this could have changed?) to go formally claim asylum. The difference between this and saying asylum at the airport is that you can spend that year living in an apartment, taking pictures of NYC and even working, if your claim takes more than 150 days to get processed (and unless there is divine intervention, it probably will) — which is to say, living like a human being for the immense amount of time this claim will drag on.

The Romeikes got to skip straight to #3.  They didn’t have to wait the 17 years that people in refugee camps do, on average. And they didn’t have to wait God knows how long for a US embassy to approve their tourist visa to the US, so the could claim asylum while avoiding non-jail jail.  Like all Germans who want to come check out this wacky circus called America, they just had to get on a plane.

How to make sure you’re persecuted at home in ways that (legally) count abroad

Next, the Romeikes (or their lawyers, I suppose) had to convince Judge Lawrence Burman that homeschoolers are a “particular social group,” as the asylum law requires. That law says you don’t get asylum no matter how many times the government hit you, unless you are a member of a “particular social group” with “a well-founded fear of persecution” based on said membership.

This little legal ditty has been the bane of asylum lawyers for a long time. It’s meant that the majority of journalists who have the crap kicked out of them for doing their job get sent back home (file under, “What’s a particular social group?  We don’t know.”). It’s meant that Guinean women who’ve survived female genital mutilation and made it here and filled out their asylum paperwork get sent home, because, as a U.S. government lawyer put it (and the Associated Press paraphrased), “there was no evidence in the cases of the three women that the same individuals who harmed them would do so again” (file under, “You can only be circumcised once.  It’s over; go home.”).  It’s meant that a Guatemalan woman whom an asylum judge recognized was tortured by her government was sent home because she couldn’t prove she was tortured because of “race, religion, nationality, political opinion or membership in a social group,” as the law enumerates (file under, “WTF?  Yeah, that’s what even the appeals judges said, too.”).

There’s been a lot of criticism of asylum rulings because of this incredibly variation, and there’s been minor changes in policy to try an address it.**  Maybe calling journalists a “particular social group” is a move in the more sensible direction..but homeschoolers?   I’m befuddled.  A law school professor quoted in a Christian Science Monitor article  explained it this way:

“Homeschoolers are a movement of sorts…The immigration judge looking at this claim said there is a coherence to this gorup…and that denying the rights of this group [to homeschool] is persecution.”

What’s that coherence about?  Are homeschoolers any more coherent than journalists, what with their emailing and source-sharing and Committee to Protect Themselves?  The coherence in this case appears to be belief.  The Monitor hems and haws a bit about what USA Today puts much more bluntly: The Romeike’s are evangelical Christians, giving their asylum claim an air of religious persecution, or at least religious group identification.

Sort of. The European Court for Human Rights has backed Germany’s law in rulings against other families making similar claims.  (Note to asylum judges:  Are we usually in the business of bucking the European Court for Human Rights?  This isn’t like the UN human rights body, that Bashir gets to chair while he’s buying new gunships to “protect” Darfur.)

Meanwhile, you can’t exactly call the man in charge here an asylum-crazy let-’em-in-lefty or a right-wing Jesus-judge. According to a Syracuse University project that tracks asylum decisions and turns them into handy statistics, Burman is slightly more willing than your average asylum judge to grant asylum: he denied (only) 50 percent of asylum claims before for him from 2004-2009, compared to what TRAC says it the national average tendency to send people home 57 percent of the time. (As for the Jesus part, I have no idea what Burman’s beliefs or tendencies are, and unlike Lindsey Graham, in the absence of any real information I’ll give a US judge the benefit of that doubt for keeping his personal beliefs off the bench.)

You can (almost) always win by saying the N-word

Naturally, Nazis come up in this sort of thing. There’s a lot of jabber on the net that the ban on homeschool originates with Hitler, but the Monitor article pegs it to a 1919 law made under the pre-Hilterian Weimar Republic.  In fact, it’s even older:  It’s been around practically since Germany became a country (good old Prussia).  Variations of school laws were consolidated in 1890, at which point education was unarguably compulsory.  (h/t German Way Expat Blog, whose reference to Prussia I fact-checked with the charming Cyclopedia of Education, from MacMillian Press (thanks, Google Books) and written by Paul Monnroe, a professor at Teachers College at Columbia University — and a PhD, a much less common degree back in 1919, when this book was published.  The book also confirms, btw, that Weimar thing.)

So sure, like their predecessors, the Nazis did it. By the way, so do we: In 2008, a California court ruled that parents without state certification can’t homeschool their kids.

The Monitor article says that other German families who want to homeschool their kids are in touch about this asylum ruling. I therefore predict a spike in German asylum applications. Meanwhile, I’ll prepare a policy memo that suggests we skip the whole asylum thing and treat this more like Wife Swap: You can homeschool your kid in New York and live in my apartment, if I can crash in your Berlin pad and avail myself of that grand German tradition in which women get 14 weeks paid maternity leave and both parents get Elternzeit, which protects them from being fired for three years after Das Baby has arrived.

Or maybe Germany will just give me economic asylum? Bitte sehr?

*As of Jan 4, this is supposed to change. Watch (wait?) and see.

**Which is to say, for every case of FGM that lost an asylum petition, another could have gotten it.  It depends, literally completely, on the judge.  (So by all means share what you know about asylum cases, but try to avoid lashing out at me in comments because you heard about the woman from Togo who <em>did</em> get asylum for FGM…I know, I know…)


  • cmg says:

    Very interesting perspective, Jina. I was involved in the asylum application (I did some translations of various German court decisions about compulsory schooling) and I have to agree this does seem like a slap in the face for people who have had asylum applications refused for worse human rights violations. By the way, another family has recently also applied for asylum . They had lost custody of their children because they were homeschooling and were in danger of losing custody again: http://educatinggermany.7doves.com/?cat=116
    I suppose here it could be argued that because their children had already been made wards of the state, they were not safe from the German Jugendamt in any other EU country, so that the USA was possibly one of the few viable destinations for them. Another family is seeking asylum in Canada

    Here’s a link to an interesting blog posting and discussion (in the comments section) on the Romeike asylum case: http://andrewhammel.typepad.com/german_joys/2010/01/homeschooling_in_germany.html#more

  • cmg says:

    BTW, the Nazi reference comes from the fact that although compulsory schooling was introduced in the Weimar Constitution in 1919, this put Germany at the same level of other European countries that have compulsory schooling laws, but do not enforce them, or interpret it loosely to include home education and distance education models. Compulsory schooling was still subordinate to the rights of parents in deciding on their children’s education. It was in 1938 that the Schulzwang provision was added in the „Gesetz über die Schulpflicht im Deutschen Reich“ (Reichsschulpflichtgesetz). The National Socialists had no interests in preserving parental rights and the law just stated baldly that all children were subject to compulsory school attendance. It went on to say that this “secures the education and instruction of the German youth in the spirit of National Socialism”.

    This law also extended compulsory school attendance with a duty to attend vocational school after the age of 14 years, something that exists in all German states today (other EU countries also have compulsory education up to 16, but this does not preclude education that involves non-school-attendance

    This law also introduced “Schulzwang” or enforced school attendance in § 12, stating that “Children and young people who do not comply with the duty to attend school or vocational school will be brought to school under compulsion. The police can be called on for assistance in this regard.” This exact wording was placed in the education laws of various (not all) German states and is applied by the courts and official agencies to this day, even in those states where the law is not on the statute books. Other countries also have similar measures for dealing with truants, but it must be noted that in these countries, children who are home educated or doing their schooling through distance education are not regarded as truants. This is not the case in Germany, where the right of parents to decide on their children’s education (which was still primary in the Weimar Republic) and the original duty of the state and schools to support parents in this regard has been abandoned.

    Although the German courts have stated that the state’s educational mandate is equal to that of the parents, in cases where parents have appealed for the right to have their children exempted from compulsory school attendance or are having their children removed from them because of non-attendance at school or are in court for fines or criminal charges, the courts have almost universally refused to examine evidence regarding the failure of the state in fulfilling this mandate, so that the parents’ educational mandate is actually treated as subordinate to that of the state, which was basically the position under Nazi Germany.

    Here is a very interesting paper, which discusses this

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