Why LJF is Wrong about Romeike v. Holder
ON April 23, the Sixth Circuit Court of Appeals will hear oral argument in Romeike v. Holder, a case in which a German homeschooling family seeks asylum in the United States. The Home School Legal Defense Association, my employer, is representing the Romeikes, and has embarked on an awareness campaign in an attempt to convince the justice department to drop the case. In response to this campaign, Libby Anne at Love, Joy, Feminism (LJF) released a blog post asserting that both the campaign and HSLDA’s legal arguments are false and hypocritical. The post is long and detailed, so I’m going to reproduce it in full, providing a paragraph-by-paragraph commentary. Their quotes are indented, and all the emphasis therein is original.
Why HSLDA is Wrong about Romeike v. Holder
Before I get into the Romeike case, let me start with a quick legal outline. Under current U.S. law, “persons who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion” are eligible for asylum in the U.S. Upon arriving in the U.S., asylum-seekers file a petition for asylum. The petition is first seen in the Immigration Court, where an immigration judge rules upon it. Then, either the petitioner or the government may appeal the decision made by the immigration judge to the Board of Immigration Appeals. After the Board of Immigration Appeals issues its decision, a few specific types of cases, asylum among them, may be appealed to the federal circuit overseeing the jurisdiction where the petitioner lives (in the Romeike case, it’s the 6th circuit).
Now on to the Romeike case. German parents Uwe and Hannelore Romeike decided to homeschool their children because of concerns that the German public school system taught bad values and approved of witchcraft. Faced with fines, imprisonment, and the loss of custody of their children in the only European country where homeschooling is banned outright, the family fled to the United States in 2008. On January 26, 2010, an immigration judge granted the Romeikes asylum. The immigration judge held that the Romeike’s were “members of a particular social group” and concluded that they would face persecution for their religious beliefs should they be returned to Germany.
On May 4, 2012, the Board of Immigration Appeals overruled the immigration judge and denied the Romeikes asylum. The Board of Immigration Appeals needed to answer these questions: (1) Have the Romeikes suffered persecution? (2) If they did suffer persecution, was it because of their religion? (3) Alternatively, if they did suffer persecution, was it because of their membership in a particular social group? The Board of Immigration Appeals answered no to all these questions. First, it wasn’t persecution because the anti-homeschooling law was one of general application (not meant to target a specific group, but rather something that applied evenly across the board). Next, because there were secular reasons for the compulsory attendance law, even if it had been deemed persecution it wouldn’t have been persecution suffered because of their religion. Finally, the Board of Immigration Appeals found that German homeschoolers are not a particular social group within the meaning of the act. To be a social group, there must be “social visibility” and “particularity.” Homeschoolers are simply too “amorphous” to constitute a social group eligible for protection under the asylum law.
This is a fair summary of the BIA’s opinion. LJF fails to observe, however, that almost all of the findings that the board made in reaching these conclusions were contrary to law. Federal law and regulations provide, “Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals.” The BIA is limited to reviewing the facts found by the Immigration Judge. In so doing, the BIA must defer to those findings unless it determines that they are “clearly erroneous.” If the BIA makes such a determination, it may reach a different conclusion (based on substantial evidence from other facts found by the Immigration Judge) or it may remand the case back to the Immigration Judge. Those are the only options. When the Board “answered no to all these questions,” it did so by making its own findings of fact and by contradicting the Immigration Judge without a showing of clear error. HSLDA’s reply brief identifies eleven such findings which appear in the government’s brief (in other words, even the government is aware that the BIA made its own findings and identifies them as such). So, as a matter of law, the BIA’s conclusions are improper. In a moment, we’ll get to why they’re also just plain wrong.
The Board of Immigration Appeals decision has now been appealed to the 6th Circuit. At issue again will be whether the Romeikes are being persecuted due to their religious belief or if they are being persecuted because they are a member of a particular social group.
The Religious Freedom Argument:
Note that asylum law does not depend on American constitutional rights. Just because you have a right under the American constitution, that does not mean you will receive asylum because your home country does not recognize that right. A prime example is the right to free speech. European countries tend to have a much narrower range of protections for speech, strongly limiting hate speech. Germany, for instance, forbids anyone from advocating for the Nazi party. Such a law would not survive a constitutional challenge in the United States. However, you cannot receive asylum in the United States if you are a Nazi sympathizer in Germany. This is because such a law would not be seen as “persecution” within the meaning of the asylum statute. Just as the Board of Immigration Appeals found that the Romeikes were not being persecuted because the compulsory attendance law was a law of general applicability to all Germans, no matter their religion or political beliefs, even so a generic “no hate speech” law under which pro-Nazi advocacy was banned would similarly not provide grounds for asylum.
This is true—American constitutional law does not determine whether an applicant deserves asylum. Constitutional law does have a place in the analysis, however, when it comes to determining whether a particular practice should be considered “so fundamental to one’s identity or conscience that it should not be required to be changed.” (This is one of the inquiries which immigration courts undertake when determining whether there is a particular social group at play. More on that later.)
How do you determine whether a government’s actions constitute persecution? You (gasp!) look at international law. For all the time and energy it spends lambasting international bodies and rights treaties, it is surprising that HSLDA is relying on international law for its arguments. When HSLDA goes bonkers over the Department of Justice’s assertion that homeschooling is not a fundamental human right, they are really complaining that the Department of Justice doesn’t think homeschooling is protected by international law. The Department of Justice’s assertion has nothing whatsoever to do with an analysis of rights protected under American law. But really, HSLDA and their followers have no one to blame but themselves for the supposed lack of development in international law—they have been fighting any American involvement in the development of international law for decades.
This is inaccurate for two reasons. One is simple: HSLDA does not harbor a general antipathy toward international law or human rights treaties. HSLDA has certainly made concerted efforts to prevent the ratification of some treaties, but they are all treaties of a particular type: they do not deal with the conduct of nations, they deal with the internal matter of how nations treat their own citizens. HSLDA takes the position that elected American legislators should make law for American citizens, so it routinely opposes treaties which include subject matter that is currently controlled by state law. HSLDA would like to see the role of international law expand in its proper sphere—the law of asylum being an excellent example.
I alluded to the second reason above. The Justice Department actually does not address our arguments about whether international law protects the right to homeschool because it believes that those issues were not properly preserved for appeal. The government does assert, however, that parents’ desire to educate their children in accord with their values is not sufficiently fundamental to their “identity or conscience” such that it “should not be required to be changed.” In previous federal cases, courts have looked to American constitutional law to make such determinations. For instance, in Al-Ghorbani v. Holder, the Sixth Circuit quoted Loving v. Virginia (a landmark U.S. Supreme Court case) to observe that marriage is a fundamental right and, consequently, that “Persons who are forbidden to marry, or those who oppose discriminatory restrictions on marriage, may therefore constitute a particular social group.” In arguing that homeschoolers cannot constitute a particular social group, the government denies the fundamental right of parents to direct the education of their children. This argument does have implications for American constitutional law. Cases like Pierce v. Society of Sisters and Wisconsin v. Yoder stand for the importance of parents’ constitutional right to provide education in accord with their religious convictions to their children. More recent cases, like Troxel v. Granville, have called into question the Court’s willingness to treat parents’ rights as fundamental. That makes this case very important.
HSLDA contends that Germany’s compulsory attendance law is per se a religious liberty violation because its goal is the integration of minorities and avoidance of parallel societies. HSLDA is famously involved in all kinds of hyper-conservative political activities, and it’s amusing that the same populace known for their xenophobia and dislike of multiculturalism should now be upset with Germany for trying to encourage homogeneity within the populace. Germany’s policy is also little different than what occurred in the United States during the late 19th century, when public education was seen as a means to “Americanize” the millions of children immigrating every year.
Actually, HSLDA also invokes the trend in the late 19th century and early 20th century to “Americanize” children through education to criticize Germany’s objective here. HSLDA stands for the proposition that parents, not the state, should be the primary influence in the lives of their children. In the 1920s, Oregon attempted to compel all children to attend public school with the same objective, to prevent “the development of religiously or philosophically motivated ‘parallel societies.’” (Those are the German Federal Constitutional Court’s words describing the justification for banning homeschooling.) In response to Oregon’s law, the U.S. Supreme Court wrote,
“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
In another case, Meyer v. Nebraska, Nebraska outlawed instruction in all languages except English in order to ensure that German immigrant children would assimilate. The Supreme Court reached a similar holding, finding the law unconstitutional.
HSLDA, far from “xenophobia and dislike of multiculturalism,” affirms both of these holdings as cornerstones of constitutional liberty. HSLDA is not against tolerance and pluralism. HSLDA stands against state-imposed tolerance (which is nonsensical, see my earlier post), and State imposed homogeneity. Ironically, the policy of Germany is against multiculturalism because it is trying to “counteract…parallel societies.” HSLDA is simply defending the liberty of parents to teach their children in accord with their faith. Germany is attempting to “standardize its children,” thereby reducing the endurance of minority cultures and perspectives in the hope that, by exposing all children to the same curriculum in the same schoolhouse, everyone will find common ground. Finding common ground is a good thing. Doing so with the coercive power of the state under the threat of fines or imprisonment is not. HSLDA opposes Germany’s policy just as it opposes the attempts to “Americanize” immigrant children at the turn of the 20th century.
Be that as it may, the 6th Circuit should not see the compulsory attendance law as an attack on religious liberty. Germany is not out to smother any particular religious group or even all religious groups—its goal is a shared experience. In light of the problems Germany has had with the large number of Turkish immigrants not assimilating, it’s not difficult to see that the Romeike’s have just found themselves at odds with a law of general application. After all, under our own 1st amendment jurisprudence, laws of general applicability are not seen as violations of religious liberty.
First, this rests on the illegal “finding” of the BIA, in contradiction to the Immigration Judge’s finding that the law was based on “animus and vitriol” toward religious homeschoolers. Second, even if this finding of fact is proper, Germany does not get off the hook because one of its goals is creating “a shared experience.” To qualify for asylum, the Romeikes need only show that “one central reason” for the policy is Germany’s desire to “overcome a characteristic” of the Romeikes which is “fundamental to their identity or conscience.” (See Al-Ghorbani and Khalili v. Holder) Germany has identified homeschooling as a characteristic which leads to the “development of religiously and philosophically motivated parallel societies,” and it has elected to use its criminal law to eliminate that characteristic. This satisfies the law of asylum, even if Germany has additional benign goals. (I could also note that the last sentence from LJF mischaracterizes American law. Laws must be “neutral” and “of general applicability.” If a law is directed to suppressing a First Amendment freedom it is still unconstitutional, even if it applies to everyone equally. The Oregon law in Pierce applied equally to everyone, but that did not save it in the Court’s eyes.)
Note also the kind of precedent HSLDA’s argument would set. If homeschooling were sufficient to grant you asylum in the U.S., what other laws of general applicability in other countries could get you asylum here? Remember my Nazi advocacy example? That would be the tip of the iceberg. What about countries where private gun ownership is barred? or countries where wearing the burka in public is banned? This would mean a complete transformation in the way the Department of Justice handles asylum cases.
This is entirely false. First, the evidence on the record shows that the law is selectively enforced and that homeschoolers receive disproportionate punishment. The BIA illegally ignored these findings by the Immigration Judge without a showing of clear error. This law is actually not fairly applied in Germany.
Even if it was entirely general, our argument is limited in two ways that are completely consistent with existing precedent and, therefore, would only grant asylum to German homeschoolers. First, persons fleeing from the application of general laws have already attained asylum. Perkovic v. INS. The question of persecution is always a question of motive. It’s true, the vast majority of generally applicable laws will not rise to the level of persecution. Most generally applicable laws are targeted at people with whom the “government has a legitimate bone to pick.” (Perkovic) However, we’re dealing with a situation in Germany that is unique. In this rare case, the nation enacting the law has explicitly stated its motive—counteracting parallel societies—and that motive is inconsistent with international human rights law. The definition of persecution is “the infliction of harm or suffering by the government…to overcome a characteristic of the victim.” When the characteristic in question is legitimately criminal, then there’s no persecution. When that characteristic is a person’s religious exercise or something that “should not be required to be changed,” that is persecution on account of religion or membership in a particular social group.
So, there’s no likelihood that this will open up a Pandora’s Box of asylum claims. For instance, if Germany had enacted the same law but (a) truly enforced it uniformly and (b) did so with the only purpose of ensuring quality education or something unrelated to suppressing religiously motivated parallel societies, the Romeikes would not have a case. Such a law would be unconstitutional in the U.S., but it would not be grounds for asylum. HSLDA is not suggesting, and the argument does not imply, that all violations of human rights or constitutional liberties give rise to asylum claims. The rule of this case, should the court decide in our favor, would simply reaffirm the existing definition of persecution—the infliction of harm for the purpose of overcoming a characteristic which should not be changed. (Note—the LJF article mentions the potential for laws about wearing burkas to give rise to asylum claims. Interestingly, this has happened twice already. See Fatin v. INS and Yadegar-Sargis v. INS.)
The Social Group Argument:
HSLDA also argues, alternatively, that German homeschoolers are a particular social group and that hence the Romeikes are being persecuted because of their inclusion in that group. This also seems to be a losing argument, because social groups must share “immutable characteristics.” “Immutable characteristics” is a term typically found in Equal Protection law and commonly refers to things like race or gender. HSLDA and its ilk has fought against expanding Equal Protection to include other characteristics such as sexual orientation, but now—since it suits them—they would like this phrase to be broadened to include “homeschooling,” because homeschooling is “fundamental to [asylum-seekers’] individual identities or consciences.” The Department of Justice rightly contends that homeschooling is not an immutable characteristic because you can simply stop homeschooling.
HSLDA has responded in its brief that courts have never required people to simply stop being religious. Well . . . yes, but HSLDA is combining two separate grounds for asylum. You can be granted asylum because you were persecuted due to your religious beliefs OR you can be granted asylum because you were persecuted due to your membership in a particular social group, i.e. because of your immutable characteristics.Obviously, “particular social group” was meant to capture things like tribal affiliation, not actions like homeschooling. Once again, what HSLDA wants is a transformation of Department of Justice procedures regarding asylum cases.
This is incorrect. In explaining previous paragraphs I already pointed out that the “immutability” requirement of particular social groups can be satisfied by characteristics which “cannot be changed” (like race or gender) or “should not be required to be changed” that are central to one’s identity and conscience. HSLDA’s arguments about Equal Protection have nothing to do with their stance on this. The 14th Amendment arguments about sexual orientation concern the original intent of those who wrote and ratified that document. The asylum law arguments about the fundamental character of homeschooling depend on existing court rulings. Federal courts have already identified certain matters of conscience which one could simply “stop” doing, like homeschooling, but that one should not have to stop doing. These include the above examples of a woman’s refusal to comply with the “Islamic female dress code.” Such refusal is fundamental to a woman’s identity and conscience, even though she could just stop doing it. The Romeikes believe that they must instruct their children in a particular way. They could “simply stop.” They should not be required to do so, according to international law. They meet the legal standard.
Finally, a word about the meme going around (perpetuated by HSLDA), asking why Obama wants to give 11 million undocumented immigrants “amnesty” while seeking to deport the Romeike family.
First, Obama himself is not the one making any decisions about the Romeike family. (And remember that the family was first granted asylum when Obama was in office, not Bush.) That is an agency decision made by people who are career attorneys within Department of Justice. Administrations come and go, but these career attorneys stay. Second, under the existing law, the Romeikes should be deported. The administration is simply enforcing the law as to the Romeikes based on what the law currently says, just as the administration has done with the record number of immigrants it has deported over the past several years, not creating new laws or changing existing ones.
This is true enough. The point is not that HSLDA believes that President Obama is working personally to deport the Romeike family. The point is that the administration is actively seeking their deportation, and that administration is responsible to the President—the same President who is supporting widespread amnesty. The article also correctly observes that the Romeikes were granted asylum during Bush’s presidency. The appeal to the BIA is a discretionary appeal—someone at the DOJ is attempting to have the Immigration Judge’s initial determination reversed.
As I’ve argued, “existing law” requires granting the Romeikes asylum rather than deporting them. HSLDA is opposing arguments from the administration which would result in a poor application of the law. HSLDA has never accused the administration of “creating new laws” or “changing existing ones.” Rather, HSLDA thinks that the legal arguments being made here are both incorrect and dangerous.
HSLDA would whine and complain if Obama used his prosecutorial discretion to not enforce the law against the illegal immigrants currently being deported. But now, for the Romeikes, HSLDA is asking for an exception to the rules. Why? Because HSLDA likes these illegal immigrants. You will not see HSLDA and its hyper-conservative supporters wanting the Obama administration to show this kind of compassion to the millions of individuals who came to the United States due to the poverty and violence in their home countries. Let those people find a life somewhere else, the fundamentalists working at HSLDA would say. Well, the Romeikes can find a life somewhere else too—almost anywhere else in Europe but Germany.
There is no evidence to support the callous disposition which the author attributes to HSLDA. HSLDA isn’t asking for an exception or drawing lines between good and bad immigrants. I’ve spoken with the attorney arguing the case, and he wants America to be a haven of liberty for all those who are persecuted abroad. The key distinction is whether someone attempts to enter our country in conformity to our existing laws. The Romeikes have done so. Many millions of other immigrants have not.
First, if we could fix the immigration system so that the Romeikes could simply and easily move to the U.S. legally without having to apply for asylum, this problem would go away. And which side is generally against immigration reform?
HSLDA would like to see immigration reform, especially reform which would allow the Romeikes and other persecuted refugees to enter more easily. In fact, they’re currently working with the government on a nonpartisan basis to this end. The fact that so many millions of people want to come here legally but cannot is a tragedy.
Second, because of the ease with which people can move from one country to another within the European Union, the Romeikes could have simply moved to France or Switzerland or Austria, where homeschooling is legal. Instead, HSLDA attorney Mike Donnelly encouraged the Romeikes to move to the U.S. and apply for asylum, possibly with the intent of starting a court battle and having homeschooling declared a human right. in other wise, the Romeikes are being used as a political playing piece by HSLDA, the homeschool lobby, and conservative political hacks.
This is a baseless charge. HSLDA has always believed that current U.S. law should grant the Romeikes asylum. They are not a “political playing piece” and HSLDA is not a group of “conservative political hacks.”
Third, the Romeikes are not at risk of being put on a plane to Germany and arrested on arrival. Their children are not in danger of being taken from them. The image above is deliberately communicating a falsehood. If their request for asylum is rejected, the Romeikes can go to any country which will accept them as immigrants—or any country in the EU—and will be given a time period in which to make these arrangements.
This is false. The final agency determination reached by the BIA said, “The applicants are ordered removed from the United States to Germany.” The Romeikes have already been subjected to legal sanctions in Germany, which would likely increase upon their return as a result of their flight. Authorities have already informed them that they could lose custody of their children. This photo is factually accurate.
Fourth, it is my position that whether or not homeschooling should be legal in Germany ought to be up to Germany. If the German people want to make homeschooling legal, great! But if they want to mandate that children must attend a formal school (public or private), I don’t have a problem with that. It’s their country, their constitution, their laws.
HSLDA champions the rights of nations to make their own laws. This permeates their position on international law, which I explained above. HSLDA simply argues that if a nation chooses to make a law which constitutes persecution within the meaning of our law, people who flee that nation should be granted asylum. HSLDA is not trying to get Germany’s law declared invalid in the International Court of Justice. HSLDA is trying to secure asylum for the Romeikes in the Sixth Circuit Court of Appeals.
Fifth, I remember HSLDA talking about threats to German homeschoolers way back when I was a little girl, and I am firmly convinced that HSLDA is using the Romeike case, as it has used German cases before, to keep U.S. homeschoolers in a state of fear and keep them coming back to HSLDA to buy their legal insurance. Whether or not homeschooling is legal in Germany has absolutely no effect on whether it is legal in the U.S.
This is not fear-mongering. The connection between the government’s arguments and American constitutional law is subtle, but it is very real. HSLDA is concerned with protecting the liberty of parents in America and of those who seek asylum from persecution abroad, not with stirring fears for financial advantage.
Sixth and finally, see this interesting fact checking article for more information for refuting bad arguments and information out there about the Romeike case.
As far as that article goes with respect to the legal issues in this case, my post here is sufficient to answer them. Inasmuch as it deals with issues that are not specific to Romeike, I do not have sufficient knowledge to address them at this time.
Please comment if you have questions about this important legal issue.