AuthorSonntag, Holger

CONTENTS INTRODUCTION I. THE LEGAL FRAMEWORK FOR ADJUDICATING CLAIMS RELIGIOUS PERSECUTION A. Some Context for the Framework 1. Freedom of Religion and Asylum in the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights 2. History Meets National Law: Some Recent Developments in U.S. and Germany a. Recent Developments in the U.S b. Recent Developments in Germany B. The Basic Definition and Benefits of Refugees in International and National Law C. Elements of the Refugee Definition in Detail 1. Persecution a. The UNHCR b. U.S. Law c. German Law d. Summary 2. Well-founded Fear a. The UNHCR b. U.S. Law c. German Law d. Summary 3. Establishing a Causal Nexus Between (the Fear of) Persecution and Religion a. The UNHCR b. U.S. Law c. German Law d. Summary II. IRAN, IRANIAN REFUGEES, AND THE LEGAL SITUATION CHRISTIANS IN IRAN A. Iran and Iranian Refugees in the U.S. and Germany B. The Legal Situation of Christians in Iran III. Judicial Review of Religious Asylum Claims by Iranians in the U.S. and Germany . A. General Rules for Judicial Review of Administrative A Decisions 1. U.S. Law 2. German Law 3. Summary B. Judicial Review: Evaluating the Applicants' Credibility Assessing the Situation in Iran 1. U.S. Courts a. Najafi v. INS b. Refahiyat v. U.S. Department of Justice INS c. Toufighi v. Mukasey 2. German Courts a. Iranian Couple I Case b. Iranian Individual Male Case c. Iranian Couple II Case CONCLUSION: COMPARING ASYLUM LAW IN THE U.S. GERMANY A. The Findings B. Toward a More Just Adjudication of Claims INTRODUCTION

As of 2016, the U.N. High Commissioner for Refugees ("UNHCR") counted about 65.6 million individuals globally who had been forcibly displaced. (1) Refugees and asylum-seekers accounted for 25.3 million of this total. (2) Syria continues to be the major source of both refugees and asylum-seekers worldwide. (3) While Turkey, Pakistan, and other developing nations hosted the largest numbers of refugees, (4) Germany was the largest recipient of new asylum applications in 2015 and 2016, followed by the U.S. (5)

Just over fifty years ago, on January 31, 1967, an important international document was signed that was meant to address the number of international refugees--the Protocol to the 1951 Convention Relating to the Status of Refugees. (6) While the U.S. did not ratify the Convention, (7) it acceded to the Protocol in 1968. (8) Over a decade later, Congress passed the Refugee Act of 1980 as an amendment to the Immigration and Nationality Act ("INA") of 1952. (9) This amendment not only adopted a definition of refugee "virtually identical" to the one set forth in the Convention and slightly modified by the Protocol, (10) but also made this definition the foundation of current U.S. asylum law. (11)

Former West Germany ratified the Convention in 1953 (12) and joined the Protocol in 1969. (13) Former East Germany acceded to both the Convention and the Protocol in 1990. (14) Following the formation of the EU, Germany's refugee policy became subordinate to EU directives that are based on the international definition of a refugee. (15) Accordingly, current German law makes this definition the cornerstone of its approach to refugee claims. (16)

The U.S. asylum system and the German refugee system are too vast to compare in their totality within the space available in this Note. Therefore, this Note will focus on basic elements of establishing an asylum or refugee claim that are derived from the shared international definition of refugee. To provide concrete examples of how these elements are interpreted and applied in practice, this Note will consider the fate of Iranians seeking religious asylum in the U.S. and Germany, especially those who became refugees by conversion to Christianity after leaving their home country. (17)

While Iran is not at the epicenter of the current refugee crisis, it is a country that has come to occupy a place in U.S. foreign policy that is quite different from the place it occupies in German foreign policy. Additionally, over the years, Iran has provided a steady stream of applicants who seek religious asylum both in the U.S. and Germany. Finally, while religious asylum claims have generated relatively little litigation in the U.S., (18) they have recently generated renewed attention in Germany due to an unprecedented wave of conversions by Muslims to Christianity in the wake of the Syrian refugee crisis. (19)

Taking all of these factors together, Iranian applicants for religious asylum seem particularly well-suited to shed light on a fundamental problem in asylum and refugee law, namely, how a disparate evaluation of the situation in the country of origin and a different transposition of the international definition of a refugee into national law impacts individual asylum or refugee claims.

While it is desirable to have a universal definition of refugee correspond to a common interpretation (20) and a common application of that definition to avoid disparities in treatment of similarly situated applicants, (21) this Note will show that using a common international definition of refugee, without more, has not resulted in similarly situated applicants being treated similarly by the countries where they happen to seek refuge from persecution.

Absent an authoritative international court of refugee and asylum law--or an international refugee agency with the authority to assign refugee quotas to sovereign nations (22)--longstanding national precedent both procedural and substantive in nature within which the international definition is interpreted and applied appears to be an insurmountable hurdle on the path toward similarly treating the similarly situated. (23) Moreover, the case of asylum seekers from Iran appears to show that differences in political and diplomatic relations with the applicants' country of origin have a bearing on how those claims are adjudicated based on disparate assessments of the situation in Iran.

These differences do not mean that U.S. and German high courts cannot, or should not, benefit from each other's jurisprudence on asylum matters in the interest of an operationalization of international refugee law that treats similarly situated applicants similarly. (24) In fact, given the absence of effective global institutions able to protect the rights of refugees, national law plays a critically important role in affording refuge to those who have lost the protection of their home countries. (25) This importance of the nation state--and of organizations that have reached a level of political integration on par with the European Union--makes the task of international learning indispensable in order to achieve a more similar treatment of similarly situated people who do not have the luxury of international forum shopping.

As a contribution towards this goal, this Note will proceed in four steps. Part I will discuss the legal framework for reviewing refugee claims based on religious persecution. It will do so by comparing and contrasting the U.N. position on refugee law, U.S. asylum law, and German refugee law as they pertain to those experiencing religious persecution. Part II will briefly highlight the different relations between the U.S. and Iran and Germany and Iran and then investigate by way of example the legal situation of one potential group of asylum seekers in their country of origin--Christians in Iran. Part III -after discussing the respective general frameworks for judicial review of administrative asylum or refugee decisions--will review a number of U.S. and German court decisions reviewing administrative decisions of claims of religious persecution brought by Iranians. The Conclusion will highlight areas of agreement and disagreement between U.S. and German law and provide suggestions for a more just system of asylum and refugee adjudication based on the current interaction between national and international law.


    Before analyzing how religiously motivated applicants from Iran fare under U.S. asylum law and German refugee law, this part seeks to describe important elements of the legal framework under which applicants' claims are adjudicated. Since pertinent law in both the U.S. and Germany goes back to the international definition of refugee, this description will include the UNHCR's understanding of this international definition. While the UNHCR's interpretation of the 1951 Convention's definition of refugee is not binding, it still provides an international point of reference for the national utilization of this definition.

    1. Some Context for the Framework

      The international definition of refugee set forth in the 1951 Convention did not originate in some legal or historical vacuum. It is firmly rooted in the attempts to use international declarations and agreements to deal with the consequences of World War II. In view of the Convention, important components of those attempts were the 1948 Universal Declaration of Human Rights ("UDHR") and the 1966 International Covenant on Civil and Political Rights ("ICCPR").

      1. Freedom of Religion and Asylum in the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights

        In December 1948, the U.N. General Assembly adopted the UDHR. (26) The UDHR was meant to be a response to the severe human rights violations committed in the course of World War II. (27) The U.N. Commission on Human Rights--established in 1946 and first chaired by Eleanor Roosevelt--was charged with drafting not just a non-binding declaration, but an instrument that would allow the U.N. to intervene in a timely manner to prevent human rights violations like those witnessed just years earlier. (28) But in the changed circumstances of the Cold War, the Commission first drafted no more than the 1948 Declaration. (29) It would take almost two decades of further...

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