Week #7: Uncertain Sanctuary
Amina was eighteen years old when she was married off to Lodhi, a man who was completely unknown to her and her family until he approached their doorstep one day looking for a suitable bride. Five months into their marriage, Amina became aware that Lodhi was secretly a commander in the Taliban; this corresponded with Lodhi’s own discovery that Amina’s brother was employed by the Afghan National Army, which was conducting military operations against the Taliban at the time. For five more months, the harassment that Amina endured from her husband for her brother’s “working with the infidels” was mostly verbal. After that, Amina was physically and sexually assaulted by Lodhi with increasing frequency for some time before Amina’s parents were finally able to convince him to divorce their daughter. Unfortunately, Amina then learned that she was pregnant with Lodhi’s child, and, fearing what her ex-husband might do to her and her unborn son, she fled to India.
Amina’s name isn’t Amina. Amina’s name is long, beautiful, and quite difficult for me to pronounce. I have changed her name to protect both her privacy as well as the work being conducted here at the Migration & Asylum Project. Unfortunately, her name is the only aspect of Amina’s story that I have changed.
To be officially recognized as a “refugee” just about anywhere in the world, a person first has to have been persecuted within their home country. Under the 1951 Refugee Convention and its subsequent 1967 Protocol, such persecution is not unlimited in scope; a “refugee” under the definition offered by the Convention is a person who has been targeted in their home country for their (1) race, (2) religion, (3) nationality or ethnicity, (4) membership in a “particular social group,” or (5) political opinion. While some of these categories are certainly easier to understand than others, the Convention dictates that the case of a person seeking asylum MUST be tied to persecution that falls into one of these five categories for that person to be formally recognized as a refugee. Though India is not a signatory to the Convention, it has authorized the UNHCR (think of it as a refugee-specific enforcement arm of the United Nations which is bound by the perimeters of the Convention) to conduct the majority of “Refugee Status Determinations” within the country to sort out which of the displaced persons coming into India should or should not be formally recognized as “refugees.” This is a long-winded way of saying that “refugee” is a term that carries significant legal implications, and not all of those who might colloquially be thought of as refugees will be considered as such under either international or domestic law.
Aaden came to India when he was in his mid-fifties. Arriving with Aaden was his eighty-year-old uncle, who had suffered a debilitating neurological episode that left him in need of constant care and assistance, which he was unable to acquire back in the pair’s home country of Somalia. However, his uncle’s condition wasn’t why Aaden was forced to leave Somalia; a shopkeeper by trade, Aaden was a Somali citizen like any other when his world was turned upside down after his friend and coworker was murdered by Al-Shabab for refusing to pay the bribe that had been demanded of him. Unable to acquire any money from Aaden’s friend, it wasn’t long before Al-Shabab turned to Aaden himself, informing him that the only way for Aaden to escape the grizzly fate of his friend was if he agreed to join the terrorist organization as a civilian recruit. Aaden refused, hiding in his uncle’s residence for two months before the two were ultimately able to make their escape to India. Without a refugee card, Aaden has struggled to make ends meet while simultaneously looking after his gravely ill relative.
While an individual must have been persecuted in their home country to be considered a refugee, it is important to note that the individual’s home country does not itself have to have been the persecuting actor for a refugee status determination to be successful. That is to say, other unsavory entities operating within a nation can have persecuted a person and that person might still be eligible for official refugee status so long as they can prove that their government was incapable of stopping the unsavory actor from persecuting them. Somalia, as highlighted in Aaden’s case above, provides a perfect example of this point: Somalia the country was not actively persecuting Aaden for his refusal to cooperate with Al-Shabab (considering the Somali government’s staunch opposition to the terrorist organization, this would have made things somewhat complicated and problematic), but attorneys at MAP have actively been trying to present UNHCR with the case that Somalia is in a weakened enough state where the Somali government couldn’t have done anything to protect Aaden even if he had reached out to them to do so. This lack of state protection, working in tandem with Aaden having been persecuted by Al-Shabab for his (imputed) political opinion or perhaps his membership in a particular social group, will hopefully be enough for Aaden to be recognized as a refugee in India.
Rebin, an Iranian and member of the persecuted Kurdish minority living within the country, was arrested by the Iranian government after he spontaneously decided to participate in a peaceful protest that had broken out in which protestors shouted slogans against the Supreme Leader of Iran and the government’s restrictive policies. While detained, Rebin was stripped of his clothes, threatened, kicked, severely beaten, prevented from sleeping, and interrogated by his captors. Eventually, Rebin’s mother was able to post bail for him, using their house as collateral, and Rebin was transferred and eventually released soon after. Rebin told MAP attorneys that he never found out exactly what the Iranian government had been charging him with.
A month later, Rebin fled the country and came to India to avoid further mistreatment at the hands of the Iranian authorities, who would likely be inclined to target him further either due to his political, anti-government beliefs or his “undesirable” Kurdish ethnicity. Completely and utterly alone, Rebin arrived in India just as COVID-19 began to cause havoc within the country as it did elsewhere across the globe. Since then, Rebin has suffered from debilitating mental health issues related to his prolonged torture in Iran; he has expressed having suicidal thoughts, frequently feels intense and uncontrollable anger that is triggered by nothing in particular, and lives in complete isolation in India, devoid of community support. Additionally, Rebin’s lack of a refugee card has made it impossible for him to acquire gainful employment that would allow him even marginally to support himself.
Upon arriving in India, a displaced person will register themselves with UNHCR, an act which will then trigger UNHCR’s scheduling of the displaced person for a Refugee Status Determination interview (a process that can take months or, in some extreme cases, even years due to a significant backlog in cases). If the interview goes well and the interviewer is sufficiently convinced that an applicant falls within one of the five specified categories of persecution, the displaced person is given a UN-recognized refugee card that allows a person to stay and live in India as a refugee. A refugee card is desirable to a displaced person for more than just the obvious reasons, as an applicant can suffer significant harm without one. For one thing, if a person is harassed by the Indian police (a not altogether uncommon phenomenon), that person is at risk of immediate deportation if they do not happen to have a refugee card handy. Additionally, a refugee card is necessary for displaced persons to be able to access Indian banking, the absence of which severely limits the types of jobs that a person can obtain. Lacking a refugee card also makes it impossible for a displaced person to access Indian healthcare services and educational opportunities for themselves and their children. All of these factors make life all the more difficult for people in need, who are barely getting by in a country that is already not overly friendly to foreigners seeking government assistance.
Nsayi’s home was broken into by masked men one night soon after the death of her husband, who had been a higher-up in Congolese society in the DRC. Suspecting foul play, Nsayi had been looking into the bizarre circumstances surrounding her husband’s death when she, her son, and her young daughter were subjected to unimaginable torture and sexual assault at the hands of their unknown assailants, who demanded that Nsayi leave the issue of her husband’s death alone. In her intake interview with MAP, Nsayi recounted just how commonplace these attacks were in the DRC while she lived there. In the weeks that followed, Nsayi’s in-laws somehow became aware of her sexual assault and, instead of offering Nsayi and her struggling family the support that they needed, kicked them out of Nsayi’s deceased husband’s home (which belonged to Nsayi’s in-laws under Congolese law) while simultaneously accusing her of pretending to have been raped as an excuse to cover up what they alleged to be acts of prostitution.
With nowhere else to go and growing increasingly panicked about the physical and mental well-being of her family, Nsayi and her children came to India, hoping to acquire refugee cards from UNHCR. To be able to afford enough to support her son and daughter, Nsayi has had to live apart from them while conducting domestic work for a well-off Indian family. Nsayi worries that the separation has only increased the severe PTSD that her children have suffered over the years; to make matters worse, Nsayi herself has been sexually assaulted twice since coming to India and fears reaching out to the Indian police for assistance out of a fear that she and her children would be deported by the authorities if they were to make their presence within the country more prominently known.
I didn’t end up working on Nsayi’s case; hers was one of the first personal statements that I was asked to read during my initial training upon arriving at MAP, and without a doubt, it is one of the most disturbing and disheartening documents that I have ever come across. Among a sea of tragic cases, hers has stood out in my mind simply because of the nature of the depraved and brutal acts that were carried out against her and especially her young children, all for having tried to find out what had happened to her deceased spouse. Putting these stories away at the end of the day has been the most difficult part of working at the Migration & Asylum Project by far for me, as I think it is for a lot of attorneys who work in this and other relatedly dark and dismal areas of the law. It's important work, and I am glad to make myself of use to people so that they can remain safe once they arrive in India; still, the mind does wander, and an idea placed on a shelf has a persistently annoying habit of creeping back late at night. I try to consistently remind myself, “If it's this difficult to work on a client’s case, imagine how hard it must have been to live it.” That helps my mind to quiet down, if not always for very long.
- Tyler Brooks, 07/10/2024