{"id":3334,"date":"2016-11-21T06:12:54","date_gmt":"2016-11-21T06:12:54","guid":{"rendered":"http:\/\/icher.org\/blog\/?p=3334"},"modified":"2016-11-17T21:09:29","modified_gmt":"2016-11-17T21:09:29","slug":"analyzing-romeike-v-holder-no-persecution-without-prosecution","status":"publish","type":"post","link":"https:\/\/icher.org\/blog\/?p=3334","title":{"rendered":"ANALYZING ROMEIKE V. HOLDER: No Persecution Without Prosecution"},"content":{"rendered":"

Record:<\/b>\u00a0Maxim Doroshenko, \u201cYou Can’t Spell Persecution without Prosecution: Analyzing Romeike v. Holder to Determine if Laws of General Applicability May Ever Rise to the Level of Persecution.\u201d Educational Psychology in Practice<\/em>, 30, No. 1\u00a0(2014), 37-50.\u00a0[Abstract<\/a>]<\/p>\n

Summary<\/b>:\u00a0Doroshenko received his Doctor of Law degree (J.D.) in 2015 from Georgetown University Law Center<\/a>. In this article, he examines the case of Romeike v. Holder to determine if laws of “general applicability” could rise to the level of persecution.<\/p>\n

Before beginning, we must summarize the trial. The Romeikes<\/a>\u00a0are a German homeschooling family who feared being jailed due to their insistence on homeschooling in a country where it is strictly prohibited. They fled to the U.S., where they eventually received\u00a0political asylum. However, in order gain the asylum, they had to go through a tumultuous legal process. Although\u00a0they were granted asylum originally, the U.S. Department of Justice overturned the original decision. The Department said that the Romeikes, evangelical Christians, could not claim persecution since\u00a0Germany’s homeschoolers do not posses the characteristics to be considered a targeted social group.<\/p>\n

In order to assess whether the Romeikes were persecuted, it is necessary to have an understanding of compulsory education in Germany. Germany has a long tradition of compulsory education laws starting in the nineteenth century. They were\u00a0justified by a desire to create equal opportunities among the members of Germany’s diverse social classes. However, because the schools in different regions of the country were of differing quality, it could not be said that schools were offering equal opportunities to all students as envisioned by the creators of the compulsory education laws. Therefore, before 1938, it was possible\u00a0to attend a private school or to homeschool. With the rise of the Nazi party, the state-sponsored educational system took on a new importance as it spread party propaganda to the country’s children. During this time homeschooling was specifically outlawed. Even after the fall of the Nazis, the German education system continued, and continues, to protect the interests of the government over the interests of parents. Under the current compulsory education laws, students must attend a public school or a state-approved private school for 9 years starting at\u00a0the age of 6 or 7.<\/p>\n

Despite the penalties imposed on families who reject state-controlled education, it is estimated that approximately 500 families in Germany are violating the compulsory education laws and homeschooling their children. Many of these children may be homeschooled under a small provision that allows homeschooling for children whose parents are required to travel a lot (such as musicians) or when attendance is simply impractical. Homeschooling for religious or personal reasons remains illegal even though many German homeschoolers claim their actions to be legal under several international agreements that protect the rights of\u00a0parents to choose the kind of education that will be given to their children. However, homeschoolers have not been reassured by recent court decisions. For example, in Konrad v. Germany, the European Court of Human Rights upheld Germany’s exclusion of homeschooling, even in the face of parents’ rights to decide their children’s education, since homeschooling would create “parallel societies” and harm the integration of minorities. One case that did provide some hope in 2008 had to do with an American military family who were taken to court over their homeschooling. The judge said\u00a0that if the children were tested and found to be on grade-level with their peers, he would not be opposed to the practice. Nevertheless, since then, Germany has not made any signs of loosening their homeschooling restrictions. In the face harsh laws and penalties for not following such laws, there may be no other option for a family like the Romeikes whose convictions are held so deeply but to seek\u00a0asylum in another country.<\/p>\n

Next Doroshenko\u00a0moves from Germany to asylum laws in the US, since the Romeikes applied for asylum shortly after arriving. To obtain asylum, a person must prove that she or he is a refugee. A refugee is defined as\u00a0a\u00a0person who is unable or unwilling to return to their country of origin due to persecution or a well-founded fear of persecution on account of one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Asylum applicants are first vetted by asylum officers who make a recommendation. If the application is denied, the case goes to an immigration judge who can also reject or deny the application with more leniency.<\/p>\n

US asylum law is based on the 1967 United Nations Protocol Relating to the Status of Refugees. When there are doubts about definitions for terminology such as persecution,\u00a0there is precedence to refer to\u00a0the Handbook on Procedures and Criteria for Determining Refugee Status<\/em> published by the Office of United Nations High Commissioner for Refugees. With regards to persecution, courts generally require that the suffering must be severe. However, it does not necessarily have to be physical suffering. Severe economic harm or the forced denunciation of religious beliefs and practices have also\u00a0been justification for refugee status in the past.<\/p>\n

One thing that does not constitute\u00a0persecution is prosecution under a legitimate law of another country. What is a legitimate\u00a0law exactly? The most common way to test if a law is legitimate is to question its general applicability. If a law if generally applicable, it could theoretically apply to anyone in the country. Therefore, in order to prove that prosecution under a foreign country’s law has amounted to persecution, it must be proved that the law is illegitimate (or not generally applicable). Another way to assess a law is to judge it by international treaties like the refugee protocol previously mentioned. If a law does not correspond with internationally-agreed standards of human rights, such as Germany’s compulsory education law according to the Romeikes, it may be possible to claim persecution.<\/p>\n

Speaking\u00a0specifically about the Romeikes’ case, Doroshenko contests the fact that the Sixth Circuit\u00a0chose not to decide whether the Romeikes belong to a particular social group since\u00a0that is a critical factor in determining whether they were persecuted. Furthermore,\u00a0the court also refused to look at the validity of the law by looking at it from the standards of international human rights that Germany has promised to uphold. Since German courts have defended the homeschooling ban as “a justified interest in counteracting the development of religiously or philosophically motivated ‘parallel societies,'” and since persecution must come from infringement on a protected ground like religion, Doroshenko believes that it is very reasonable to draw a line between\u00a0religious persecution and\u00a0the German homeschooling ban, especially when considering Germany’s human rights commitments and its expressed desire to suppress minority religious values.\u00a0(p. 697). Doroshenko ends the article arguing that the Supreme Court should take on the case and set some clarity about laws and general application and when they may constitute persecution; however, we now know that the Supreme Court refused to take the case in 2014.<\/p>\n

Appraisal<\/b>:\u00a0To start, I must commend Doroshenko\u00a0for his clear and engaging writing-style in this article. Oftentimes legal articles like this can be overwhelming for an outsider to the legal world, but even when Doroshenko gets more technical, he is able to coherently explain the legal jargon. Regarding the article itself, there are some interesting points to add to our understandings of two topics in the homeschooling literature. The first is simply homeschooling in Germany. Scholars such as Reimer (2010) <\/a>and Spiegler (2009)<\/a> have written in the past about\u00a0the strict homeschooling laws in Germany, but Doroshenko\u00a0does a good job of simultaneously exploring the origins of the homeschooling law (the Nazi era) as well as its current application and interpretation. The other major question that this article shines a light on is whether there is right to homeschooling. Wagner (2014)<\/a> mentioned the Romeikes’ case as a possible\u00a0source of support for homeschooling advocates who believe that homeschooling is a constitutional right; however, Doroshenko is able to more clearly explain why homeschooling should be seen as a human rights issue.<\/p>\n

Disclaimer:<\/strong> The views expressed in reviews are not the official views of ICHER or of its members. For more information about ICHER\u2019s Reviews, please see the \u00abAbout these Reviews\u00bb Section.<\/p>\n","protected":false},"excerpt":{"rendered":"

Record:\u00a0Maxim Doroshenko, \u201cYou Can’t Spell Persecution without Prosecution: Analyzing Romeike v. Holder to Determine if Laws of General Applicability May Ever Rise to the Level of Persecution.\u201d Educational Psychology in Practice, 30, No. 1\u00a0(2014), 37-50.\u00a0[Abstract] Summary:\u00a0Doroshenko received his Doctor of … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":"","_links_to":"","_links_to_target":""},"categories":[10,11],"tags":[1621,1617,333,383,190,1615,1502,1616],"class_list":["post-3334","post","type-post","status-publish","format-standard","hentry","category-international","category-legal","tag-educational-psychology-and-practice","tag-georgetown-university","tag-germany","tag-konrad-and-others-v-germany","tag-konrad-v-germany","tag-maxim-doroshenko","tag-romeike","tag-romeike-v-holder"],"_links":{"self":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/3334","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3334"}],"version-history":[{"count":12,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/3334\/revisions"}],"predecessor-version":[{"id":3364,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/3334\/revisions\/3364"}],"wp:attachment":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3334"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3334"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3334"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}