Mr. Schooley writes a great paper on asyslum during military operations

Mr. Chad Schooley, a student in my Refugee Law Seminar last semester, wrote a great paper on facilitating asylum for displaced civilians during military operations. He has given Professor Birdsong permission to post it on the blog in order to share this information with a wider world.

Read and learn:

Facilitating Asylum for Displaced Civilians During Military Operations in SOUTHCOM Area of Operations

Chad Schooley © 2014

 Introduction

 The United States has long been identified as a location that will provide freedom of persecution. The Statue of Liberty stands as an undisputed symbol of freedom guiding persecuted people to a place of refuge. Over the years the amount of people allowed to legally enter into the United States has been limited. Specific requirements, that will be discussed later, must be established in order to obtain asylum into the United States. This paper will briefly discuss these requirements and show how current United States Army operations in the Southern Command (SOUTHCOM) area of operations can be used to help provide assistance to displaced foreign asylum seekers. The primary military focus will be on the 478^th Civil Affairs Battalion (Airborne) who serves in the SOUTHCOM area of operations and has a primary focus on Honduras, Guatemala, Columbia, Panama and El Salvador.  The United States military is in a unique position to assist people with a “well founded fear of persecution”[1] by providing avenues to help facilitate the asylum process and help protect these people from their persecutors. This topic is particularly important to this writer because he has worked with the United States Army in the SOUTHCOM AO with the 478^th Civil Affair Battalion (Airborne) for the past 3 ½ years and will continue this work for the foreseeable future. The possible solutions discussed in this paper will include new military programs, identifying United States Army “asylum teams”, and adjusting the current asylum seeker requirements to help the United States Army facilitate the asylum process.

1. History

The United States Army’s mission often interferes with foreign civilians, the shift from strictly combat related focus to an emphasis concerning the welfare of “displaced civilians” or “civilians on the battlefield” can be traced back to the Allied occupation in Germany.[2] “Shortly after the defeat of the Third Reich, General Dwight Eisenhower’s attention abruptly shifted from combat operations to the myriad issues associated with the Allied occupation of Germany. On 29 September 1945, President Harry Truman wrote to General Eisenhower to ensure that one of those issues – the plight of dislocated civilians in the U.S. Zone – would receive his personal attention. President Truman’s correspondence clearly communicated his dissatisfaction with the manner in which dislocated civilians were currently being treated, along with his view that the manner in which the United States treated dislocated civilians reflected the United States’ values more truly than its stated policies.^”[3]  This event was the foundation of the current US military “dislocated civilian” program which, when possible, is primarily spear headed by the Civil Affairs branch.[4] The Civil Affairs activities support those of a higher unit command and their operations have remained primarily the same since the Civil Affairs Branch was (arguably) created in the late 1940’s. [5] The main activities include operations that “(1) fulfill the responsibilities of the military under the U.S. domestic and international laws relevant to civilian populations, (2) minimize civilian interference with military operations and the impact of military operations on the civilian populace, (3) coordinate military operations with civilian agencies of the United States Government, civilian agencies of other governments and nongovernment organizations, (4) exercise military control of the civilian populace in occupied or liberated areas until control can be returned to civilian or non-U.S. military authority, (5) provide assistance to meet the life-sustaining needs of the civilian population and (6) provide expertise in civil-sector functions normally the responsibility of civilian authorities to implement U.S. policy and advise or assist in rehabilitating or restoring civilian-sector functions.[6] As one can see, the Civil Affairs Branch of the United States Army is in a unique position to directly influence foreign civilians who are seeking refugee or asylum status in the United States.[7] Altogether “The United States has, in theory, a generous refugee policy that welcomes persecuted individuals and provides them with a safe and permanent haven by allowing them to become a legal immigrant in two ways: through refugee status, which is sought overseas in the refugee’s country or in a refugee camp, or through political asylum, which is sought either inside the United States or at its border.”[8] Unfortunately at this time the main focus of the Civil Affairs Branch and the United States Army in general is on their primary mission success with the alternate focus being to establish refugee or dislocated civilian camps in order to best protect and control civilians while conducting military operations.[9]

1. Countries Involved

The military emphasis in this paper is on the United States Southern Command (SOUTHCOM), SOUTHCOM “is a joint military command supporting U.S. national security objectives throughout the Western Hemisphere in cooperation with domestic and international partners, in order to foster security, ensure stability, and promote prosperity throughout Central and South America, the Caribbean and the global community.”[10] The mission and area of operation for SOUTHCOM “encompasses the land mass of Latin America south of Mexico, the waters adjacent to Central and South America, the Caribbean Sea and includes thirty one countries and 15 areas of special sovereignty to include Antigua, Bolivia, Costa Rica, El Salvador, Honduras, Peru, Trinidad and Tobago, Argentina, Brazil, Curacao, Grenada, Jamaica, St. Kitts and Nevis, Uruguay, Aruba, Cayman Islands, Dominica, Guatemala, Nicaragua, St. Lucia, Venezuela, Barbados, Chile, Dominican Republic, Guyana, Panama, Belize, Colombia, Ecuador, Haiti, Paraguay, and Suriname.”[11] Each of these countries has its own bilateral agreement with the United States and that agreement dictates what assistance the military can provide and it is the governing factor when conducting peacetime military operations in that country.[12] The bilateral agreements can create some additional issues in assisting asylum seekers for example, “In countries experiencing political turmoil, the ruling government typically controls scare resources such as jobs and food.”[13] “Regardless of the opposition level, whether grass roots or through an organized party, one of the most effective tools for suppressing dissent is denial of the opportunity to earn a livelihood.”[14] “Courts have recognized that this denial can amount to persecution and the Ninth Circuit in Desir v. Ilchert found to be credible the applicant’s testimony that the Ton Ton Macoutes, a paramilitary force, had beaten and prevented the applicant from obtaining gainful employment because he would not pay them extortion money, and therefore granted the applicant asylum.”[15] As one can see there is significant progress being made for granting asylum to persecuted foreign nationals however, as will be discussed in the following section, many problems remain for asylum seekers in the current United States military “dislocated civilian” standard operating procedures.[16]

1. Problems

The first problem when determining how to assist asylum seekers by utilizing the United States Army is created from a basic understanding of the types of “dislocated civilians” and understanding that not every civilian that is seeking assistance from the United States Army is under the same classification or categorization ”[17] Many of the U.S. soldiers who conduct the “on the ground” interaction with the dislocated civilians are tactical level troops, meaning Company level and below, and these soldiers are often unaware of the different classifications of a “dislocated civilian” or a “civilian on the battlefield”.[18] “Dislocated civilian is an overarching term used within the Department of Defense used to refer to people who have left their homes for various reasons, and includes refugees, internally displaced persons, migrants, evacuees, and stateless persons.”[19] Additionally dislocated civilians may often by referred to as “displaced persons especially by civilian agencies and nongovernmental organizations”, these overarching terms can cause significant issues when planning military operations to help assist these individuals.[20] Common definitions that distinguish the above mentioned groups are as follows:

• Refugees – Thos individuals who (1) have left the country of their nationality and crossed an international border; (2) due to a well founded fear of being persecuted; and (3) that persecution is based on race, religion, nationality, membership in a particular social group or political opinion.[21]
• Asylum-discretionary relief that can be awarded if the person is outside their home country and they have a fear of prosecution if they return to that country. The fear must be based on race, religion, nationality, membership in a particular social group or political opinion.[22]
• Internally displaced persons- those individuals who (1) have fled their homes or places of habitual residence; (2) because of armed conflict, generalized violence, human rights violations or natural or human-made disasters; and (3) have not crossed an international border.[23]
• Migrants- those individuals who (1) “belong to a normally migratory culture who may cross national boundaries; (2) or have left their native country for economic reasons rather than fear of political or ethnic persecution.[24]
• Evacuees- those individuals who (1) are civilians; (2) who have been removed from their place of residence by military authority; (3) for their own personal security or because of requirements of the military situation.[25]
• Stateless persons- those individuals who are not considered as a national by any state under the operation of the law of the present or claimed nation.[26]

As one can see the overarching term “dislocated civilians” or “displaced persons” fails to correctly define the exact type and class of person that the military is encountering.[27] This failure to define and identify the correct group of individuals stems from a failure to correctly educate and prepare the tactical level leadership and tactical level soldiers who are tasked with assisting and controlling the “dislocated civilians”.[28] Traditionally soldiers are trained to focus on the primary mission and the civilian issue would be a secondary mission, but without better education and training the soldiers will be unable to accurately identify the groups of individuals needing help and therefore will be unable to correctly and effectively assist these individuals.[29]

An additional issue that correlates with the improper training of tactical level soldiers who are tasked with assisting civilians is further problems created from placing “displaced civilians” into “refugee camps” or “tent cities”.[30] These camps are created with good intentions and are intended to provide security, shelter and stability for the displaced civilians while simultaneously providing the military with an effective and straightforward way of distributing needed supplies and assistance as well as creating an effective way of controlling civilians in the focus area of operations.[31] Locating all dislocated persons together causes several main issues, first, it is difficult to identify who an individual person is because often times dislocated persons may not have any form of identification. Other issues include security, theft, assault, sexual assault and further difficulty identifying what type of dislocated civilian a person claims to be.[32] “In some situations, the link between refugee problems and internal displacement is not always direct and clear, when refugees and displaced persons are generated by the same causes and straddle the border, not only are the humanitarian needs similar, a solution to the refugee problem cannot usually be found without at the same time trying to resolve the issue of internal displacement.[33] This connection between the two types of displaced civilians further clouds the identification process and increases the difficulty in determining who belongs to what group and it is even more increasingly difficult when located near a country’s border.[34] Furthermore, “in many situations, refugees have sought asylum across the border in areas where there are also internally displaced, for instance, refugees from Sierra Leone and the internally displaced in Liberia were found, not only living together, but also affected in the same manner by instability in the country of asylum.[35] In these types of situations it is “operationally difficult” and logistically challenging to distinguish between people who are claiming refugee status and people who are internally displaced, this challenge remains increasingly difficult when the individuals are placed together in a “refugee camp” or “tent city.”[36]

The final problem that will be discussed is the Asylum process in general, “the granting of political (or any type of) asylum concededly has great potential for abuse, since applying for admittance to the United States from one’s homeland is a slow, uncertain and occasionally dangerous process.”[37] “The current U.S. policy of interdicting and summarily returning asylum seekers without a hearing legitimately raises the specter of refoulement- the forced return of genuine refugees.”[38] To further understand the U.S. policy one must take a look at the eligibility requirements for asylum, who can apply for asylum?[39] “In the United States, the law of asylum is comprised of several different legal authorities, including the Immigration and Nationality Act, the Code of Federal Regulations, federal case law (e.g. Board of Immigration Appeals, Circuit Court and Supreme Court decisions), and international treaties and conventions.”[40] “Section 208 (8 U.S.C. § 1158) contains the authority to apply for asylum, time limits for filing and bars to asylum, it also discusses grant and termination of asylum, employment authorization, the consequences of filing a frivolous application, and procedures for filing an application.”[41] In order to apply for asylum pursuant to INA § 208(a)(1) a person must be an alien who is physically present in the United States or who arrives in the United States irrespective of such alien’s status and the individual must meet the following definition of refugee: “any person who is outside ay country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[42] In determining if one is eligible for asylum he must first consider if he falls within the protected class based on persecution, “persecution encompasses a broad range of acts and is considered a seemingly broader concept than threats to life or freedom.”[43] “While there is no universally accepted definition of persecution, a threat to life or freedom on account of one of the five grounds recognized by the INA (race, religion, nationality, membership in a particular social group, or political opinion) is always persecution, as are other serious violations of human rights.”[44] The well-founded fear of persecution requirement seems straight forward however the court has given a broad and sometimes mixed definition of the requirement, for example, in Fatin v. INS, 12 F. 3d 123, 124 (3d Cir. 1993) the court held that “persecution includes governmental measures that compel an individual to engage in conduct that is not physically painful or harmful but is abhorrent to that individual’s belief, physical harm to others, such as close family members, might also in certain circumstances be considered persecution of the applicant.”[45] Alternatively, “while the INA does not explicitly require a showing of countrywide persecution, the regulations state that an asylum applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicants country…if under all the circumstances it would be reasonable to expect the applicant to do so.”[46] As one can see from the asylum requirements it is difficult to establish a claim for asylum and increasingly difficult when categorized as a displaced civilian in a military operation, changes need to be made both in the legal requirements for claiming asylum and the military tactic in dealing with dislocated civilians in order to provide assistance to individuals who intend to claim asylum.[47]

1. Solutions Proposed

As previously discussed, the increased education and more effective training for the tactical level soldiers is vital to a more efficient and successful military and Civil Affairs civilian assistance program. This education and training can be completed in two ways, first, by creating a new military training program that will better prepare tactical level leaders and soldiers to recognize the difference between displaced civilians while simultaneously creating new techniques to easily identify them once they are within the protection of the military operation. This military training program should consist of classroom style education coupled with “hands on” interactive and practical exercises. These exercises should be “real life based” and simulate the actual experience that will be encountered during military missions to the target area of operations (SOUTHCOM AO). This style of learning will give the soldiers the knowledge they need to correctly identify the differences between dislocated civilian groups as well as the practice and efficiency needed to handle and correctly control the groups once inside the operation.

Secondly, the solider can increase his knowledge by dedicating personal time to take a class on refugees and learn the difference between dislocated civilian groups. This author did just that, after spending three and a half years serving in the SOUTHCOM AO he continued his education and learned that the overarching term “dislocated civilians”, used by the U.S. Army, is blanketing several distinct groups of people who require very different support. By correctly identifying the different groups of people before they are put into the refugee camp the U.S. Army may be able to help assist them with the individual and specific type of assistance they need. For example, if a person is a refugee and wishes to claim asylum, this person can be identified and linked up with a non government organization that can better assist them or if they are a displaced civilian they can also be linked up with a different government or non-government organization that is working to find a new location for them to live.

The proposed solution for the “refugee camps” or “tent city” is comprised of three parts, increased security, reorganization and new methods of identifying groups of dislocated civilians. Increased security will help alleviate the problems with theft, assault, and sexual assault. This security can be outsourced to government contractors, similar to the security on military bases in Iraq, Kuwait and Afghanistan or the security can be provided by an increase in U.S. military presence.

Reorganization is needed in order to assist displaced civilians get the specific assistance they need. If the camp is organized into different sections, each section containing a different group of dislocated civilians it will be easier for government and non-government organizations to identify the needs of that group and help facilitate the next step in providing assistance. This may lead to better aid and eliminate the problem of spending years in a “tent city.”

Systemic revision may also be necessary, “the need for systemic revisions that will streamline the process while providing fair adjudications has been identified, the drafters of the Refugees Act envisioned a system that would process 5000 asylum requests each year however the current system receives 100,000 asylum applications each year and is ill-equipped to handle them.”[48] If the military process is corrected and becomes increasingly efficient once can expect the number of asylum requests to also increase and further strain the already flooded system. Increased efficiency by the military while require increased efficiency by the asylum process as well.

The final proposed solution is to better identify the individual who is claiming the need of military support as a dislocated system and to accurately categorize them into the correct group in order to provide them with the correct assistance that they require. In order to effectively identify each person the U.S. Army may need to work with the local national government in order to identify individuals who do not have proper identification documents. By working with the local government the U.S. military will not only work to correctly identify the individual person seeking assistance but they will help establish the local government as a “key player” in the reestablishment of order within their country. It is important for the foreign national government to look competent and effective to the people and by working alongside the U.S. military they will help establish the credibility needed to show the local nationals that they are an effective government.

1. Conclusion

In closing, it is important to identify the three main areas that need to be adjusted in order to create a more effective civilian assistance program within the United States Army’s SOUTHCOM area of operation. Increased knowledge and preparation for tactical level leaders, more effective plans and systems of identification for dislocated civilians and a more effective asylum process are critical to providing the support needed in SOUTHCOM AO. It is this author’s belief that the United State’s Army will become a more effective and efficient tool for providing foreign humanitarian assistance by correcting these three main areas.