This morning I was looking at the Universal Declaration of Human Rights, trying to find relevant sections for the final chapter of Amor and Exile (I’m taking stabs at the chapters out of order now … though we are getting close to finishing the manuscript). I was a bit disappointed that migration was not considered more of a human right, though the right to seek “asylum from persecution” is protected:
- (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
- (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
I tweeted: The Universal Declaration of Human Rights is weak on rights to movement between nations …. bummer bit.ly/vds3th.
And then I drafted this sentence: “When taken in the context of other universal human rights—the right to a livelihood, to security and to family—’persecution’ can include a host of justifications for seeking out life in the United States.”
I’m not sure I’m legally right about that, but I figured I’d check it out this week.
Persecution is the core concept of asylum and refugee protection. Although thousands (if not tens of thousands) of decisions hinge on its meaning, a consistent definition is yet to emerge. Unmoored to any unified understanding of the term, immigration agencies and federal courts of appeals continue to articulate many different conceptions of persecution – conceptions that lack internal consistency and a coherent analytical foundation. Moreover, legal scholars have not attempted to aid adjudicators’ understanding of persecution because, by and large, scholars do not believe that a unified definition is possible. Meanwhile, the divergent definitions and understandings of persecution continue to produce unfair results for those seeking asylum, as asylum applicants receive disparate outcomes despite presenting claims based on similar situations. This Article challenges the conventional wisdom that persecution defies unified meaning. It provides a comprehensive assessment of persecution’s central underpinnings to isolate the three pillars that represent persecution’s fundamental core: harm, severity, and legitimacy. At the same time, this Article critiques a number of false dichotomies and shaky definitions that have troubled and obscured the persecution definition up to this point. Based on the analyzed core aspects of persecution and the elimination of erroneously included definitional components, this Article proposes that decision-makers define persecution as “the illegitimate infliction of sufficiently severe harm.” Because it is grounded in an examination of persecution’s true underpinnings, the proposed definition will aid courts in their review of asylum claims, and help administrators render consistent decisions. The stakes are simply too high, and the issue too prevalent, to let decades of abdication continue in any effort to form a unified definition.
Mostly I share this for its awesome serendipity. I am not a lawyer and I have not read the entire law review article yet. But I have a hunch that my definition of persecution is overly simplistic, optimistic and probably serves to detract from truly life threatening asylum cases as opposed to merely lifestyle or quality of life or life plan threatening immigration cases, though that line can be difficult to draw. But I do think that a case can and should be made for a universal right to migrate. Perhaps the United Nations is not the body to make such a case, but the United States certainly could try harder.