"Congress might have written the immigration laws to grant a safe haven to people living elsewhere in the world who face government strictures that the United States Constitution prohibits. But it did not," the judges wrote in releasing their ruling today (May 14).
Instead, asylum laws apply only to those who have a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion," and the Romeike family did not make a sufficient case, the judges ruled.
The Romeikes fled Germany in 2008 because of mounting fines and the threat of losing custody of their children unless they attended public school in a country where homeschooling is illegal. In 2010 they were granted asylum, but the Obama administration appealed the decision to the Board of Immigration Appeals and won.
The Home School Legal Defense Association, representing the Romeike family, had argued that the right of parents to direct the education of their children, including homeschooling, is a fundamental human right that the government must protect.
"We believe the Sixth Circuit is wrong and we will appeal their decision," Michael Farris, founder and chairman of HSLDA, said in a statement. "America has room for this family and we will do everything we can to help them."
Mike Donnelly, HSLDA's director of international affairs, said Germany continues to persecute homeschoolers.
"The court ignored mountains of evidence that homeschoolers are harshly fined and that custody of their children is gravely threatened -- something most people would call persecution. This is what the Romeikes will suffer if they are sent back to Germany," Donnelly said.
The judges said there is a difference between "the persecution of a discrete group and those who violate a generally applicable law. As the Board of Immigration Appeals permissibly found, the German authorities have not singled out the Romeikes in particular or homeschoolers in general for persecution."
As stated in the opinion, the Romeikes feared that the public school curriculum in Germany would "influence against Christian values," and the government imposed fines for each unexcused absence. At the time they fled Germany, they owed the government roughly $9,000.
The 6th Circuit upheld the Board of Immigration Appeals' reasoning that homeschoolers are not protected by immigration laws because they "lack the social visibility" and "particularity required to be a cognizable social group."
Furthermore, the Romeikes, the judges ruled, "have not claimed on appeal that the German government has persecuted them in the past; they claim that the government will persecute them in the future if they return."
The court agreed with the board that there is no indication that German officials "are motivated by anything other than law enforcement," which would amount to appropriate administration of the law, not persecution.
The board, the judges wrote, "convincingly showed that the record simply did not support two 'findings': that Germany selectively applied the law to faith-based homeschoolers and disproportionately punished them for violations."
The court pointed out that the United States "has not opened its doors to every victim of unfair treatment, treatment that our laws do not allow. That the United States Constitution protects the rights of 'parents and guardians to direct the upbringing and education of children under their control' does not mean that a contrary law in another country establishes persecution on religious or any other protected ground."
Quoting an earlier opinion by then-Judge Samuel Alito, the judges wrote that "the concept of persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional. If persecution were defined that expansively, a significant percentage of the world's population would qualify for asylum in this country -- and it seems most unlikely that Congress intended such as a result."
The question is not whether Germany's policy violates the American constitution, the judges said, or whether it violates the parameters of an international treaty or whether it's a good idea. The question is whether the Romeikes have established the prerequisites of an asylum claim -- a well-founded fear of persecution on account of a protected ground. The Romeikes, they concluded, have not met this burden.
In a separate concurring opinion, one of the judges wrote that their role is not that of an international court adjudicating Germany's obligations to other countries in respect of its own citizens.
"Instead we sit as a court of the United States, enforcing statutes that implement some of the international obligations of the United States to other countries in respect of asylum applicants," he wrote.
Two of the panel's judges were nominated to the appeals court by President George W. Bush, and the third was nominated by President Clinton.
Erin Roach is assistant editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
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