Shelter from the Storm: An Analysis of U.S. Refugee Law as Applied to Tibetans Formerly Residing in India

72 Pages Posted: 12 Nov 2013

See all articles by Eileen R. Kaufman

Eileen R. Kaufman

Touro University - Jacob D. Fuchsberg Law Center

Date Written: 2009

Abstract

The story of the Chinese invasion of Tibet and the Dalai Lama's exile in 1959 has been well documented, as has the status of Tibetans in China in the half century since the Chinese invasion. What has not been documented is the plight of those Tibetans who, after fleeing Tibet, seek asylum in the United States after spending several years in India. Even when they can prove a well-founded fear of persecution if they are returned to China, Tibetans will nevertheless be ineligible for asylum if they are found to have "firmly resettled" in India. This article explores the status of Tibetans in India and concludes that even a lengthy stay in India does not qualify as firm resettlement within the meaning of United States immigration law.

The article is divided into three substantive sections. After an introduction in Part I which contains an illustrative case study and a brief description of the continuing human rights abuses within Tibet, Part II provides an overview of the law of asylum and the role that firm resettlement plays. Part II of this article analyzes the conflicting case-law concerning the standard for proving firm resettlement and concludes that some circuits employ a totality of the circumstances test that is at odds with governing regulations. Part III of the article describes the status of Tibetans in India and analyzes the extent to which Tibetans have official status and whether they enjoy rights and privileges roughly equivalent to those enjoyed by Indian citizens. Part IV of the article concludes that regardless of whether a totality of the circumstances test or an offer-based approach is used, Tibetans lack the official status required for firm resettlement within the meaning of federal immigration law and thus should not be considered ineligible for political asylum on that basis.

Keywords: Refugees, Tibetans, Theory of Asylum, Immigration Law, Firm Resettlement Doctrine, Rule of Exclusion, Rule of Regulation

Suggested Citation

Kaufman, Eileen R., Shelter from the Storm: An Analysis of U.S. Refugee Law as Applied to Tibetans Formerly Residing in India (2009). 23 Geo. Immigr. L.J. 497 (2009), Touro Law Center Legal Studies Research Paper Series, Available at SSRN: https://ssrn.com/abstract=2347827

Eileen R. Kaufman (Contact Author)

Touro University - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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