The Romeike family, about whose case I previously posted , has lost its latest round in the federal courts . In a unanimous ruling , the Sixth Circuit Court of Appeals sided with the Obama Administration’s contention that the Romeikes are not victims of persecution.
The question is not whether Germany’s policy violates the American Constitution, whether it violates the parameters of an international treaty or whether Germany’s law is a good idea. It 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 have not met this burden. The German law does not on its face single out any protected group, and the Romeikes have not provided sufficient evidence to show that the law’s application turns on prohibited classifications or animus based on any prohibited ground.
The family will in all likelihood appeal this decision, asking first of all for an en banc rehearing before the entire Sixth Circuit and then for their day in court before the Supreme Court. I do not have high hopes for them. After all, I have a hard time disagreeing with with George W. Bush appointee Judge Jeffrey Sutton that:
The United States has not opened its doors to every victim of unfair treatment, even 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. And even if, as the Romeikes claim, several human-rights treaties joined by Germany give parents the right to make decisions about their children’s educations . . . that by itself does not require the granting of an American asylum application . . . .
As then-Judge Alito explained, “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 a result.”
There was a time when a member of Congress could have offered a private member’s bill to deal with hardship cases like these, but that time is, as I understand it, long since past. More to the point, the Obama administration could have left well enough alone by not seeking to overturn the initial decision to grant asylum to the family.
I’m tempted to advise the Romeikes to start behaving like other immigrants who have no legal permission to be here and await the almost-inevitable immigration reform deal that would put their status on the road to normalization. But I want homeschooling parents to teach their children to obey the law. Perhaps some sympathetic member of Congress could find room in the current immigration reform proposals for a provision prying open our gates to foreign homeschoolers whose countries treat them harshly.
