Tennessee (William A. Jacobsen-Legal Insurrection) – A reader called to my attention the case of Uwe and Hannelore Romeike and their children.
The Romeikes are devout Christians from Germany who wanted to homeschool their children because of what they perceived as the secularist agenda in German public schools.
In the United States, the right to homeschool ones’ own children is accepted, although frequently mocked by the left. The homeschoool movement is thriving in the United States, but in Germany it is illegal, a holdover from Nazi-era law.
The Romeikes fled to the United States in 2008 after they faced mounting fines and the potential of imprisonment. The Romeikes sought asylum, and were granted that asylum by Immigration Judge Lawrence O. Burman in a January 26, 2010 decision after a hearing which included not only the Romeikes but also expert witnesses on homeschooling in Germany.
It’s important to read Judge Burman’s detailed findings to comprehend what faced the Romeikes:
October 9, 2006, [the Romeikes] got a letter from the mayor informing them that they would suffer a fine of about $45 per child, per day, and if necessary, the government would use force. The Romeikes ignored that. On October 20, 2006, two armed police officers came to the house to take the children to school. This produced a very upsetting scene for the children, the children were crying and were upset, as the three children that were of school age were herded off to go to school. Apparently, the police had no warrant or other authorization to do this, however, the Romeikes were not aware that they had any basis to resist legally, so they allowed the children to go to school. However, Mrs. Romeike retrieved the children at lunch hour
On October 23, 2006, the police appeared in force this time to take the children to school. However, the neighborhood apparently had been alerted and neighbors blocked the police from taking action. At that point, the government backed off for a while, obviously they were not sure what to do. Apparently these situations are fairly rare and apparently had not occurred in this town previously.
In December of 2006, the government began to get tough, they informed the Romeikes that the children must attend school and there would be a fine of about $672 initially, which would only escalate in the future if they continued to resist.
Also the mayor informed them that in addition to the fines, which would escalate, that they might lose custody of the children. There is a social work organization, in Germany called the Jugendamt, which apparently means youth office in German, and they have the authority to remove children from parents under certain circumstances.
Respondents did go to Court over this and explained the situation. The Judge did not accept their explanation, he found them guilty of not sending their children to school, which is a crime.
Respondents took various legal measures over the ensuing months and they were not successful at any level. They faced escalating fines which would eventually be more than they could afford to pay. The applicant makes about 12,000 Euros a month, and the family had been fined about 7,000 Euros at the time they left the country and the fines would only increase. If they were not able to pay the fines, they also stood to lose their property, but most importantly, they stood to lose custody of their children, and that was their main fear. There also is a possibility that they could have been sent to jailr as these are criminal statutes.
Judge Burman then went on to examine the history, purposes and implementation of the anti-homeschooling laws in Germany, on which there was expert testimony offered:
Michael Donnelly, a staff attorney with the Homeschooling Legal Defense, testified very compellingly. He not only is an expert who has made intense study of the homeschooling situation worldwide, but he in fact has actually spoken to nearly all of the German parents who have been mentioned in the background evidence, and has virtually personal knowledge of their situations….
Mr. Donnelly also testified that if fines are levied, which cannot be paid, property is attached and seized and the Jugendamt does take children into foster homes and orphanages. He discussed the case of the Garbers, whose child was placed in a foster home for six months, and placed in public school, and they could not visit the child for six months. Even more disturbing, is the case of Melissa Vusekros. When her parents kept her out of school, she was treated as if she had a psychiatric affliction known as school phobia and she was actually placed in an asylum for the mentally ill while she was tested. This frankly is reminiscent of the Soviet Union treating political opposition as a psychiatric problem, not only a human rights violation, it is a misuse of the psychiatric profession….
The scariest thing that Mr. Donnelly testified to is the motivation of the German government in this matter. I certainly would have assumed that the motivation would be concern for the children. We certainly do some odd things, in the United States, out of concern for children, but the explanation is always given that the Government has a right and an interest to look after children in their country. However, that does not seem to be the explanation. Mr. Donnelly described the judicial decisions, in Germany, not so much being interested in the welfare of the children, as being interested in stamping out groups that want to run a parallel society, and apparently there is a fair amount of vitriol involved in this attempt to stamp out these parallel societies. I found that odd. Another interesting fact is the fact that this law has not always existed in Germany, it was enacted in 1938, when Adolph Hitler and the Nazi Party was in power in Germany, and it was enacted specifically to prevent parents from interfering with state control of their children, and we all know what kind of state control Hitler had in mind. It certainly was not for the good of the children, not even facial.
Now obviously Germany has changed since 1938. Germany is a Democratic country, Germany is an ally of the United States, and Germany does provide due process of law. However, this one incidence of Nazi legislation appears to still be in full force and effect, and that is the situation that Mr. Donnelly described, and the Romeikes fear.
Judge Burman then went on to contrast the legal protections in the United States for homeschooling, and how the situation the Romeikes faced fared under asylum law. Judge Burman found that there was no past “persecution” as that term is defined in the 6th Circuit, but did find a legitimate fear of future persecution based on religious grounds:
So, therefore, although I do not find that there is a political opinion in this case, I do find that the religious beliefs of the Rorneikes are being frustrated, and the practice of their religion will not be permitted under current German law, dealing with homeschooling, and also I find that they belong to a particular social group of homeschoolers who, for some reason, the government chooses to treat as a rebel organization, a parallel society, for reasons of its own.
As I stated above, this is not traditional German doctrine, this is Nazi doctrine, and it is in this Court’s mind, utterly repellant to everything that we believe in as Americans. Religious freedom is in many ways the most basic freedom in this country, certainly most of the original refugees that came to the United States, in colonial times, and in the early days of the republic, were religious refugees, many of them from Germany, such as the Amish and the Mennonites and many other groups and, therefore, I find that it is not just a question of enforcing our Constitution on a foreign country, but rather the rights that are being violated in this case are basic to humanity, they are basic human rights which no country has a right to violate, even a country that is in many ways a good country! such as Germany.
Therefore, I find that respondents do have a well-founded fear of persecution if they returned to Germany…. But if Germany is not willing to let them follow their religion, not willing to let them raise their children, then the United States should serve as a place of refuge for the applicants…. Therefore, the Court will grant asylum in the exercise of discretion to Mr. Romeike and, as derivatives, to his wife and children.
I have quoted Judge Burman’s findings at length because those findings are important to what happened next.
The government appealed to the Immigration Board of Appeal, which reversed Judge Burman in a May 4, 2012 decision which contested not only Judge Burman’s recitation of the law, but also Judge Burman’s findings of fact on many issues including the Nazi-era foundation of the current law.
The record also does not demonstrate that the burden of the compulsory school attendance law falls disproportionately on any religious minority and specifically on the applicahts’ practice of Christianity; The applicants have not shown that most homeschoolers share their religious beliefs, or that most parents with their religious beliefs choose to homeschool. Homeschoolers in Germany are not a homogenous group. Parents have varied reasons for wanting to homeschooL Not all such reasons are religiously based….
Nothing in the record suggests thatthe compulsory school attendance law was or will be enforced against the applicants because of their opposition to the law’s policy. Rather, the law is being enforced because they are violating it. There is no indication that officials are motivated by anything other than law enforcement….
It is clear that the applicants homeschool for religious reasons; however, for the foregoing reasons, they have not shown that their religion, their religious-based desire to homeschool, or their status as homeschoolers is a central reason that the compulsory school attendance law was or will be enforced enforced against them….
Having not shown any pretext in the enforcement of the compulsory school attendance law against them, the applicants did not establish a well-founded fear of persecution or the higher threshold of a clear probablility of persecution. Accordingly, we will sustain the DHS’s appeal, and order the applicants’ removal from the United States to Germany.
The Romeikes have appealed to the United States Court of Appeals for the Sixth Circuit. The appeal is fully briefed:
The Romeikes have framed the issues on appeal as follows:
1. Whether the Board of Immigration Appeals improperly reversed the Immigration Judge’s finding of fact that German homeschoolers are selectively prosecuted and disproportionately punished because of their religious beliefs.
2. Whether the Board of Immigration Appeals erred in concluding, as a matter of law, that Germany’s compulsory attendance law is a religiously-neutral law of general applicability, which does not result in persecution against re ligious homeschoolers.
3. Whether Germany’s compulsory school attendance law, which is applied to prohibit the development and growth of religiously- or philosophically-motivated “parallel societies,” is a gross violation of international human rights standards.
4. Whether Religious Homeschoolers in Germany are a “particular social group” within the meaning of the Immigration and Nationality Act.
The DOJ counters that the following issues are on appeal:
I. Whether the record compels the conclusion that Germany selectively enforces its compulsory school attendance law, or disproportionately punishes those who violate it, such that the law is a mere pretext for persecution on account of a protected ground.
II. Whether the record compels the conclusion that Romeike belongs to a cognizable social group of homeschoolers where the group lacks social visibility and particularity.
The legal arguments turn on the religious component of homeschooling in Germany. Judge Burman clearly made factual findings based on testimony which supported the Romeikes’ asylum application, only to have those findings disregarded by the Immigration Board of Appeal based on more generalized notions of the German system. This could prove a decisive factor.
What is important for now is the somewhat shocking situation faced by homeschoolers in Germany, and the lengths to which the government will go to enforce its will.
There’s a lesson there.
Also, a law review article about the case appeared in Boston College Law School International and Comparative Law Review, “Germany Homeschoolers as ‘Particular Social Group’: Evaluation Under Current U.S. Asylum Jurisprudence,”