Appeal Continues – Romeike Family Denied

There is a difference between the persecution of a discrete group and the prosecution of 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 a result, we must deny the Romeikes’ petition for review and, with it, their applications for asylum.

The Romeike family counsel made a promise to appeal the Sixth Circuit Court of Appeals decision.  Two opinions were presented.  One represented the entire three-judge panel’s opinion, while Judge Rogers offered a separate, concurring opinion.  President Bush nominated two judges – Rogers and Sutton – to the appeals court. President Clinton nominated Judge Gilman in 1997.

 Sixth Circuit Court of Appeals Romeike v. Holder OPINION

SUTTON, Circuit Judge. Uwe and Hannelore Romeike have five children, ages twelve, eleven, nine, seven and two, at least at the time this dispute began. Rather than send their children to the local public schools, they would prefer to teach them at home,largely for religious reasons. The powers that be refused to let them do so and prosecuted them for truancy when they disobeyed orders to return the children to school. Had the Romeikes lived in America at the time, they would have had a lot of legal authority to work with in countering the prosecution. See Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 400–01 (1923).

But the Romeikes lived in Germany when this dispute began. When the Romeikes became fed up with Germany’s ban on homeschooling and when their prosecution for failure to follow the law led to increasingly burdensome fines, they came to this country with the hope of obtaining asylum. 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 relevant legislation applies 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.” 8 U.S.C. § 1101(a)(42)(A). There is a difference between the persecution of a discrete group and the prosecution of 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 a result, we must deny the Romeikes’ petition for review and, with it, their applications for asylum.

The decision included an extensive court history review, including analysis of the initial decision to allow asylum in the United States:

The Romeikes entered the United States through a visa waiver program. Uwe applied for asylum, and his wife and five children sought relief as derivative applicants. An immigration judge approved the applications after finding that the Romeikes had a well-founded fear of persecution based on their membership in a “particular social group”: homeschoolers. The Board of Immigration Appeals overturned the immigration judge’s decision. It explained that “[t]he record does not show that the compulsory school attendance law is selectively applied to homeschoolers like the applicants.” Id. at 5. It added that homeschoolers were not punished more severely than other parents whose children broke the law. It concluded by reasoning that, even if the German government had singled out people like the Romeikes, “homeschoolers” are not protected by the immigration laws because they “lack the social visibility” and “particularity required to be a cognizable social group.” Id. at 7.

The opinion offered the reasoning behind rejection of homeschoolers as a recognized “particular social group”, the criteria necessary for granting asylum.

Even assuming for the sake of argument that faith-based homeschoolers (or for that matter homeschoolers in general) are a cognizable social group, a matter we need not resolve, “[t]he record does not show that the compulsory school attendance law is selectively applied to homeschoolers like the applicants,” or that “homeschoolers are more severely punished than others whose children do not comply with the compulsory school attendance law.” A.R. 5. The petitioner’s key witness, Michael Donnelly, testified that all parents who do not send their children to school face consequences ranging from fines to jail time to loss of custody. Donnelly identified parents punished for homeschooling their children for religious and secular reasons as well as parents punished for truant children who received no schooling at all.

The parents of Melissa Buzekros, for example, decided that it would be “better for her to learn at home.” Id. at 272. Melissa’s siblings continued to attend public school, but Melissa struggled due to “high noise levels and cancelled classes,” prompting her parents to teach her at home. Id. at 587. In response, the government removed Melissa from her parents’ custody—not to persecute her parents but to enforce the country’s compulsory-attendance law. Other parents, too, have tried to homeschool their children for secular reasons, whether because they were “very unhappy” in public school, highly gifted or low performing, and they also were punished. See id. at 591–92 (affidavits of Tilman and Dagmar Neubronner) (explaining that they faced $9,500 in fines after trying to homeschool their kids who were “very unhappy” in public school); id. at 657–58 (affidavit of Jorg Grosselumern) (explaining that “people who would like to practice homeschooling” because of “educational needs of the child,” such as being highly gifted or low performing, “do not dare to practice homeschooling actively because of the varied sanctions”).No. 12-3641 Romeike v. Holder Page 6

The parents of “school skippers,” truant students who do not show up for school, face civil fines as well. If the parents fail to convince their children to go to school, the government places them in alternative learning programs or special schools for truants. This enforcement of the law has nothing to do with homeschooling, whether for faith- based or secular reasons. For better or worse, Germany punishes any and all parents who fail to comply with the school-attendance law, no matter the reasons they provide.

There has been great concern from many in the United States homeschooling community regarding President Obama’s/Department of Justice homeschool friendliness here, via reflection of this particular asylum case.  There is no doubt many of Obama administrative heads’ previous Illinois history shows homeschool over-compliance demands, particularly during Department of Education Arne Duncan’s former CEO tenure over the Chicago Public Schools. This administration has strong backing from the teacher unions and the unions certainly do not support homeschooling freedoms.

But homeschoolers would be wise to keep a clear and educated eye on the various goings on in the various federal departments, particularly Education, along with a close watch of their state legislative actions.  The attitude might be echoed by the Justice Department’s asylum opposition, but other present and past US administrative actions and policies should bear a more distressing heads up for families and their freedoms.

Below is the final word from the Sixth Circuit Court of Appeals regarding the Romeike case:

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. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (explaining that, even if the petitioner could prove he held a particular political opinion, he must also show that he would be persecuted “because of [his] political opinion” rather than because he defied the guerilla army’s general conscription policy); Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1342 (4th Cir. 1995) (“Even if the applicant can characterize his failure to comply with the population control policy as a political opinion, the applicant must still demonstrate that the government’s actions or threats against the applicant, even to the extent those actions or threats involve forced abortions or sterilizations, were taken for a reason other than to enforce the population control policy.”).

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.

III. For these reasons, we deny the Romeikes’ petition.

Best of wishes to the captivating Romeikes and their search for educational and family freedoms.

Cross-posted at Home Education Magazine News & Commentary


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