Seeking Political Asylum For Whistleblowers

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Political asylum protections for whistleblowers are not limited to those already inside U.S. borders, just as U.S. whistleblower protection and reward laws do not apply only to U.S. citizens. Instead, U.S. law has expansive whistleblower protections and rewards, including for whistleblowers who are outside the U.S. and who require political asylum protections because of their brave actions in coming forward with information about corruption, fraud, and other crimes. As Stephen M. Kohn, Executive Director of the National Whistleblower Center and leading whistleblower lawyer, wrote in his book The New Whistleblower’s Handbook, “this is a recognition that citizens outside the U.S. who report fraud and corruption within their own countries can face life-threatening retaliation.

Understanding the Court Decisions Protecting Whistleblowers Through Political Asylum

Courts in the U.S. have decided that whistleblowers who face persecution in their home countries might be entitled to political asylum in the U.S. Essentially, courts have recognized whistleblowers as a protected class, and therefore deserving of political asylum, in some circumstances. The landmark case concerned Dionesio Grava, who worked for the Philippine Government when he witnessed corrupt supervisors profiting from smuggling schemes. He attempted to blow the whistle on this entrenched corruption, which included ties to the Philippine Congress. As a result, he endured severe retaliation and he received death threats, and so fled to the U.S. In 2000, the U.S. Court of Appeals for the Ninth Circuit decided in Dionesio Calunsag Grava v. Immigration and Naturalization Service that “a whistleblower who exposes government corruption… may claim asylum on account of persecution arising from these activities.” The Court noted that Grava’s “tormentors” were not “mere criminals or guerrilla forces,” but rather they were “instruments of the government itself.”

The Court, in its decision, explained,

Whistleblowing against one’s supervisors at work is not, as a matter of law, always an exercise of political opinion. However, where the whistle blows against corrupt government officials, it may constitute political activity sufficient to form the basis of persecution on account of political opinion. See Reyes-Guerrero v. INS, 192 F.3d 1241, 1245 (9th Cir.1999); cf. Marquez v. INS, 105 F.3d 374, 381 (7th Cir.1997) (writing that political agitation against state corruption might well be a ground for asylum). Refusal to accede to government corruption can constitute a political opinion for purposes of refugee status. See Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988). Thus, official retaliation against those who expose and prosecute governmental corruption may, in appropriate circumstances, amount to persecution on account of political opinion.

In fact, the decision is broad. The Court noted that it was an error to,

conclud[e] that Grava’s whistleblowing could not constitute an expression of political opinion because he did not concomitantly espouse political theory. When the alleged corruption is inextricably intertwined with governmental operation, the exposure and prosecution of such an abuse of public trust are necessarily political. See Reyes-Guerrero, 192 F.3d at 1245.

Purely personal retribution is, of course, not persecution on account of political opinion. Thus, retaliation completely untethered to a governmental system does not afford a basis for asylum. However, many persecutors have mixed motives. In such instances, personal retaliation against a vocal political opponent does not render the opposition any less political, or the opponent any less deserving of asylum. See Gomez-Saballos v. INS, 79 F.3d 912, 917 (9th Cir.1996).

In 2011, the U.S. Courts of Appeals in the Ninth Circuit broadened the scope of the Grava holding, expanding its impact. In the decision in Antonyan v. Holder, the judges concluded that “the whistleblowing doctrine extends to an asylum petitioner who faces retaliation from a notorious criminal who is protected by corrupt government officials.” Nune Antonyan witnessed an incident in which a criminal in Armenia was able to bribe and be protected by corrupt government officials. In retaliation for her bravery in speaking up, Antonyan endured physical assaults and death threats. Yet the country’s investigators and prosecutors did nothing; in fact, they actively covered for the criminal.

The decision explicitly drew on the Grava holding, emphasizing that,

“Whistle-blowing against government corruption is an expression of political opinion.” Baghdasaryan, 592 F.3d at 1024. In determining whether an act of whistle-blowing is political, “‘the salient question'” is “whether it [**9] was ‘directed toward a governing institution, or only against the individuals whose corruption [*1255] was aberrational.'” Hasan v. Ashcroft, 380 F.3d 1114, 1120 (9th Cir. 2004) (quoting Grava, 205 F.3d at 1181).

The Antonyan decision broadens the Grava decision because it draws an explicit line allowing what could be dismissed as a personal dispute to its links with the government and therefore to remain political, satisfying the requirements for political asylum.

“When the alleged corruption is inextricably intertwined with government operation, the exposure [**11] and prosecution of such an abuse of public trust is necessarily political.” Grava, 205 F.3d at 1181; see, e.g., Sagaydak v. Gonzales, 405 F.3d 1035, 1043 (9th Cir. 2005) (holding that uncovering corruption within a private organization “was undeniably a political statement in the context of the country’s evolving politics”); Njuguna v. Ashcroft, 374 F.3d 765, 770-71 (9th Cir. 2004) (finding political opinion where petitioner characterized his aid to enslaved women “as an act against the . . . regime’s corruption”).

Additional court decisions on this issue include Pangilinan v. Holder and Khudaverduan et al v. Holder.

Obtaining Political Asylum as a Whistleblower in Other Ways

Additionally, extraordinary cases of whistleblowing have captured the attention of U.S. lawmakers, who have been moved to act to protect whistleblowers who are vulnerable. One example of a whistleblower who was granted political asylum on the basis of this whistleblower status was Michel Christoph Meili. Meili was “a security guard at the Swiss bank UBS who received death threats and was granted asylum in the US after reporting UBS officials who destroyed documents related to Jewish property orphaned by the Holocaust,” according to reports. After seeing Schindler’s List, a movie about a single man who was able to save thousands of Jews during the Holocaust, and knowing that he had evidence that Swiss banks were purposefully thwarting Jewish families attempts to regain access to their financial accounts, Meili was inspired to step forward. After enduring significant retaliation, including firing from his job, harassment, and death threats. Congress granted him and his family asylum. As a result of Meili’s actions, Swiss banks settled the case for $1.4 billion.

The Limitations of Political Asylum as a Whistleblower

(i). In the U.S.

Yet it is important to understand the limitation of the political asylum opportunities for whistleblowers. Crucially, the process for obtaining asylum is dictated by U.S. immigration law. Whistleblowers seeking asylum must contact immigration attorneys, as the process for obtaining asylum is completely distinct from the process of applying for rewards or filing cases under the Foreign Corrupt Practices Act. Furthermore, because being granted asylum as a whistleblower is unusual, and the rules governing these decisions are controlled by the courts, whistleblowers seeking political asylum in the U.S. are strongly encouraged to obtain counsel with expertise in immigration.

Potential whistleblowers seeking political asylum can review the U.S. Department of Justice’s Immigration Law Advisor, which in February 2015 featured an article titled, “Asylum and Withholding of Removal Claims Involving Corruption and Whistleblowing,”, accessible here. This educational resource reviews some of the considerations and distinctions are taken into account in the immigration adjudication process, but is not necessarily the position of the U.S. Government.

(ii). International Efforts

Additionally, there are lapses in current whistleblower political asylum claims. The U.S. is considered a leader in political asylum claims for whistleblowers, with broad recognition of the issue, but other countries, including many in Europe, do not recognize such political asylum claims under certain circumstances. Efforts to recognize whistleblowers in political asylum claims around the world are gaining momentum, but the U.S. remains a leader in whistleblower protections nonetheless.

Freedom House, a leading international asylum organization, considers the ability of whistleblowers, as well as anticorruption activists, investigators, and journalists, to access legal protections that allow them to freely and safely report abuses, to be a key component of a country’s anti-corruption safeguards. In the organization’s annual assessment Freedom of the World, it is a consideration under the functioning of government ranking. In the U.S. report, the U.S. regressed in this criteria, largely because of a narrowing of the legal definition of political corruption and conflict-of-interest restrictions. Yet, because of several recent cases in which allegations of international corruption have seen the encroachment of political considerations, specifically the possibility of intervention by the White House administration, this report does shed light about the considerations for international whistleblowers requesting political asylum in the U.S., as well. Such recent events are a regression in the strong standing of the U.S. as a beacon of light for those fighting against corruption around the world. However, the legal precedent created by the courts for whistleblowers requesting political asylum remains strong.

Finally, the Berlin-based NGO Blueprint for Free Speech has hosted symposiums and advocates for “whistleblowing to be formalized as a legal category for political asylum. In its Berlin Partnership for Whistleblower Asylum, the group works with international regimes as well as national governments to codify protection for whistleblowers on the basis of political asylum.

Advocating for Whistleblowers from Start to Finish

The National Whistleblower Center is a non-profit, non-partisan organization which advocates for those who bravely speak up for the truth. We seek to change our culture to one that rewards, rather than penalizes, whistleblowers. We litigate and advocate for whistleblowers whose courageous actions stop fraud, corruption, and other criminal behavior, and we understand the need to incentivize whistleblowers to step up and speak out – and protect them should they encounter retaliation. Founded in 1988 by leading whistleblower advocates, the National Whistleblower Center harnesses substantial institutional expertise and a sincere commitment to the cause to fight for whistleblowers every single day. We work with stakeholders including legislators, policymakers, experts, whistleblowers themselves, and our own grassroots activist network to make real positive changes for whistleblowers around the world.

Will you join us? Support the National Whistleblower Center by making a donation today!

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