Nepal’s August 2008 Flood – 50,000 Displaced – 2000 dissappeared !


Riparian water rights[1] (or simply riparian rights) is a system of allocating water among those who possess land about its source. It has its origins in English common law. It is used in the United Kingdom and states in the eastern United States. Under the riparian principle, all landowners whose property is adjacent to a body of water have the right to make reasonable use of it. If there is not enough water to satisfy all users, allotments are generally fixed in proportion to frontage on the water source. These rights cannot be sold or transferred other than with the adjoining land, and water cannot be transferred out of the watershed. Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations. Riparian rights also depend upon “reasonable use” as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners. In the western United States, water rights are generally allocated under the principle of prior appropriation, which is derived from Spanish law and treats water as a resource unrelated to land.


‘Non-maintenance by India led to Koshi havoc’: A high-level government team that inspected areas devastated by the flooded Koshi River has held India responsible for the havoc. The devastation took place as the Indian side did not carry out repair and maintenance work on the Koshi barrage and the embankment along the river, thereby violating the Nepal-India Koshi agreement, said top officials. India is entirely responsible for repair and maintenance work and operation of the barrage, as per the bilateral agreement signed in 1954. “Every year in the past the Indian side used to do at least some maintenance work. But this year they did not carry out the repairs,” Khom Raj Dahal, Deputy Director General of the Department of Water Induced Disaster Prevention (DWIDP), told the Post. “This was the main reason why the Koshi breached the embankment and submerged about 10,000 hectares of cultivated land and villages.” The Indian side used to contact the Regional Directorate of the Department of Irrigation (DoI) in Biratnagar. The DoI plays a facilitating role as and when requested by the Indian teams. “But, this year they did not contact the DoI regional office” Dahal said[2].


After the government’s call for support to the floods victims of Sunsari, relief aid continues to pour in from national and international communities. The European Commission announced a total of 1 million Euros (Rs 103 million) as the humanitarian aid for victims of Koshi floods Friday. Food aid and nutritional support will be provided to the victims through the fund, which will be channeled through the European Commission Humanitarian Aid department, ECHO, under the responsibility of Commissioner Louis Michel. This assistance will target up to 50,000 people displaced by the floods, who will receive emergency food aid and the most vulnerable will benefit from nutritional support through the World Food Programme, a statement by EU said. Similarly, the secretaries and staffs of the ministry of peace and reconstruction also announced to lend financial support. The secretaries will give their three-day salary while other staffs will spare their one day’s earning. The staffs of the home ministry contributed over Rs 100,000 and Nepal Telecom contributed Rs 3 million to the prime minister’s trust for natural calamities[3].


Nepal‘s freshwater resources flowing down from the Himalayan heights have attracted the attention of various powerful quarters. While the upper co-riparian country, China, has not posed any major problem for Nepal’s water resources, the signing of the first water sharing treaty with India, the Kosi Agreement, 1954, based on unequal provisions, set the tone for gradual colonisation of Nepali waters by India. The second Gandak Agreement, signed in 1959, was also based on unequal benefit-sharing provisions. The net benefits to Nepal from these treaty-based huge barrages are predictable: enormous floods during monsoon and dry spells during winter. The benefit of electricity is virtually non-existent. These two agreements form the basis of the so called ‘anti-Indian’ sentiments among a large section of the people of Nepal, using which all the Communist parties have built their political base. These agreements were signed when the Nepali Congress (NC) was in power or sharing power with the monarchy. Since then, NC has never recovered from the image of being a ‘pro-Indian agent’ selling Nepal’s precious rivers and waters in order to remain in power in Kathmandu. Indeed, a bigger sell-out was the signing of the Mahakali Integrated Development River Treaty in 1996, the cancellation of which was one of main highlights of the 40-point demand by the Maoists before launching the People’s War in 1996. The CPN (UML), then considered a revolutionary party, lost its political base after approving the Mahakali Treaty. It was humbled in the recent elections. UML general secretary, Madhav Nepal, paid a heavy price by losing from two constituencies. Nepal claimed that the Mahakali Treaty stood as a benchmark in Nepal-India relations. But he did not mention why the treaty provisions have not been implemented even after 12 years. If it all had gone well, the Pancheshwar Dam should have been built four years ago and Nepal should have been receiving billions in benefits and royalty as claimed by another defeated UML heavyweight KP Oli. Many in Nepal believe that the controversial Tanakpur and Mahakali treaties are the main factors behind the murders of the then UML leaders Madan Bhandari and Jivaraj Ashrit, who were opposed to these unjust arrangements. Nepal’s three major beautiful rivers are already gone. India has already gained consumptive rights of water use. The only major river basin still left was about to be taken by the now dead Enron – the Karnali River – with the mega Karnali-Chisapani dam proposed over it. Indian and Russian competitions are underway to grab the license for its construction. The Saptakoshi High Dam and other proposals are underway. Indian companies have won the license for lucrative dam projects in Nepal – Arun III and Upper Karnali. Australian multinational Snowy Mountain Engineering Corporation (SMEC) has won the licence for the West Seti project, from which India will get free water through Karnali and 90 per cent cheap electricity. However, Nepal will continue to live in darkness. Now, all eyes are set upon the Maoists. The challenges before the Maoist-led government are inevitable: these unequal treaties should be reviewed/nullified and new arrangements should be made on the basis of principles of international water laws and practices. The licensing of Arun III, Upper Karnali and West Seti projects could be withdrawn leading to open and competitive biddings. Before that, Nepal’s primary right to use electric power domestically and the guarantee of lower-riparian benefits should be ensured. As for the unilateral embankments constructed in the Tarai, will they be broken or re-evaluated? If the Maoist leaders fail to bring any fundamental shift in Nepal-India water relations, which includes reviewing the controversial 1950 treaty of peace and friendship, they will be considered as no different from other parties. Undoubtedly, we need India and its support – but at what cost to the Nepali people[4]?


Further, India has been guilty of reneging on the agreement in other ways as well. For instance, according to the terms of the agreement, India is responsible for the maintenance, cleaning and siphoning of the barrage. However, in the last 20 years India has not performed this duty seriously and sincerely. Nepali people have been victimised by this severe negligence[5]. Nepal and India signed the Mahakali Treaty in 1996, but despite ratification by the Nepalese parliament, the Treaty has remained stalled. Despite these treaties, serious differences over water sharing, water management and hydropower projects continue to spoil relations between India, on the one hand, and Pakistan, Bangladesh and Nepal, on the other. Differences between India and Pakistan continue to create ill will between the two on around 11 large hydroelectric projects India plans to construct, including the Baglihar Project, over which Pakistan has sought the appointment of a neutral expert by the World Bank after the failure of talks. More than the dispute over Jammu and Kashmir, the issue of the waters of Jhelum and Chenab has the potential to once again provoke people in Pakistan against India and push the two countries to war. Dr Mubashar Hassan has given a sound proposal to resolve the dispute over Baglihar. He has proposed to install telemeters on the Baglihar to monitor daily release of water in order to ensure due supply of water from the Baglihar Dam to Pakistan. Bangladesh, which shares 54 rivers with India as a lower riparian, has serious differences with New Delhi that hinder agreement on eight rivers, besides the continuing complaints by Dhaka over sharing of the waters of the Ganges. The Indian plan, which is now under review, to build a big river-linking-project that includes diversion of water from Ganges and Brahmaputra, has become yet another source of antagonism between the two countries, which have not been able to sort out their differences over a whole range of issues that continue to fuel political tension which, in turn, does not allow the resolution of differences over water. As an upper riparian, Nepal has a different relationship with India and faces many problems in constructing its dams due to opposition by the lower riparian and has serious doubts about the projects proposed by India. Nepal’s mistrust, beside other factors, has been reinforced by what it perceives to be various unequal treaties — starting from the construction of the Sharada Dam (1927), the 1950 Treaty and the Letters of Exchange of 1950 and 1965, thee Koshi Agreement (1954), the Gandak Agreement (1959), the Tanakpur Agreement (1991) and the Mahakali Treaty (1996)[6].


The proposed dams in Nepal are in news again and the discussions over the issue is stale. Jagadanand, then Water Resource Minister of Bihar, asserted in Bihar Vidhan Sabha (22nd July 2002), ‘…Sir, the last point, no discharge control-no flood control. Unless the discharge is controlled, the scientists all over the world are convinced that the floods cannot be controlled…Embankments do not control the discharge, they can, at best, prevent water from spreading. Weak embankments cannot hold uncontrolled discharge and the flood will continue to bother us as a natural calamity. If we want to control floods in this state, we will have to control discharge in the upper riparian states and the neighboring countries. We have had negotiations with them and have unanimously agreed that to proceed jointly.’ In reply to a call attention motion of Ram Vilas Paswan regarding floods in Bihar, Arjun Charan Sethi, Minister of Water Resources at the Center told the Lok Sabha, on the 22nd August 2003, ‘…So far as Bihar is concerned, we are having constant interaction with the Government of Nepal because we all know these rivers originate from Nepal. Unless we have any kind of agreement with Nepal, this problem cannot be solved. The proposal for setting up of the Joint Project Office in Nepal for taking up field investigations and preparation of Detailed Project Report has since been approved. 100 officials from Nepal, and 42 officials from India are to carry out field investigations and studies. The project will inter alia have 269 meters high dam with an installed capacity of 3,300 MW and irrigation benefits accruing both to India and Nepal. In addition to Kosi Multipurpose Project, it will include Sun Kosi Diversion scheme as well.’ Similar statement was made by Priya Ranjan Das Munshi, Central Minister of Water Resources, made a statement in Kishanganj on the 5th June in 2004. Jay Prakash Narayan Yadav, State Minister of Water Resources at the Center on the 24th June 2004, while talking to the press in New Delhi said that a sum of Rs. 29 Crores has been sanctioned for the construction of the Kosi High Dam (He must have meant that it was for the preparation of the DPR). As far as Barahkshetra Dam is concerned, the politicians in India are sticking to the same statement that dialogue with Nepal is on and on this is since 1947. Jay Prakash Narayan Yadav reiterated his statement again in 2005. The joint team is working in Nepal for the preparation of the DPR but its personnel are tight lipped over what they are going to propose and when. The ghost of the Barahkshetra Dam haunts the planners, engineers and the politicians ever since the embanking plans of the Kosi was rejected in favor of a large dam by the Central Government in 1946 and the statements like the one given by Jagadanand, Arjun Charan Sethi, Das Munshi or Jay Prakash Narayan Yadav are a matter of routine in the flood season. The annual report of Water Resources Department of Bihar (2006-07) has already completed the formality of suggesting that the solution to the flood problems of Bihar lies in building dams in Nepal and wants the Center to expedite the negotiations. These negotiations are, however, going on for the past 60 years. The factual position about these dams is that they are no way linked to flood control and the flood victims of North Bihar have been systematically fooled over years and they will suffer indefinitely at the hands of the politicians, engineers and the vested interests that are dangling carrots of these dams for decades. Here is the reason, why. There are three dams that often come as proposal to solve north Bihar problems. These are the Chisapani on the Kamla, the Nunthore dam on the Bagmati and the Barahkshetra on the Kosi. The Report of the Second Irrigation Commission of Bihar (1994) spells very clearly that there is no flood cushion provided in the proposed Chisapani Reservoir on the Kamla. (Vol. V, Part -1, p-511). A Report of the Expert Committee to study impact of interlinking of river on Bihar (April 2005, Chapter III, p-16) says, ‘…But the proposed Sapta Kosi Dam too has not been provided with any flood cushion which should be provided for flood moderation…’ Regarding the proposed Nunthore Dam on the Bagmati, the Second Bihar Irrigation Commission Report says, ‘…it appears clearly that even after the construction of dam at Nunthore, there would be no appreciable flood moderation in the middle and lower reaches of the Bagmati and obviously further supplementary floods managements measures would be needed’ (Vol. V Part-1, p-414). A recent report of WRD of GoB (May 2006) observes that ‘…but none of these schemes could come up as yet, and in near future also there is little hope of execution of these schemes (Chapter-V, p-1).’ Thus, there is neither any flood cushion provided in the design of the proposed dams nor is there any likelihood of the dams being built in near future[8].











Story of a Nepali in Exile


An interview with Mahabir Chaudhari, a Nepali human rights defender now living in exile in New York. He explores the complexities and challenges faced by many migrants who have sought political asylum to escape Nepal’s over a decade-long civil war.

By Rob Verger

This piece originally appeared in Samar 27, published online November 12th, 2007.

If you visit the Subway sandwich shop on 85th street on Manhattan’s Upper East Side, you might meet one of the part-time employees there, Mahabir Chaudhari. He’s from rural western Nepal, is one of the founding members of an influential education and human rights organization in that country, and is living in the United States under political asylum.

The organization, called BASE, was founded by Dilli Chaudhari, a friend of Mahabir’s, and was officially born in 1991–although work towards creating BASE began in the 1980s. Mahabir was one of 35 founding members, most of whom were teenagers dedicated to bettering their education and rights. BASE stands for Backwards Society Education and works to help educate and advocate for people in Nepal who might be “backwards” in the sense that they are discriminated against or have poor access to essentials like education and health care. Today the organization has some 37,000 members. But because of Mahabir’s work with BASE, the Maoists, an armed rebel group fighting the Nepali government, threatened and pressured him to join the insurgency–and meanwhile, the Nepali government suspected him and other members of BASE of helping the Maoists. Caught between his own government and the people fighting that government, Mahabir eventually found his way to the U.S. But the road to political asylum and a new life in the U.S. is not an easy one.

On my way to meet Mahabir for the first time, I had walked past upscale clothing stores on Lexington Avenue, and thought that if there was a place that was more different than Nepal, one of the world’s poorest countries, this was it. Mahabir had just finished a shift at Subway, and we met on a street corner and walked to a nearby diner. He was wearing black pants, black shoes, and a long-sleeved grey T-shirt, and his black hair was neat and short. A phrase he frequently utters, I would learn, is “no problem.”

Mahabir, now 32, was born in the small village of Tulsi Pur, in the Dang District of western Nepal, one of six siblings. His mother was a bonded laborer and a farmer, and his father, who died when Mahabir was ten years old, owned two small stores and also worked as a local politician. Like most people in his village, Mahabir’s family was part of the Tharu ethnic group, which is one of the lower castes in Nepal. “All the Tharu people were discriminated against, so we had to fight for our rights,” Mahabir said, from his seat in the diner. Tharu people usually didn’t own their own land, and thus, like indentured servants, had to work for land owners for wages that might never allow them to become independent: it was a modern-day form of slavery. They also had poor access to education, health care and other services. The majority of Tharu people live in twenty-two districts in Nepal’s Terai region, the swath of jungle and plains that border India.

Mahabir talked about the process that began in the 1960s by which the Tharu people lost their land. His grandfather, who was illiterate, lost his land to a Brahmin because he could not read or understand the deed to the land. “There is thousands of story, because different family has a different story. All the Tharu lose their land, and they would become kamaiya,” Mahabir said, using the Nepali word for bonded laborer. Discrimination against the Tharu people was systematized.

“At that time, we were very, very, very poor,” he added, speaking of his childhood. “Still my mother was working as a bonded laborer. After my father, he worked very hard, made some money, he had some business… After then, we did buy some land.” He added, “Even sometime we didn’t have enough food to eat.” Eventually his father paid off his mother’s debts, and she was released.

It was because of this discrimination against Tharus that BASE was born. Mahabir and other BASE members also worked specifically to advocate for an end to the kamaiya system, helping the kamaiya community fundraise and organize. Eventually, a large peaceful movement swept the districts. Their efforts and demonstrations were recognized in July of 2000 when the Nepali government legally eliminated the kamaiya system. After that, the newly-freed kamaiya had very little possessions and no place to go, and Mahabir and many others worked on the enormous task of helping them resettle.

Although BASE had widespread grassroots support, daily life grew more complicated after the Maoist insurgency began in 1996, triggering a war that ultimately claimed more than 11,000 lives and was especially destructive in western Nepal. (In November of 2006, the rebels and the government signed a peace treaty and a U.N. mission locked up the weapons, but today there is still political uncertainty and general instability in Nepal). As the Maoists grew in strength, they pressured BASE members to join, and some did, but Mahabir and other leaders refused to cooperate with the rebels, disagreeing with their violent methods.

“After we disagree with Maoists, we cannot collaborate with them, we cannot work with them, they force our member to join the Maoists,” Mahabir said. “And some member they were beaten, some member they were kidnapped, and they bombed a couple of office more than ten times.” Meanwhile, the Nepali government accused BASE members of working with the Maoists, and searched BASE offices. In 2002, despite protests from members, the government refused to renew BASE’s registration–but changed its mind after former U.S. President Jimmy Carter wrote a letter to the Prime Minister of Nepal on BASE’s behalf.

“We were in the middle at that time. That was a very hard time,” Mahabir said.

Today, Mahabir lives in Ridgewood, Queens, with his wife, Neera Chaudhari, 31, and his sons, Sabin, 12, and Samir, 7. The other three families in his building are all Nepali, and a short walk away are two large apartment buildings, occupied almost entirely by Nepali families. (As the conflict increased in Nepal, more and more Nepalis have had incentive to leave, relocating to India, the Middle East, and New York City, among other places). I visited Mahabir in his apartment 11 days after we first met, and we sat down at a small table. Music and car horns from the street filtered up through the open windows as we spoke.

Mahabir wore a sharp blue collared shirt, black pants, and a thin gold chain from Nepal around his neck. Sabin and Samir played quietly in the next room. He spoke further of the process of violence and intimidation that led to his eventual move to the U.S. I asked him why, specifically, he did not want to be a part of the Maoists’ violent methods. “We believe in the peaceful way, because the violence way never solve the problem,” he said, adding, “if you beat somebody, of course somebody will beat you too.”

The situation continued to deteriorate for Mahabir and other BASE members. In 2001, Maoists stopped him and confiscated his motorcycle. In the following years, members of BASE (and some friends of Mahabir’s) were killed by government soldiers on suspicion of being Maoists, and others were killed by the Maoists under suspicion that they were working with the government. “From both side we were in danger at that time,” he said.

In early 2003, Maoists bombed a BASE office in a village called Dhangadhi where Mahabir was part of a meeting. “We were in the BASE office, at night because we had a meeting, some people they came from the village, and they were staying in the office, and I was there too… and they bombed… The office boy he was injured little bit, and he cut his hand, but nobody died,” he said. Damage to the office was light. “We called the police, at night, but they didn’t show up. They came only the next morning, like seven, eight o’clock. And that time, I thought, I’m in danger. That time I was scared very, very much, but I didn’t have any option. I cannot go to other village.” (Later, when Mahabir was in the U.S. in 2004, the same office was destroyed in another bombing).

In the summer of 2003, Mahabir got a position as a counselor at a summer camp that focused on international leadership sponsored by the Louis August Jonas Foundation and located in upstate New York. While there, he realized that it might not be safe for him to return to Nepal, applied for an extension to his visa (which he received) and then began learning about political asylum. Through the help of a friend at an organization called Global Youth Connect, as well as support from Human Rights First, Mahabir began the process of applying. He eventually ran out of time and filed the asylum papers himself. But he was rejected and referred to an immigration court. Human Rights First put him in touch with Brooklyn Law School, where lawyers helped him try again. In April of 2005 he found out that he had been granted asylum. “At that time I was quite happy,” he said. Mahabir had to wait more than a year before his family could join him, which they did, in July of 2006.

According the U.S. Department of Homeland Security, the number of people granted asylum from Nepal has increased sharply in the past decade. In 1997, only three Nepalis were granted asylum, and in 1998 there were only 26. But in 2005 there were 316, and in 2006 there were 373.

While he was gone from Nepal, violence and tension continued in and around Tulsi Pur, Mahabir’s village, as well as in many other spots across Nepal. “When I came here, they went two or three times to look for me,” Mahabir said. “When they didn’t find, they were crazy. One time, they beat my mom. My mom was beaten.” He added, “They asked her to ask me to come back.” She was hospitalized. Word reached Mahabir what had happened. “It was very hard to me to hear that. I called my mom and at that time she was unable to speak very well.”

Even though he is far from the physical danger now, life in the U.S. is hard for Mahabir and his family, as it is for so many immigrants. “I wanted to wish it will be peace in Nepal…and I’d go back, and I start my own career, to be a social leader,” he said. He is able to work on BASE’s behalf from here some, and he also volunteers for Global Youth Connect. But he feels that his real work is in Nepal. And despite the fact that he has a job and a family here in the U.S., his thoughts are still in Nepal, and he worries about his mother. “For five years, I haven’t met my mom… four or five years… that’s a long time,” he said, then paused. “She’s getting older and older.”

To learn more about BASE, contact Mahabir at dahitmahabir at

Rob Verger is an Instructor in the University Writing Program at Columbia University as well as a graduate student there. His writing has also appeared in the Boston Globe. In the spring of 2000, he studied abroad in Nepal with the School for International Training. Contact him at robverger at

Local Tibetan deported to Nepal

Local Tibetan deported to Nepal

By Vanessa Miller (Contact)

Namgyal Tsering with his son, Namkha, who is now17 months old.

Theodore Olsen, courtesy photo

Namgyal Tsering with his son, Namkha, who is now17 months old.

A Tibetan national who’s been living in Boulder County for about a decade and has been fighting deportation for months was flown to Nepal in the middle of the night Wednesday, accompanied by U.S. Immigration and Customs Enforcement officers, his attorney said.

In January, an immigration judge ordered that Namgyal Tsering, 35, of Lafayette, be deported to Nepal — despite his pleas for asylum and his fears that he’ll be arrested and persecuted there.

“It’s unlikely he will be permitted to come back to the country,” attorney Theodore Olsen said of his client Tsering, who has a 16-month-old son in Lafayette.

“I’m sure it was very distressing for him to have no idea what’s going to happen to him and knowledge that he won’t see his son for many years,” Olsen said hours after his client was deported. “I can’t imagine what he was going through on that flight.”

Tim Counts, U.S. Immigration and Customs Enforcement spokesman, said his agency doesn’t discuss details of a removal “until it’s complete.” The term “removal,” he said, encompasses the entire deportation process, from when a person leaves the United States to the time he or she arrives at the destination.

“And we have not carried out the removal,” Counts said.

Tsering’s flight was scheduled to arrive in Kathmandu at 1 a.m. today, Boulder time, his attorney Olsen said.

Tsering came to the United States from Tibet in 1997 — with a Nepalese passport he obtained using a false name and nationality — because Chinese authorities were after him for dissenting against their occupation of the country. He waited until 2002 to file for asylum.

His request was denied because he waited more than the allowed year to file the paperwork, and — although a judge ruled he shouldn’t be sent back to China — he was arrested in March under orders of deportation to Nepal.

Olsen said officers used his client’s false Nepalese passport to get him traveling documents to Nepal, even though a U.S. judge ruled they were fake and that Tsering actually is from Tibet.

Tuesday, Olsen filed a petition in federal court in Denver arguing that using the false passport is unconstitutional. He also requested that a hearing in the case be scheduled for today.

“But we couldn’t get it before a judge in time to stay the removal,” Olsen said.

A person who’s removed can’t return for 10 years, he said.

As Tsering was being ushered out of jail near Colorado Springs on Tuesday, he slipped another inmate the phone number for his infant son’s mother, Nyima Yangkey, and asked that he tell her what was happening.

Tsering then was taken to jail in Aurora, where he gave Olsen’s number to another inmate and asked him to call the attorney and tell him he was being flown to Los Angeles, Olsen said.

About 2 a.m. Wednesday, Tsering called Yangkey from the plane.

“He said he was on his way to Nepal,” Yangkey said. “He was really afraid. He said, ‘I guess I’m gonna be killed.'”

Tsering told Yangkey that he managed the call when officers stepped away and a fellow passenger lent him a phone.

“I told him, ‘Just pray,'” Yangkey said. “That’s all we can do.”

One of Tsering’s friends, Claudia Putnam, of Jamestown, said Wednesday that she planned to light candles at 1 a.m., when Tsering’s plane was scheduled to land in Nepal.

“If, by some miracle, he passes customs and is released on the street, I’m hoping he’ll find a way to call or e-mail using an Internet cafe,” Putnam said.

Grounds for Nepalese Asylees in the US

The author is all set to release his another research-publication titled “Grounds for Nepalese Asylees in the US”. The research paper shall be released upon final submission of the paper to the School of Law, Golden Gate University as a partial fulfillment towards Post Graduate Diploma Specialization Certificate in Immigration Law.

Here’s a brief synopsis and a snapshot of the table of content.Grounds of Nepalese Asylees in the US

grounds-for-nepalese-asylees-in-the-ussantoshgiri0536159spring2008 [complete work]

Earlier, the author has already published the following:

  • 2006, Discrimination towards Sikh Asylum Seekers post IIRIRA, Language Difficulty and Translation issues.
  • 2005, A case study on Discrimination in distribution of drinking water, nutritious food, discriminatory texts in textbooks and implementation status of domestic and international instruments.
  • 2005, A Report on Intra-Dalit Discrimination.
  • 2004, Untouchability Crime Definition Draft.
  • 2004, Untouchability Elimination Directives Draft.
  • 2004, Social Dimensions of Globalisation.
  • 2004, Feminism: A Matter of Perception.
  • 2003, Right to Nationality of Women in Nepal.
  • 2002, A study on the Baadi Community, Dissertation, LL.M.
  • 2002, A study on the status of the Cobblers of the Kathmandu Valley.
  • 2001, The European Parliament.
  • 2000, International Trade law in Context of Nepal.

Types of Asylum Decisions

An asylum applicant will generally receive a decision on his or her application 14 days after the asylum interview and 60 days after filing a complete Form I-589 application with the appropriate Service Center, with some exceptions. In some cases, the decision will be mailed to the applicant. The applicant will receive one of the following decisions which are detailed below:

  • Grant of Asylum
  • Recommended Approval
  • Referral to an Immigration Court
  • Asylum Granted through Immigration Court Order
  • Notice of Intent to Deny
  • Final Denial
  • Conditional Grant (See “Resistance to Coercive Population Control (CPC) Programs”)

Grant of Asylum

An applicant receives a Grant of Asylum when it has been determined that he or she is eligible for asylum in the United States. The applicant will receive a completed Form I-94, Arrival Departure Record, indicating that the applicant has been granted asylum status in the United States pursuant to § 208(a) of the Immigration and Nationality Act (INA). The grant of asylum includes the applicant’s dependents who are present in the United States if they were included in the applicant’s asylum application, and the applicant established a qualifying relationship to them by a preponderance of evidence.

A grant of asylum in the United States is for an indefinite period; however, asylum status does not give the applicant the right to remain permanently in the United States. Asylum status may be terminated if the applicant no longer has a well-founded fear of persecution because of a fundamental change in circumstances, the applicant has obtained protection from another country, or the applicant has committed certain crimes or engaged in other activity that makes the applicant ineligible to retain asylum status in the United States. See INA § 208(c)(2).

An asylee may apply for certain benefits. These include the following:

  1. Employment Authorization

Effective November 10, 2002, asylum applicants who have been granted asylum will no longer have to file an EAD application with the Nebraska Service Center in order to obtain an initial EAD. Section 309 of the Enhanced Border Security and Visa Entry Reform Act of 2002 requires USCIS to issue an employment authorization document containing at least a fingerprint and photograph to an asylee immediately upon a grant of asylum. If an asylee wishes to renew his or her EAD, the asylee will still need to submit an EAD application with the Nebraska Service Center, and pay a fee or request a fee waiver under 8 CFR § 103.7(c). However, asylees are work-authorized regardless of whether or not they are in possession of an EAD. An asylee may want to obtain an EAD from USCIS in order to meet other obligations. For example, the EAD, which is evidence of both identity and employment authorization, can be presented to an employer as a List A document of the Employment Eligibility Verification form (Form I-9). Also, the EAD can serve as evidence of alien registration, which is required by law to be carried by registered aliens at all times.

  1. Social Security Cards

An asylee may immediately apply for an unrestricted Social Security card at any Social Security office. The asylee can get an Application for a Social Security Card (Form SS-5) or more information about applying for a Social Security card by going to, calling the toll-free number 1-800-772-1213, or visiting a local Social Security office.

  1. Employment Assistance

An asylee is eligible to receive a variety of services under Title I of the Workforce Investment Act of 1998. Such services include job search assistance, career counseling, and occupational skills training. These and other services are available at local One-Stop Career Centers. To obtain more information about One-Stop Career Centers, asylees may call 1-877-US2-JOBS. The information is also available on-line through America’s Service Locator at

  1. Derivative Asylum Status

An asylee may request derivative asylum status for any spouse or child (unmarried and under 21 years of age as of the date the asylee filed the asylum application, as long as the asylum application was pending on or after August 6, 2002) who is not included in the asylum decision and with whom the asylee has a qualifying relationship. To request derivative asylum status, the asylee must submit a Form I-730, Refugee and Asylee Relative Petition, to the Nebraska Service Center, P.O. Box 87730, Lincoln, NE 68501-7730. The Form I-730 must be filed for each qualifying family member within two years of the date the asylee was granted asylum status, unless USCIS determines that this time period should be extended for humanitarian reasons.

  1. Adjustment of Status

An asylee may apply for lawful permanent resident status under section 209(b) of the Immigration and Nationality Act after the asylee has been physically present in the United States for a period of one year after the date he or she was granted asylum status. To apply for lawful permanent residence status, the asylee must submit a separate Form I-485, Application to Register Permanent Residence or Adjust Status, for himself or herself and each qualifying family member to the Nebraska Service Center, P.O. Box 87485, Lincoln, Nebraska, 68501-7485. If the asylee has a child who turns 21 years old prior to the completion of the adjustment process and prior to August 6, 2002, the child shall continue to be classified as a child for purposes of section 208(b)(3) of the Immigration and Nationality Act if the child was under 21 years of age at the date of filing the asylum application.

  1. Assistance and Services through the Office of Refugee Resettlement (ORR)

An asylee may be eligible to receive assistance and services through the Office of Refugee Resettlement (ORR). ORR funds and administers various programs, which are run by state and private, non-profit agencies throughout the United States. The programs include cash and medical assistance, employment preparation and job placement, and English language training. Many of these programs have time-limited eligibility periods that begin from the date the asylee is granted asylum. An asylee can find out what programs are available and where to go for assistance and services in his or her state by calling 1-800-354-0365. For more information about possible benefits, see

  1. Travel Documents

If an asylee plans to depart the United States, he or she must obtain permission to return to the United States before departure by obtaining a Refugee Travel Document. The asylee’s qualifying family members, if any, will also have to obtain refugee travel documents before leaving the United States. A Refugee Travel Document may be used for temporary travel abroad and is required for readmission to the United States as an asylee. If an asylee does not obtain a Refugee Travel Document in advance of departure, he or she may be unable to re-enter the United States, or the asylee may be placed in removal proceedings before an Immigration Judge. To apply for a Refugee Travel Document, an asylee will need to submit a Form I-131, Application for Travel Document, with the required fee or request for fee waiver under 8 CFR § 103.7(c) to the Nebraska Service Center, P.O. Box 87131, Lincoln, NE 68501-7131.

An asylee also has certain responsibilities. These include the requirement to notify USCIS of any change in address within 10 days of any such change using Form AR-11, Alien’s Change of Address Card. Additionally, all male asylees between the ages of 18 and 26 must register for the Selective Service. To obtain information about the Selective Service and how to register, an asylee may sign on to the Selective Service website at or obtain a Selective Service “mail-back” registration form at his or her nearest post office.

Recommended Approval

An applicant receives this letter when the Asylum Officer has made a preliminary determination to grant the applicant asylum but USCIS has not yet received the results from the mandatory, confidential investigation of the applicant’s identity and background. If the results reveal derogatory information that affects the applicant’s eligibility for asylum, USCIS may deny the applicant’s request for asylum or refer it to an Immigration Judge for further consideration.

A recommended approval is valid for the period of time necessary to obtain the required clearances. The recommended approval includes the applicant’s dependents who are present in the United States, were included in the applicant’s asylum application, and for whom the applicant has established a qualifying relationship by a preponderance of evidence.

The applicant and his or her dependents who were included in the asylum decision are eligible to apply for work authorization during the background check process pursuant to 8 CFR 274a.12(c)(8)(ii). To work in the U.S., the applicant and each qualifying family member must apply for and obtain an Employment Authorization Document (EAD). If authorized, the applicant may accept employment subject to any restrictions in the regulations or on the card. The applicant and his or her qualifying family members are not required to pay a fee with the initial request(s) for employment authorization. To obtain an EAD, the applicant must submit Form I-765, Application for Employment Authorization, to the appropriate USCIS Service Center.

A recommended approval does not entitle the applicant’s spouse or children outside the United States, if any, to receive derivative asylum status or to be admitted to the United States. If the applicant receives a final approval of asylum, the applicant will be entitled to request derivative asylum for his or her spouse and any unmarried child(ren) under 21 years of age at the time the applicant filed Form I-730, Refugee and Asylee Relative Petition.

If the applicant and/or his or her qualifying family members plan to depart the United States and intend to return, the applicant and his or her dependents must each obtain permission to return to the United States before leaving this country. If the applicant leaves the United States without first obtaining advance parole, it may be presumed that the applicant has abandoned his or her request for asylum. The applicant may apply for advance parole by filing a Form I-131, Application for Travel Document, with the District Office having jurisdiction over the applicant’s place of residence. If the applicant leaves the United States with advance parole and returns to the country of claimed persecution, the applicant will be presumed to have abandoned his or her asylum request, unless the applicant can show compelling reasons for the return.

Referral to an Immigration Court

The applicant’s case will be referred to an Immigration Court when USCIS is unable to approve the application and the applicant is not in valid status. A referral is not a denial of the applicant’s asylum application. The applicant’s asylum request will be considered (without additional refiling) when the applicant appears before an Immigration Judge at the date and time listed on the charging document the applicant will receive. The determinations that USCIS made in referring the applicant’s application are not binding on the Immigration Judge, who will evaluate the applicant’s claim anew. A referral includes the dependents included in the applicant’s asylum application.

Notice of Intent to Deny

An applicant who is in valid status and found ineligible for asylum will be mailed a Notice of Intent to Deny. The letter will state the reason(s) the applicant was found ineligible for asylum. The applicant will have 16 days to submit a rebuttal or new evidence. If the applicant fails to respond within this time, the applicant’s request for asylum may be denied. If a timely rebuttal is sent, the Asylum Officer will carefully consider the rebuttal and then either approve or deny the claim.

Final Denial

An applicant who received a Notice of Intent to Deny (NOID) will be sent a Final Denial letter if the applicant failed to submit a rebuttal to the discussion in the NOID within 16 days, or the applicant submitted a rebuttal but the evidence or argument offered failed to overcome the grounds for denial as stated in the NOID. The applicant cannot appeal the Asylum Officer’s decision. The denial includes any dependents included in the applicant’s asylum application. Any employment authorization issued to the applicant as a result of having a pending application for asylum will expire 60 days from the date of the Final Denial letter or on the expiration date of the Employment Authorization Document (EAD), whichever period is longer.

Former Corporate Litigator Now Aids ‘Most Vulnerable’ Clients

Former Corporate Litigator Now Aids ‘Most Vulnerable’ Clients


New York Lawyer
January 6, 2006

By Thomas Adcock
New York Law Journal

He was born into modern-day slavery in the Himalayan kingdom of Nepal in 1971.

From her windowless office in Manhattan, a young American lawyer is helping him scale the final obstacle in a long struggle for freedom — for his people, his family and himself.

Attorney Jennifer H. Kim, director of the New York City Bar Association’s Refugee Assistance Program, asks for reasons of her client’s physical survival that he be known here simply as Mr. C. She writes in her case file:

Mr. C was a human rights activist in Nepal. He is a Tharu, a low caste indigenous people who were the victims of a . . . system akin to slavery. Until recently, [they] were forced to work without wages for over 18 hours a day in return for food and shelter.

Mr. C helped to found an NGO that fought against poverty, bonded labor and the exploitation of the Tharu people. . . . [H]e was targeted by Maoists and landlords alike . . . beaten more than 50 times . . . arrested and detained for his work.

After aiding the cause of abolishing the Nepalese slavery system known as Kamaiya in 2002, Mr. C made his way to New York. Details of his departure from war-scarred Nepal must remain secret. In May 2004, he went before U.S. Immigration Court Judge Barbara A. Nelson.

Judge Nelson found his tale of persecution, torture and brutal jailings credible. But in accordance with regulations set by the Department of Homeland Security, she denied Mr. C’s application for political asylum. Specifically, he had not established “extraordinary” or “changed” circumstances that would excuse his failure to claim asylum within one year of arriving in the United States.

Alternatively, Judge Nelson granted withholding of removal, allowing Mr. C to remain in the country in legal limbo. Of more personal importance, Mr. C was unable to reunite with his wife and two children, who remain in Nepal. The impoverished Mr. C, who speaks only the Nepalese language of Gurkhali, had volunteer counsel at the hearing. But his attorney subsequently left New York.

Enter Ms. Kim, 32, who joined the city bar only two years ago after four years as a corporate litigation associate at Simpson Thacher & Bartlett — where she first got a taste of asylum practice through pro bono projects. Last April, she filed on behalf of Mr. C before the Board of Immigration Appeals.

Upon arrival in the United States, according to Ms. Kim’s appellate filing, Mr. C’s several enemies in Nepal threatened the lives of his family. The deadlines and niceties of the U.S. legal system were the furthest thing from his mind.

Further, said Ms. Kim in an interview, “We made it abundantly clear that going back to Nepal was not an option. They were not about to forget him.”

There is, Ms. Kim explained, an entirely different brand of worry attached to asylum law, as opposed to representing powerful corporations.

The pro bono attorneys on whom she relies for the bulk of her program’s average caseload of 70 clients “tell me they’ve never been so stressed as when they do this asylum work,” she said. “At the firm, what keeps them awake at night is being yelled at by a partner. The only penalties the clients face are financial.”

Ms. Kim now lives with the possibility of greater penalty applied to a profoundly less powerful clientele.

On Dec. 14, an envelope from the Board of Immigration Appeals was delivered to Ms. Kim’s office at the city bar — small quarters populated by Martin York, program coordinator for the Refugee Assistance Program, and herself as sole staff lawyer.

As she opened the envelope, Ms. Kim said, the dread thought of a hard phone call pounded in her head.

“Asylees are often the most vulnerable clients, and have the most compelling stories,” she said. “They face cultural, social and linguistic dislocation. There is so much trauma, so much tragedy.”

But Ms. Kim was gratified to learn that her appeal essentially succeeded — pending one last hurdle: a final background check by the Department of Homeland Security before Judge Nelson may choose to issue a grant of political asylum.

A phone call to Mr. C was quickly made, with the assistance of a local Gurkhali speaker.

“I could tell from the tone of his voice that Mr. C was relieved and surprised and very, very grateful,” said Ms. Kim. “This is why we become lawyers.”

I-730, Asylee Relative Petition-When a Child turns 21.

Prior to the Child Status Protection Act (CSPA) of Aug. 6, 2002, a
child would "age out" and lose the preferential status of a child as
soon as he/she turned 21 even though the application had been filed at
a younger age. Not to worry, though, because now the CSPA locks the
age of the child in at the age of filing the application and it no
longer matters if an unmarried child turns 21 before the application
is finally completed.

The Child Status Protection Act
"The child of an individual granted asylee or refugee status may be
granted the same status if accompanying or following-to-join the
parent. 8 U.S.C. §§ 1157(c)(2) and 1158(b)(3). The CSPA amends the
asylum and refugee provisions by locking in the age of a child on the
date that the parent files the asylum or refugee application,
regardless of how old the child is when the asylum or refugee case is
finally completed. CSPA §§ 4 and 5. Thus, a child who is 20 when the
parent files for asylum will retain the status of a child even if the
child is 22 when the asylum application is approved. (Note 5)"
"(Note 5)  Prior to the CSPA, the asylum office adjudicated some cases
nunc pro tunc to avoid the consequences of a child ageing out before
having adjusted status. The asylum office has indicated that it will
continue to make nunc pro tunc adjudications when requested even if
the individual is eligible under the CSPA..."
"(Note 7)  Both CIS and DOS agree that the statute applies to a child
who ages out after August 6, 2002 , the statute’s effective date."

"An unmarried alien who seeks to accompany, or follow to join, a
parent granted asylum under this subsection, and who was under 21
years of age on the date on which such parent applied for asylum under
this section, shall continue to be classified as a child for purposes
of this paragraph and section 209(b)(2), if the alien attained 21
years of age after such application was filed but while it was

Age Out Provisions
    * Patriot Act – Petition filed before Sept 11, 2001 – remain
eligible for 45 days after 21st birthday.
    * Child Status Protection Act – Petition filed on or after August
6, 2002 and child under 21 at time of filing – Remain eligible.
    * Child Status Protection Act – Petition filed and approved prior
to August 6, 2002, child under 21 at time of filing, turns 21 on or
after August 6, 2002 – Remain eligible.
    * Child Status Protection Act – Petition approved and child turns
21 prior to August 6, 2002 but case not yet travel ready as of August
6, 2002 – Remains eligible. (note-if travel ready before August 6,
2002 but did not pick up travel documents until after August 6, 2002
no longer eligible." 

Senate Unanimously Approves Feinstein Legislation to Protect Immigrant
Children From 'Aging Out' of Visa Eligibility
June 14, 2002
 Specifically, the legislation affords age-out protection to:
*" Unmarried children of refugees and asylum seekers who were under
the age of 21 at the time their parents submitted their application
for refugee and asylum status."

"If you were granted derivative asylee status as the child of an
asylee and you are now over age 21 and are unmarried, you should
contact the nearest asylum office and request information on filing a
"nunc pro tunc" asylum application (using Form I-589). You may apply
for adjustment of status after you have been physically present in the
United States for a period of one year after the date you were granted
asylum status."

How Do I Prevent My Child From Losing Benefits at Age 21 ("Aging Out")?