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Tibetans in India: the Case for Citizenship

posted Aug 27, 2012, 6:11 AM by The Tibetan Political Review
 
 
By Maura Moynihan

After posting “Tibetans in Exile: Refugees or Citizens?” I received a great many messages about the need to address the legal status of the Tibetan refugees. In Nepal options are few and the outlook is grim. In this post, I will examine the status of Tibetan exiles in India, and the obstacles to seeking passage to the west.


Tibetan Refugees in Dharamshala, 1965

Mother India: the Exile Base

For as long as HH Dalai Lama lives in Himachal Pradesh, Tibetans in India have a measure of protection. But a structural crisis is unfolding in the exile world. The Tibetan settlements created by Pandit Nehru were never meant to be permanent. The CTA still manages programs created by the Indian government in 1960’s, still largely funded by the Indian government, with minor donations from other governments and NGO’s. This aid provides the bare necessities for survival, but the old settlements are disintegrating, filled with poor, often broken families, frustrated with policies that consign them to isolation and exclusion by prolonging the unsettled legal status of Tibetans into a 6th decade.

After 53 years, Tibetans in exile want, and need, citizenship. They look to those who have done so and have prospered. At least three Kalons have citizenship; Dicki Chhoyang (Int. Affairs) is Canadian, Pema Chhinjor (Religion and Culture) is American, Dolma Gyari (Home) is Indian. Many CTA official of previous administrations also have citizenship. After years of residing in the US, Mr. Sangay is minimally in possession of a green card, if not already a passport. If CTA officials enjoy the privileges of citizenship, should they not actively support plans to get it for everyone else?

In 2011 the Tibet Justice Center produced an excellent report entitled: “Tibet’s Stateless Nationals II: Tibetan Refugees in India”. (Volume I is “Tibetan Refugees in Nepal”; visit www.tibetjustice.org). The TJC writes: “Pursuant to longstanding executive policy of India’s national government, for a Tibetan to acquire citizenship by birth, he or she must obtain and submit a “no objection” certificate from the CTA, as the custodian and representative of Tibetans in exile. The CTA’s official position is that it will not withhold its approval if a Tibetan wishes to pursue Indian citizenship. But many Tibetans, both within the CTA and throughout the Tibetan settlements in India, have traditionally taken the position that Tibetans in India should remain refugees. All Tibetans, in this view, should eventually be able to return to a genuinely independent, or autonomous, Tibet. Accordingly, they should not relinquish their national identity and loyalties as Tibetans. Despite the CTA’s official position, many Tibetans view this as a serious obstacle, reporting that the CTA is reluctant to issue ‘no objection’ certificates.”

Returning to “a genuinely independent, or autonomous, Tibet” any time soon is improbable to say the least. Does Mr. Sangay have a back up plan for the thousands of men, women and children trapped in a decaying camp system scattered across the Indian subcontinent, shackled to refugee status? In an era where there is less room and tolerance for refugees in all of South Asia, what is the long-term strategy for survival into the 21st century of the largest and most important Tibetan population in exile?

Permanent Refugees?

The argument that Tibetans in India must remain refugees, as symbols of their captive nation and to preserve Tibetan culture and religion had relevance in the early years of exile, but is less valid today. In the book “Exile As Challenge: The Tibetan Diaspora”, the late Dr. Dawa Norbu of Jawaharlal Nehru in Delhi wrote extensively on the policy of “non-assimilation”: “Tibetan refugee settlements in India were deliberately designed (to) recreate Tibetan society with its core values in tact…this seemed understandable in the 1960’s, but is now coming under increasing criticism…around the argument that Tibetans in India should no longer maintain their social and cultural boundaries from the host society, that Tibetans should ‘integrate’ with the Indians.”

If the dominant purpose of going into exile was to escape the bondage of Chinese rule, live in freedom, and support the Tibet cause, how does keeping thousands of people in a decaying, isolated camp system, unable to work, vote, buy a house or register a business in the country that has rescued and protected the Tibetan people, a country where many Tibetans are already well assimilated, where HH Dalai Lama lives and where Tibetan culture is much more intact than anywhere in the west, a country that is the world’s largest democracy and a global power, how does this benefit the Tibetan cause?

In response to my last post, Jamyang Dorjee, who worked in Sikkim as an senior civil servant in the Government of India, and later with CTA, wrote; “I am sure the Indian Government will not only ‘kindly agree to extend the validity of the Registration Certificate’ but will also grant citizens rights under the law, if requested. But I was often told by senior people in Dharamshala that if we all accept Indian citizenship then people in Tibet will be discouraged because they will then believe that we have all become Indians. By this logic, the Tibetans in Tibet would have by now lost faith in the Tibetans in west who are citizens of respective countries. The same logic was applied when Bhutan decreed that Tibetans take Bhutanese citizens since we all belong to the same religion, culture and race, and Dharamshala advised against it. Those who defied Dharamshala and became the citizens of Bhutan are doing well today and are good Tibetans too.”

Every Man for Himself

CTA officials have many opportunities to acquire citizenship abroad; as representatives of HH Dalai Lama, they can easily obtain visas to western countries. When posted overseas they are then able to commence legal procedures to get citizenship for themselves and their relatives. Given the limitations of remaining stateless nationals in India, it is obvious why those who are able to immigrate do so.

But most Tibetans in India have fewer options for legal immigration. There have been very few resettlement projects, which open pathways to family reunification. Tibetans now have a record of “changing status” once they reach the US, entering as tourists and requesting asylum soon thereafter, thus consular officers are inclined to ‘pre-adjudicate” Tibetan visa applicants, who, as refugees, have weak “reason to return.”

By neglecting the crisis of statelessness, the CTA leaves the majority of its 100,000 constituents in India vulnerable to the most corrupt elements of society. Thousands have been caught in the net of visa brokers, who profit handsomely off the hopes of desperate people, and naturally do want to see a change. Said a Tibetan journalist from Darjeeling; “People aren’t getting any help from their government, so the only option is to go to the black market, which is a dangerous gamble.”

Visa brokers typically charge 10 to 15 lakhs of Indian rupees, equal to 40 to 60 thousand USD. There are several large rings operating in Asia, Europe and the US, raking in big money, without impediment or penalty. It is a crime to cheat the US Dept. of State or the Indian Home Ministry, but I suspect that naïve clients do not realize they have handed over their money and trust to people who are, in fact, criminals, so they too, are parties to criminal actions.

Regarding my experience with Pema Gashon, who offered me a bribe, in writing, to lie about India’s treatment of the Tibetans, Wangchuk Tsering, who served as HH Dalai Lama’s representative in Kathmandu, wrote; “It is regrettable, but I am not so surprised that a Tibetan living in the States even dared to use bribery to gain the support of U.S Congressmen in order to bring more Tibetan refugees to the States from Nepal and India. This is a typical example of what the UNHCR describes as “Protracted Refugee syndrome.” which creates various unhealthy and illegal practices among refugees; violating the laws of the land they live in, obtaining false ID cards, citizenship, travel documents or passports and even birth certificates with unscrupulous officials or their middle men. The UNHCR also said that years of being in exile as stateless persons without any hope for a better future causes frustration and desperation among youths, who then take to drugs and alcohol, prostitution and robbery.”

Western Dreams Shattered

The late Gyaltsen Gyaltag, who served as HH Dalai Lama’s representative in Zurich, wrote in “Exile As Challenge: The Tibetan Diaspora”, of the struggles of Tibetan in the west; “Most difficulties arose from unrealistically high expectations…according to the naïve notions of most Tibetans, the United States was a place where milk and honey flowed in abundance, where good money was to be made without hard work…But most them are working seven days a week to realize their American dream. For that dream, the parents sacrifice, for instance, the bringing-up of children. As a result, children are left to fend for themselves.”

I have seen too many lives broken in the quest for the west. I know many individuals who entered the USA via brokers on a standard 6 month tourist visa, which they let lapse without any advice on what to do next. The brokers refused to help them get papers, threatening to deport them back to Asia, leaving them stranded as illegal aliens, separated from their fathers, mothers, and often children. Many Tibetans with university degrees from India work as waiters and nannies in New York City, underpaid, overworked and oftentimes abused by their employers, but trapped, because they are illegal aliens and they do not know where to turn to get sound advice on how to get citizenship.

Last year, a friend working in the New York court system described a tragic case of a Tibetan mother who had been living in Queens with her son for years, without papers. Her ex-husband, a Tibetan man who abandoned her to get citizenship by marrying an American woman, took her to court to get full custody of their 12 year-old son, whom he had not seen in 10 years. Because the mother was an illegal alien, the judge handed the boy, screaming and crying, to his father, who took him to the west coast. The mother has no legal recourse to win even partial custody of her only child.

Karma Sonam, a Tibetan boy, entered the US via a broker when he was 13, and was taken in by his uncle in Queens. He missed his mother and had problems adjusting to life in the US. His uncle worked at various ill-paid jobs, and had little time for his nephew. Last year Karma turned 16, joined a street gang, and is now in a prison cell in New York City:

The New York Post, 03/18/2011 “Two Teens Charged With Queens Double Shooting”

“Caleb Ahn, of 256th Street in Little Neck, and Karma Sonam, of 45th Street in Flushing, were charged by police Friday with several criminal counts, including second-degree murder, attempted murder and criminal possession of a weapon.

“The incident took place after a marijuana deal turned ugly, police said. An 18-year-old Queens man correctly identified Sonam before the police released his name. The caller said he believed that the deal involved 10 pounds of marijuana worth an estimated $50,000.

“He said Ahn and Sonam, who went by the nickname “Shank,” were supposed to receive the drugs without paying the two shooting victims, whom he maintained were the dealers. He contended that Sonam was the lone shooter, but police would not confirm that, saying only that both teens were facing the same charges in connection with the shootings.”

Read more: “Cops arrest teens in shooting of Douglaston man.”

It is painfully obvious that the “quest for the west” has not been managed as well as it could have. If the solution is implementing legal resettlement programs, Tibetans in the west should commence dialogues with their respective governments at once. Resettlement programs require lengthy and complex negotiations, the first and only US Tibetan resettlement project was launched in 1990, a 2nd will require passing congressional legislation, the full cooperation of the Indian government, selecting and approving candidates, which could take years. So what are the other options for Tibetans in India?

Not Refugees, Only Foreigners

What is not widely understood is that under Indian law, Tibetans in India are not recognized as refugees. The Indian “RC”, the official document provided to Tibetans, is a “Registration Card” not a “Refugee Card.” Under the Foreigners Act of 1946 and the Registration of Foreigners Act of 1939, Tibetans are listed as “foreigners,” a broad legal definition that includes other refugee populations in India, of which there are many.

India is not a party to the 1951 UN Convention Relating to the Status of Refugees or its 1967 Protocol, and has no specific legislation about refugee rights and protection. The TJC reports; “The Indian government nonetheless refers colloquially to Tibetans residing in India as ‘refugees.’ However, only the Dalai Lama and about twenty members of his retinue were even recognized by India as refugees in an informal, non-legal sense. None of the Tibetan “refugees” enjoy rights comparable to those of refugees under international treaty law, still less formal refugee status or de jure asylum. To this day, India studiously avoids referring to the Dalai Lama as a refugee; it refers to him as an “honored guest.” Undocumented Tibetans, who fled in the aftermath of the Lhasa Uprising or later years, reside in India with an even more precarious legal status, which remains wholly subject to the discretion of India’s executive branch and reflects the government’s shifting policies toward Tibetan refugees.”

The status of “foreigner” constrains Tibetans in innumerable ways. When Chinese officials visit India, Tibetans who stage demonstrations are arrested as foreigners, who do not have the right to protest, whereas Indian citizens have full rights of expression and assembly. When Tibetan students trained in law, journalism, computer sciences graduate, their RC status prevents them from getting jobs for which they are qualified, or enrolling in post-graduate study programs, so years of hard work in Tibetan and Indian schools goes to waste. Persons with an RC card cannot own property; an Indian citizen must register Tibetan businesses. (The recent controversy over the Karmapa’s finances exposed this dangerous fault line in international headlines).

If the status of India-born, assimilated Tibetans with RCs is tenuous, the state of newly arrived refugees from Tibet is worse. It is difficult to confirm the number of undocumented “new arrivals” in exile, but UNHCR statistics indicate that at least 30,000 persons born in Tibet escaped into India and Nepal since the 1980’s. Some studies put the number as high as 60,000, in that not all “new arrivals” register with UNHCR. Many in India apply for RC’s through the CTA, but not all applicants receive a “yellow book”. Without an RC, these new refugees live in fear of Indian authorities, and are particularly vulnerable to brokers, traffickers and Chinese agents.

Chinese Agents at Work

Indian intelligence officials are well aware that the Tibetan exile world is now dangerously penetrated with Chinese spies. The Indian government is rightly concerned about the security of HH Dalai Lama and the influx of Chinese spies and provocateurs operating in India, following the 2008 Lhasa Uprising. Again, the crisis of statelessness contributes to the decay of law and order, the proliferation of black marketeers, con men and Chinese agents, who exploit the fragility and weakness of the Tibetan exiles’ status.

A European diplomat in Kathmandu told me; “The Chinese want to stop Tibetans from raising the Tibet issue with governments and protesting in front of Chinese embassies. China wants to keep the exiles small and irrelevant, so trapping people in refugee camps, where they are poor and powerless, that works for China.”

The Legal Status of the CTA

On March 19th, 2011, HH Dalai Lama gave a speech from his exile home in Dharamshala, where he announced his retirement from “formal authority” as head of the Tibetan Government-in-Exile, stating: “While I am still healthy and present amidst you all, you should take full responsibility of the Tibetan affairs.”

In his 2000 essay previously cited, Dr. Dawa Norbu wrote; “The government of India tacitly accepted the Dalai Lama’s assumption of leadership over the refugees from Tibet partly as a mark of respect for the institution of the Dalai Lama, and partly as a concession for India’s inability or unwillingness to recognize the “Tibetan Government-in-Exile, despite persistent pleas and considerable Indian public support for such recognition, especially after 1962 (the China-India War).”

Since its inception, the CTA has never had any independently recognized international identity, and with the retirement of HH Dalai Lama, the original covenant with the Indian government is null. During a July 2012 press conference in Australia, Lobsang Sangay was asked if he was seeking international recognition for the CTA, to which he replied “that is not our priority”, further devaluing the status of the CTA. But the CTA still asserts de facto control over the exiles: In 2009 I was told by Tibetan TGIE officials and a US consular officer that the CTA requested permission to grant final approval to all Tibetan visa applicants. I cannot confirm if the US embassy complied with this request, but it raises the question; what legal entities have legitimate jurisdiction over the Tibetan population in India?

Tibetans are in fact subjects of the Republic of India and ultimately governed by its laws. In the 1960s and 1970s respectively, the Swiss and Canadian Tibetan resettlement programs were undertaken directly with the Indian government, without engaging the CTA. I know of several Tibetans who obtained Indian citizenship independently, citing the CTA’s record of withholding “no objection” certificates for many who sought Indian citizenship, without the vested legal authority to do so.

The Case for Indian Citizenship

On December 22, 2010, the High Court of Delhi decided a landmark case: Namgyal Dolkar v. Ministry of External Affairs. The TJC states the case “could alter the status quo for Tibetans who qualify under the prima facie terms of the Citizenship Act. Namgyal Dolkar Lhagyari, an ethnic Tibetan born in April 1986, in Kangra, Himachal Pradesh, India, argued that she qualified as an Indian citizen by birth. After 3 years, she won her claim in a judgment by the High Court of Delhi: ‘every person born in India on or after the 26th January 1950 but before the 1st day of July 1987’ shall be a citizen of India by birth.’ The Court held, that is, that Tibetans born in India, regardless of their parentage, during the aforementioned period enjoy birthright citizenship comparable to that guaranteed by the Fourteenth Amendment to the U.S. Constitution.”

The Times of India wrote, “More than 35,000 Tibetans, born between 1956 and 1987, could benefit from this decision.” The verdict in Ms. Lhagyari’s lawsuit encouraged Tibetans to apply for Indian citizenship, but many report that they were told that the Lhagyari case did not establish a legal precedent; each individual must launch their own long and costly court case. Former Kalon Tripa Samdhong Rinpoche publically denounced Namgyal Lhagyari’s quest for an Indian passport, on the grounds that Tibetans in India should remain as refugees for symbolic purposes if nothing else.

CTA officials frequently state that Tibetans should remain refugees to keep their “benefits”, which in reality consist of meager funds for small projects, supported by a shrinking pool of donors. (After the 2008 Lhasa Uprising, China has put extreme pressure on foundations and NGO’s that assist Tibetans in exile, and many have cancelled their projects). The value of these slender “benefits” is far less than those conferred by citizenship.

Tibetans stranded in legal limbo in India repeatedly ask why they must endure permanent refugee status when CTA officials have citizenship. Mr. Sangay always speaks of his impoverished childhood in a Tibetan settlement in India, and his great fortune in winning a Fulbright scholarship to Harvard, which enabled his family to immigrate to the USA. He studied law, so presumably his administration is equipped to research rules and regulations governing immigration and re-settlement to the west, and Indian citizenship for eligible candidates.

I am certain that a great many Tibetans in India would gladly accept Indian citizenship and the attendant financial and political rights, which Tibetan refugees sorely need. India has done more for the Tibetan people than anyone else, so I am also certain that Tibetans would be productive and patriotic citizens of Gandhi’s homeland.

Tibet at Midnight

Tibet is a war zone. The Nepal sanctuary is gone. HH Dalai Lama has retired. Tibetans in exile cannot wait for the CTA to take action. There is a clear need for an independent Tibet Legal Aid Society to investigate rights and options with the Indian government and embassies in New Delhi. Tibet support groups in the west can lobby for resettlement and create legal defense funds to assist illegal aliens and asylum seekers. At this late date, Tibetans with citizenship can do more for the Tibetan cause than impoverished and powerless “foreigners” in New Delhi or illegal aliens in New York.

If the structural crisis of statelessness is perpetuated and ignored, the exile base will be further weakened by a festering criminal underworld of human traffickers and Chinese agents.

And if the exile base collapses, who will speak for Tibet? One winter afternoon, sharing tea and samosas in a Dharamshala garden, the poet and freedom fighter Lhasang Tsering stared into the golden light above the Kangra Valley and spoke; “We did not come into exile to become the world’s most successful refugees. We came to fight for our brothers and sisters in Tibet. We can never forget — that is what matters most.” 




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