Amici Curiae: Baby-Stealing Dingos, Home-Grown Human Traffickers and the Strange Case of the Global Orphan
Why Yes, A Dingo Stole Her Baby
That was the argument that the distraught mother of Azaria Chamberlain has been making for the last thirty-two years. Azaria Chamberlain was only nine weeks old when she disappeared from a campsite in central Australia. Initially, police and the public-at-large pointed their fingers at her parents, particularly her mother. Lindy Chamberlain was swiftly arrested, convicted and imprisoned for murdering her daughter. After serving time in prison, and after a number of public inquests, Lindy Chamberlain has finally been exonerated. Coroner Elizabeth Morris tearfully addressed the Chamberlain family in a courtroom on Monday: Morris had reached the conclusion that a dingo was in fact responsible for the death of Azaria Chamberlain at a campsite in central Australia three decades ago.
Since the beginning, this case has created an international media firestorm. The 1988 movie, Cry in the Dark, starring Meryl Streep as Ms. Chamberlain, chronicles the events in this case. At the time of the baby girl’s death, no one could believe that a dingo, a small wild dog, could attack a human being. The public became extremely hostile toward Ms. Chamberlain. Despite losing her child, losing in court and even losing her marriage, Ms. Chamberlain never stopped pursuing vindication.
For many legal commentators, this case stands as a stark reminder that the criminal justice system remains fallible. Despite a very weak case against her, Lindy Chamberlain was ultimately ordered by the state to spend her life in prison for killing her daughter in 1982. Only after a chance discovery of a piece of Azaria Chamberlain’s clothing in an area full of dingo lairs in 1986 did the focus of the case change. Four public inquests had to be conducted. It took thirty-two years before we could believe what Lindy Chamberlain had been insisting all this time: a dingo stole her baby! However fantastic that sounds, the courts have finally concluded that it is this theory that must prevail.
Human Trafficking: A Problem at Home
Just two days after Vic Toews, Minister of Public Safety, announced the government’s plans to curb human trafficking, the unthinkable happened, with even the RCMP admitting that they have never heard of such a case. On June 8 and 9, two 15 year old girls were arrested in Ottawa for charges related to human trafficking. There is a third suspect, aged 17, suspected to be hiding in Quebec. The girls are charged with human trafficking, robbery, procuring, forcible confinement, sexual assault, assault, uttering threats and abduction. One of the girls is also charged with administering a noxious substance.
Using social media, the girls allegedly lured other teenage girls, one as young as thirteen, to a residence. Once there, the victims were threatened, assaulted, and transported to other locations where they were forced to engage in acts of prostitution. While prostitution itself is not illegal in Canada, being forced to engage in prostitution certainly is.
Human trafficking is a heinous crime: victims are stripped of their humanity, their liberty and treated as chattel. The ability to empathize makes this particular crime even more incredible. In this shocking case, young women have been committing these acts of violence upon other young women like them.
Each year, approximately 15,000 people are trafficked into Canada. The majority are women, and of those, most end up in the sex trade. Toews has pledged $25 million dollars to combat this atrocity. Unfortunately, up until June 8, this issue was perceived to be an issue of foreign women being trafficked into Canada. Toews will now have to grapple with the issue of human trafficking within Canada.
A Tale of Two Countries: A “Global Orphan” Without a Home
In a strange twist of fate, a young woman who was orphaned as a baby, adopted into a family half a world away, and orphaned again by the loss of her adoptive mother, is now facing deportation from the U.S. owing to the technical aspects of the applicability of jurisdiction. The decision has triggered international controversy, even leading to diplomatic appeals between India and the U.S., the two nations which are directly involved.
In a nutshell, the issue arises from the following circumstances: Kairi Abha Shepherd, who was born in India, lost her biological mother when she was 3 months old, and was subsequently adopted by an American woman. Tragically, she lost her adoptive mother at 8, and then spent the next few years sibling-hopping and being raised by her adoptive brothers and sisters. She was recently convicted of fraud for forging cheques, and in the legal process that followed, was discovered to be an “alien” in the U.S. system, as opposed to a citizen. This was because her adoptive mother never filed any paperwork that was necessary for her formal adoption before her death. Technically, her citizenship should have been automatic at this point, as per the Child Citizenship Act (CCA)(§ 1431), wherein an adopted child would qualify for U.S. citizenship by default, if 1) at least one adoptive parent was a U.S. citizen, 2) the child was under 18, and 3) the child resided lawfully in the U.S., “in physical and legal custody” of its adoptive parents (at pg. 3). While initial judicial proceedings were dismissed on the assumption that Shepherd was a U.S. citizen based on the CCA, subsequent investigations negated this assumption; unfortunately, she was found to be a few months older than 18 on 27 February 2001, the date the CCA came into force (at pg. 4).
The case at trial at the U.S. Court of Appeals for the Tenth Circuit then primarily became one of jurisdictional issues: 1) whether Shepherd’s appeal fulfilled the “finality” and “exhaustion” requirements to be able to be heard in U.S. courts; 2) whether the chronology of events leading to her filing of the application was correct, and would affect the decision of the court to review her application; and 3) whether Shepherd’s status as a “criminal alien” under §1252(a)(2)(C) would prevent her from appealing her pending deportation. With respect to the first issue, the Court deemed that Shepherd’s decision to bypass the Board of Immigration Appeals (BIA) for the Immigration Judge (IJ) would not work against her, as the period to seek an appeal in the former had already passed (at pg. 6). And the initial confusion with respect to her citizenship status worked in her favour for the exhaustion requirement, because the BIA could not be asked to reconsider same issue twice.
Considering the second issue, the Court deemed that the Shepherd’s premature filing of her application with the BIA would not be held against her as well, as the fact that her order for deportation became final after the time period for a BIA review had lapsed permitted Shepherd’s case to be “ripened” for review by the Court of Appeals. Finally, Shepherd’s status of “alien” was found to be a jurisdictional fact, and the Court applied the Tapia Garcia principle – that a “federal court always has jurisdiction to determine its own jurisdiction”(pg. 18)— to preclude §1252(a)(2)(C) of the U.S.C., and hear the case within its court. Inspite of these efforts, Shepherd was ultimately found to fall short of the requirements of U.S. citizenship, because of a lack of factual evidence (the paperwork establishing her citizenship). This was found pursuant to §1252(b)(5)(A) of the U.S.C.
The result has led to Shepherd going into hiding to avoid her certain deportation. Further, the government of India has appealed to the U.S. government to consider Shepherd’s case under humanitarian grounds, given the extraordinary circumstances she is in, as well as the fact that she suffers from multiple sclerosis. The bureaucratic redtape involved is also causing much stress on both sides, but this is perhaps one of the few instances in which either country involved is fighting for disownership, rather than the opposite. Shepherd’s last hope is an appeal to the US Supreme Court, which could be an option if she is willing to emerge from her hiding place.
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