The website Wikileaks, which exists to make public “sensitive material,” recently published the Afghan War Diary, a collection of 75,000 classified documents from the U.S. military detailing ground-level operations in Afghanistan. Among the information released are names and villages of Afghanis who assisted the United States. Now, Newsweek magazine reports that a Taliban spokesman has threatened vengeance against the exposed “collaborators.” A few days after Wikileaks published the documents, numerous tribal elders received threatening letters. One elder was murdered. The magazine reports:
The frightening combination of the Taliban spokesman’s threat, [Tribal Elder] Abdullah’s death, and the spate of letters has sparked a panic among many Afghans who have worked closely with coalition forces in the past…. [There are] reports of Afghans rushing to U.S. and coalition bases in southern and eastern Afghanistan over the past few days, seeking protection and even asking for political asylum.
(To be fair to Wikileaks, there is a debate about whether the leaked documents have made any difference. Some argue that the Taliban already know the “collaborators.” Wikileaks has confidential U.S. documents, but not confidential Taliban documents, so Wikileaks does not know whether the Taliban was aware of all the collaborators listed in the exposed documents. Given this lack of knowledge, it seems to me that the failure to redact the Afghani names from the leaked documents was incredibly irresponsible.)
A Taliban fighter checks out Wikileaks.
What then can be done about Afghanis who have been “outed” by Wikileaks? One possibility is the Afghan Allies Protection Act, which authorizes 1,500 visa each year for Afghanis “who have been employed by or on behalf of the United States Government in Afghanistan on or after October 7, 2001, for a period of not less than one year, and who have experienced or are experiencing an ongoing serious threat as a consequence of that employment.” Whether the people named in the Wikileak documents were employed by or on behalf of the U.S. government for at least one year is an open question. If not, this law will not help them.
If it turns out that the Taliban’s threats are serious, Congress should consider amending the law to permit endangered Afghanis to come to the U.S., at least temporarily, even if they do not satisfy all the requirements of the Afghan Allies Protection Act. It’s good policy to show our allies that we protect them, especially when they were endangered by our own security failing. More than that, protecting such people is the right thing to do.
Virginia’s Attorney General, Ken Cuccinelli, last week released an advisory opinion concluding that law enforcement officers in the Commonwealth “may… inquire into the immigration status of persons stopped or arrested.” The AG had previously determined that “law enforcement officers in Virginia in fact have the authority to arrest persons for criminal violations of immigration laws.” Last week’s opinion effectively expands law enforcement’s power to inquire about a person’s immigration status:
So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime.
It's not "American" Gothic unless you have the ID to prove it.
It’s a little unclear to me what this means. The opinion recognizes a distinction between civil and criminal violations of the immigration law, but it is not always clear whether the opinion is referring to civil violations, criminal violations or both.
It’s also unclear how this advisory opinion will impact asylum seekers. Many people in Virginia–including many of my clients–have pending asylum cases. Some of these cases take years to resolve, and oft times the asylum seekers do not have any solid evidence of lawful status in the U.S. At most, such people have a work permit, which is not proof positive of lawful status (in some cases, an alien’s status is terminated, but he remains in possession of his work permit). Other times, the alien will have only a printed paper from the Immigration Court or the asylum office. Anyone with a printer could create such a document, so it is weak proof of status.
How then will Virginia law enforcement officers deal with asylum seekers? Will they detain them until their status can be determined? Detaining people who have possibly suffered past persecution and who have come to our country for help seems a cruel joke. Or will the police simply take an alien’s word for it when she claims to be an asylum seeker? I doubt such an “honor system” would be acceptable to the AG’s supporters. Or maybe the police will be trained in the various documents that accompany asylum cases. But this would be a poor use of time for officers who are already overburdened.
One possible solution would be for the federal government to immediately issue an identity document to anyone who claims asylum. At least this would help such people avoid running afoul of local law enforcement. As a patchwork of anti-immigrant laws spreads across the country, perhaps this type of federal intervention is the only practical way to protect people who have come here seeking asylum.
Last week, the European Court for Human Rights fined Switzerland for denying the requests of two Ethiopian asylum seekers to live with their husbands.
The applicants–Ms. Mengesha Kimfe and Ms. Agraw–and their husbands entered Switzerland illegally on different dates between 1994 and 1998 and sought asylum there. In accordance with the Federal Asylum Act, which provides for asylum-seekers to be assigned to live in a particular canton (region), the Federal Office for Refugees assigned the applicants and their husbands to different cantons. The couples were not married at the time.
It's a tough job keeping those feisty European states in line.
After their applications for asylum had all been refused, the asylum seekers were ordered returned to Ethiopia and placed in reception centers for refugees pending deportation. They remained in Switzerland, however, because the Ethiopian authorities prevented their return.
The applicants got married in 2002 and 2003 respectively, but the authorities refused their requests to be assigned to the same cantons on the ground that “unsuccessful asylum seekers in respect of whom the departure date initially fixed for leaving Switzerland had elapsed [could] not be assigned to a different Canton.”
After her marriage, Mengesha Kimfe mainly lived with her husband, illegally. After being summoned to the police station, she was immediately taken back to her assigned canton, handcuffed. Her application for family reunion was initially refused and subsequently granted in 2008, when she was issued a residence permit to live in the same canton as her husband. As for Ms. Agraw, in 2005, she gave birth to a child, who lived with her, separated from his father. Her application for a residence permit for her husband’s canton was finally granted in 2008 on the grounds of family unity.
The two women brought their complaints to the European Court of Human Rights in 2005 and 2006 respectively. They did not contest their deportation. Rather, they claimed that the Swiss government violated their rights by refusing to allow them to cohabitate as married couples. The Court observed that the possibility of leading a life as a couple was one of the essential elements of the “right to respect for family life,” as protected under the European Convention on Human Rights. The Court noted that the applicants had been prevented from constructing a family life outside Swiss territory because the Ethiopian authorities refused to allow them to repatriate. Finally, the Court weighed the public and private interests (i.e., the Swiss right to assign asylum seekers to different cantons vs. the couples’ right to live together), and found that the private right outweighed the state interest. Under Article 8 of the Convention (the right to respect for private and family life), the Court fined Switzerland 5,846 Euros in Ms. Mengesha Kimfe’s case and 5,526 Euros in Ms. Agraw’s case.
While a supra-national court is vital in countries where the rule of law is weak, it’s hard to imagine the United States ever submitting to international review of its legal decisions. I for one trust our own courts more than I trust most international bodies in such matters. Theoretically, though, the idea of enforcing international norms using legal processes is quite attractive. The idea, of course, is to bring international courts up to (at least) the level of American courts. If that happens, it will be easier to make the argument for international review in cases such as the one here. I just don’t expect that to happen anytime soon.
The European Court’s press release and links to its decisions (in French only) are available here.
Ronald Soobrian came to the United States from Guyana in 1974 as a lawful permanent resident. He was eight years old. Over time, he developed a mental illness and was convicted of attempted assault, an aggravated felony, which landed him in removal proceedings. Mr. Soobrian argued that if he were returned to Guyana, he would face persecution on account of his mental health, his status as a criminal deportee, and his Indo-Guyanese ethnicity. His conviction made him ineligible for asylum (or any other relief), and so he sought Withholding of Removal and withholding under the United Nations Convention Against Torture (“CAT”). He also asked for an indefinite continuance so that his competency could be determined.
The IJ (in York, Pennsylvania) denied the motion for a continuance. The IJ also denied the application for Withholding of Removal after he found that Mr. Soobrian did not face persecution “on account of” a protected ground. However, he granted Ms. Soobrian’s application for CAT relief, finding that it was likely that the police would arrest and torture him due to his mental illness.
The BIA affirmed the denial of Withholding, but reversed the CAT grant, holding that there was “no evidence that the authorities intentionally create and maintain poor prison conditions in order to inflict torture.” Mr. Soobrian filed a Petition for Review in the Third Circuit. Based on an unopposed motion, the case was remanded “for consideration of whether the class of mentally ill persons is a ‘particular social group’ for purposes of withholding of removal and to clarify the standard of review used to decide whether Soobrian established that he was ‘more likely than not’ to be tortured if removed.”
On remand, the IJ held that “mentally ill persons” could constitute a particular social group. However, he found that the government of Guyana did not persecute mentally ill people; at worst, the government neglected them due to lack of resources. He also found no evidence that the government could not or would not protect such people. As such, he denied Withholding of Removal. Once again, the IJ found that Mr. Soobrian would face arrest and torture in Guyana, and he granted CAT relief.
On appeal, the BIA again affirmed the IJ’s finding vis-a-vis Withholding of Removal. The Board did not rule on whether “mentally ill persons” constitute a particular social group. Instead, the Board found that even if this were a cognizable social group, the evidence did not support a finding that the government persecutes such people on account of their mental illness. The BIA again reversed the CAT grant, holding under a de novo standard of review that “the evidence was not alone sufficient to demonstrate that his prospective torturer will have the required specific intent of inflicting severe pain or suffering.”
In his second Petition for Review, Mr. Soobrian raised several issues, including (1) whether the BIA improperly disturbed the IJ’s decision on Mr. Soobrian’s CAT claim by reviewing the factual findings de novo, and (2) whether Mr. Soobrian should have been granted a mental competency evaluation to determine if he understood the nature of the proceedings.
As to the CAT claim, the Third Circuit agreed with Mr. Soobrian and held that the BIA erred when it reviewed that claim de novo. Whether or not Mr. Soobrian would face torture in Guyana is a mixed question of law and fact. Under those circumstances, “the BIA must break down the inquiry into its parts and apply the correct standard of review to the respective components.” Because the Board did not give proper deference to the findings of the IJ, the Court granted Mr. Soobrian’s Petition concerning the CAT claim.
The Court also held that Mr. Soobrian’s due process rights were not violated when the IJ refused him a continuance due to his mental health issues. The Court reasoned:
Under our immigration laws, there is only a passing reference to an alien’s mental competency at a removal hearing. If it is impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.
The Court ultimately found that Mr. Soobrian had received sufficient procedural protections. In dicta (and relying on a Tenth Circuit decision), the Court also found that “the statute and the regulation facially appear to require no procedural safeguards if an unrepresented, mentally incompetent alien is nevertheless able to be present at his removal proceeding.”
Fortunately for Mr. Soobrian, his family members were present at the hearing to assist him, and he seems to have been represented by excellent legal counsel. Most mentally ill respondents will not be so lucky. For such aliens, the minimalist procedural protections endorsed by the Third Circuit do not bode well.
Ayaan Hirsi Ali, a prominent critic of fundamentalist (and not so fundamentalist) Islam and the author of Infidel and Nomad, recently told The Australian that it was futile for countries to attempt to establish the bona fides of would-be refugees, not least because many asylum-seekers will say anything in order to qualify for asylum. “Everybody lies,” she said. Indeed, she herself admitted to lying on her own application in order to gain asylum in The Netherlands.
Instead of simply assessing whether an asylum seeker has a well-founded fear of persecution, Ms. Hirsi Ali proposes a sort-of cultural test:
[We] have to change the paradigm. You have to say, “You’re welcome, we need immigrants but there are many conditions. Here is the law, the culture, the customs. Here is what you agree to, and in exchange you get to live in a peaceful, prosperous society where you have all this opportunity. If you don’t agree we will just return you.”
First, the problem of fraudulent asylum claims is widely acknowledged (I wrote about it here). However, Ms. Hirsi Ali’s statement that “everybody lies” on their asylum applications is simply wrong. That would mean that no one who has been persecuted in their country has ever escaped and sought asylum abroad. Maybe it’s a small point–as she was likely speaking in general terms–but when we’re talking about people who have been tortured and lost loved ones, it seems a bit insensitive and ungenerous.
Second, while there may be reason for a cultural test in Australia (Ms. Hirsi Ali was speaking about asylum seekers in Australia), it seems less needed in the U.S. Ms. Hirsi Ali is concerned about importing destructive cultural practices, such as female circumcision, forced marriage, and honor killings. She associates these practices with Islam and would basically exclude asylum seekers who refuse to adopt a more Western lifestyle. Most people seeking asylum in the U.S. are not from countries where these practices are common. According to the Department of Justice, almost 35% of successful asylum seekers come from China. The next largest groups–about 4% each–come from Ethiopia and Haiti. While these countries certainly have problems (hence people from these countries seek asylum), the asylees from these places generally embrace Western values and do not bring with them the kinds of cultural baggage that concerns Ms. Hirsi Ali.
In addition, any type of “cultural test” for asylum seekers seems doomed to fail. If, as Ms. Hirsi Ali says, people will “say anything,” then certainly they will falsely claim to adopt Western values in order to win asylum.
Finally, under U.S. law, people who practice FGM or commit honor killings are not eligible for asylum (whether the adjudicator learns about these acts is another matter). Asylum seekers who are found to have persecuted others (FGM is a form of persecution) or who have committed serious non-political crimes (like murder) may not receive asylum. If asylees commit such crimes in the United States, they will be deported. Asylees should be educated about these laws, and such laws need to be enforced.
It seems that a cultural test as proposed by Ms. Hirsi Ali is not needed for asylum seekers in the United States. We can better balance our human rights obligations with our desire to avoid negative cultural influences by educating new Americans, making it safe for people to report abusive cultural practices, and enforcing the law.
Attorneys who specialize in political asylum generally think of the United Nations Convention Against Torture (“CAT”) as a defense to deportation. If an alien does not qualify for asylum, he may qualify for relief under the CAT. But a recent Eleventh Circuit decision reminds us that the CAT is a sword as well as a shield.
Glamour shot of Chuckie Taylor
On July 15, 2010, the Eleventh Circuit upheld the torture convictions and 97-year sentence imposed on the son of former Liberian President Charles Taylor, who led a notorious paramilitary unit during his father’s bloody rule. According to the Associated Press, the younger Taylor, Charles McArthur Emmanuel, also known as Chuckie Taylor is–
a 33-year-old U.S. citizen born in Boston while his father was a student there, [and] was convicted in 2008 of torturing or ordering the torture of dozens of the Taylor government’s political opponents with numerous gruesome techniques. These included electric shocks; bayonet stabbing; burning with cigarettes, clothes irons, melted plastic and scalding water; shoveling of biting ants on people’s bodies; and imprisoning people in water-filled holes covered by iron bars.
For his crimes, which are detailed in the Eleventh Circuit’s decision, “Chuckie” Emmanuel was sentenced to 97 years in prison. The Court notes that his was the first prosecution under the Torture Act and sets forth the basis for the appeal:
Emmanuel, who is the first individual to be prosecuted under the Torture Act, 18 U.S.C. § 2340-2340A (“the Torture Act”), seeks reversal of his convictions on the ground that the Torture Act is unconstitutional. Primarily, Emmanuel contends that congressional authority to pass the Torture Act derives solely from the United States’s obligations as a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (the “CAT”); he says the Torture Act impermissibly exceeds the bounds of that authority, both in its definition of torture and its proscription against conspiracies to commit torture.
So let’s get this straight, in an effort to avoid punishment for his crimes, Mr. Emmanuel–a man who tortured and murdered countless individuals–is attempting to limit or invalidate the CAT, a law used primarily to protect people who fear torture in their home countries. Nice. Fortunately, the Court soundly rejected his arguments:
After thorough review, we conclude that all of Emmanuel’s convictions are constitutional. The United States validly adopted the CAT pursuant to the President’s Article II treaty-making authority, and it was well within Congress’s power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture. Furthermore, we hold that… the Torture Act [applies] to extraterritorial conduct, and that [its] application in this case was proper…. Accordingly, we affirm Emmanuel’s convictions and sentence in all respects.
Mr. Emmanuel is currently serving his sentence in a federal prison in Kentucky.
The Iowa Press-Citizen reports on a Moscow couple who moved to Iowa, and applied for political asylum in the United States. Irakliy Surguladze and Elena Boryuk came to Iowa with their children in 2007 to escape growing tension in Russia: she is Russian and he is Georgian. Their two countries have had a history of problems, including the deportation of several hundred Georgians from Russia in 2006 and a war in 2008.
Now, the couple is waiting for a hearing in their asylum case, which is scheduled for January 2011 in the Omaha, Nebraska Immigration Court–a court that opened its doors in October 2008 and hears cases from Nebraska and Iowa.
According to an interview with the couple by the Press-Citizen:
Life had been good for the growing family in Moscow, they said. Both having earned advanced college degrees, Surguladze had been working as an engineer, while Boryuk had a good job with an Italian company. He had obtained dual Russian-Georgian citizenship. However, as tensions grew between their native countries, the family began looking for a way out, and in October 2006, they applied for political asylum at the United States Embassy in Moscow.
They learned at the Embassy that they would have to travel to the U.S. to apply for asylum, so they obtained tourist visas and came to the United States.
The Press-Citizen article does not make it clear, but apparently, the couple applied for asylum after they arrived, and their case was referred to an Immigration Judge (either that, or they were somehow placed in removal proceedings and filed a defensive asylum application).
One issue that the couple faces is that Mr. Surguladze has dual Russian-Georgian citizenship. This means that he would need to prove that he cannot return to Russia or Georgia. To get around this problem, perhaps Ms. Boryuk could serve as the lead respondent (it seems she has only Russian citizenship)–if she wins, her husband will receive asylum as her dependent. Of course, this assumes that her case is as strong as her husband’s.
Another problem they might face is proving that they cannot relocate within Russia (it’s a big place). If the IJ finds that they can live safely in some other part of Russia, they may be denied relief. I once represented a Russian human rights worker from North Ossetia, a very troubled region. We faced this same problem, but overcame it when we demonstrated that he could not obtain a propiska–a kind of residence permit–for any other part of Russia.
It sounds like their case might be difficult, and I wish them good luck.
From a friend, who observes court hearings, but prefers to remain anonymous:
Imagine showing up to one of the most important meetings in your life, wearing a top cut so low that there is an eminent risk of “wardrobe malfunction” or maybe with pants hanging so low it’s a miracle that you’ve not tripped as you entered the room.
While many people have learned much about courtroom etiquette from television, such as the notion to stand up when the judge enters the courtroom, an aspect that seems to be lacking is the need to dress appropriately. As the weather becomes warmer and warmer, it seems to bring more and more examples into court of what not to wear as people’s efforts to dress lightly clash with the more formal atmosphere in the court.
Though there is no formal dress code when appearing before immigration court and immigration officers, asylum seekers and their witnesses should keep in mind that in order not to take away the focus from their own or another’s testimony some of the following guidelines should be kept in mind:
Hats, caps, bandanas or any head dress should not be worn unless they form part of one’s religious attire. Women should avoid wearing tube tops, tank tops, midriff, halter tops, short shorts or any other revealing clothing. Clothing should not have obscene or profane language or illustrations, nor should one wear gang-related attire. Clothing must cover all undergarments for both men and women. It is also best to avoid wearing sports jerseys and brand promotional T-shirts.
If you can wear it to a drag show, it's probably safe to say that you should not wear it in court.
When it comes to shoes, one should avoid wearing flip flops (no matter how expensive they are) and no one should come to court in bare feet (You’d be surprised.)
Avoid wearing heavy perfumes, as someone might be allergic, and the hearing or interview you have been waiting for so long might have to be postponed when that person becomes ill.
It is a good idea to also remember that during summer, most buildings have central air and can be very cold, if not downright freezing. Hearings, interviews, and even the wait for either can be very lengthy. Carrying a sweater or jacket is a wise move, as this item can be removed if the court/interview room is warm.
One of the best ways to think about what you should wear is to ask yourself: Is this something I would wear to my church, mosque, synagogue, temple or other place of worship. If you can wear it there, chances are you can wear it to court. And while fashion consultant might not be part of an attorney’s formal job description, it would be good for the client to be reminded that dressing neatly and properly for court is an important part of the courtroom etiquette.
Dressing properly for court is a way to show one’s respect to the court and the proceedings; this same courtesy should be extended to USCIS officers. After all, in the end, it is you who benefits.
According to Al Jazeera: “A prisoner who chose to remain in Guantanamo Bay rather than face possible persecution in Algeria has been forcibly repatriated by the US government…. The US military announced on Monday that Abdul Aziz Naji, 35, had been sent back to Algeria after eight years behind bars, the first involuntary transfer from the prison under the Obama administration.”
Apparently, Mr. Naji fled from Algeria, where he feared persecution from the government and from terrorist groups. He was arrested in Pakistan in 2002, but he was never charged with or convicted of a crime. In May 2009, a review team tasked with deciding the fate of prisoners held in Guantanamo cleared Mr. Naji for release.
“The Obama administration recognizes how essential it is to close Guantanamo by releasing detainees it has cleared,” said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. “But a detainee who fears being returned home should first have a genuine opportunity to demonstrate the danger he faces.”
Other Algerian detainees have “expressed fear at being forcibly returned to Algeria; one said he would rather spend the rest of his life in US custody than return to Algeria.” After Mr. Naji’s removal, five other Algerians remain detained at Guantanamo Bay.
Mr. Naji had sought to bring his claim of feared persecution before a court, and a federal judge stopped his deportation. However, the U.S. Court of Appeals for the DC Circuit overruled the lower court decision earlier this month. The U.S. Supreme Court refused to stay his transfer pending further appeal.
According to HRW, the United States claims detainees can be returned to Algeria safely:
US officials say that the country’s human rights record has improved significantly over the past decade, and… they have asserted that the Algerian government has provided so-called “diplomatic assurances” – promises to treat returned detainees humanely. Human Rights Watch’s research has shown that diplomatic assurances provided by receiving countries, which are legally unenforceable, do not provide an effective safeguard against torture and ill-treatment. Algerian human rights groups report that torture and other cruel, inhuman, or degrading treatment are at times used on those suspected of terror links.
Algerian detainees previously returned to Algeria have not reported serious abuse. However, some of the remaining detainees, though never accused of any crime, might be perceived by the Algerian government as more dangerous than those who previously returned. Therefore, HRW argues, each case must be examined individually.
In Mr. Naji’s case, it seems he originally left Algeria to escape persecution by the government and armed groups. Now, he may face persecution on account of these original threats, as well as because the Algerian government perceives him as a terrorist (based on his detention at Guantanamo). It seems outrageous that his applications for asylum or relief under the UN Convention Against Torture have not even been heard. I recently represented an Algerian man in an asylum case. Asylum was granted in that case based on my client’s fear of persecution from armed militants. At the minimum, a U.S. court should have reviewed Mr. Naji’s claim before he was returned.
The British Supreme Court on Wednesday upheld the right of gay asylum seekers not to be deported if they could show that they faced persecution in their home countries. The court ruled unanimously in favor of two men — a Cameroonian who fled his country after being attacked by an angry mob, and an Iranian who was attacked and expelled from school when his sexuality was discovered — who had lost appeals against deportation in a lower court. The lower court judges had ruled that the men could live “reasonably tolerable” lives in their home countries if they concealed their sexuality. The Supreme Court said that “to compel a homosexual person to pretend” that his sexuality does not exist amounted to denying “his fundamental right to be who he is.”
The coalition Conservative-Liberal Democrat government embraced the ruling, which reversed the policy of the former Labour government.
According to the Guardian, “Stonewall, the lesbian, gay and bisexual charity, said there were 80 UN member countries where consensual homosexual sex was still illegal, including six that imposed the death penalty.” Anti-immigration groups feared that the ruling “could apply to millions of people around the world.” However, (the aptly named) Lord Hope, one of the judges on the panel, stated that the ruling was necessary since anti-gay sentiment had dramatically worsened in some places, fanned by “the rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of sub-Saharan Africa” and “the ultra-conservative interpretation of Islamic law that prevails in Iran.”
Earlier this week, the U.S. Court of Appeals for the Ninth Circuit remanded a case to the BIA to “determine in the first instance whether women in Guatemala constitute a particular social group, and, if so, whether Perdomo [the alien seeking asylum] has demonstrated a fear of persecution ‘on account of’ her membership in such a group.” See Perdomo v. Holder, No. No. 06-71652 (9th Cir. July 12, 2010).
In that case, Lesly Yajayra Perdomo, a native and citizen of Guatemala, sought asylum based on her fear of persecution as a young woman in Guatemala. Specifically, Ms. Perdomo argued that women were murdered in Guatemala at a high rate with impunity. The IJ denied the application because she found that young women in Guatemala were not a cognizable social group. The BIA affirmed, finding that a social group consisting of “all women in Guatemala” is over-broad and “a mere demographic division of the population rather than a particular social group.” Ms. Perdomo entered the U.S. in 1991 when she was 15. In 2003, the government issued a Notice to Appear, and Ms. Perdomo conceded removability and applied for asylum.
Guatemalan women celebrate their new social group.
The Ninth Circuit noted, “Whether females in a particular country, without any other defining characteristics, could constitute a protected social group remains an unresolved question for the BIA.” The Court further noted, “Our case law examining asylum claims based on membership in a particular social group continues to evolve.” The Court had previously defined “particular social group:”
A “particular social group” is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.
The Court had also previously concluded that “females, or young girls of a particular clan, met our definition of a particular social group.” See Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005). In Mohammed, the Ninth Circuit recognized that gender is an “innate characteristic” that is “fundamental to one’s identity.” Id. The Court found that the social group “Guatemalan women” was not necessarily overbroad: “To the extent we have rejected certain social groups as too broad, we have done so where there is no unifying relationship or characteristic to narrow the diverse and disconnected group.” Further, the Court “rejected the notion that a persecuted group may simply represent too large a portion of a population to allow its members to qualify for asylum.” Based on this precedential case law, the Court remanded the matter to the BIA to determine in the first instance whether “Guatemalan women” constitute a social group and, if so, whether Ms. Perdomo has demonstrated a fear of persecution “on account of” her membership in such a group.
Perdomo v. Holder is an important victory for advocates of gender based claims and, according to Karen Musalo, director of the Center for Gender Studies and a professor at Hastings College of Law, this is the first case to reach this high in the United States’ court system, which has grappled with determining gender-based claims for asylum.
This is not the end of the matter for Ms. Perdomo. The case will be remanded for further consideration. She will still need to prove that Guatemalan women are a social group and that her feared persecution is “on account of” her gender. It seems like she also may not be eligible for asylum, since she filed more than one year after her arrival in the United States. Although she still has some obstacles before her, at least the Ninth Circuit has given Ms. Perdomo a chance.
I recently wrote about Chief Immigration Judge O’Leay’s comments at the AILA Conference. Another EOIR official who spoke was David Neal, the Acting Chairman of the BIA.
Mr. Neal told us that the Board of Immigration Appeals receives about 3,000 new cases per month. This is slightly down from years past, and Mr. Neal speculates that this is because there are more detained respondents–detained respondents are less likely to appeal. Mr. Neal says that detained cases should be processed within 150 days of arrival at the BIA and, in fact, 95% of detained cases are completed in less than 150 days. The average time for a detained case at the Board is 95 to 100 days.
The symbol of the BIA: A blindfolded woman wielding a sword. Seems dangerous.
Mr. Neal also mentioned the Emergency Stay section of the BIA, and he praised their dedication. I strongly second that opinion. The Emergency Stay sections deals with respondents who are in imminent danger of being deported. I had occasion to interact with the Emergency Stay clerks a few years ago for a Lozada motion to reopen case (a motion to reopen based on the previous attorney’s ineffective assistance of counsel). The Emergency Stay clerks always returned my calls promptly, did what they told me they would do (and in a timely manner), and provided helpful assistance. Thanks to their assistance, the Board reopened my client’s case, he was released from detention, and he ultimately received his lawful permanent residence.
Mr. Neal also told us that the Board’s practice of “affirmance without opinion” has been greatly reduced. Three years ago, 30% of cases were decided without a written opinion. Today, only 4% of cases are decided that way, and most of those are bond appeals. He also said that more decisions are made using a three-Member panel (as opposed to a single Board Member). Currently, 11% of cases are decided by three Board Members. A few years ago, 7% of cases were decided by three Members. Mr. Neal noted that three-Member decisions are uncommon because it takes a lot of resources for three Board Members to work on a single appeal.
Another area that takes more resources is published decisions. Mr. Neal stated that the Board is issuing more precedent decisions than previously; the numbers are up by 20 or 30% over past years. He responded to a criticism that the BIA tends to publish precedent decisions in cases where the alien is pro se (without a lawyer). This situation could be problematic, as an unrepresented alien may not make the most effective arguments in his case, and this could result in more unfavorable precedential decisions. Mr. Neal stated that the Board prefers not to issue precedential decisions in cases where the alien is unrepresented. He noted that very few recent precedential decisions involved unrepresented aliens.
Finally, Mr. Neal noted that the trend in the circuit courts was to uphold more BIA decisions. Over the last few years, reversal rates have declined from 20% to 10%. The biggest improvements (well, improvements from the BIA’s point of view) have been in the Second and Ninth Circuits.
I have a few items on my wish list for the BIA. For one, I would like to see more precedent decisions. Such decisions are important because they give more guidance to IJs. Although precedential decisions require more time and resources, over the long run, if the Immigration Judges have more guidance, they might make better and more consistent decisions. This would result in less work for the Board. Second, the average time for a non-detained appeal (at least for my cases) is almost two years. I know this wait time is substantially lower today than it was 10 years ago, but I would like to see it reduced further. Finally–and this is more of a pet peeve–I would like the Board to give more time to prepare the appellate brief. Currently, after an appeal is filed, the BIA sends the transcript of proceedings to the alien’s attorney. The attorney then has three weeks (plus a three-week extension upon request) to file the brief. I can see no reason for such a short turn around time, especially when it takes the Board close to two years to reach a decision once the brief is filed. Why not give attorneys more time to file the brief, say 60 days. That would allow us to prepare better briefs and would accommodate our often busy schedules.
The Department of Justice’s Office of Immigration Litigation (“OIL”)–the office that defends BIA decisions in the federal courts of appeals–recently released data on federal court decisions concerning credibility. Most credibility determinations involve asylum cases, where the decision maker (the Board of Immigration Appeals on appeal and the Immigration Judge in the first instance) must assess the alien’s credibility to determine whether to grant asylum. Under existing law, a decision maker must give a specific, cogent reason for rejecting an alien’s testimony. The REAL ID Act of 2005 tightened these requirements. Among other things, the REAL ID requires corroboration of an alien’s testimony in certain circumstances.
OIL’s Adverse Credibility Project tracks appeals court decisions concerning credibility. OIL describes the data used for the study:
The data… reflects a tally of all decisions in which – regardless of the ultimate outcome of the petition for review – the appellate court has either approved of, or reversed, the adverse credibility holding reached by the immigration judge or Board of Immigration Appeals.
The report found that the “adverse credibility win percentage in 2009 roughly parallels the overall OIL win/loss trends from that year, though the overall numbers are slightly less favorable across the board.” For all federal appeals courts in 2009, 87% of credibility determinations were upheld and 13% were reversed. This represents a small change from 2008, during which 83% of credibility determinations were upheld and 17% were reversed.
The overall numbers mask some diversity between the different circuit courts. In the Second, Fourth, Fifth, and Eleventh Circuits, approximately 96% of credibility determinations were upheld. The Sixth Circuit upheld 100% of EOIR’s credibility determinations (according to OIL, the Sixth Circuit reviewed 58 cases involving credibility determinations; all were upheld). The Third Circuit upheld 74% of credibility determinations, and the Ninth Circuit upheld 73%. In the Eighth Circuit, 86% of credibility determinations were upheld. According to OIL, the other circuit courts–the First, Seventh, and Tenth–heard no cases involving credibility determinations. This seems a bit odd, especially in the Seventh Circuit, which seems to review many BIA decisions.
The circuit courts with the most changes in “win” rates for OIL are the Second and the Ninth:
Reflected in the 2009 statistics is the continued rise in win percentage within the Second Circuit. This percentage has risen steadily, from 14% in 2006 to 54% in 2007 to 90% in 2008 to 96% in 2009. Ninth Circuit win percentage, historically close to 60%, has risen in 2009 to 73%. This increase may be due, in part, to a greater percentage of post-REAL ID cases on the docket in 2009.
The bottom line, I suppose, is that it is difficult–and sometimes almost impossible–to reverse the agency’s credibility determinations. Hopefully, this is a reflection of the BIA’s increased competence at adjudicating aliens’ credibility, and not simply a result of stricter laws concerning federal court review. I guess that is a possibility, but I have my doubts.
I recently came across an interesting article from the Journal of Refugee Studies, “A Rare Examination of Typically Unobservable Factors in US Asylum Decisions,” which analyzes data from 81 asylum cases to determine the “unobservable factors” that influenced the decisions in those cases. The authors had access to cases litigated by the Human Rights Initiative of North Texas (“HRI”) between 1998 and 2005. As the authors explain, the small number of cases and the selection bias in the samples (HRI only takes cases deemed to have a good prospect of success) makes their findings suggestive only. Nevertheless, the study points to some interesting possibilities concerning how decisions are made.
The authors refer to prior studies, which correlate asylum grants with factors other than a “well-founded fear” of persecution, for example, “the judge’s prior work experience (particularly prior INS experience), and legal representation strongly influence asylum outcomes.” Also–
While some legal scholars and human rights activists might expect that human rights conditions and evidence of credible fear of persecution would be the most important factors in the determination of whether to prevent a particular asylum seeker from being returned to a situation that would threaten their life or physical integrity, these empirical studies suggest that outcomes are more likely to be based on economic and security concerns of the state than the merit of the claim.
Unlike most prior studies, the authors here, Linda Camp Keith and Jennifer S. Holmes, had access to the asylum seekers’ files, and could look at many factors–gender, marital status, education level, religion–that are not normally available. Some of the findings are quite surprising, and are examined below:
Gender
The authors write: “we expect that a female will be less likely to receive asylum due to possible cultural biases of the decision makers concerning women as viable threats to government and due to possible cultural differences that affect women’s credibility.” In fact, the authors found that within the cases studied, being female decreased the chances of an asylum grant by a statistically significant amount. Indeed, of all the factors studied (except possibly religion), gender was the most significant “unobservable factor” that determined the outcome in an asylum seeker’s case.
Education
The authors expected that asylum seekers with higher levels of education might be viewed as economic migrants. They found “applicants with a primary or middle school education had greater success than higher educated applicants.” However, they noted that “the sample size is small in the primary and middle categories” (although the results do seem to have some statistical significance). They concluded, “Overall, there does not seem to be much variation in the grant rate due to educational attainment.” People who speak English, however, are statistically more likely to succeed in their cases.
In my own experience, I have always believed that more educated applicants are more likely to win asylum. More educated people are better able to understand the system, they are more likely to articulate their stories consistently (which decision makers rely on to judge credibility), it is easier for well-educated decision makers to relate to them, and they are considered less likely to become a burden on our society. I imagine that these positive factors outweigh any negative perception that well-educated asylum seekers are economic migrants.
What are the odds that this single Christian female would qualify for asylum?
Religion
The authors distinguished between asylum seekers with Judeo-Christian religions and those with non-Judeo-Christian religions. They expected that asylum seekers with non-Judeo-Christian religions would be more likely to win asylum. In fact, the authors found that having a non-Judeo-Christian religion was the most influential “unobservable factor” in gaining asylum. Their results in this regard were considered statistically significant.
This is the one observation that seems to me flawed. The authors’ cases come from an NGO in Texas, and so many of their Judeo-Christian asylum seekers likely come from Mexico, Central America, and South America. People from these countries are very unlikely to gain asylum in the U.S. Asylum seekers with non-Judeo-Christian religions, on the other hand, likely come from other regions of the world–regions where it is more likely that they will be granted asylum. For example, many of my cllients are asylum seekers from Ethiopia and most are Christian. They have a very high likelihood of success in their cases (usually based on political persecution). Thus, had the authors used data from an NGO in my area (where we have many Christian asylum seekers), their results concerning religion would likely have been different.
Marital Status
A 2000 study suggested that single people were less likely to gain asylum in the United States, presumably because decision makers view them as likely economic migrants. However, the authors of the current study found that being married significantly decreases the odds of an asylum grant. I’ve never noticed any difference in the grant rates for my married vs. single clients. However, whenever an asylum applicant lists numerous young children on their application, it makes me worry that an adjudicator will be more hesitant to grant, knowing that the grantee’s entire family will be “following to join” him in the United States.
Some Thoughts
As the authors point out, their sample size is small, and the results are only suggestive. Nevertheless, it seems safe to say that “unobservable factors”–or at least factors that are not related to the legal requirements for asylum–do influence decisions in asylum cases. I imagine the same is true in criminal cases and civil cases. Not that this makes the situation any better, but the fact is, such “improper” influences are difficult to eliminate in any type of case. More study is clearly needed. If Immigration Judges and Asylum Officers can be made aware of the biases that influence their decisions, perhaps that will be a first step towards reducing those biases.
As I mentioned in a previous post, I attended the American Immigration Lawyers Association annual conference last week. One panel I went to included a talk by the Chief Immigration Judge of the United States, Brian M. O’Leary. Judge O’Leary previously served as an IJ in Arlington, Virginia, and I tried a number of cases before him. As much as I think he is doing a great job as Chief Judge, he is certainly missed by those of us who practice in Virginia.
Judge O’Leary updated us on the news at EOIR. We learned that there are 43 new IJs “in the pipeline” and they are expected to start work by the end of the year. During the last round of hiring, over 1,700 people applied for 28 positions, and Judge O’Leary is confident that the new IJs will be very competent. EOIR will be opening a new Immigration Court in Texas later this summer; this will be the 59th Immigration Court in the United States. Hopefully all this will help alleviate the long waits that have become so common in almost all Immigration Courts.
Speaking of long waits, Judge O’Leary noted that receipt of new cases was up 17% from 2007 to 2009, with an 11% rise in the last year alone. This is because DHS is bringing more aliens into the system. Completion rates are also up, but only by 4%, which is not keeping pace with the ever-growing case load. Judge O’Leary also stated–and this was a surprise to me–that the detained docket has reached nearly 50% of all cases in Court. He speculated that this may be because DHS has more beds available and they are making a greater effort to detain criminal aliens. Apparently, DOJ/EOIR and DHS have been meeting to review the immigration process. Hopefully, this will give EOIR a heads up about how many new cases are coming into the system (DHS brings new cases to EOIR when they file papers to remove an alien), which will allow EOIR to better anticipate its docket.
We also heard that there will be a new Assistant Chief Immigration Judge (“ACIJ”) whose portfolio will include only “vulnerable populations,” such as juveniles and aliens with mental disabilities. Such people have often had great difficulty in Immigration Court, and hopefully an ACIJ devoted completely to them will improve the situation. Another ACIJ has a portfolio that includes training new (and old) IJs.
In terms of improvements to the Court facilities, Judge O’Leary noted that most Courts now have digital-audio recording. The only exceptions are Los Angeles and Hawaii, and those Courts should have the new system by August. The digital-audio recording system records Court proceedings on a computer hard drive. This is an improvement over the old system, which used cassette tapes. The system is controlled by the IJ on the bench and cannot be used to listen to conversations going on when the IJ is not in the courtroom (I must admit that wasn’t sure whether anyone could listen in when I was in the courtroom and I have been careful about what I say; despite Judge O’Leary’s assurance, I guess I am too paranoid to change my ways).
There have also been some personnel changes. EOIR has been increasing the number of judicial law clerks. Currently there are 65 JLCs. In FY 2011, there will be 90. In addition, the tenure for the clerks has been increased from one year to two years. This latter development is very significant. I served as a JLC back in the late 1990s. I felt like I was reaching my stride after the first year, and I think I could have made a greater contribution to the Court if I had had a second year. I think the IJs will notice a difference in the quality of their help during the JLC’s second year.
If you are interested in learning more about EOIR (from their point of view), visit their website. For independent statistical information about EOIR, visit the TRAC website, which collects and publishes a wide range of data on the agency.
