An Immigration Judge in Boston granted asylum to President Obama’s aunt Zeituni Onyango, a Kenyan national who has been in the U.S. since 2000. Ms. Onyango first applied for asylum in 2002. She was initially denied, but then either appealed or reopened her case (I have found nothing definitive about the course of the litigation). Earlier today, the IJ granted her application for asylum.
Obama's aunt holds a photo of herself and a little-known state senator
At least as far as I can tell, the basis for Ms. Onyango’s claim has not been made public. My guess is that after Obama was elected president (or at least after he became nationally and internationally known), Ms. Onyango filed a motion to reopen her case and asserted that she would face persecution from people who wished to harm her family (the Obama family). Given the various threats to our country, this seems a reasonable claim. Although perhaps the possibility of her facing harm in Kenya is remote (Obama’s grandmother is living there peacefully), it’s easy to understand why an IJ would be reluctant to send her back. She would make a tempting target for extremists, and it would be a blow to the U.S. if she were harmed. Under these circumstances–and given the fairly low threshold for asylum–it’s not a surprise that the IJ granted Ms. Onyango’s claim.
Professional Obama-hater Michelle Malkin and others have raised the question of whether Ms. Onyango received special treatment because of her relationship with the President. Of course, I have no idea (and neither do they), but special treatment hardly seems necessary in a case like Ms. Onyango’s. I once represented an Afghani woman who received a fellowship to study in the United States. A university brought her here and supported her, and the local press covered her progress for four years. Towards the end of her fellowship, extremists in her country threatened her, and we applied for asylum. I argued that she was a prime target for anti-American extremists because of her relationship with our country–had she been harmed in Afghanistan, it would have been seen as a major victory for our enemies. The Asylum Office granted her application. Ms. Onyango’s situation was similar to my client’s, in that our enemies would view an attack against her as an attack against the United States. Not surprisingly, the IJ was not willing to take that risk.
The Senate Committee on the Judiciary has scheduled a hearing on “Renewing America’s Commitment to the Refugee Convention: The Refugee Protection Act of 2010” for Wednesday, May 19, 2010 at 10:00 a.m. in Room 226 of the Dirksen Senate Office Building. The scheduled witnesses are: (1) The Honorable Dan Glickman, President, Refugees International; (2) Patrick Giantonio, Executive Director, Vermont Immigration and Asylum Advocates; and (3) Igor V. Timofeyev, Paul, Hastings, Janofsky & Walker LLP
Biao Yang probably isn’t the first man to tell an exaggerated story about his courage in defense of a woman’s honor. Similarly self-aggrandizing stories have no doubt been told in countless bars and around hundreds of water coolers.
Narrative license of this sort usually carries little risk. A drinking buddy or co-worker might express disbelief by making reference to bovine excrement.
But the personal consequences of Yang’s embellishments are far more serious, as they will likely result in his deportation and the imposition of a lifetime bar to future immigration benefits. The consequences of Yang’s narrative excesses also had a broader effect, as they were the focus of a recent BIA decision that added to the administrative corpus of immigration law by clarifying the standards under which asylum claims are determined to have been made frivolously.
TOUGH GUY
Yang, a Chinese national, arrived in Chicago in 2002. After touching down, he told immigration officials at O’Hare that he had fled his country because “family planning authorities” – bureaucrats tasked with enforcing the country’s “One Child” policies – had forced his girlfriend to abort her pregnancy and that they wanted to arrest him.
Poster extolling the virtues of the one child policy
The embellishments would come in an asylum application filed 18 months later. In that application, Yang asserted that he got into a scuffle with and injured one of the abortionist bureaucrats who had come to his house to escort his girlfriend to the hospital. He further claimed to have been beaten and detained for his fearless acts. And then he claimed that he made a prison break and left the country.
IJ DECISION AND SECOND CIRCUIT REMAND
None of these details had been mentioned during the airport interview, however. This and other suspicious aspects of Yang’s story – including chronological discrepancies , “rank inconsistencies” within his testimony, and the sheer “implausibility” of his prison-break story – led an immigration judge to render an “adverse credibility determination.”
The result was denial of Yang’s asylum claim. But the IJ further held that these inconsistencies indicated that Yang’s asylum claim had been filed frivolously – which resulted in the imposition of a lifetime bar to future immigration benefits.
The IJ’s decision was affirmed by the BIA. However, the U.S. Court of Appeals for the 2nd Circuit remanded because the case exposed vagueness in the existing BIA standard for making a “frivolousness” determination. Those standards included:
[A] specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application … [and] … sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated
The Second Circuit examined:
to what extent the IJ is required to set out his or her factual findings to support a frivolousness determination separately from the adverse credibility determination and to what extent he or she is permitted to incorporate by reference the findings made to support an adverse credibility determination.
Factual findings made in reaching an adverse credibility determination can be incorporated into the findings made in reaching a frivolousness determination … but will not be sufficient … the frivolousness determination requires additional, explicit findings of “materiality” and “deliberate fabrication.”
The BIA stated:
In this case, as is often the situation, fact-finding regarding credibility overlaps with fact-finding as to whether an asylum application was frivolously filed. Both determinations involve the identification of inconsistencies and discrepancies in the asylum claim and consideration of any explanations offered for them. There may be circumstances where the pertinent facts do not overlap, and separate factual findings by an Immigration Judge will be necessary.
However, neither fairness nor clarity requires an Immigration Judge to separate and repeat those aspects of the credibility determination that overlap with the frivolousness determination.
… The frivolousness determination, however, requires explicit findings as to “materiality” and “deliberate fabrication” that are not required for an adverse credibility determination. As we indicated in Matter of Y-L-, 24 I&N Dec. at 156, “[T]he Immigration Judge must separately address the question of frivolousness, including a discussion of the evidence supporting a finding that the respondent deliberately fabricated a material element of the asylum claim.”
USCIS Asylum Division will hold its quarterly stakeholders meeting in Washington, DC on June 8, 2010 at 2:00 PM. For details about attending the meeting, RSVP information, and how to submit questions, view the USCIS Memo. Questions are due by close of business on May 21, 2010, and RSVPs are due by close of busines on June 4, 2010.
An 88-year-old Hmong man from Laos who requested political asylum in 2007 has filed suit against the Department of Homeland Security seeking to have DHS return his passport so he can go home. According to KMPH News in Fresno, California, Mr. Xiong–who has not revealed his full name in order to protect his identity–is a veteran who fought alongside U.S. forces during the Vietnam War:
Xiong’s attorney describes his client as a war hero. He says the Hmong veteran can’t return to his native country without his passport. It was confiscated when he filed for political asylum in the U.S. and until the process is complete he won’t be able to go home. “He’s an old man,” Attorney Ken Seeger said. “He’s been in poor health over the past year or so.”
The veteran filed for political asylum in 2007. “But, he’s changed his mind and he’s willing to take a risk back in Laos just because he’s really old and in bad health and thinks the end is near and he wants to die in his homeland,” Seeger said.
DHS has refused to return the passport, so Mr. Xiong filed suit to get it back. DHS routinely keeps travel documents (and other original documents) that belong to asylum seekers. Even after a case is completed, it is often difficult or impossible to retrieve documents. In Mr. Xiong’s case, it would seem that DHS has every incentive to return the passport. Let’s hope that they do.
Traditional Hmong story cloth depicting a modern scene of war and refugees
This is the fifth part in an ongoing series about the Refugee Protection Act. The RPA contains many provisions to improve legal services and legal access for asylum seekers.
The root cause of many problems in the asylum system is that aliens are not provided with counsel. According to TRAC, a website that gathers statistical information on immigration matters, 86% of unrepresented asylum seekers are denied asylum in Immigration Court. That compares with an overall national average denial rate of 57% (this figure includes represented and unrepresented asylum seekers in Court). Although I have not seen any statistics, I imagine that the success rate of detained asylum seekers is even lower—such aliens have limited access to attorneys and resources to help them with their applications. The RPA would improve this situation.
The RPA provides improved access to attorneys in several ways. First, the new law allows the Attorney General or his designee (presumably the Immigration Judge) to appoint counsel “if the fair resolution or effective adjudication of the proceedings would be served by appointment of counsel.” Currently, IJs can work with local non-profits or AILA to find pro bono counsel for certain cases. This method of procuring counsel is ad hoc, and depends on the availability of pro bono counsel. The RPA would improve the situation, but would still give the IJ (an interested party) the authority to decide whether an attorney is needed. Ideally, any alien who expresses a fear of return should be screened by an independent reviewer to determine whether an attorney is necessary. The RPA as written does not provide for an independent decision concerning the need for counsel.
Second, the RPA provides detained asylum seekers with improved access to legal services and resources. It requires an on-site law library at every detention facility, free access to legal research and correspondence, including computers and printers, access to confidential meeting space to confer with legal counsel, and reasonable access to telephones to call legal representatives without charge. The RPA also prohibits the transfer of a detainee if it would impair an existing attorney-client relationship. Under the RPA, all new detention facilities must be located within 50 miles of a “community in which there is a demonstrated capacity to provide free or low-cost legal representation,” and by January 2014, all detention facilities must comply with this location requirement.
Third, the RPA establishes a National Legal Orientation Support and Training Center to “ensure quality and consistent implementation of group legal orientation programs nationwide.” The Center will provide training to non-profit agencies that will, in turn, provide legal orientation and “know your rights” presentations to detained aliens. The RPA would also provide grants to the non-profit agencies.
By increasing access to counsel for detained and non-detained asylum seekers, the RPA would help protect legitimate asylum seekers by ensuring that their claims are properly prepared and presented for adjudication.
On May 5, 2010 The New York Legal Assistance Group (NYLAG) filed a class action complaint in the U.S. District Court for the Eastern District of New York. The lawsuit, styled Tsamcho v. Napolitano, challenged a USCIS policy that threatens to deprive asylees of the opportunity to bring their spouses and children into this country.
For its bad policy, USCIS gets a wag of the finger.
The plaintiff, Lhakpa Tsamcho, is a Tibetan woman who received asylum in the United States after she fled persecution in the People’s Republic of China. USCIS approved the petitions to bring her husband and three children to the United States. However, due to travel restrictions imposed on Tibetans by the Chinese government following unrest in March 2008, Tsamcho’s family members were unable to reach the U.S. consulate. After they failed to appear for their interviews, USCIS reopened their approved cases and denied the petitions.
Thus, the same persecution against Tibetans that was the basis for USCIS’s grant of asylum to Tsamcho has now lead to USCIS’s refusal to allow Tsamcho’s relatives to join her in the United States.
“Asylees affected by the [U.S.] government’s new policy have done everything required by law to reunite their families in the United States, yet they may now be permanently prevented from doing so,” said Jason Parkin, one of the NYLAG attorneys on the case. “It makes no sense to tell an asylee that her relatives are eligible to join her in this country, only to later reverse that decision simply because they weren’t able to appear at an appointment or bring certain documents.”
The lawsuit challenges USCIS’s new asylee family reunification policy, charging the agency with acting in violation of its own regulations, taking actions that are arbitrary and capricious, and implementing a new policy without providing proper notice to the public.
The American Academy of Pediatrics has issued a revised policy statement on Female Genital Mutilation (also called Female Genital Circumcision or Cutting). The new statement reads as follows:
The traditional custom of ritual cutting and alteration of thegenitalia of female infants, children, and adolescents, referredto as female genital mutilation or female genital cutting (FGC),persists primarily in Africa and among certain communities inthe Middle East and Asia. Immigrants in the United States fromareas in which FGC is common may have daughters who have undergonea ritual genital procedure or may request that such a procedurebe performed by a physician. The American Academy of Pediatricsbelieves that pediatricians and pediatric surgical specialistsshould be aware that this practice has life-threatening healthrisks for children and women. The American Academy of Pediatricsopposes all types of female genital cutting that pose risksof physical or psychological harm, counsels its members notto perform such procedures, recommends that its members activelyseek to dissuade families from carrying out harmful forms ofFGC, and urges its members to provide patients and their parentswith compassionate education about the harms of FGC while remainingsensitive to the cultural and religious reasons that motivateparents to seek this procedure for their daughters.
The highlighted language is new, and represents a step back from the AAP’s previous position, which opposed FGM under all circumstances.
Since the landmark Kasinga case, women and girls have been able to qualify for asylum in the United States based on a fear of FGM. Whether the AAP’s watered-down position will impact such asylum seekers remains to be seen.
This is part four in a series of posts about the Refugee Protection Act (“RPA”), a bill introduced by Senators Leahy and Levin in the United States Senate. The RPA would modify the requirements for asylum by changing the requirement that a “central reason” for the persecution is a protected ground.
In order to qualify for asylum, an applicant must demonstrate a well-founded fear of persecution based on a protected ground (race, religion, nationality, political opinion, particular social group). The REAL ID Act (effective May 11, 2005) modified this definition, and the law now requires that “at least one central reason” for the persecution must be a protected ground. The BIA found that this new requirement did not “radically alter[]” existing law. See In re: J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007).
While the law may not have been radically altered, the REAL ID Act makes it more difficult for asylum seekers to obtain relief. I worked on a case in the Fourth Circuit (ably litigated at the agency level by the University of Maryland Law School Clinic) where an El Salvadoran man had been repeatedly harassed and beaten by members of the MS-13 gang. The gang attacked him for several reasons: (1) they did not want him to date a certain girl; (2) they wanted to steal his money; and (3) they did not want him to attend the Seventh Day Adventist Church. The Immigration Judge (“IJ”) specifically found that the harm faced by the asylum seeker rose to the level of persecution, and she told him: “I think you are in a terrible situation and I could not have more sympathy for you.” However, both the IJ and the BIA found that the “central reasons” for the persecution were that the gang did not want my client to date the girl and the gang wanted to rob him–these are not protected grounds. The BIA found that “even assuming… religion was one motive, we do not find his religion to be ‘at least one central reason’ for the persecution.” The Fourth Circuit agreed and denied our Petition for Review. See Quinteros-Mendoza v. Holder, 556 F.3d 159 (4th Cir. 2009).
What motivates this guy?
The difficulty in Quinteros-Mendoza was that the IJ had to determine the motivation of the gang members. It is difficult enough to establish the motivation of a persecutor, let alone to rank that motivation as “one central reason” for the persecution. The RPA would relax this requirement. The law would be changed so that the applicant must prove only that a protected ground is “a factor in the applicant’s persecution or fear of persecution.”
Where an asylum applicant faces persecution, he should not be required to demonstrate the motivation for his persecutor’s actions with such specificity. The RPA would correct this problem.
Sometimes it seems that the purpose of the ICE Detention and Removal Office is to make life so miserable that people would rather return to a country where they fear persecution than remain any longer in the United States. At least that is what the DRO has been doing to one of my clients. Here’s the story:
My client worked for her country’s government at an international organization in the United States. She was politically active in favor of an opposition party. Once her superiors learned about her activity, they ordered her to report to the home office. She feared–for good reason–that her government planned to arrest her upon her return, and so she filed for political asylum.
The Asylum Office referred the case to an Immigration Judge because the client had not filed for asylum within one year of her arrival in the U.S. (she had been working here for several years before she filed for asylum). At that point, she hired me, and we prepared a case for the IJ. I planned to argue that the client’s failure to file for asylum within one year should be excused by “changed circumstances” in her case, but I knew this argument was weak.
When we arrived in court, the DHS Attorney said he would agree to Withholding of Removal under INA 241(b)(3). An alien who receives Withholding of Removal cannot be removed to the country where she fears persecution. She is entitled to a work permit, which must be renewed every year, but if she leaves the U.S., she cannot re-enter. I had already discussed the possibility of Withholding with my client, and she agreed. In fact, she was relieved to avoid a trial. With the consent of DHS, the IJ granted Withholding of Removal.
A few years later, my client is still here. She is working hard and trying to make a life for herself.
Recently, however, DRO has begun an effort to force her to relocate to a third country. Why they have chosen my client for this attention, I do not know. She has no criminal history and she is employed, and the DHS attorney and the IJ both agreed that she faces persecution in her home country.
The DRO has the legal authority to remove my client to a third country: Withholding of Removal protects an alien from removal to the country where she fears persecution, but it does not prevent ICE from removing her to another country. Thus, every month for the last few months, DRO has made my client report to their office. For the client, this means losing a day of work (and having to make excuses to her employer), waiting for hours, and then receiving a lecture about how she will be deported, how the DRO has “power” over her, how they can make her report every month, every week or every day; in short, how they can disrupt her life to the point where she can no longer remain in the U.S. They leave her with instructions to find a visa to a third country, and to report back about her efforts to get a visa. The repeated threats from the DRO officers are the worst part. They terrorize and demoralize the client, who, of course, has no where else to go.
My client has dutifully contacted different embassies, none of which offer her a visa. More stress and wasted time. She and I both know that no country will offer her residency. The DRO officers know it as well. Yet they persist in their efforts to make her keep looking. As a result, my client is depressed and fearful, she may lose her job due to the frequent absences (to report to DRO and to visit embassies), and she has no certainty about her future in this country.
I suppose I should not speculate about the motivation behind the DRO officers’ actions, but I can clearly see the results of their behavior: They are harming a person who has been granted protection by our country. And to me, that is a disgrace.
This is part three in a series about the Refugee Protection Act. The RPA provides guidance about what constitutes a “particular social group.”
A refugee is defined as a person with a well founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group. See INA § 101(a)(42)(A). There has been much litigation concerning what constitutes a “particular social group.”
The Refugee Protection Act provides helpful guidance on what constitutes a “particular social group.” The RPA states:
For purposes of determinations under the Act, any group whose members share a characteristic that is either immutable or fundamental to identity, conscience, or the exercise of the person’s human rights such that the person should not be required to change it, shall be deemed a particular social group, without any additional requirement.
While this provision makes the definition of “particular social group” more specific, it still leaves open at least one important question: Will the definition of “particular social group” apply to former members of criminal organizations? In the Seventh Circuit case, Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), the court held that former gang members might constitute a particular social group. If the Refugee Protection Act defines a “particular social group” as “any group whose members share a characteristic that is… immutable,” then former gang members would qualify as a particular social group. Current–as opposed to former–gang members would not qualify as a particular social group because gang membership is not immutable. In other words, it is possible to quit the gang. Former gang membership is immutable, because it is not possible for an alien to change the fact that he once belonged to a criminal gang. Under the RPA, it seems that a former member of any organization would be part of a particular social group
Ex-members of the knitting circle form a particular social group
Even if former gang members constitute a particular social group, they would likely be ineligible for asylum based on criminal and security-related grounds.
I have worked on several cases where former gang members feared persecution by gangs. In one case, several members of my client’s family had been killed. My client was granting withholding of removal based on his particular social group (his family; not his former gang membership). In another case, my client was denied relief where the IJ found that he did not belong to a particular social group. In both cases, the clients faced harm from the gang because they quit the gang. The danger of gang violence against former gang members is very real. In a well known case, Edgar Chocoy, a 16-year-old former member of the MS-13 gang, was ordered removed from the United States. Shortly after he returned to Guatemala, gang members murdered him.
The Refugee Protection Act should provide protection for former gang members who face harm in their countries. While we must be cognizant of security concerns (and of offering benefits to criminals), we must also recognize the severe threat faced by legitimate former gang members.
This is part dieux in our series of posts about the Refugee Protection Act. Today’s topic is the “Material Support Bar,” INA § 212(a)(3)(B)(iv)(VI), which states that an alien who commits an act that he “knows, or reasonably should know, affords material support” to a terrorist organization is inadmissible. As written, the law makes no exception for instances where the alien has been coerced into providing support. The RPA would change that.
About a year ago, I represented an elderly Iraqi Christian woman who had received threats from unknown people seeking to extort money. The people threatened to murder her son. As a result of the threats, and in order to save her son, the women gave money to the extortionists. Given that these people were likely terrorists, the woman faced a bar to obtaining asylum in the U.S. We relied on a USCIS memorandum, which allowed for limited exceptions to the material support bar in the case of duress, and the woman received asylum. A pro se applicant might not have access to that memorandum, and might not be able to relate the relevant facts necessary to meet the exception to the material support bar.
The Refugee Protection Act creates an exception to the material support bar for people who have been coerced to provide material support to terrorists. This would reduce or eliminate the problem of denying asylum to people who have been victimized by terrorists.
The Refugee Protection Act of 2010 is currently working its way through Congress. The proposed law makes some pretty significant changes to the asylum laws of the United States. Most advocacy groups are endorsing the bill, though it seems not to have captured the attention of the mainstream media. As an attorney who represents asylum seekers, I thought I would share my perspective on the legislation by examining how it would have affected some of my cases had it been the law. The RFA (or at least my copy of the RFA) is 78 pages long, so there is a lot to discuss. So this will be the first part in a series of posts about the RFA. Today’s topic: The Refugee Protection Act of 2010 eliminates the requirement that an asylum seeker files for asylum within one year of arrival in the United States.
The current law puts the "dead" in deadline
INA § 208(a)(2)(B) states that in order to qualify for asylum an alien must demonstrate by “clear and convincing evidence that the application [for asylum] has been filed within 1 year after the date of alien’s arrival in the United States.” If the alien fails to timely file for asylum, he or she will not qualify for that relief, but may still apply for withholding of removal pursuant to INA § 241(b)(3) or relief pursuant to the UN Convention Against Torture (“CAT”).
For aliens represented by competent counsel, it is often possible to demonstrate “changed circumstances” or “extraordinary circumstances,” either of which can excuse the one year filing deadline. See INA § 208(a)(2)(D). In my own practice, I have encountered many cases where the alien has not filed within one year of arrival. In most cases, we have been able to demonstrate “changed circumstances” or “extraordinary circumstances,” and the alien has qualified for asylum.
For aliens who are unrepresented, the one-year bar presents a barrier to legitimate claims. The purpose of the bar is to help eliminate fraudulent claims. However, there are legitimate reasons why an alien might fail to file for asylum within one year of arrival in our country. Some examples:
Avoidance – I had one case where a political activist from Zimbabwe was arrested and then raped by the police. After she came to the U.S., the psychological trauma the alien suffered caused her to avoid re-visiting the events in her country (which would have been necessary in order to prepare her asylum application). As a result, she did not complete the asylum application within one year. The Asylum Office denied her case because she failed to file for asylum within one year of her arrival (she was pro se), and her case was referred to an Immigration Judge (“IJ”). The IJ ultimately granted asylum (with the agreement of the DHS attorney) after we demonstrated that the alien’s failure to file within one year was due to “extraordinary circumstances,” i.e., the psychological trauma of her rape, and the resulting avoidance of re-visiting those events. Had this alien been unrepresented, she might not have been able to demonstrate that she qualified for an exception to the one-year rule.
Alternative Relief – I represented a man from a prominent family in Peru. After a change in government, the man received anonymous death threats and was followed by unknown people. He came to the United States, but did not file for asylum because he expected to obtain his residency based on marriage to a U.S. citizen. The marriage did not succeed, so he applied late for asylum. He was not represented by counsel. The Asylum Office referred his case to the IJ based on the failure to comply with the one-year filing requirement. As a compromise, the DHS attorney and the IJ agreed to grant of withholding of removal under INA § 241(b)(3). As a result, the alien has been able to remain in the U.S., but he repeatedly had to appear before the Detention and Removal Office, officers in that office improperly threatened to remove him to a third country, and he has had to renew his work permit every year, which makes it difficult to maintain employment. If he marries a U.S. citizen, he could re-open his case and obtain his residency based on the marriage.
Changed Circumstances & Other Obligations – In another example, I represented a Tuareg woman from Niger who feared return to her country after the government began a war with the Tuareg people and after her grandmother was killed by a land mine. The woman, who represented herself, failed to file for asylum within one year because (1) the conflict was dormant when she first arrived in the United States, so she did not fear return, and (2) she was the primary caretaker for her father, and was too occupied to prepare her case. Her sister, who had the exact same case and also filed late, received asylum from the Asylum Office. My client’s case was referred to the IJ, and after much discussion, the IJ and the DHS attorney agreed to a grant of asylum.
In the above examples, the one-year bar resulted in wasted judicial resources and hardship for legitimate asylum seekers. Had these aliens been unrepresented before the IJ, their cases would likely have been denied (all the cases were denied by the Asylum Office, where the aliens were without representation). Thus, these aliens—who were later determined to be legitimate refugees—were initially denied asylum solely because they had not complied with the one-year filing requirement for asylum. Had they not been represented before the IJ, these aliens likely would have been ordered removed to countries where they faced persecution.
The Refugee Protection Act would eliminate the one year filing deadline, and would protect legitimate asylum seekers such as the aliens discussed above.
In a report prepared for the United Nations, Seton Hall University School of Law’s Center for Social Justice and New York Lawyers for the Public Interest discuss the problem of involuntary medical repatriations–the practice of some hospitals to privately transport uninsured alien patients against their will to countries that may or may not have the capacity to care for them. It is not clear how these “repatriations” affect asylum seekers, but an ABC News report quotes one hospital worker:
“About eight times a month, we make arrangements to transfer patients to their country of origin,” said Sister Margaret McBride, vice president for mission services at St. Joseph’s Hospital and Medical Center in Phoenix. “We’ve had transfers to Asia and Africa by air ambulance, and we pay for transportation, which starts out at about $25,000 up to $100,000.”
Many asylum seekers come to the United States from Asia and Africa, and we can only wonder how many of those repatriated individuals were returned to countries where they feared persecution.
There are few statistics available about how many people are involuntarily repatriated each year. One author on the Detention Watch Network website writes:
Medical repatriations are happening with varying frequency, and varying degrees of patient consent, from state to state and hospital to hospital. No government agency or advocacy group keeps track of these cases, and it is difficult to quantify them. A few hospitals and consulates offered statistics that provide snapshots of the phenomenon: some 96 immigrants a year repatriated by St. Joseph’s Hospital in Phoenix; 6 to 8 patients a year flown to their homelands from Broward General Medical Center in Fort Lauderdale, Fla.; 10 returned to Honduras from Chicago hospitals since early 2007; some 87 medical cases involving Mexican immigrants — and 265 involving people injured crossing the border — handled by the Mexican consulate in San Diego last year, most but not all of which ended in repatriation.
Even these statistics provide little insight into the problem as we do not know how many of the repatriated individuals returned to their countries willingly. One company involved in such transfers emphatically denies that it transports people to other countries without their consent. Nevertheless, there do seem to be problems with repatriation:
Sister Margaret McBride, vice president for mission services at St. Joseph’s in Phoenix, which is part of Catholic Healthcare West, said families were rarely happy about the hospital’s decision to repatriate their relatives. But, she added, “We don’t require consent from the family.”
The Senate Judiciary Committee is currently considering the Refugee Protection Act, which provides important new protections for asylum seekers. The new bill does not discuss the problem of medical repatriations, but this issue likely affects asylum seekers.
Perhaps the bill could require any hospital that plans to repatriate foreign nationals involuntarily to question those people (or their family members) about any fear of returning to their homeland. But hospitals are ill-equipped to make such inquiries. Better the hospitals should end the practice altogether. While it may save money, as Seton Hall points out, the practice violates patients’ rights and human rights. Add to that the real possibility that some repatriated aliens will face persecution in their homelands. These to me seem good reasons to stop involuntary medical repatriations.
Maybe I need a vacation, but I keep coming back to the Commonwealth of the Northern Mariana Islands – the United States’s possession (technically a commonwealth in political union with the U.S.) that adopted the Immigration and Nationality Act on November 28, 2009.
Among the strange new laws in this remote corner of the Pacific is the provision that aliens seeking asylum in the CNMI cannot do so until January 1, 2015. In the interim, aliens fearing persecution can apply for withholding of removal under INA § 241(b)(3) or the United Nations Convention Against Torture. Chief Immigration Judge Brian M. O’Leary has issued a memorandum discussing the transition to the INA. Chief Judge O’Leary points to a number of “novel” legal issues that might arise:
There may also be a variety of issues involving the provision that aliens “physically present in or arriving in” the CNMI cannot apply for asylum until January 1, 2015. For example, the law is silent on whether an alien who transited through the CNMI en route to another area of the United States is barred from applying for asylum until January 1, 2015. Other issues may involve what type of legal status aliens who have previously been granted refugee protection under CNMI law are entitled to.
These issues and others seem like fertile ground for litigation. Maybe we will revisit the Mariana Islands soon.
