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.
In November 2010, the United States will undergo its first Universal Periodic Review (UPR) with the United Nations Human Right Council. This human rights mechanism, established in 2006, periodically reviews all member states regarding their compliance with their human rights obligations and commitments. The UPR offers an opportunity to pressure the U.S. government to comply with those obligations.
Fine dining in Batavia, NY
In preparation for the review, a number of U.S. NGOs have prepared a report about detention of immigrants in the United States. From the report:
The U. S. immigrant detention system lacks due process and subjects noncitizens to arbitrary detention and inhumane treatment, in violation of U. S. obligations under international human rights law. To comply with the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR), the United States must:
(1) Provide individual custody determinations, assessing if a noncitizen’s particular circumstances require detention;
(2) Provide judicial review over custody decisions; and
(3) Ensure that conditions in immigrant detention facilities reflect the civil nature of the government’s detention authority.
While we are thinking about improvements to the detention system, here are some items on my wish list:
(1) Better access to counsel. It’s bad enough that detention centers are in remote locations, but worse than that is the lack of communication with detained aliens. Immigration detention is civil. Therefore, aliens in detention should have access to phones (and why not cell phones?), computers, and faxes. The problems caused by distance when preparing a case are multiplied exponentially by the inability to communicate with clients by phone and email. This problem is particularly bad for asylum seekers, who often need to gather information from overseas, and who may not have family or friends in the United States to help prepare an asylum case.
(2) More procedural protections. ICE personnel routinely convince detained aliens to “sign papers” agreeing to removal. I have received many calls (as recently as last Friday) where family members relate how their detained relative was tricked or coerced into agreeing to removal. Such aliens are rarely informed of their rights or questioned about any fear of return.
(3) Better trained guards. Poor training leads to many problems at the detention centers. For example, several years ago, I represented a few immigrants detained at a facility in Virginia. One guard at the facility routinely punched the detainees in the groin whenever he performed a pat down. One man was injured so badly that he had to be hospitalized. Despite repeated complaints, nothing was done about the guard. Finally, I contacted an acquaintance on the House Oversight Committee for ICE Detention (one of the benefits of living in DC) and began cc’ing him on all my emails to the detention center. The abuse promptly stopped, though as far as I heard, the guard was never punished. Better training and oversight of detention center personnel would help to reduce abuse at the detention centers.
Nothing will make detention pleasant, but these suggestions would help to improve conditions and ensure the procedural protections that are integral to our system of justice.
The Contras fought communism and all President Reagan got was this lousy t-shirt
A Nicaraguan national in the 1980s had a much better chance (80 percent)of being granted asylum than a Salvadoran or Guatemalan national (5 percent). Critics blamed geopolitical biases for the disparate treatment. The INS’s hostility to Salvadoran and Guatemalan refugees, they argued, was attributable to the U.S. government’s coddling of right-wing regimes in those countries. Conversely, the INS’s receptivity to Nicaraguan refugees was related to the U.S. government’s animus toward that country’s left-wing regime.
The result was American Baptist Churches v. Thornburgh, a 1985 class-action suit against the INS brought on behalf of Salvadoran and Guatemalan refugees. The case was resolved with a 1991 settlement agreement (the “ABC agreement”) that stayed the deportation of eligible class members and granted them de novo INS asylum adjudications.
The Case of Erwin Tobar-Barrera
Erwin Tobar-Barrera, a Guatemalan national then awaiting deportation, registered for benefits under the ABC agreement. He was released from detention and his case was administratively closed as he awaited his de novoadjudication.
Tobar-Barrera’s case remained inactive for almost 16 years.
Then, in 2007, DHS notified him that he was ineligible for the ABC benefits he applied for in 1991. He was told that a 1986 conviction for manslaughter rendered him ineligible under the ABC agreement, which excludes “aggravated felons” from relief.
Tobar-Barrera was then ordered removed and taken into ICE custody. But his fortunes turned recently, when U.S. District Court Judge Richard Bennett held that USCIS was wrong in determining that he was an aggravated felon as defined under the ABC agreement. So it seems Tobar-Barrera will get that de novo asylum adjudication after all – two decades later.
Bennett’s memorandum opinion, which involved an interpretive issue of first impression in the Fourth Circuit, is discussed in more detail below.
Aggravated Felonies: They Ain’t What They Used to Be
To qualify for a de novo asylum adjudication under the ABC consent agreement, a Guatemalan class member: (1) must have applied for the de novo adjudication before 1992; and (2) must not have a conviction that classifies as an “aggravated felony.”
But the term “aggravated felony” refers to a broad (and ever-expanding) category of crimes, and what is considered an aggravated felony today was not necessarily considered an aggravated felony in 1991. Of particular consequence to Tobar-Barrera’s case is the fact that manslaughter was not considered an aggravated felony until passage of the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as Bennett’s decision noted:
[I]t is undisputed that when Tobar-Barrera registered for ABC benefits in 1991, his conviction did not constitute an aggravated felony under the INA. On the other hand, Tobar-Barrera’s conviction clearly fits the IIRIRA’s expanded definition of ‘aggravated felony.’ Therefore, the determinative issue in this case is whether the pre or post-IIRIRA definition … should be applied to Tobar-Barrera under the terms of the ABC agreement.
Which Definition of Aggravated Felony Applies?
The government argued that the definition for ‘aggravated felony’ should have been derived from the INA in its current form, as it has since been amended by the IIRIRA. Conversely, Tobar-Barrera argued that the definition of ‘aggravated felony’ set forth in the IIRIRA wasunconstitutionally retroactive as applied to him.
In deciding the case in Tobar-Barrera’s favor, Judge Bennett did not reach the constitutional question of retroactivity. Instead, he found that the issue could be resolved by interpreting the language of the ABC settlement agreement and the language of the IIRIRA.
A Contract Case: Interpreting the ABC Agreement
Judge Bennett began his reasoning by noting that “a consent judgment, though it is a judicial decree, is principally an agreement between the parties.” Therefore, “as is the case in interpreting contracts, a court must look to the plain meaning of the language used in the agreement when interpreting a consent decree.”
Because the case was decided by resort to contract principles, Judge Bennett adhered to the central goal of contract interpretation – to discern the intent of the parties to the contract – in determining whether the government and the class action litigants intended the definition of “aggravated felony” to take in later iterations of that definition.
The crucial provision in the ABC agreement was paragraph 2, which provides in pertinent part:
2. CLASS MEMBERS ELIGIBLE FOR DE NOVO ASYLUM ADJUDICATION. The following class members, if they have not been convicted of an aggravated felony as that term is defined in the [INA], as amended, will be afforded a de novo [adjudication] …
The government claim that the agreement contemplated subsequent revisions to the INA was based on the inclusion of the phrase “as amended” in paragraph 2, which, in their view, incorporated all subsequent revisions to the INA (including those revisions that made involuntary manslaughter an aggravated felony in 1996). Judge Bennett disagreed, writing:
However, this Court reaches the opposite conclusion and finds that “as amended” refers to the meaning of “aggravated felony” as it was defined by the INA in its amended form at the time the ABC agreement was executed. This interpretation is reinforced by the language in the same paragraph requiring that the de novo asylum regulations be conducted “under the regulations in effect on October 1, 1990.” The two phrases together support the view that the parties intended for asylum officers to apply — in all future asylum adjudications under the agreement — the definitions and procedures that existed at the time the consent decree was issued. If the parties intended to incorporate future revisions of the term, they could have included the phrases, “as may be amended hereafter” or “as amended from time to time.” The parties were well aware of how to incorporate by reference subsequent revisions to a term or law; such specific language was utilized in paragraph 18(e), which provides that “Applications for employment authorization . . . will be governed by the provisions of the regulations that became effective on October 1, 1990, or as subsequently amended.” (emphasis added).
Even If the Consent Agreement Contemplated IIRIRA’s Expansion, Applying IIRIRA to Tobar-Barrera’s Case Was Still Improper
“Even if this Court was to assume that paragraph 2 of the ABC agreement incorporated later definitions of ‘aggravated felony,’” Bennett wrote, “the USCIS’s application of [the] IIRIRA definition of aggravated felony to Tobar-Barrera’s case would still be improper.” He continued:
As noted above, § 321(a) of the IIRIRA expanded the definition of “aggravated felony” and § 321(b) unambiguously states that the definition refers to convictions predating the IIRIRA’s enactment in 1996. Nevertheless, subpart (c) of this section limits the definition, by stating that it may only apply after a certain effective date:
The meaning of this phrase “actions taken” was never explained by Congress and it is an interpretive issue of first impression in the Fourth Circuit. However, this Court is persuaded by the view espoused by the Sixth Circuit, as recently enunciated in Saqr v. Holder … holding that the post-IIRIRA definition did not apply because the relevant “action taken” occurred when Saqr’s removal proceedings were initiated. Because Saqr’s proceedings were initiated before the IIRIRA’s enactment in 1996, the pre-IIRIRA’s definition of “aggravated felony” applied to his case.
(c) EFFECTIVE DATE — The amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act [September 30, 1996], regardless of when the conviction occurred. . . .
This Court concludes that because there was no “action taken” in Tobar-Barrera’s case after September 30, 1996, the post-IIRIRA definition of “aggravated felony” was improperly applied by the USCIS.
Conclusion and Remedy
Based on the foregoing, Judge Bennett entered a declaratory judgment in favor of Tobar-Barrera, finding that the USCIS failed to comply with paragraph 2 of the ABC agreement when it determined that he was ineligible for a de novo asylum adjudication. The Court invoked its “broad discretionary powers” to compel the government to provide Tobar-Barrera with a de novo asylum adjudication within 30 days. Judge Bennett stated that this equitable relief comported with the “special blend of what is necessary … fair … and workable” under the unique circumstances of the case, writing that “Tobar-Barrera has waited over nineteen years to receive the benefits he is owed under the ABC agreement.” (emphasis in original).
A recent decision by the Ninth Circuit reveals how attorney error can destroy an alien’s asylum case.
In Singh v. Holder, No. 08-70434 (9th Cir. April 19, 2010), the Ninth Circuit concluded that an IJ may require corroborating evidence even where an alien has testified credibly. In the underlying case, the question before the IJ was whether Mr. Singh had filed for asylum within one year of his arrival in the United States (in general, an alien who does not file for asylum within one year of arriving in the U.S. is ineligible for asylum). The IJ found that Mr. Singh testified credibly about his arrival date in the U.S., but the IJ concluded that Mr. Singh had failed to prove his entry date by “clear and convincing” evidence because he did not submit any additional evidence of his entry date.
The Ninth Circuit found that the IJ could require corroboration of the entry date. The Court held:
With section 1158(b)(1)(B)(ii) [the REAL ID Act], Congress has expressly empowered the IJ to require corroborating evidence even when the applicant has provided otherwise credible testimony. Should the applicant fail to offer corroboration, the IJ may conclude that despite the applicant’s credible testimony, he has failed to meet his burden of demonstrating that he is entitled to asylum relief. Accordingly, the IJ’s conclusion that Singh’s uncorroborated testimony was insufficient to carry his burden to prove his date of entry was proper.
This result is not that surprising. The REAL ID Act, which went into effect on May 11, 2005, provides that, “Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” In Singh, the Court concluded that evidence corroborating Mr. Singh’s entry date was readily available:
This is the sort of fact which is “easily subject to verification,'” whether by some form of official documentation or by supporting documents of a more informal variety, i.e., affidavits or letters from family, friends, or traveling companions.Travelers typically accumulate paper as they move, such as receipts from gas stations, motels, and restaurants, and often take snapshots providing dating information, and reaching a refuge from persecution might well generate a particular desire to preserve souvenirs of arrival. Accordingly, it is eminently “reasonable to expect” an applicant to provide some corroborating evidence of his date of entry
While I am not sure I agree that people fleeing persecution “typically accumulate paper as they move,” Mr. Singh should at least have tried to get evidence concerning his entry. Had he made an effort to obtain corroboration, he would likely have satisfied the REAL ID Act’s requirement to either obtain the evidence or demonstrate that the evidence is not reasonably available.
The REAL ID Act went into effect in 2005. According to the Ninth Circuit decision, the IJ informed Mr. Singh’s counsel at an initial hearing to obtain evidence concerning the date of entry. Either Mr. Singh’s attorney asked his client for the evidence or he did not. If he asked and Mr. Singh failed to make any effort to obtain the evidence, then Mr. Singh is to blame for the loss. If the attorney failed to instruct Mr. Singh to get evidence, then the attorney is to blame.
The Center for Immigration Studies–which describes itself as “low-immigration, pro-immigrant”–celebrated the passage of new anti-illegal immigrant legislation in Arizona (Federalism Lives!):
State lawmakers have passed a bill to make it a state crime to reside in the state without proof of lawful U.S. residence. The legislation also empowers police officers to check a suspect’s immigration status.
The legislation has yet to be signed by the governor, and will likely face court challenges from pro-immigration groups. According to Time Magazine, if enacted, the new law would give Arizona police the right to stop anyone on “reasonable suspicion” that they may be an illegal immigrant. It also allows the police to arrest anyone who is not carrying a valid driver’s license or identity papers. The legislation provides:
For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. The person’s immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c).
CIS hopes that that the legislation will encourage other states to follow suit: “More states should follow Arizona’s lead and flex their federalist muscles.” The proposed law has been harshly criticized for many reasons, including that it will encourage racial profiling.
But how will such legislation impact asylum seekers?
For better or worse, many asylum seekers enter the United States at the Mexican border. The Washington Times recently reported on a Somali asylum seeker who attempted to enter illegally and was detained in California. I myself (located in Washington, DC) have litigated a number of asylum cases for Ethiopians who have made the long journey from Ethiopia through Africa, South and Central America, and Mexico into the United States. Some asylum seekers evade capture, enter the U.S., and file affirmative asylum applications. Others are detained at the border and file for asylum while held in detention. Certainly, people crossing the border in this manner present a security concern for our country. Many, however, are legitimate asylum seekers with a real fear of returning to their countries.
People who are detained at the border, determined to have a “credible fear” of persecution, and found not to present a security threat, are released (usually after paying a bond) and ordered to present their asylum cases before an immigration judge. Such people have little evidence of lawful status in the United States–usually just some papers from ICE (Immigration and Customs Enforcement) ordering them to report to the IJ. Such papers could easily be created by anyone with a printer, so they cannot serve as ID documents. Also, having entered illegally, such asylum seekers are generally not eligible for a work permit, which some asylum seekers use as an ID. If asylum seekers who enter at the border cannot prove their legal status in the U.S., they will face arrest under the new Arizona law.
The law might also cause problems for aliens granted withholding of removal under INA § 241(b)(3) or withholding under the UN Convention Against Torture. Such aliens are eligible for work permits, which can serve as an ID card. However, the work permits are issued for one year at a time, and aliens must reapply every year for their work permits. If the card arrives late (or if the alien forgets to apply on time), the old permit might expire before the new card arrives. This is a common occurrence and will likely leave the alien with no valid ID since an alien’s driver’s license expires concurrent with the work permit. The result is that aliens in valid legal status, who have been deemed at risk for persecution or torture in their home countries, will be vulnerable to arrest under the new Arizona law.
We can only hope that the legislature will address these problems before the new law goes into effect.
