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.
The CIS Ombudsman, January Contreras, has issued recommendations regarding the adjudication of applications for refugee status. According to the DHS website, the Citizenship and Immigration Services Ombudsman assists individuals and employers in resolving problems with USCIS; identifies areas in which individuals and employers have problems in dealing with USCIS; and proposes changes to mitigate identified problems.
Concerning the adjudication of applications for refugee status, the Ombudsman recommends that USCIS:
(1) Publicly state, on the USCIS website and through stakeholder groups, the criteria by which USCIS expedites certain emergent refugee cases and how to access that expedited process.
(2) Clearly state the reason for denying a refugee application: (a) Identify issues of concern during the applicant’s interview to enable the applicant to address, at that time, any potential grounds for denial; and (b) Articulate in the Notice of Ineligibility for Resettlement clear and case-specific information regarding the grounds for denial.(3) Issue guidance on how to file a Request for Reconsideration for a denied refugee application: (a) Provide a tip sheet on relevant supporting documents outlining the information applicants could include; and (b) Publish mailing address(es) for Request for Reconsideration submissions.
(4) Acknowledge receipt of each Request for Reconsideration.
Suggestions or comments about the recommendations may be directed to CISOmbudsman@dhs.gov.
As they say, there are lies, damn lies, and statistics. With that in mind, DHS has released the Yearbook of Immigration Statistics for 2009. Some interesting stats: 58,532 asylees received their lawful permanent resident status in 2009; 118,836 refugees obtained their LPR status last year; and, in total, 1,130,818 people became LPRs in 2009. The site also has statistics for “Persons Obtaining Lawful Permanent Resident Status” for fiscal years 1820 to 2009, showing the busy periods between 1905 and 1914, and again during the last two decades.
As for the countries with largest numbers of refugee and asylee adjustments to LPR, Cuba leads with 33,596, followed by China (18,067), Kenya (14,829), and Thailand (12,561). Inexplicably, 5,694 Austrian refugees and asylees adjusted status, making that country one of the largest sources of refugee adjustments in 2009. Who knew?
The Ninth Circuit found that an IJ could not rely on her own notes, taken during an unrecorded bond hearing, to support a conclusion that an alien’s testimony was not credible. See Joseph v. Holder, No. 05-74,390 (9th Cir. April 14, 2010).
According to the Chicago Tribune, a prominent refugee resettlement agency, World Relief, has enacted a policy that requires new employees to be Christians. World Relief is an arm of the National Association of Evangelicals, an organization that has represented a diverse array of Evangelical churches and parishioners since 1942. The agency receives about 65% of its budget from the federal government and assists 40% of refugees resettling in the U.S. According to its mission statement, World Relief empowers the local Church to serve the most vulnerable, and its “staff and volunteers help thousands of refugees – victims of war and persecution – replant their lives in the United States.” The agency has 23 offices across the U.S., and is the biggest evangelical refugee resettlement agency in America. From the World Relief website:
In[its United States] offices, World Relief offers legal support, job training and English classes to immigrants. In Baltimore, a Legal Services clinic reaches out to thousands of clients each year—helping them fill out paperwork, joining them at hearings and ensuring they understand their rights and responsibilities. World Relief is also engaged in advocacy for immigration and refugee policy.
One “unfortunate part” of World Relief’s selective hiring policy is that it could conflict with professional guidelines for social workers and clinical psychologists. As a result, the agency’s mental health unit was forced to close down and refer its clients elsewhere. Though current employees don’t necessarily have to be Christian, they risk termination if they don’t affirm the organization’s Christian mission statement “to follow Jesus by living holy, humble and honest lives.” Non-Christian employees in hard-to-replace roles can apply for an exemption, but they must sign the Christian statement of faith if they ever change positions.
Already some employees are searching for new employment and some funders have decided not to renew grants. The World Relief interim director, the Rev. Brad Morris, said the hiring policy has nothing to do with the services provided and that he doesn’t see a conflict. “I don’t believe it’s discrimination. It’s an internal hiring policy,” he said.
The U.S. is not the only country that detains asylum seekers. Nor is it the only country where asylum seekers allege abuses during detention. Four female asylum seekers in Great Britain have brought suit claiming that they were abused at that country’s Yarl’s Woods detention center, a 405-bed detention facility for women and families. The Guardian reports that the four women allege physical and sexual abuse, separation of children from parents, and poor living conditions resulting in illness:
Last month, the High Court ruled that it would hear the women’s claims, a development that means the Home Office will be obliged to demonstrate in open court how Yarl’s Wood complies with the UK’s obligation to asylum seekers and to defend the centre against charges that its treatment of asylum-seeking women and children constitutes a “systematic disregard for human dignity.”
Yalr's Woods houses women and children asylum seekers For its part, the Home Office maintains that all four “have attacked and abused our staff,” and that “Yarl’s Wood is a well run centre with highly professional and caring staff.” Earlier this year, the facility was the scene of a hunger strike to protest the long periods of detention for women and children at the center. A recent report from the UK Children’s Commissioner found that children held at Yarl’s Woods face “extremely distressing” arrest and transportation procedures, and are subjected to prolonged and sometimes repeated periods of detention. The report further noted that healthcare problems include a failure to assess “even at an elementary level” the general psychological well being of a child on arrival and a failure to recognise psychological harm when faced with dramatic changes in a child’s behaviour. Britain detains about 1,000 children per year at the Yarl’s Woods detention center.
The Home School Legal Defense Association has set up a program to match foreign home schoolers who have fled persecution in their homelands with host families in the United States. From the HSLDA website:
Unfortunately, there are a number of countries around the world where homeschooling is actively opposed and where foreign governments seek to stamp out fledgling homeschool movements. In particular, Brazil, Germany, and Sweden are aggressively persecuting homeschoolers. Yet, brave families living in these three countries still choose to homeschool their children—in spite of intense persecution in the form of punishing fines, criminal prosecution, or the loss of custody of their children. In an increasing number of cases, families are forced to flee their homelands in the face of this aggressive, government-sponsored persecution. HSLDA has reported widely on the plight of these homeschoolers. We recently won political asylum for the Romeike family from Germany. Sadly, the United States government has chosen to appeal this ruling.
Below is the story of an asylee from Eritrea. She prefers to keep her name confidential:
I was born in 1979 in Addis Ababa, Ethiopia. I was an Ethiopian at birth but I am an Eritrean national.
Eritrea is a little known country in East Africa of about 5 million people. Eritrea was forcefully annexed with Ethiopia in 1962. Freedom fighters struggled for Eritrea’s independence against the Derg, the Ethiopian government from 1974 to 1991. The struggle ended in 1991, when the freedom fighters won the fight. A referendum was held in 1993. Eritreans overwhelmingly voted to be independent from Ethiopia. My parents decided it was time to move to Eritrea. We moved to Eritrea for good in 1993.
The Beauty of Culture by Eritrean artist Yosief Indrias I came to the U.S. on August 10, 2007, a year after I left my country. I left my country in August 2006. I won a scholarship to pursue higher studies in Geneva, Switzerland. While in Geneva, I received a tuition waiver to study at a university in Washington, DC.
I am an Evangelical Christian. While I went to Evangelical Christian churches since I was a child, I did not become a devoted Evangelical Christian until March 2005. Unfortunately, that was after the faith was banned in Eritrea and when hundreds of evangelical Christians were thrown in jail for their faith. In 2001, the government declared that only Orthodox, Catholic, Lutheran and Islam were complying churches. All other faiths, including Evangelical/Pentecostals, Jehovah Witnesses, Bahai, and Seventh Day Adventists, were declared non-compliant faiths and banned.
Going to Bible or Prayer cells in houses or even carrying the Bible could lead to arrest, detention or even death in some cases. That did not stop my desire to attend Bible study and prayer meetings. I was eager to learn God’s Word and become a mature Christian. I went to a friend’s house to pray and study the Bible.
At the time I left Eritrea, the government imprisoned hundreds of Evangelical Christians. The government did not show any signs of stopping the persecution against Evangelical Christians. I was too afraid to go back home when I finished my studies in the United States. I talked to a couple of my professors about my intention to apply for asylum. They strongly advised me against applying for asylum without legal representation. One of my professors talked to the Immigration Clinic of the Law School. The clinic contacted me and set up an appointment to interview me. Two interns at the clinic interviewed me and made copies of my documents.
About a week later, the clinic notified me that it would take my case and represent me in my asylum application. I was relieved to hear that news. My next concern was to get my asylum application filed before the one year dead line. I had only a few weeks to write my affidavit, gather documents and mail the package. I had more interviews with the interns at the clinic to write my affidavit. After the affidavit was ready, the package was mailed on August 1, 2008, just a few days before the one year deadline.
The next step was to wait for my fingerprint appointment. I had my fingerprints taken on August 21. Because the interns that prepared my application finished their internship at the end of August, the professor asked for a continuance of my asylum interview, which was originally set for the beginning of September. My interview was rescheduled for September 15, 2008. Another intern was assigned to be my student council. I had a moot interview with the clinic team a few days before my interview. The moot helped me to get prepared for the interview. I felt less anxious about the interview at the asylum office.
Then came September 15. I arrived at the asylum office early. I met the professor and the student counsel outside the building. My interview was scheduled at 9:00 AM. The three of us got up to the third floor. We sat in the waiting room. Almost three hours went by before the asylum officer called me. The long wait made me nervous.
Around 11:50, I was called by the asylum officer. We followed her to the interview room. After the oath was administered, the officer started to ask me questions. She typed my answers to her questions. She asked me questions for an hour and a half. I had not anticipated some of the questions but I had a feeling it went well. The officer told me the decision will be sent to me by mail in about two weeks.
A month and a half went by before I heard anything from the asylum office. I was very anxious to know the decision. When I get home from work, the first thing I did was to go to the kitchen table to see if anything came in the mail for me. I was so happy when I finally got the good news. It was a huge relief. I did not have to go back to my country and risks persecution from the government of Eritrea.
My getting asylum in the United States was wonderful news. However, my personal life got a little complicated because of it. My fiancé had proposed to me after I had left the country and I said yes! Now that I can not go back to Eritrea because of my asylum status, and because it is difficult for him to leave the country, we do not know when we will see each other again. We can only hope that it is sooner than we think. For now, I’m happy that I am safe until I meet the love of my life and start a new journey.
In an article about Mexicans seeking asylum for fear of drug violence, John Feere writes on the Center for Immigration Studies website that:
it should be obvious to any Immigration Judge that our nation’s asylum laws are not applicable to the situation at hand. Nevertheless, if they are successful it would represent a massive expansion of asylum law and it would undoubtedly result in increased asylum claims by Mexicans living illegally in the United States. It would also encourage more Mexicans to cross the border illegally.
I disagree with Mr. Feere’s first assertion–that our asylum laws are not applicable to those fleeing gang and drug violence. The harm faced by some asylum seekers (death at the hands of criminal gangs or corrupt government officials) would certainly qualify as persecution. In many cases, the government of Mexico cannot or will not protect people from drug violence. The main question seems to be whether such persons face persecution on account of a protected ground. That will depend on the individual case. Former police officers, for example, have been defined as a particular social group. See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). As discussed in a recent post, the Seventh Circuit has held that “former gang members” may constitute a particular social group. Ordinary citizens caught in the crossfire will have a harder time demonstrating a nexus (though they still might qualify for relief under the Torture Convention, as the harm faced might constitute torture, and–it could be argued–the persecutors are either government or quasi-government actors).
It is more difficult to argue with Mr. Feere’s second assertion–that granting asylum to some Mexicans fleeing the drug war will create incentives for more people to file for asylum, and more people to cross illegally into the U.S. Of course, if the goal of asylum is to protect people from harm, this might not be such a terrible thing (assuming the harm they face crossing the border is less than the harm they face in Mexico).
The balance between offering protection to refugees on the one hand, and not opening the floodgates on the other, is particularly difficult when it comes to our closest neighbor. However, the numbers, at least so far, do not support a conclusion that increasing violence has led to more Mexican asylum seekers or more asylum grants for Mexicans. The Justice Department figures for Mexican asylum seekers during the last decade:
Year
Asylum Seekers
Asylum Granted
Mexicans in United States Illegally
2000
5,490
47
4,700,000
2001
2,670
46
4,920,000
2002
4,994
37
5,140,000
2003
7,808
64
5,360,000
2004
3,505
68
5,580,000
2005
2,947
34
5,800,000
2006
2,793
49
6,020,000
2007
3,042
49
6,240,000
2008
3,459
72
6,460,000
2009
2,816
62
6,680,000
The (rough) estimates of the number of Mexicans residing illegally in the U.S. is based on a report from the Migration Policy Institute. Based on these numbers, on average, about 220,000 Mexicans enter the United States illegally every year. Only a very small percentage (usually <2%) of illegal Mexican migrants seek asylum each year in our country. Of those, only about 2% are granted asylum. For 2009, only 62 Mexican asylum seekers–or about 1 out of every 3,500 people–were granted asylum. Given the remote possibility of an asylum grant, Mr. Feere’s concern about creating incentives for further migration from Mexico seems overblown.
As opposed to Mr. Feere, I am an advocate for asylum seekers, and my inclination is to err on the side of offering protection. However, if the situation in Mexico continues to deteriorate and we see a spike in asylum applications (which so far we have not), we may need to address how to fulfill our humanitarian obligations without compromising our territorial integrity.
A very particular social group Joseph E. Langlois, Chief of the Asylum Division at USCIS, issued a memo declaring that within the Seventh Circuit, former gang membership “may” form a “particular social group.” The memo was prompted by a decision in the Seventh Circuit, Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), which held that former gang membership is a cognizable social group for asylum purposes. Writing for the Court, Judge Posner notes that, “the term ‘particular social groups’ surely was not intended for the protection of members of the criminal class in this country, merely upon a showing that a foreign country deals with them even more harshly than we do.”
The decision continues: “A gang is a group, and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group.”
Judge Posner suggests that even where former gang members meet the requirements for asylum, they could be denied as a matter of discretion, or on statutory grounds:
We can imagine the Board’s exercising its discretion to decide that a “refugee” (that is, a person eligible for asylum) whose claim for asylum is based on former membership in a criminal gang should not be granted asylum [because, for example, he is not a person of good moral character and does not deserve a favorable exercise of discretion].
[In this case,] Ramos was a member of a violent criminal group for nine years. If he is found to have committed violent acts while a member of the gang (as apparently he did, although the evidence is not entirely clear), he may be barred from the relief he seeks for reasons unrelated to whether he is a member of a “particular social group”; for remember the bar for aliens who commit a serious nonpolitical crime.
The USCIS Memo states that within the Seventh Circuit, “former gang membership may form a particular social group if the former membership is immutable and the group of former gang members is socially distinct.” Outside of that circuit, Asylum Officers should remember that criminal activity, “past or present, cannot form the basis of a particular social group.” The memo also states that all Asylum Officers, regardless of jurisdiction, should note that past “gang-related activity may serve as an adverse discretionary factor that is weighed against positive factors.”
According to the Brownsville (Texas) Herald, “tens of thousands of Mexican nationals, including many journalists, officials and business leaders… have relocated to the United States since Mexican President Felipe Calderón launched a sweeping offensive against drug organizations in 2006. But because the legal standards of asylum are so high — and some researchers say even outdated — many… face devastating challenges when it comes to reaching a safe haven in the United States.”
The number of succesful asylum seekers from Mexico is small. According to the Executive Office for Immigration Review, in 2009, only 62 out of 2,816 (or 2.2%) of Mexican asylum seekers received asylum in the U.S. The numbers are relatively unchanged from previous years: In 2008, we granted 2.1% of claims and in 2007, we granted 1.6%.
“The reason so many petitions are rejected is that asylum standards were set in an older time period,” said Susan Ginsburg of the Migration Policy Institute. “Most people who have qualified for the status have fled communist regimes, dictatorships and civil wars — not criminal violence or genuine fear of violent death at the hands of drug gangs.”
“We are used to seeing the need for protection from governments and states, and this (the migration we are seeing now) is a fear of persecution from nonstate actors, criminal gangs that have taken control of areas of the country.” If the crisis continues to escalate, perhaps we will need to rethink our asylum policies.
The Montreal Gazette reports that Canada will offer incentives to persuade rejected refugee claimants to leave the country. The measure is part of a comprehensive overhaul designed to speed up the refugee-determination process, mired in a 60,000-person backlog. Immigration Minister Jason Kenney said “We’re going to try to use carrots instead of sticks,” and said the Canadian government would provide allowances of up to $2,000 to asylum-seekers whose claims are rejected.
A rejected Canadian asylum seeker?
The Canadian government hopes to decrease the average departure time for failed refugee claimants from 4.5 years to two years. Mr. Kenny states that the new measure would help prevent fraud: “The longer the queue, the more false claimants come,” he said.
Similar programs in Britain and Australia have dramatically improved compliance with deportation orders, said Kenney, who acknowledged he was initially skeptical about subsidizing rejected refugee claimants.
Whether or not a similar plan would work in the United States, it seems unlikely that there exists the political will to pay rejected asylum seekers to leave our country, even if this might be cheaper than rounding people up and deporting them.
