In a surprise move (at least a surprise to me), President Obama announced that our country would be moving towards normalization of our relationship with Cuba. As part of the deal, the two countries agreed to exchange some political prisoners, and it appears we will be restoring diplomatic relations with Cuba and opening an Embassy in Havana.
Evidence that the embargo is working: A dashing Fidel Castro pre-embargo…
During our long Cold War with Cuba, one element of our “special relationship” has been the Cuban Adjustment Act (“CAA”), a law that allows any Cuban who arrives in the United States to obtain residency here. It’s akin to automatic asylum for any Cuban who reaches U.S. shores.
I have written before about my opposition to this law: In short, I believe that Cubans should apply for asylum in the same way as everyone else. It makes no sense to give automatic asylum to Cubans, especially since other countries—Syria, Somalia, Afghanistan, Iraq to name a few—are much more dangerous than Cuba, and nationals from those countries must apply for asylum in the normal way.
It seems to me that the CAA and our over-all Cuba policy exists because of our government’s decision that this was the best way to isolate the Castro regime and force democratic change on our island neighbor. More specifically, anti-Castro Cubans in Miami pushed our nation’s Cuba policy towards the all-stick, no-carrot approach that—50 years later—has accomplished nothing. Now, it seems attitudes among the Cuban American community have shifted. To be sure, many still oppose normalization, but—so far at least—we have not seen the type of angry, in-the-streets reaction that characterized the Elian Gonzales affair during the Clinton Presidency. Perhaps there is more widespread recognition that the old policy hasn’t worked, and that we need to try something new.
Fidel Castro, visibly aged due to pressure from the embargo.
So now that we are moving towards a new phase in our relationship with Cuba, it makes sense to end the CAA. The situation in Cuba is less dangerous than in many other countries, and so there is no longer any justification for the CAA based on humanitarian reasons (though I believe there really never was a valid justification for the law based on humanitarian reasons). The only logical reason for the CAA was as a propaganda tool against the Castro regime. I doubt this ever really worked (except maybe in the minds of some in the anti-Castro Cuban community), and—given that we are moving towards normalized relations—it certainly makes no sense at all any more.
All of this is not to say that the Cuban regime respects human rights or allows political dissent. It’s clear that the government represses the political opposition, and that it detains and persecutes perceived opponents. But that type of behavior is, unfortunately, all too common in many countries, and it does not justify a blanket asylum for everyone who comes from a country with a poor human rights record. Indeed, it is exactly why we have an asylum system in the first place.
The CAA is inconsistent with our new Cuban policy. When viewed in context of the overall asylum system, it cannot be justified on humanitarian grounds. It’s time to end the CAA and move towards a new relationship with Cuba.
“Low Bono” refers to providing legal representation for less than market value. The idea is that for certain clients who cannot afford an attorney, the attorney will reduce her price so that the client can hire her.
Lobo, No!
When lawyers represent asylum applicants (or anyone else) on a low bono basis, there is an obvious benefit to the applicant and to “the system,” but what’s in it for us? Why would an attorney do this? The most obvious reason is because the attorney wants to take the case—either to help the client or because it is an interesting or important matter. Another reason is that “market value” for an attorney’s time is simply too high for most potential clients. Both reasons apply to my decision about setting my fee for an asylum case: I am interested in asylum cases and that is the type of work I choose to do, and the market for asylum seekers won’t support high attorneys’ fees, at least not for most applicants.
For asylum cases in the DC-area, fees vary widely. I have heard about attorney’s fees as low as $900.00 for an affirmative case, and as high as $7,500.00 (and I even once heard about a case where the lawyer charged $80,000.00—dare to dream!). Most attorneys who primarily represent asylum seekers (such as myself) charge between $2,000.00 and $3,000.00 for a case. My fee for most cases is $2,800.00, which is a flat fee, meaning it includes photocopying and mailing, as well as attending the asylum interview. I have never calculated how this translates into an hourly fee (it would be too depressing), but I have no doubt that it is well below “market value,” whatever that means.
There is a great benefit to charging an affordable fee: You can get the types of clients and cases you want to do. And in this sense, I have been very lucky. I’ve represented journalists, human rights workers, women’s rights advocates, diplomats, and politicians, among many others. Given the good luck I’ve had with my clientele, I really shouldn’t complain, but since this is my blog, I will anyway. After all, wasn’t it Descartes who once said: “I complain, therefore I am.”
My main complaint is related to the backlog, and to delays with asylum cases in general. Before the backlog, most asylum cases would take maybe six or eight months from the time of hiring to the time of decision. Assuming a successful outcome, that was the end of the matter for me. Now, cases may take years. This means that the client contacts me for all sorts of things, from work permits to travel documents to requests to expedite to changes of address. All this extra work takes time; time for which I do not charge my clients.
But since we lawyers make a living by charging for our time, it’s only fair that we get paid for the additional work. As a practical matter, though, seeking fees for this work can be difficult. Clients are already stressed due to the backlog and charging for dribs and drabs of additional work seems a bit petty. Also, raising the fees for a case makes it more difficult for clients to hire lawyers, so charging for the additional time can create an access-to-justice issue: Higher fees = fewer represented asylum applicants.
But there is a cost to the attorney for not charging. Extra work for one case means less time for another. It also means more stress in general. Maybe there is some sort of balance that can be achieved here, but I have yet to find it.
Another problem of low bono is that with less money coming in, the attorney must spend less time on each case. This is not necessarily a problem that results in less successful outcomes for the clients (because although we spend less time on each case, we do a lot of asylum cases, so we become proficient at it). However, it does take some of the pleasure out of doing this type of work. Much of the attraction of an asylum case is the human interaction. But when there is less time for each case, there is less time to spend with the client. It’s common, for instance, for a client to offer to take me to lunch or dinner after a case is granted, but I almost never go—there simply isn’t time.
In the end, of course, I am my own boss, and I set my fees in a way that (theoretically) maximizes my own happiness with my practice. I want the interesting cases and the cool clients. That is what makes the job worthwhile. The extra work caused by the backlog has made this more difficult; it has upset the equilibrium. For now, I will keep on keeping on, but if the backlog persists, I don’t know whether the “low bono” model is sustainable. I hope that it is, but with each passing day in Backlogistan, I feel less optimistic.
Odds are, you’ve never heard of Sture Petrén. But if you are a refugee who has escaped persecution on account of female genital mutilation, domestic violence or sexual orientation, you may owe him your life.
If you’ve received asylum based on PSG, you should send your thank yous to Sture Petrén.
Sture Petrén—full name: Bror Arvid Sture Petrén—was born in Stockholm, Sweden on October 3, 1908. He studied law and philosophy at Lund University, and then served in various law courts in his home country from 1933 to 1943, when he was appointed as an appellate judge. In 1949, he was recruited by the Ministry of Foreign Affairs, where he served as the Director of the Legal Department for the next 15 years. More significantly from the point of view of history, Judge Petrén was appointed to the Swedish delegation to the United Nations General Assembly, where he served from 1948-61. He went on to other prestigious posts domestically and internationally. He was a member–and eventually President–of the European Commission of Human Rights, he was a member of the International Court of Justice, and he served as a judge on the European Court of Human Rights. In 1972, Judge Petrén was knighted by the Swedish king. He died in Geneva on December 13, 1976.
For all his accomplishments, it seems that Judge Petrén’s most notable achievement is probably one that he himself did not think much about at the time: In November 1951, he added the phrase “particular social group” to Articles 1 and 33 of the United Nations Refugee Convention.
In the fall of 1951, the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons held a series of meetings to hash out the Convention on the Status of Refugees. The original Convention listed four protected categories: race, religion, nationality, and political opinion. The Swedish delegation, led by the good Judge, introduced an amendment to Article 1 adding the phrase “particular social group” or PSG. Judge Petrén offered little in the way of explanation for the addition. In the transcript from November 26, he says only that the other protected categories suggest the inclusion of a “reference to persons who might be persecuted owing to their membership of a particular social group.” “Such cases existed,” said the Judge, “and it would be as well to mention them explicitly.” Without further discussion, the amendment was adopted that same day. Fourteen members voted in favor of the amendment, none opposed, and eight abstained (though history apparently does not record how each country voted).
A week later, Judge Petrén introduced the same amendment to Article 33 (non-refoulment), so it would be in conformity with Article 1 (modern-day U.S. immigration law derives the asylum/refugee definition from Article 1 of the Convention; the Withholding of Removal definition comes from Article 33).
So does the origin of the phrase PSG shed any light on the term’s meaning today? What—if anything—can we learn from the historic record?
First, it seems that Judge Petrén’s addition to the Convention was based on the draft of a planned law in Sweden called the National Alien Act, which went into effect in 1954. The National Alien Act was, in turn, based on the existing Swedish practice of protecting aliens who were members of a PSG, though Swedish law from the 1950s apparently does not define PSG. To the extent that the modern-day Swedish Alien Act is instructive, it seems clear that sexual orientation and gender were not consider particular social groups. The modern law offers protection to people in a PSG, homosexuals, and people who face persecution on account of gender. As one commentator observed, it would be superfluous to separately list PSG, sexual orientation, and gender, if sexual orientation and gender were considered PSGs.
I could not find a copy of the old Swedish law (upon which the Convention definition of PSG was purportedly based), but it would be very surprising—even for a forward-thinking country like Sweden—if the 1950s law separately protected people based on gender and (especially) sexual orientation. My guess is that the Swedish law listed PSG as a protected category, but left the term undefined. Of course, this does not mean that PSG was meant to encompass sexual minorities and women under Swedish law or under the Convention definition. The Dead White Men who created the Convention may have been progressive for their time (though there are arguments that they were not), but it seems more than unlikely that the idea of specifically protecting gays and women was even on their radar. At least I could find no evidence in the historic record to support such a notion.
A second question is what Judge Petrén understood the term PSG to mean. I am not sure whether his understanding is relevant to anything other than historical curiosity, but it seems almost certain that he had no intention of dramatically (or even modestly) expanding the protected categories. Rather, PSG was meant as a safety net to catch people who did not easily fit into the other categories–people like aristocrats and linguistic minorities, to name a few. Indeed, Judge Petrén’s comments indicate a realist, as well as an idealist. After noting that Sweden was a country of asylum in the past, he states, “but the fact must be taken into account that its capacity for absorbing large numbers [of refugees] was limited and that, particularly in the present serious state of world affairs [post-WWII], considerations of national security must play a certain part.” This does not necessarily sound like someone who wanted to greatly expand the classes of people covered by the refugee definition.
To a large degree, of course, all this is academic. The goings-on in 1951 are a long way from our reality today. Perhaps an Originalist—like a Justice Scalia—might parse Judge Petrén’s words and look back to post-War Swedish law to suss out some meaning that informs our definition of PSG today. However, given that the Convention and mid-20th Century Swedish law are pretty removed from current U.S. asylum law, the Originalist inquiry seems like a stretch.
Moreover, laws and norms change over time. The vagaries of the past are fodder for debate today. To me, such debates are healthy and—hopefully—lead us in the direction of Justice. Although Judge Petrén probably had no intention of altering the refugee definition so dramatically, he certainly planted the seed that led to protection for many thousands of people. Intended or not, that is his extraordinary legacy.
Special thanks to Ali and Behnam for their help with this article.
It’s a common scenario in my office: A person who entered the U.S. unlawfully at the Mexican border, and who was detained and released by U.S. immigration authorities, wants to seek asylum, but has missed the one-year deadline to apply.
Dupe process of law at the border: Don’t tell people about their rights, and they won’t exercise them.
Just the other day, a young man from El Salvador came to me for a consultation. In his country, gang members threatened to kill him. They targeted him partly because of his religion (Evangelical), but mostly because he had a job and (they presumed) money. They also targeted his wife and young child. The man’s family went into hiding and the man came to the United States. He entered without inspection in June 2013 and was apprehended by the Border Patrol. After he passed a credible fear interview (a CFI is essentially an initial evaluation of whether the alien can state a claim for asylum), he was released and ordered to appear before an Immigration Judge. The man attended his first hearing, where the IJ gave him additional time to find a lawyer. That’s when I came into the picture—in September 2014; more than one year after the man entered the United States.
So how to evaluate this man’s case? On the merits, it’s not a great case. He certainly faces grave harm if he returns. But it may be difficult to show that the harm is “on account of” a protected ground: Perhaps he has a claim based on his fear that the gang will persecute him due to his religion, or his particular social group (family; maybe “people with jobs”), but it’s certainly not a slam dunk. Probably the more difficult issue, however, involves the man’s failure to file for asylum during his first year in the United States (in order to qualify for asylum, an alien must file the asylum form–the I-589–within one year of arrival or meet an exception to the one-year deadline). With regard to this filing deadline, the man’s case is pretty typical.
Like most asylum lawyers, I despise the one-year filing deadline (found at INA § 208(a)(2)(B) and 8 C.F.R. § 208.4). It was originally enacted to help prevent fraud. The logic being that if you had a legitimate case, you’d file it within a year. The reality is quite different. People like the Salvador man know that they face harm in their country, but they have no idea about the law, and little incentive (or money) to hire a lawyer until their court date is imminent—often well beyond their first year here. The result is that legitimate refugees are denied asylum for reasons completely unrelated to their claims and, instead of reviewing the merits of a case, the IJ or asylum officer is stuck evaluating the applicant’s excuse for failing to file within one year. For these reasons, it’s hard to find anyone involved in the system who likes the one-year rule. So what can be done?
The obvious solution is to eliminate the one-year bar. But that would require Congressional action, and it’s rare these days to see the words “Congress” and “action” in the same sentence. So I won’t hold my breath on this idea.
A more realistic solution may be to create a Miranda-style rule for asylum. In other words, the Border Patrol or the Immigration Judge or whoever the alien comes into contact with, would be required to inform the alien that if he wishes to seek asylum, he needs to file the form I-589 within one year of arrival. We could also require that the alien be informed about the one-year rule in a language that he understands, and (since we are wishing) we can even require that they give him a copy of the form and information about where to file it.
I think the 1966 Supreme Court case Miranda v. Arizona provides a good model for how to protect aliens. That case created the famous “Miranda warning” that police read at the time of arrest (You have the right to remain silent; anything you say can be used against you in a court of law. You have the right to an attorney…). In reaching its decision, the Court wanted to protect our Fifth Amendment right against self incrimination (no one “shall be compelled in any criminal case to be a witness against himself”). The Court reasoned that in the intimidating environment of police custody, suspects might feel compelled to talk, and so the Court created the Miranda warning to help ensure that people will understand their right against self incrimination. One portion of the case particularly strikes me:
An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak.
The image of the beleaguered suspect, disoriented and in unfamiliar surroundings, unable to exercise his Fifth Amendment rights, seems to me analogous to the alien, recently arrived in the U.S., who is taken into custody, placed into a system that he does not understand, in a language that he (probably) does not understand, and who then loses substantive rights as a result of his predicament. True, in the case of Miranda, the suspect was momentarily disoriented and vulnerable, whereas with asylum seekers, the person has a whole year to file his case. But just as the Miranda Court examined specific instances where suspects’ rights were violated and reached its conclusion that protection was necessary based on an analysis of how suspects actually behaved in custody, an examination of how many aliens are behaving will reveal that they are not aware of the one-year filing requirement.
For many legitimate refugees–like my potential client from El Salvador–learning about the one-year filing requirement is much more difficult than it might seem. They are in a new country where they do not understand the language or culture, they probably have spent much of their lives living in fear of their government, they often have no support network and few resources, and many times the “advice” they receive from notarios, unscrupulous lawyers, and “friends” is incorrect. In short, unless they are well-educated or well-connected, many asylum seekers have little chance to learn about the one-year filing requirement. The result, of course, is that they miss the deadline and lose their opportunity to claim asylum.
Aliens have a due process right to file for asylum. However, just like suspects in police custody, unless they are made aware of their rights, many legitimate refugees will continue to miss the one-year deadline and lose their right to seek asylum. It seems easy enough to solve this problem: Create a Miranda-style rule requiring government officials to inform aliens about the one-year deadline.
Our guest blogger today is Jonathan Bialosky, an attorney at the George Washington University Law School Immigration Clinic. He recently had an important win in an “other serious harm” asylum case. It also happens that he was a student in Todd Pilcher and my Asylum Law class at GW last semester. Congratulations on the win (and on passing our class – which you could have taught). Enjoy–
On September 3rd, 16 years after filing his application, and two years after first approaching the GW Immigration Clinic, my client was granted asylum. Sixteen years is a long time, even in the glacially slow world of EOIR, but more significant is that the Immigration Judge granted my client “humanitarian asylum” on a basis that seems to be greatly under-utilized.
Jonathan Bialosky, who claims that taking Todd and my class constitutes “other serious harm.”
There are two types of humanitarian asylum. The first is for individuals whose past persecution was so severe that they cannot be expected to return to their home country, even if—typically because of changed country conditions—they no longer have a well-founded fear of return on account of a protected ground. The BIA first addressed this type of humanitarian asylum in 1989 in the precedent decision Matter of Chen, and this type of humanitarian asylum was codified as a regulation in 1990.
Matter of Chen seems pretty well-known, but a second type of humanitarian asylum is apparently much less common. Pursuant to a regulation that became effective in 2001, under a different type of humanitarian asylum, applicants who suffered past persecution on account of a protected ground but who no longer have a well-founded fear of persecution on account of a protected ground remain eligible for asylum if there is a reasonable possibility that they would suffer “other serious harm” upon removal. The BIA, in the 2012 precedent decision, Matter of L-S-, explained that the “other serious harm” need not be related to the past persecution or even have a nexus to a protected ground.
My client qualified for “other serious harm” asylum because he previously suffered past persecution on account of his imputed political opinion and now, due to serious medical conditions, he would die if he were removed to his home country, where the medical care he needs to survive is not available. My client is from Sierra Leone and he served in a regimental band in the country’s army. In 1998, during the civil war, he was falsely accused of involvement with anti-government rebels. He was detained at a military barracks for two weeks, beaten with sticks and weapons, and burned with cigarettes. He escaped and made his way to the U.S. Sadly, beginning in 2000, when he was diagnosed with HIV, my client suffered a series of medical problems. His kidneys failed, he went into a coma, and then, after finally receiving a kidney transplant, his body rejected the new organ. All the while, his asylum application (first filed in 1998 within six months of his arrival in the U.S.) remained administratively closed by USCIS—for 13 years—hence the long wait for a decision.
Through dialysis and participation in a clinical trial of anti-retroviral drugs with the NIH, my client’s medical condition is more or less stable, but he leads a pretty grim life: He has many dietary restrictions, he’s on dialysis three days a week for four hours at a time, and he’s constantly tired. In addition, he has chronic nightmares about what happened in Sierra Leone. All these problems, combined with the generally poor quality of medical care and the recent Ebola outbreak in Sierra Leone, made it pretty clear that, even though the civil war has ended, my client would suffer “other serious harm” upon removal. Dialysis is not widely available and is prohibitively expensive in Sierra Leone, and kidney transplants are even more rare. One doctor wrote a letter stating that sending my client to Sierra Leone was a “death sentence,” and that he wouldn’t last more than a few weeks there.
The ICE trial attorney and, more importantly, the Immigration Judge, agreed. After 16 years, my client’s asylum merits hearing lasted just 20 minutes. ICE and the IJ were satisfied with the evidence we submitted before the hearing that my client was deserving of humanitarian asylum.
It wasn’t me who identified the legal theory that ultimately won my client’s asylum. Others far sharper than me identified the legal basis that essentially made my client’s case a shoo-in. I had no idea about humanitarian asylum. When I told an immigration attorney friend that I was working on a humanitarian asylum case, she was only familiar with the Matter of Chen type claim. I was also surprised to see very few judicial opinions discussing “other serious harm asylum” (though admittedly, this made the legal research for my brief much easier).
“Other serious harm” asylum has the potential to help many people, even those who have been in the U.S. for more than one year and never applied for asylum. Actually, “other serious harm” humanitarian asylum may render the one-year filing deadline meaningless for some. Consider those that suffered past persecution on account of a protected ground and now cannot return to their home country for some other reason. As my client’s case demonstrates, the reason could be that the individual has a medical condition that cannot be effectively treated in the home country. In addition, Matter of L-S- states that “civil strife, extreme economic deprivation and new physical or psychological harm” could be the causes of other serious harm. The inquiry is prospective, so changed circumstances matter. A recently diagnosed medical condition or outbreak of violence in the home country could constitute changed circumstances that serve both as an excuse for the late filing of the asylum application and as the basis of “other serious harm.” To my knowledge, this has not been tested, but for individuals who did not comply with the one-year filing deadline, “other serious harm” humanitarian asylum may present a viable option for relief where there otherwise would be none.
My client’s experience seems almost tailored-made for “other serious harm” humanitarian asylum, but maybe there are others out there who could benefit from this basis for asylum. With a little publicity for this relatively obscure regulation, maybe some of them can win asylum too. With any luck, they might even be able to do so in fewer than 16 years.
Jonathan Bialosky, Esq., supervises Immigration Clinic law students and provides legal representation to asylum seekers and respondents facing deportation in Immigration Court. He previously served as director of the Maxwell Street Legal Clinic in Lexington, Kentucky from January 2011 until July 2013, serving as the sole attorney at a nonprofit immigration law practice. Jonathan is a May 2010 honors graduate of the George Washington University School of Law.
In a recent decision, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA held that “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group (“PSG”) for purposes of asylum. The decision is significant because it marks the first time that the Board has published a decision essentially endorsing asylum for victims of domestic violence. Applicants who seek asylum under this standard will still need to prove that the level of harm they face constitutes persecution, that they cannot relocate somewhere else within their country, and that their government is unable or unwilling to protect them.
This decision on PSG has been a long time coming, but–at least in my opinion–it does not go far enough.
Guatemalan Women celebrate their new particular social group.
In 2004, in a case called Matter of R-A-, DHS acknowledged that domestic violence could form the basis for an asylum claim. In that case, DHS argued in a brief that R-A- should receive asylum based on domestic violence. In its brief, DHS defined the PSG as “married women in Guatemala who are unable to leave their relationship.” Sound familiar? And that was 10 years ago.
Matter of R-A- never resulted in a published BIA decision (though R-A- herself received asylum in 2009). Since the brief was made public in 2004, asylum attorneys have relied on it to advocate for their clients, presumably with some success (since there is no data on the number of cases granted based on domestic violence, it is impossible to know for sure).
To me, the PSG “married women in Guatemala who are unable to leave their relationship” is awkward and contrived. Moreover, to receive asylum based on a PSG, the applicant must show that she was persecuted “on account of” her membership in the PSG. In other words, the persecutor harmed the applicant because she is a member of the PSG. I am not convinced that the husband was harming A-R-C-G- because she was a married woman who was unable to leave the relationship. He would have harmed her whether or not she was married and whether or not she was able to leave the relationship. The husband may have had access to A-R-C-G- because he was married to her and because she was unable to leave, but he was not motivated to harm her for those reasons.
It seems to me that there is a simpler, more elegant PSG that would have been appropriate for this case: “Women.” I suspect that I am not alone in this opinion. In amici curiae briefs, counsels for the American Immigration Lawyers Association, the UN High Commissioner for Refugees, and the Center for Gender & Refugee Studies argued that gender alone should be enough to constitute a PSG. Also, at least one federal circuit court (you guessed it – the Ninth) has held that “women in Guatemala” might constitute a particular social group.
“Women” makes sense as the PSG in this case. The evidence in the case suggests that the husband would have persecuted any woman who he was with–whether or not she was married or able to leave him. Further, country condition evidence from Guatemala makes clear that women in that country live in dire circumstances. In its decision, the Board notes that Guatemala “has a culture of ‘machismo and family violence,'” including sexual offenses and spousal rape. The victims of this violence are, for the most part, women. And, by the way, they are not just “Guatemalan women.” I imagine that if a Salvadoran woman, or a Nicaraguan woman, or a Japanese woman lived in Guatemala and integrated into the society, she would face the same problems as a Guatemalan woman. For this reason, the PSG should be “women,” as opposed to “Guatemalan women.”
But the BIA was not willing to go that far. After noting that counsel for Amici argued in favor of gender alone as the PSG, the Board held, “Since the respondent’s membership in a particular social group is established under the aforementioned group, we need not reach this issue.”
Perhaps that is the way of things. It’s best not to push the law too far, even if it makes logical sense, and even where it would protect additional people. A decision granting asylum to women (or men) who face persecution solely because of their gender would likely open the door to many more asylum seekers. Given the current state of affairs in the asylum world–the border crisis, partisan scrutiny from Congress, the backlog–maybe it’s best not to open the door too far. Maybe a relatively limited decision like Matter of A-R-C-G- is the best we could have hoped for.
I don’t mean to minimize the importance of A-R-C-G-. It is obviously a great win for the alien in that case (though the decision does not finally grant her asylum, it seems very likely that that will be the end result), and it will certainly help many women who face harm from domestic abusers. However, the decision codifies a landscape where women–many without the resources available to people like A-R-C-G- and R-A—will be forced to articulate complicated PSGs and demonstrate that they are members of those PSGs. I am not sure how many poor refugee women will actually be able to do all that.
A-R-C-G- was persecuted because she was a woman. Not because she was a Guatemalan woman, not because she was married, and not because she was unable to leave her husband. Matter of A-R-C-G- is an important step towards protecting women victims of domestic violence. Maybe next time, the BIA will take a giant leap.
A recent article in the Wall Street Journal (“WSJ”) posits that the number of gay and lesbian people receiving asylum in the United States based on their sexual orientation has surged in recent years and that most such people come from countries in Central America where homosexuality is not criminalized (as opposed to places like Ugandan, where loving the wrong person is a hanging offense). The article, by Joel Millman, concludes that LGBT asylum cases from Mexico and Central America are more likely to be granted than most other types of asylum cases from those countries.
More gay people than ever are fleeing persecution.
Heaven forbid that I should agree with the WSJ (Slate certainly didn’t in a piece that pretty clearly misreads the Journal article), but the anecdotal and statistical evidence supports the notion that more people are seeking asylum based on sexual orientation and that those claims are often more likely to succeed than claims by other people from the same countries. But of course, as a certified curmudgeon, I cannot completely agree with the Journal piece, and indeed, I have a few points to take issue with. Then I’d like to pose a question: Is it really easier–as the WSJ claims–for LGBT applicants to obtain asylum in the United States?
First, the issues. To reach his conclusion that more LGBT people are seeking asylum, Mr. Millman relies on two main sources—statistics from the U.S. government and information from Immigration Equality, probably the premier LGBT asylum organization in the country.
As to the statistics, the government does not keep data on the number of people who receive asylum based on sexual orientation. As a rough proxy, the WSJ looked at the percentage of cases granted based on “particular social group” or PSG, the protected category most often used in LGBT asylum cases. The Journal found that as a percentage of total cases, the number of PSG cases has increased over the last several years (from about 12% at the end of the G.W. Bush Administration to 15.7% today).
I am not convinced that this metric tells us a whole lot about the number of gay asylum cases, however. Many people seek asylum based on PSG–gays and lesbians, victims of domestic violence, people fleeing gang persecution, victims of female genital mutilation, to name the most obvious–and so an increase in the percentage of asylum seekers relying on PSG does not necessarily mean that the number of LGBT asylum seekers has gone up. Also, concurrent with our country’s more liberalized approach to LGBT asylum claims, we have expanded protection for other categories of people who fall under PSG. So while the modest increase in asylum seekers relying on PSG supports the notion that LGBT claims are up, I don’t think this data is incredibly significant.
In my opinion, the anecdotal evidence for an increase in the number of LGBT cases is more convincing. According to the WSJ: “Last year, just one New York-based advocacy group, Immigration Equality, helped put 279 LGBT foreigners into the asylum process, a 250% increase from 2009.” That pretty well comports with what I’ve been seeing in DC and what I’ve heard from other lawyers, and so I believe the number of LGBT claimants is up, but by how much, we don’t really know (I have harped on this before, but this lack of reliable data again illustrates the need for better information about asylum seekers).
Another quibble with the article is the WSJ’s comparison of LGBT asylum seekers from Mexico and Central America, where homosexuality is not illegal and—in fact—where laws theoretically protect gay people, with other countries whose governments condemn homosexuality or make it illegal. The article notes that of the top 10 countries with the most PSG grants (where PSG is a proxy for LGBT), only three have laws against homosexuality. This all strikes me as basically meaningless. We receive many more asylum seekers from our own neighborhood, so there is no surprise that most PSG claims come from nearby countries. And while it is interesting that three distant countries (Kenya, Ethiopia, and Guinea) with anti-gay laws produce large numbers of PSG asylees, we have no way of knowing how many of these cases are LGBT; particularly since all three countries have high instances of female genital mutilation, which also falls into the PSG category.
The bottom line for me is that, while the increased number of PSG cases is consistent with an increase in LGBT claims, the statistics don’t really tell us much. But based on the anecdotal evidence and my own experience, it seems clear that more people than before are seeking asylum based on sexual orientation. Whether this constitutes a “surge” in LGBT claims, as the WSJ concludes, is debatable given the lack of data.
Finally, do LGBT claimants have an easier time winning asylum than others?
As the WSJ points out, an LGBT case from Central America is certainly more likely to succeed than the average case from the region. According to the Journal, Immigration Equality’s “success rate for closed cases [is] 98%, roughly quadruple the batting average of the typical asylum-seeker.” (Though I would be curious to know how they define “success” when they came up with this figure). Of course, many cases from Central America are based on gang persecution, which does not easily fit within a protected category for purposes of asylum. Since LGBT asylum seekers fall within a protected category–PSG–it is not surprising that they have a higher success rate than average. I would imagine that other cases where there is an obvious protected ground–like political cases, for example–are also much more likely to succeed than the average case.
Also, as the Journal points out, for LGBT asylum seekers, the likelihood of success is particularly high because country conditions are particularly bad. In our office, we see a decent number of LGBT asylum applicants, and they often have been subject to severe physical and psychological violence. So based on my own experience, the information in the WSJ piece rings true.
In the end, we don’t have the data to make a firm conclusion about how much “easier” it is for LGBT claimants to obtain asylum, but it seems likely that the success rate for such cases is higher than for many other types of cases. Given the threats and violence against gay people around the world, it seems to me that a high asylum grant rate is completely justified.
To receive asylum in the United States, an applicant must show not only that he faces persecution in his home country, but that the feared persecution is “on account of” a protected ground (race, religion, nationality, particular social group or political opinion).
GW law students react to Todd and my appointment to the adjunct faculty.
This means that if MS-13 gang members want to kill you because you refuse to join the gang, you probably won’t qualify for asylum. On the other hand, if the Ethiopian government wants to detain you for a year because you attended an anti-government protest, you probably will qualify. To me, the regime created by the nexus requirement seems incongruous and unjust.
I’ve seen this play out in many of my cases, where we often have to shoehorn our client’s claim into a protected category. For example, Eritreans who flee the National Service (really, a form of never-ending slavery) would not ordinarily receive asylum since the (very serious) harm they face for trying to escape is not generally “on account of” a protected ground. One strategy to help such people obtain asylum is to show that the Eritrean government views them as enemies. In other words, that it imputes to National Service evaders an anti-government political opinion. Sometimes this works; sometimes it doesn’t. But the question is, why do we have an asylum system that forces us to contort legitimate claims so that they fulfill the nexus requirement?
This is essentially one of the questions that my esteemed co-professor Todd Pilcher and I asked our students on their final exam. As an aside, this was the first year that either of us taught a law school course (Asylum and Refugee Law at George Washington University Law School). Even having practiced primarily asylum law for the last 10 years, it was amazing how much I learned by teaching this class. I also learned that it is better not to know what goes on behind the scenes with grading. Suffice it to say that as a mere adjunct professor, we had quite a bit of power to grade as we wished; more power, actually, than we were comfortable with (but on the bright side for our students, despite a killer exam–sorry about that–they did very well).
But back to the nexus requirement. In theory, it exists because it reflects our values. We care about political expression and the exercise of religion, and so we protect people who face persecution on those grounds. In reality, it exists because some Dead White Men created relatively arbitrary categories that seemed appropriate in the post-WWII world. So–as we asked our students–would we be better off without it?
The students were split in their responses, and obviously reasonable people can differ (though of course we flunked everyone who disagreed with us).
For me, the nexus requirement is an arbitrary way to limit the number of people eligible for asylum. That the nexus requirement has worked so well in this regard is more an accident of geography than anything else. It just so happens that the main reasons people from Mexico and Central America flee their countries are not reasons that easily fulfill the nexus requirement (fear of gangs and cartels). Imagine if we lived next to China, where many refugees face political persecution (or persecution for forced family planning, which is considered political persecution under U.S. asylum law). Or what if we lived next door to Iran or Afghanistan, where people flee due to religious persecution. The nexus requirement would do little to stem the flow of refugees from those places.
So if we eliminated the nexus requirement, how could we keep from being overwhelmed by asylum seekers?
The first question, I suppose, is, Would we be overwhelmed by asylum seekers if we gave asylum to everyone who faces persecution irrespective of nexus? Certainly the number of people eligible would go up. And we have seen that asylum seekers respond to policy changes (witness the surge of credible fear interviews at the U.S.-Mexico border). So it certainly seems possible that the number of asylum seekers would increase, but by how much, no one can say. If I had to guess, I would say that the increase would not be as dramatic as we might imagine. Why? Because asylum seekers who want to come here will come here and try for asylum regardless of the odds. Just because you have a one in ten million chance of winning the lottery does not mean you won’t play. So while I suspect that if the nexus requirement were eliminated, more people would be incentivised to come here, I am not sure how many would actually change their behavior and make the trip.
There are, of course, other ways to limit the number of asylum seekers. One way is to change the level of proof. Instead of a 10% chance of future persecution, how about a 50% chance or a 75% chance. While this would reduce the number of people qualifying for asylum, it would also result in legitimate refugees being returned to countries where they face persecution. Also, given the arguments above, I doubt it would do much to actually reduce the number of people coming here for asylum.
Another option would be to resettle anyone qualifying for asylum to a third country. In other words, if a person wins asylum in the U.S., she will be resettled in Argentina. While this would likely reduce the number of people seeking asylum here, I doubt whether many other countries would agree to such a scheme. Also, I imagine there would have to be some sort of reciprocity, so if people were granted asylum in Greece, for example, they might be resettled here. While this plan eliminates some of the incentive for seeking asylum in the U.S., I just don’t see how it could work in the real world.
In the end, the nexus requirement is not going away anytime soon. I do think it is helpful and important to recognize, however, that the requirement really is quite arbitrary. It would do far less to limit the number of asylum seekers if we lived in a different part of the world or if conditions in our neighborhood changed. But for the foreseeable future, we lawyers will continue looking for ways to fit our clients’ cases into one of the protected categories.
The Cato Institute’s Alex Nowrasteh recently published a piece in the Huffington Post called Saving the Asylum System. The title accurately reflects the author’s point, and of course I agree that our asylum system should be preserved (and–really–cherished). But where Mr. Nowrasteh gets it wrong, I think, is his analysis of the problem.
Recipe for a refugee: Take one economic migrant, add persecutors, mix thoroughly.
The “fundamental problem” according to Mr. Nowrasteh is that intending economic migrants who arrive illegally at the border and get caught are requesting asylum as a way of gaining entry into the U.S. to work. He views this as an “unintended consequence of severe restrictions that make it exceedingly difficult for lower-skilled immigrants to enter the country legally.” He posits that “creating a low-skilled guest worker visa program to channel would-be unauthorized immigrants into the legal system [would remove] the incentive for some of them to make dubious asylum claims.”
Cato is a Libertarian think tank, and Mr. Nowrasteh’s proposal is a Libertarian solution (free flow of labor and all that).
Before I respond, I must admit to a certain prejudice against Libertarianism in general. To use a fancy law school word, I find the whole philosophy jejune. It seems perfectly fine for high school juniors with Ayn Rand fantasies, but I feel it fails utterly in the real world. In other words, to me, “Libertarian think tank” is an oxymoron. On the other hand, I have some good friends who are staunch Libertarians, and sometimes they even give me free cigars (though I suppose this must be in exchange for some utility they get from my company–or maybe they just hope I die from lung cancer). So perhaps I am being a bit too harsh. Anyway, the point is, it’s only fair to put my prejudice on the table before I respond.
That said, I think that Mr. Nowrasteh is simply wrong that most–or even a significant portion–of asylum seekers are economic migrants. To be sure, asylum seekers come to the U.S. (as opposed to Namibia, for example) because they can settle here, get a job, and build a new life. But this does not make them economic migrants in the normal sense of the phrase. Economic migrants are not fleeing their country because their life or freedom is threatened; they are leaving for a better job.
Stated another way, with all immigrants (including asylum seekers) there is a push and a pull. For refugees, the most important “push” factor is a threat to life or freedom in the home country. For economic migrants, the push is a bad economic situation. The pull for both groups is freedom, opportunity, peace, the ability to gain acceptance, and all the other tangibles and intangibles of “America.”
So why do I think that most asylum seekers are not economic migrants who file fraudulent asylum claims in order to circumvent immigration restrictions?
The main reason, I must admit, is anecdotal. I have represented hundreds of asylum seekers, and while I have suspicions about the motivations of some clients, most clearly face threats in their home countries. Also, many of my clients held good jobs in their home countries and they are unlikely to achieve the same level of success in the United States (due to language barriers, lack of transferable skills, etc.).
Another reason I believe that asylum seekers are not mere economic migrants is because countries that produce large numbers of asylum seekers have widespread human rights problems. The source country for the most asylum seekers in the U.S. is–by far–China. Of late, China has produced between 20 and 25% of affirmative asylum cases and a whopping 45% of defensive asylum grants in FY2013. China has a repressive government and–probably more importantly for purposes of this discussion–Congress passed a law to provide asylum to victims of forced family planning, and these people come almost exclusively from China. While the U.S. economy provides more opportunities than China’s, the repressive nature of the government combined with a special law to help Chinese asylum seekers suggests that asylum applicants from China are more than just economic migrants–they are refugees.
A possible counter argument here is that the increase in credible fear applicants, who have lately been overwhelming the asylum system, comes from people arriving from Mexico, Guatemala, Honduras, and El Salvador, which all have very low asylum grant rates. There are two reasons why I think this argument fails, however. First, many people seeking asylum from these countries face severe threats and persecution from gangs and cartels, or from crime and domestic violence. Such people are genuinely afraid (for good reason), but they rarely qualify for asylum since they cannot show that the feared harm is “on account of” a protected ground. Second, all these countries are very violent places. The less violent countries in the region–Belize, Costa Rica, Nicaragua, and Panama–have weak economies compared to the U.S. (especially mi país Nicaragua, which is the poorest country in the Western Hemisphere aside from Haiti). If Mr. Nowrasteh’s theory is correct, we would expect these countries to be sending us comparable numbers of (fraudulent) asylum seekers, but they are not. To me, all this supports the notion that people leaving the region and seeking asylum in the U.S. are driven more by a fear of harm than by the desire for a better job.
So in the end, while I am happy that the Cato Institute is thinking creatively about ways to preserve our asylum system, I am not convinced by their analysis. While a guest worker program (especially for Mexico and Central America) might marginally reduce the number of asylum seekers, the overlap between refugees and economic migrants is pretty minimal. If we want to reduce the number of asylum seekers at our Southern border, we should spend more time supporting good governance in the region and less time meddling in our neighbors’ affairs.
I’ve created a new invention. It’s called the “No-Hypocrisy Time Machine.” It enables us to travel back into the past to apply today’s laws and policies to historical events so we can see what impact they would have. In the process, we might just uncover some inconsistent or–dare I say it–hypocritical thinking.
Before we begin our journey, let’s look at the laws and policies that we will be sending back in time.
Barred from asylum: A Jewish boy provides “material support” to the Nazis.
After the 9-11 attack, Congress passed the USA PATRIOT Act (2001) and the REAL ID Act (2005). Both laws strengthened and expanded terrorism bars contained in the Immigration and Nationality Act. The “terrorism bars” were designed to prevent terrorists and their supporters from obtaining immigration benefits in the United States. The problem was that these laws were over-broad. So even a person who was coerced into providing minimal support to a terrorist–for example, giving a glass of water to a guerrilla fighter on pain of death–might be barred from receiving asylum in the U.S.
Indeed, even the Bush Administration recognized that the terrorism bars were over-broad, and in 2007, DHS established some exceptions for coercion.
Fast forward to February 2014. The Obama Administration issued regulations exempting an alien from the terrorism bar where the alien provided limited material support–such as engaging in a commercial transaction,providing humanitarian assistance or acting under duress–to a terrorist organization. Importantly, the exception to the terrorism bar does not apply unless the alien has (1) passed all security background checks; (2) explained the circumstances that led to the provision of material support; (3) “has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;” (4) has not provided support that the alien knew or reasonably should have known could be used to engage in terrorist or violent activity, or to target non-combatants; (5) poses no danger to the United States; and (6) warrants an exemption under the totality of the circumstances. One DHS official offered some examples of how the change might help otherwise innocent refugees: a restaurant owner who served food to an opposition group; a farmer who paid a toll to such a group in order to cross a bridge or sell his food; or a Syrian refugee who paid an opposition group to get out of the country.
Conservative commentators have characterized the exemptions differently. One wrote: “If you’re only sort of a terrorist, you can come to the US.” Fox News opined that the “Obama administration has unilaterally eased restrictions on asylum seekers with loose or incidental ties to terror and insurgent groups.” I suppose this isn’t much of a surprise since it is the business of Fox News and similar outlets to take the most mundane events, extrapolate them to the Nth degree, and then work themselves (and their viewers) into an outraged fury.
But how does Fox News’s position play out when we place it into our No-Hypocrisy Time Machine? Let’s travel back in time to World War II and the Holocaust to see what happens when today’s laws are applied to those dark times. Without the rule change, who might be barred from asylum in the United States–and thus deported into the hands of the Nazis?
The Schindler’s List Jews – These Jews–men, women, and children–would be barred from asylum for working in Oskar Schindler’s factory, which made cookware for the German Army. Deport them all. And by the way, that goes double for Mr. Schindler himself, who owned the factory and thus directly support the Wehrmacht.
Eli Wiesel – The Nobel Peace Prize winner worked for the Nazis in a slave labor camp. His labor would certainly constitute “material support.” His request for asylum is denied.
Tom Lantos – The California Congressman and human rights advocate spent time in a Nazi labor camp. Barred.
Simon Wiesenthal – The famed Nazi hunter was in Poland during the German invasion. He bribed an official to avoid deportation, registered to do forced labor, and later worked repairing railways. Barred, barred, and barred.
In fact, I’d guess that many–if not most–Jews (and others) who survived the Holocaust had to pay bribes, engage in forced labor or give other “material support” to the Nazis. So why does Fox News support policies that would bar these people from safety in the United States?
Obviously Fox News does not hate Holocaust survivors or Jews. But they do seem to hate the President, and to oppose anything his Administration does, even when his policies make perfect sense. Just as it would have been wrong to deny asylum to Eli Wiesel, Tom Lantos, and the others, it is wrong to deny asylum to innocent people who “supported” terrorist because they were coerced, they were unknowing or they had no choice. Modifying the rules related to the terrorism bar was the right thing to do. The claims to the contrary are–at best–inconsistent with universally-held values like protecting victims of fascism and terrorism. At worst, those claims are hypocrisy, pure and simple.
Earlier this month, the Ninth Circuit held that DHS does not have the authority to terminate an alien’s asylum status (I wrote about this here). The Court reasoned that although the regulations allow for DHS to terminate asylum, the statute (upon which the regulations are based) grants authority to terminate exclusively to the Attorney General (and through him to the Immigration Judges). Now the BIA has weighed in, and they have reached the opposite conclusion–the Board held that DHS has the authority to terminate asylum, and that the IJ has no authority to review the termination. See Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012).
A BIA Board Member addresses the Ninth Circuit.
First, it strikes me as a strange coincidence that the Ninth Circuit ruled on asylum termination a few weeks ago and now the BIA is publishing a decision on the same issue. The BIA publishes only about 40 decisions per year, and so it seems odd that they would publish a decision on this same issue at the same time as the Ninth Circuit. Call me paranoid, but I feel like we should contact Oliver Stone about this one (though perhaps the more prosaic explanation is that the BIA knew about the Ninth Circuit case and was waiting for a decision there before it issued its own decision on the matter).
In essence, the Board held that under the applicable regulations, both the IJ and DHS have authority to terminate asylum in certain circumstances. However, these are two independent tracks. According to the BIA, the regulations do not give the IJ authority to review an asylum termination by DHS.
The Board framed the issue as follows: “[W]hether an Immigration Judge has jurisdiction under 8 C.F.R. § 1208.24(f) to review the DHS’s termination of an alien’s asylum status pursuant to 8 C.F.R. § 208.24(a).” The Board drew a bright-line distinction between the regulations in section 1208 (which the Board held are for EOIR) and the regulations in section 208 (for DHS). The BIA concludes that
[T]he regulations for termination of asylum status provide for either (1) USCIS adjudication, with the possibility of the alien asserting a subsequent claim for asylum before the Immigration Judge in removal proceedings or (2) Immigration Judge jurisdiction to conduct an asylum termination hearing or to reopen the proceedings for the DHS to pursue termination of asylum status. The regulations do not confer jurisdiction on the Immigration Judge to review a DHS termination of an asylum grant under 8 C.F.R. 208.24(a).
What this means is that although the IJ does not have the authority to review termination of asylum by DHS, the alien may re-apply for asylum anew before the Judge. The IJ does not have to accept the determination by DHS concerning termination. Rather, the IJ makes a de novo determination about the alien’s eligibility for asylum. So although A-S-J- may make it more difficult for the alien, it does not close the door to relief once DHS terminates asylum.
The dissenting Board Member points out that section 208 of the regulations discusses the IJ’s authority to terminate asylum, and so “it is logical to infer that he also has the authority to restore asylum status terminated by the DHS.” Although this would make sense from a practical point of view–it would be more efficient to allow the IJ to review a DHS termination rather than force the alien to re-apply for asylum in Immigration Court–I am not so sure that it is “logical to infer” that the IJ has the power to review a DHS termination, particularly given that in other instances, the regulations specifically grant such authority to the IJ.
Given the decision in the Ninth Circuit, I imagine the respondent in A-S-J- will file a petition for review to the U.S. Court of Appeals for the Second Circuit (or maybe a request for rehearing en banc before the BIA). Although asylum termination is fairly uncommon (as far as I can tell), the issues of who has the authority to terminate a grant of asylum and how that decision is reviewed are important. I expect we will see much litigation about these issues over the next few years.
A few days before Yesterday, the Ninth Circuit ruled that only the Attorney General–not DHS–can terminate asylum. In Nijjar v. Holder, No. 07-74054 (9th Cir. 2012), the Department of Homeland Security, through the Asylum Office, terminated Gurjeet Singh Nijjar’s asylum approval In Spite of All the Danger in his country.
Mr. Nijjar received asylum in 1995, based on political persecution he claimed to have suffered in India. Before he left India, he was advised to Run for Your Life.
The Beatles: Great music AND binding precedent.
In 2003, DHS notified Mr. Nijjar that it intended to terminate his asylum status for fraud and order him to Get Back to India. DHS wrote that it had information indicating that Mr. Nijjar was in the United States at the time he claimed to have been Across the Universe being persecuted in India and that Every Little Thing about his case was false. The DHS letter instructed Mr. Nijjar to Come Together for a termination interview with an asylum officer to see whether We Can Work It Out or whether they would tell him, Hello, Goodbye. However, Mr. Nijjar was a Nowhere Man and failed to appear. After he failed to Help himself, DHS terminated his asylum status and referred his case to Immigration Court.
After a Long and Winding Road, the IJ (a Woman) concluded that she did not have jurisdiction to review the termination and gave Mr. Nijjar a Ticket to Ride to India. After She Said She Said he is deported, the BIA Let It Be. Mr. Nijjar then filed a petition for review with the Ninth Circuit Like Dreamers Do. There, he asked the Court to Please Please Me.
On review, three Ninth Circuit judges noted All Together Now that the regulations, 8 C.F.R. § 208, provide as follows–
[An] asylum officer [of the DHS] may terminate a grant of asylum . . . if following an interview, the asylum officer determines that… There is a showing of fraud in the alien’s application such that he or she was not eligible for asylum at the time it was granted.
The problem, however, is that the statute (the INA) does not give DHS the authority to issue such regulations–
Congress [a/k/a The Fools on the Hill] did not confer the authority to terminate asylum on the Department of Homeland Security. Congress conferred that authority exclusively on the Department of Justice.
Congress expressly provided that “the Secretary of Homeland Security or the Attorney General may grant asylum . . . .” But the subsection governing termination of asylum is not parallel, and does not say that either cabinet department may terminate asylum. The “termination of asylum” subsection of the statute says that asylum “may be terminated if the Attorney General determines” that any of several conditions are met.
The Government attorney countered that Because the Asylum Office had the power to grant asylum, it must also have the power to take asylum away Any Time at All. The Court called this argument “euphonious but not logical,” and held that popular songs are full of euphonious lyrics that make false statements, such as the Beatles’ lyrics:
There’s nothing you can know that isn’t known, Nothing you can see that isn’t shown, Nowhere you can be that isn’t where you’re meant to be…
In other words, don’t Ask Me Why, but “there is no general principle that what one can do, one can undo.” Because the statute specifically gives DHS and DOJ the power to grant asylum, but only DOJ the power to terminate asylum, the Court concluded that only the Attorney General can terminate asylum. The regulations allowing DHS (through the Asylum Office) to terminate asylum are invalid.
I Want to Tell You, the Ninth Circuit’s logic seems sound. I Imagine that unless Congress changes Something in the statute, future asylum terminations by the Asylum Office will face strong challenges from asylees Here, There and Everywhere. Rather than waste resources litigating this issue Helter Skelter every time the government seeks to terminate, I’m Down with the regulations being amended to reflect the statute–only DOJ has the power to terminate an asylum grant. In the future, when DHS wants to declare The End of an alien’s asylum status, it will need to issue a Notice to Appear, and then allow the IJ to make the initial decision concerning termination. Dig It?
I recently finished a book about the Quran, and it got me wondering about what Islamic Law (or Shari’ah) has to say about asylum.
Forget the Asylum Primer…
With the help of the mighty Google, I found an interesting paper on the subject from 2009: The Right to Asylum between Islamic Shari’ah and International Refugee Law: A Comparative Study. The study is by Prof. Ahmed Abou-El-Wafa, chief of the department of public international law at Cairo University, and was written for the United Nations. The study was meant to begin a conversation and get feedback from various experts in preparation for publishing the second edition of the study. This conversation is apparently on-going.
Obviously, I am no expert in Shari’ah law, but I reviewed the initial study and I thought I would mention a few highlights. The document begins with a quote from the Quran:
Those who believed and emigrated, and strove in the cause of God, as well as those who hosted them and gave them refuge, and supported them, these are the true believers. They have deserved forgiveness and a generous recompense. (Quranic Surat al-Anfal, “The Spoils of War” [Chapter 8 verse 74]).
Try the Quran instead.
From there, the study sets forth the conditions for granting asylum under Islamic law. For one thing, refugees should be “warmly welcomed… and well treated.” “This is clear from the divine phrase [in the Quran that] those who ‘show their affection to such as came to them for refuge…’ and consequently [they] should not be expelled to the borders (refouled) or denied admission.” Indeed, asylum seekers “should not be rejected , even if the inhabitants of the territory of asylum are in dire poverty… as the [Quran] says, ‘… even though poverty was their (own lot).'” The study further states that “Islam categorically disallows that a refugee be returned to a place where there are fears for his basic freedoms and rights (such as being subjected to persecution, torture, degrading or other treatment).”
Most of the examples in the study involve granting asylum to Muslims, but the law of asylum also extends to non-Muslims who are seeking protection. This is based on a “well-known Islamic principle, i.e. ‘Before the world’s calamities, all sons of Adam (human beings) are equal.'”
The study also discusses the case of a person who enters Muslim territory without permission for the purpose of seeking asylum. While non-Muslims are generally not permitted to enter Muslim lands without permission (and may be severely punished if they do), people who enter for the purpose of seeking asylum are not subject to penalties and should be offered protection.
Interestingly, as in international law, Islamic law lists certain people who are ineligible for asylum. One group that is not eligible are criminals, “particularly those who have committed acts warranting prescribed penalties (hodoud, e.g. willful murder).” Also, people who have committed “grievances” in their home country are ineligible. Here, Islamic law distinguishes between offering asylum and sheltering offenders. The latter is not allowed. Further, a grant of asylum to a specific person “may be coupled with an agreement concluded with him.” Failure to abide by the agreement can have “grave consequences.”
The report concludes that “Observance of this right [to asylum] as enshrined by Islam is a duty for every zealous Muslim.”
While the concept of asylum exists under Shari’ah law, many Islamic countries, including the wealthy Gulf states, have not signed on to international treaties concerning refugees and do not offer asylum to people fleeing persecution. I hope Professor Ahmed’s study reaches those Islamic governments that do not offer protection to refugees. Not only do such governments fail to fulfill the duties incumbent upon all nations; it seems they also fail to fulfill their obligations under Islamic law.
It seems that every lawyer who represents asylum seekers has their own style of preparing cases. Not surprisingly, each person thinks his way is the best (of course, they are all wrong, since my way is best).
One big divide I’ve noticed is between lawyers who submit legal briefs with their cases and those who don’t. Whether due to increased efficiency or increased laziness, I am one of the lawyers who generally does not submit a brief with my cases.
When I first started doing asylum cases, I submitted briefs. I felt it was necessary to set forth the law and the facts of my case, and to show why my client qualified for asylum. As time went on, I ended that practice. Now, I only include briefs if there is a sui generis (to use a fancy law school term) issue that deserves elucidation or if there are criminal or persecutor issues in the case.
The way I see it, there are advantages and disadvantages to including briefs with run-of-the-mill cases.
One advantage is that a brief helps the lawyer organize her thoughts. It also forces the lawyer to specifically set forth the basis for the claim and might help exposes weaknesses that can be addressed prior to submitting the case. Briefs are also helpful for cases involving “particular social groups,” where the brief can clearly define the social group. Further, since lawyers should always be thinking one or two steps ahead, a brief creates a road map for appeal. When Immigration Judges and Asylum Officers see that an applicant is well-prepared to continue litigating his case, they may be more likely to grant relief. In addition, for new lawyers or lawyers who don’t normally represent asylum seekers, a brief can be particularly helpful for the lawyer to understand the law and how the facts of the case meet the legal requirements.
There are also disadvantages to writing briefs. The main disadvantage is that writing a brief is time consuming. Lawyers have limited time to prepare cases and we need to be efficient. Time spent preparing a brief might better be used for gathering evidence, doing country condition research or preparing witnesses for trial. My sense is that IJs and Trial Attorneys often do not read legal briefs, except if there is a legal issue that concerns them. They already know the law, and they will gain a better understanding of the facts by reading the applicant’s story and reviewing the evidence. Again, it is a question of efficiency–Asylum Officers and IJs have limited time to review cases, and they need to use their time wisely.
Also, for normal cases, where the law is not in dispute, a brief can be a distraction. Conscientious fact-finders will often feel obliged to read everything submitted with an asylum application. A brief that spends three pages “educating” the fact-finder about the law of asylum might be seen as condescending and does not provide information that will help the client.
Instead of a brief, I like to write a paragraph (or maybe two) explaining the basis of the claim. If there is a particular social group, I define what that is. I also include a detailed summary of the client’s affidavit and each piece of evidence. To me, this is more useful to the IJ than a brief because she can read the summary and gain a good understanding of the case.
All that said, there of course is no “right way” to present an asylum case. Each lawyer must decide what is best for herself and her client.
A decade ago, Edmond Demiraj agreed to testify against an Albanian mobster charged with human smuggling. He claimed that, in exchange for his testimony, federal prosecutors promised to keep him and his family safe. The mobster, Bill Bedini, fled the country before his trial, and so the federal government had no need for Mr. Demiraj’s testimony. He was deported to Albania.
The Fifth Circuit decision means that if JR gets shot, the Ewings don't get asylum.
In Albania, Mr. Bedini was waiting. He kidnapped, beat, and shot Mr. Demiraj, who eventually recovered and made his way back to the U.S. This time, he was granted Withholding of Removal.
Meanwhile, an Immigration Judge and the BIA denied asylum to Mr. Demiraj’s wife and son, and ordered them deported. The pair reopened their case after Mr. Demiraj was shot in Albania and after Mr. Bedini kidnapped some other relatives and trafficked them to Italy. The wife and son claimed that if they returned to Albania, Mr. Bedini would harm them on account of their particular social group–membership in the Demiraj family. The case was again denied and finally reached the Fifth Circuit, which affirmed the BIA and ordered Mrs. Demiraj and her son deported to Albania.
While the Fifth Circuit agreed that “family” could constitute a “particular social group,” it reasoned that Mr. Bedini did not seek to harm Mrs. Demiraj and her son “on account of” her membership in the Demiraj family. Rather, Mr. Bedini wanted to harm her and her son in retaliation for Mr. Demiraj’s cooperation with the United States government:
The crucial finding here is that the record discloses no evidence that Mrs. Demiraj would be targeted for her membership in the Demiraj family as such. Rather, the evidence strongly suggests that Mrs. Demiraj, her son, and Mr. Demiraj’s nieces [who were trafficked to Italy] were targeted because they are people who are important to Mr. Demiraj—that is, because hurting them would hurt Mr. Demiraj. No one suggests that distant members of the Demiraj family have been systematically targeted as would be the case if, for example, a persecutor sought to terminate a line of dynastic succession. Nor does the record suggest that the fact of Mr. and Mrs. Demiraj’s marriage and formal inclusion in the Demiraj family matters to Bedini; that is, Mrs. Demiraj would not be any safer in Albania if she divorced Mr. Demiraj and renounced membership in the family, nor would she be any safer if she were Mr. Demiraj’s girlfriend of many years rather than his wife. The record here discloses a quintessentially personal motivation, not one based on a prohibited reason under the INA.
Mrs. Demiraj and her son filed a petition for certiorari with the Supreme Court. They were supported by a number of amicus briefs, including one by former law enforcement officials. That brief takes the position that Mr. Demiraj’s family members are a “particular social group” and that they will be persecuted because Mr. Bedini seeks to harm all members of Mr. Demiraj’s family. Further, the brief expresses concern that “civilians very likely will not cooperate [with law enforcement officers] when they fear that doing so would put their families in danger.” The Fifth Circuit’s decision would obviously discourage such cooperation.
In the end, the petition for certiorari was withdrawn. DOJ–after requesting 10 continuances to respond to the cert petition–finally agreed to grant asylum to Mr. Demiraj and his family. The result is certainly a relief to the Demiraj family. But the bad news is that the Fifth Circuit’s exceedingly narrow definition of “family” as a “particular social group” remains on the books.
