The Executive Office for Immigration Review has published new proposed regulations that would amend the requirement that all asylum applications filed with the Immigration Court also be filed with the Department of State. Until now, when an alien files a defensive asylum application (form I-589) in court, he was required to file a second copy for the State Department. The Immigration Judge would forward the application to the State Department, which could comment on the application.
Secretary of State Hillary Clinton reviewing asylum applications for EOIR.
The reality was that DOS almost never had any comment, so the second I-589 disappeared into a bureaucratic black hole. Immigration Judges found the process so useless, that some would not even take a second copy of the I-589, as they had no intention of forwarding it to DOS (in violation of the existing regulations). I observed this at a recent Master Calendar Hearing, where the IJ specifically instructed a lawyer not to file a second copy of the I-589, since the State Department never had any comments and the IJ had no intention of sending them a copy of the form.
I suppose the fact that IJs ignored the existing regulation is a good argument in favor of modifying the rule (though ordinarily when Immigration Judges ignore regulations, bad things happen).
Under the new rule, Immigration Judges have discretion to forward the I-589 forms to DOS, and should do so only “to ascertain whether DOS has information relevant to the applicant’s eligibility for asylum.” Supposedly, this new rule will increase efficiency by limiting the number of inquiries to DOS.
The big problem with the new regulation (as with the old regulation) is that it puts the IJ in the position of the prosecutor, rather than in the position of a neutral decision-maker. It seems to me, a better rule would be to allow the DHS Trial Attorney to submit the I-589 to DOS if she deems the State Department’s opinion useful. Since the Trial Attorney is the person tasked with litigating the case, she is the best person to determine what evidence is necessary. She is also (theoretically) familiar with the case and is thus best positioned to know if DOS might have relevant information about the asylum seeker.
In an effort to be a glass-is-half-full kind of guy, I suppose the new regulation is an improvement over the current system. The better approach, however, is to let DHS handle the investigation and leave the decision-making to the Immigration Judge.
There is no uniform definition for the term “persecution.” While different courts have attempted to define the term, its meaning has remained frustratingly elusive. A new article by Scott Rempell, Assistant Professor of Law at South Texas College of Law, sets forth a workable definition of the term that is certainly worth considering. About his article, Prof. Rempell writes:
Most people, even those with no immigration background, have some idea about what persecution means. They know to equate persecution with inflicted suffering. But beyond a general understanding that persecution is tied in some way to suffering, it’s much harder to pinpoint persecution’s precise meaning.
There are many definitions of persecution.
During my years practicing immigration law at the Justice Department, I was always struck by the wide divergences of opinion on the meaning of persecution that surfaced in the immigration agencies and federal appeals courts. Does the harm have to be severe or will any harm suffice? Will one instance of harm be sufficient or must the harm be systematic? Does the persecutor need to intend to punish the victim or are the consequences of the persecutor’s actions sufficient? Courts have come out on both sides of each of these questions, and many other questions as well. It’s surprising that a term this central to asylum can be interpreted so differently, particularly since the stakes for asylum applicants are so high.
After years of head scratching, I finally found some time this summer to sit down and see whether I could come up with a more uniform understanding of persecution. In the end, after I stripped away the superfluous criteria and eliminated factors that pertain more directly to the other elements of the refugee definition (such as the nexus requirement), I arrived at the following definition of persecution: “The illegitimate infliction of sufficiently severe harm.” If you’re interested in how I arrived at this definition, take a look at my paper, recently posted on SSRN. Here is a copy of the abstract:
Persecution is the core concept of asylum and refugee protection. Although thousands (if not tens of thousands) of decisions hinge on its meaning, a consistent definition is yet to emerge. Unmoored to any unified understanding of the term, immigration agencies and federal courts of appeals continue to articulate many different conceptions of persecution – conceptions that lack internal consistency and a coherent analytical foundation. Moreover, legal scholars have not attempted to aid adjudicators’ understanding of persecution because, by and large, scholars do not believe that a unified definition is possible. Meanwhile, the divergent definitions and understandings of persecution continue to produce unfair results for those seeking asylum, as asylum applicants receive disparate outcomes despite presenting claims based on similar situations. This Article challenges the conventional wisdom that persecution defies unified meaning. It provides a comprehensive assessment of persecution’s central underpinnings to isolate the three pillars that represent persecution’s fundamental core: harm, severity, and legitimacy. At the same time, this Article critiques a number of false dichotomies and shaky definitions that have troubled and obscured the persecution definition up to this point. Based on the analyzed core aspects of persecution and the elimination of erroneously included definitional components, this Article proposes that decision-makers define persecution as “the illegitimate infliction of sufficiently severe harm.” Because it is grounded in an examination of persecution’s true underpinnings, the proposed definition will aid courts in their review of asylum claims, and help administrators render consistent decisions. The stakes are simply too high, and the issue too prevalent, to let decades of abdication continue in any effort to form a unified definition.
In this series (I suppose two posts counts as a series), I’ve been writing responses to some restrictionist proposals to reform the asylum system. My first piece was a response to Professor Jan C. Ting, who suggested we move asylum adjudication from DHS and EOIR to the U.S. Department of State. Today, I will examine Mark Krikorian’s suggestion in the New York Times that we expand the concept of a “safe third country.”
Mr. Krikorian is the Executive Director of the Center for Immigration Studies. He writes that under the safe third country principle, which is “widely used elsewhere,” a foreigner “should not even be allowed to apply for asylum if he has passed through another country where he could have applied first.” “Because claims are so hard to prove, asylum will always be one of the most fraud-ridden parts of the immigration system.” By cutting out all who pass through “safe” third countries, such as Mexico, which is supposedly implementing a new law to protect asylum seekers, we would reduce the number of asylum seekers eligible to apply in the U.S. Mr. Krikorian believes that by “narrowing the focus of the system, we can more easily cope with the lies and fraud that are an inevitable part of asylum adjudication.”
Mexico doesn't seem like such a safe third country to me.
The idea that we should not allow people to pass through other safe countries before seeking asylum in the United States seems reasonable. However, there are several reasons why I don’t support Mr. Krikorian’s proposal (aside from the fact that it probably wouldn’t be in compliance with our current treaty obligations):
The first issue is how to determine whether a given third country is “safe.” For example, if an Eritrean escapes from her country and enters Sudan, and then flies directly to the U.S., is she barred from asylum here because Sudan is “safe?” Most people would agree that Sudan is not safe, and specifically, it is not safe for Eritrean refugees, who are sometimes kidnapped and returned to their country (usually to complete their compulsory national service). What about a person who passes through several different countries and then comes to the United States? How do we decide if a given country is safe for that person? To give another example, it is perfectly safe for me to go to Kenya for a vacation. However, it is probably not safe for an Ethiopian refugee to live in Kenya. So under Mr. Krikorian’s system, an asylum seeker would need to prove that every country she passed through was unsafe. To present that proof would require a certain amount of resources–and probably a decent lawyer. Only those who could afford to make their case would qualify for asylum. This seems like an arbitrarily way to determine who qualifies for protection in our country.
A related problem is that adjudicators would have to make an independent determination about the safety of each country that the asylum seeker traveled through. Such a burden on asylum adjudicators would complicate the cases, cause additional delay, and probably result in less fair decisions.
Another issue is that, as a world leader, other countries follow what we do. If we reduce the humanitarian benefits we provide to asylum seekers, other countries will likely follow suit. This would generally weaken the international system for protecting persecuted people.
Finally, behind Mr. Krikorian’s suggestion is the supposition that asylum seekers coming to the U.S. is a bad thing. I think this is dead wrong. Our country greatly benefits from asylum seekers. This has been historically true, and continues to be true today. My clients include doctors, journalists, people who are working with U.S. forces in the war on terror, engineers, and scientists. I don’t always know whether they are telling me the truth about their asylum claims, but I have no doubt about the positive contributions they make to our country. While I certainly do not support allowing fraudulent asylum seekers to take advantage of our generosity, I do not accept the premise that asylum seekers are a burden on our country.
So, in the end, I oppose Mr. Krikorian’s “safe third country” idea. As I mentioned in my first post in this series, the problem of asylum fraud is simply not severe enough to warrant dramatic restrictions on relief. At least in my estimation, any reduction in fraud from tightening the system is not worth the inevitable harm to legitimate asylum seekers.
In Nicaragua, abortions are illegal under all circumstances. That includes cases of rape and incest, and when the life or health of the pregnant woman is at risk. Women and girls who have abortions are subject to long terms of imprisonment. Health professionals who perform abortions also face stiff criminal penalties. Of course, with abortion (as with any remotely political subject these days), there are strong opinions on all sides of the issue, and little agreement on the facts.
Amnesty International issued a report documenting the opposition to the law from Nicaraguan health care professionals, and documenting some unintended consequences of the law–certain treatments are now less available to pregnant women because the treatment might put the fetus at risk. Amnesty also cites the case of a pregnant woman with cancer who could not get treatment because of the law. On the other hand, a pro-life website called Life Site News claims that the maternal mortality rate in Nicaragua has dropped by almost 30% since the law went into effect (though I have not seen any evidence that the law actually caused the drop in mortality rates).
Apparently, Nicaragua is not in the running this year.
While I personally think this law is a bad idea, the morality or efficacy of the law is not my concern here. Rather, I wonder whether women who are prevented from terminating their pregnancies, or health care professionals who perform abortions, might be eligible for asylum in the United States.
Nicaraguan Women
To obtain asylum, a woman would need to show a well-founded fear of persecution based on a protected ground. The protected ground that might apply here is “particular social group.” I can think of two possible “particular social groups:” (1) women who have had an abortion, and who now face jail time, and (2) women who are pregnant and face risks to their life or health (physical or mental health) because they are not permitted to abort their pregnancies.
While the first category seems to me a cognizable social group, such women would have a hard time demonstrating that the prison time they face rises to the level of “persecution,” as that term is defined by case law. I’ve actually spent some time in a Nicaraguan prison (long story), and what I saw would likely not qualify as persecution. Of course, I am no expert, and if prison conditions are bad enough, they may be considered persecution. See, e.g., Phommasoukha v. Gonzales, 408 F.3d 1011, 1015 (8th Cir. 2005).
The second category–pregnant women who face health problems because they are unable to obtain abortions–is more interesting. Again, this is probably a cognizable particular social group. The harm, which includes physical and mental harm, and even the possibility of death, could, I think, qualify as persecution. The Board of Immigration Appeals has held that severe economic deprivation, including deprivation of liberty, food, housing, and other essentials of life may constitute persecution. See Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007). Health care is certainly an “essential of life,” and if a woman is denied the care she needs, she can demonstrate a possibility of persecution.
So it seems to me that women in the second category–and perhaps also in the first–would qualify for asylum under the Immigration and Nationality Act.
Nicaraguan Health Care Workers
The law also provides for incarceration of health care workers who perform abortions, even so-called therapeutic abortions, which are done to protect the life or health of the mother. As I discussed above, I doubt that prison time in Nicaragua would be considered “persecution,” so the health care workers would have difficulty establishing this element of an asylum claim. Even assuming they could demonstrate persecution, I think they would have a hard time showing that the persecution is based on a protected ground.
One possible protected ground is political opinion, i.e., that women should be allowed to have abortions. However, the Nicaraguan government does not arrest health care workers (or anyone else) on account of their opinion that women should be permitted to obtain abortions; the government arrests people who actually perform abortions.
The other possible protected ground is particular social group–health care workers who have performed abortions. The problem here is that the health care workers are seeking classification as a particular social group based on the criminal act that causes them to fear persecution. In Bastanipour v. INS, 980 F.3d 1129 (7th Cir. 1992), the Seventh Circuit held:
Whatever its precise scope, the term “particular social groups” surely was not intended for the protection of members of the criminal class… merely upon a showing that a foreign country deals with them even more harshly than we do. A contrary conclusion would collapse the fundamental distinction between persecution on the one hand and the prosecution of nonpolitical crimes on the other…. We suppose there might be an exception for some class of minor or technical offenders… who were singled out for savage punishment in their native land.
Bastanipour does not completely close the door on the Nicaraguan health care workers, but it certainly presents a hurdle for them to demonstrate that they constitute a “particular social group.”
So far, I do not know of any United States asylum cases arising from Nicaragua’s abortion law (or similar abortion laws in other countries), but I would not be surprised if we see some soon. If you are interested to learn more about this topic, check out Rights Undone, a blog about the “struggle to repeal the ban on life-saving abortions in Nicaragua.”
Since the news broke that Nafissatou Diallo, a hotel housekeeper in New York who claims she was raped by Dominique Strauss-Kahn, admitted to lying on her asylum application, there has been much discussion about the problem of asylum fraud. “Solutions” to the problem of asylum fraud have come from various quarters, and so I thought I would address a couple of them here.
First, though, I must mention that the problem of asylum fraud seems to me overblown. In my practice, I might do 35 or 40 asylum cases each year. Some, I suspect to be fraudulent (though I try to be cautious in reaching such a conclusion, as I discuss here); others are clearly bona fide. In the U.S., between the Asylum Offices and the Immigration Courts, about 21,000 people are granted asylum each year. Compared to the approximately one million immigrants coming to our country annually, the total number of asylum seekers is quite small (2%). Even if many of the cases are false, the numbers just aren’t that significant. That said, I suppose I understand the desire to reduce fraud, although I don’t accept that it is worth denying legitimate asylum seekers in order to weed out some fraudulent cases. Anyway, enough of my ramblin’. Here is one proposed solution, and my response:
Our Foreign Service Officers apparently have nothing better to do, so they might as well adjudicate asylum cases.
In an op-ed in the Philadelphia Inquirer, Temple University Law School Professor Jan C. Ting suggests that “asylum claims should be removed from the Departments of Homeland Security and Justice, and returned to the Department of State, whose foreign service officers are best informed of conditions in various foreign countries and therefore most likely to detect false stories and recognize the truth.” Professor Ting claims that “there are strong political pressures today on the adjudicators at the Departments of Homeland Security and Justice” and that “Outside groups monitor the adjudicators to identify and apply political pressure on any whose asylum approval rate is lower than the average, or who approve some nationalities less than others, even though each case is supposed to be decided on its own set of facts.”
Professor Ting fails to name the nefarious “outside groups” that are supposedly applying “political pressure” to asylum adjudicators. The reason for this, I suspect, is because there are no such people pressuring adjudicators. Sure, there are groups (such as TRAC) that track and publish asylum statistics. When such information is made public, outliers (decision-makers who grant asylum too often or too rarely) might feel pressure to conform, but this is hardly improper influence. Indeed, when an adjudicator’s grant rate is out of line with the mainstream, it is completely appropriate to examine whether something is amiss. Other “groups” might lobby for reforms to the system that make it easier to obtain asylum (just as certain restrictionist organizations lobby to tighten up the asylum system), but again, there is nothing improper about that. Finally, as for Professor Ting’s proposal that foreign service officers who “are best informed of conditions in various foreign countries” should adjudicate cases, this seems impractical and unlikely to really reduce fraud. The plurality of asylum seekers are from China. Do we really have enough foreign service officers familiar with China to leave their duties at DOS and adjudicate thousands of asylum cases? If we have an asylum seeker from, say, Burundi, do we search out and find a foreign service officer familiar with that country and send her to adjudicate the case? I’d venture that whatever marginal benefit we might receive from using FSOs to adjudicate cases will be more than counteracted by the officers’ lack of experience (and interest) in deciding such cases. In short, it is better to allow decision-makers who know the asylum law to make decisions, and if they need to consult an expert at DOS, they should do so.
Next, I’ll discuss a proposal by Mark Krikorian, Executive Director of the Center for Immigration Studies, to expand the “Safe Third Country” idea. But I’ll save that for a future post.
Earlier this week, the New York Times had an article about fraud and asylum, Immigrants May Be Fed False Stories to Bolster Asylum Pleas. The article was inspired by revelations about the maid who accused former-IMF chief Dominique Strauss-Kahn of sexual assault. It turned out that the maid was an asylee, who likely gained asylum by fabricating a claim of past persecution.
The NY Times asked several professionals in the field–including yours truly–to contribute their thoughts about how the asylum system can be improved. Our comments appeared in a forum called Room for Debate. I suggested that the government make a greater effort to prosecute lawyers and other people who help immigrants create fraudulent cases. Not only is this more efficient than going after individual asylum seekers, but it ultimately would protect immigrants by reducing the number of fraudsters involved in the business. Here are my comments (slightly modified since my essay in the Times was limited to 300 words and here I can use as many words as I want):
Go After the Lawyers
There is an old adage in criminal law: Better that 10 guilty people go free than convict one innocent person. Our asylum law is based on the opposite philosophy: It is better to allow some asylum seekers to enter the United States fraudulently, than return one person to a country where he faces persecution or death. For this reason, the burden of proof for asylum is relatively low (as opposed to criminal law, where the burden for a conviction–beyond a reasonable doubt–is quite high).
People reading and discussing my NY Times article.
This low burden, combined with the very valuable benefit of asylum, creates an incentive for people to make fraudulent claims. The trick is to reduce fraud without preventing legitimate asylum seekers from gaining protection.
It seems to me there are three main possibilities.
One option is to devote more resources to individual cases. If asylum officers, immigration judges and government attorneys could spend more time on each case, they would probably discover more instances of fraud. But attacking fraud on a case-by-case basis seems inefficient and, given limited resources, unlikely to significantly reduce the number of fraudulent claims.
Another option is to raise the burden of proof required to obtain asylum. The problem, of course, is that such a move would exclude legitimate asylum seekers, and would degrade the high moral standard our nation set when we created our asylum system.
A final — and to me, the most effective — option is to identify attorneys and others who prepare claims deemed suspicious. Investigating and, where appropriate, prosecuting these people can dramatically reduce fraud, since each such person produces and/or facilitates large numbers of false claims. A few high-profile prosecutions would also help deter others who might engage in such practices.
I have represented many asylum seekers, including journalists, human rights workers, diplomats, rape victims, and survivors of genocide. Such people have legitimate claims and would face persecution or worse if they returned home. In responding to fraud, we should remember our ethical responsibility to protect such people.
Last week, the U.S. government granted asylum to Cipriana Jurado, a Mexican human rights activist who feared persecution by the Mexican army. According to the Associated Press, Ms. Jurado’s “friend and long-time human rights colleague Josefina Reyes was gunned down in Juarez in January.” Like Ms. Jurado, Ms. Reyes had campaigned against government and gang violence. Not only was Ms. Reyes murdered–killed by unidentified gunmen–several members of her family were abducted. Given the danger, it is not surprising that Ms. Jurado received asylum (not to minimize this accomplishment–only about 2% of asylum cases from Mexico are granted). Ms. Jurado’s case, I think, highlights problems in the United States and Mexico caused by the escalating violence across our border.
To paraphrase Mr. Franklin: "An ounce of prevention is worth a pound of cocaine."
First in Mexico: The blatant attacks against human rights workers points to a general disregard for the rule of law. Has the army become just another gang in the on-going turf war? Tens of thousands of people have died as a result of drug and gang violence. The U.S. certainly bears some of the blame, since we are the main consumers of the drugs passing through Mexico and we are the source of most of the guns used in the violence across our Southern border. Mexico needs to get control of the situation and we need to help. We need to do more to prevent weapons from crossing the border. Also, it wouldn’t hurt to try something new in the “war on drugs.” Perhaps legalizing certain drugs would help reduce the involvement of criminal gangs, and consequently reduce violence. The website Law Enforcement Against Prohibition has some good information on the potential benefits of legalizing some controlled substances.
As for the U.S., if Northern Mexico becomes a failed state, the implications for us are pretty severe. One fear is that increasing numbers of people will seek asylum in the United States. The low grant rate for Mexican cases might change if–as in Ms. Jurado’s case–the persecutor is the Mexican government (as opposed to criminal gangs, who currently do most of the persecuting across the border). This fear may be mitigated by the fact that–unlike Ms. Jurado–most people persecuted by the Mexican government will likely be involved in criminal activities and thus ineligible for asylum (though still eligible for relief under the UN Convention Against Torture).
It seems to me that a border enforcement-only policy would betray our ideals of protecting bona fide refugees like Ms. Jurado. We can’t live up to our ideals simply by trying to keep people out who are fleeing persecution. We need to work more on the prevention side of the equation. If we succeed, we can help reduce the flow of refugees and improve the situation for our Southern neighbor.
Under the Immigration and Nationality Act (“INA”) an alien who is “firmly resettled” in a third country is ineligible for asylum in the United States. See INA § 208(b)(2)(A)(vi); see also 8 C.F.R. § 1208.15.
If Angelina Jolie shows up, it probably means you are not firmly resettled.
It’s been more than 20 years since the BIA issued an opinion on firm resettlement, and during that period, the various federal circuit courts have weighed in, creating a patchwork of inconsistent law across the U.S. In a new decision, Matter of A-G-G-, 25 I&N Dec. 486 (BIA May 12, 2011), the Board has issued important guidance concerning firm resettlement.
The BIA held that the Department of Homeland Security has the initial burden to make a prima facie showing of an offer of firm resettlement by presenting direct evidence of an alien’s ability to stay indefinitely in a third country. When direct evidence is unavailable, indirect evidence may be used if it has a sufficient level of clarity and force to establish that the alien is able to permanently reside in the country. An asylum applicant can rebut this evidence by showing by a preponderance of the evidence that such an offer has not been made or that the applicant’s circumstances would render him or her ineligible for such an offer of permanent residence.
The failure to apply for permanent residence where it is available to an alien does not rebut evidence of firm resettlement. Thus, evidence that permanent resident status is available to the alien under the law of the third country may be sufficient to make a prima facie showing of an offer of firm resettlement, and a determination that the alien is firmly resettled is not contingent on whether the alien applies for permanent status in the third country.
It makes sense that the initial burden of proving firm resettlement is on the DHS–in most cases, an alien subject to the firm resettlement bar will have lived for a time in a third country. In this case, the alien, A-G-G-, was a Mauritanian national who lived in Senegal for eight years. He married a Senegalese citizen. The fact that the alien resided in Senegal alerted DHS to the possibility of a firm resettlement bar, and they submitted evidence that A-G-G- could live permanently in Senegal. A-G-G- then had an opportunity to rebut that evidence. The fact that he chose not to apply for permanent status in Senegal was not sufficient–in and of itself–to avoid a permanent resettlement bar. However, if there was some reason that A-G-G- could not live in Senegal, he could have presented that evidence and perhaps avoided the bar.
Matter of A-G-G- seems to strike a fair balance between protecting an asylum seeker’s ability to obtain asylum and preserving the government’s interest in barring people who have permanent residency elsewhere.
Physicians for Human Rights will conduct a training for health professionals on April 9, 2011 in Houston, Texas. The program is titled, Aiding Immigrant Survivors of Torture and Other Human Rights Abuses: Physical and Psychological Documentation of Trauma. It aims to instruct health professionals on the skills necessary to perform physical and psychological evaluations of survivors of human rights abuses:
PHR’s volunteer network of over 400 health professionals assists survivors of human rights abuses by conducting forensic psychological and physical evaluations to document evidence of torture and abuse. Our clinicians have specialized training and expertise in recognizing and documenting the trauma of conflict, displacement, abuse, discrimination, and oppression—issues at the heart of many humanitarian relief applications. The medical-legal affidavits that they submit to courts on behalf of survivors are frequently the determining factor when judges grant asylum or other relief from deportation.
Even the best doctors will benefit from this training.
I often use reports from health professionals to help bolster my cases, particularly where there are physical scars caused by torture, so I can attest to the value of such reports to asylum seekers. A well-written report can often sway the fact finder and help a client gain asylum.
For those interested in the training, more information is available here.
More than 1,000 Libyan students are currently studying in the United States, and the continuing unrest in their homeland has them worried. To make matters worse, the Libyan Embassy in the U.S. apparently contacted many of the students and threatened to take away government scholarships unless they attended a pro-Khadafy rally in Washington, DC. The Libyan Ambassador (predictably) denied any such threats.
Anti-Khadafy protestors tell it like it is.
Some of the students are politically active. For example, a student in New York has started a Twitter account called Enough Gaddafi that has over 7,000 followers (a website is coming soon). In Kentucky, a group of 50 Libyans gathered to voice their support for the protestors in Libya. And Libyan students in Colorado and Oklahoma are speaking out publicly against Libyan leader Moammar Khadafy.
Given the current situation, can Libyans in the U.S. successfully claim political asylum?
As usual in immigration law, the answer is a definite maybe. For those students listed by name in newspapers and who engaged in anti-Khadafy political activity, or who made anti-Khadafy comments, I would imagine that they have a solid claim for political asylum. If Mr. Khadafy remains in power, the students would face severe consequences upon their return to Libya. There is no doubt that Mr. Khadafy’s regime tortures and murders political opponents. Further, given the Libyan Embassy’s attempt to rally Libyans in the U.S. to Mr. Khadafy’s defense, it is very likely that the Libyan government is aware of the students’ political opinions.
For those Libyans not mentioned in newspapers, or who were not contacted by the Embassy about attending the pro-Khadafy rally, an asylum claim might be more difficult. Generalized strife in a person’s home country–in and of itself–is usually not sufficient to qualify for asylum. Whether a particular individual qualifies for asylum would depend on his or her personal circumstances.
Finally, the situation in Libya is very fluid. Perhaps Mr. Khadafy will be gone soon (we can only hope), but perhaps not. As the situation on the ground continues to evolve, so too will the possibility for asylum for Libyans in the U.S.
The Ninth Circuit recently examined “the distinction between an applicant for asylum whose testimony lacks credibility and one who has ‘deliberately fabricated’ material aspects of her application. See Liu v. Holder, No. 08-72849 (9th Cir. Feb. 23, 2011). The Court held:
“[A]n asylum application is frivolous if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20. If found to have “knowingly made a frivolous application for asylum,” an applicant will be “permanently ineligible for any benefits under [the Immigration and Nationality Act],” including asylum relief. 8 U.S.C. § 1158(d)(6). Given these harsh consequences, the distinctions between the requirements for an adverse credibility determination and a frivolousness finding are of critical importance.
The Court ultimately concluded that whether an alien submitted a frivolous asylum application is a “distinct question requiring a separate analysis.”
In examining Ms. Liu’s case, the Court found that the Board’s adverse credibility finding was supported by substantial evidence. However, “a finding of frivolousness does not flow automatically from an adverse credibility determination.” The Court noted four substantive requirements that distinguish an adverse credibility finding from a finding of frivolousness:
First, an asylum application may be deemed frivolous only if it contains a deliberate fabrication, and the applicant has thus perpetrated a fraud on the court. Second, a frivolousness determination requires a finding that a “material element” of the claim was fabricated, whereas an adverse credibility determination may be supported by an inconsistency or apparent falsehood that merely relates to a material element of the claim. Third, although the “applicant for relief from removal has the burden of demonstrating that he or she meets all of the requirements” for such relief, the burden shifts to the government to prove the applicant has filed a frivolous application. Fourth, a frivolousness finding requires a stronger evidentiary showing than an adverse credibility finding: frivolousness must be proven by a preponderance of the evidence, whereas an adverse credibility finding must be supported only by substantial evidence.
Besides the substantive requirements, there are also procedural requirements for a finding of frivolousness. In Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), the Board set forth four procedural requirements for a frivolous finding:
(1) Notice to the alien of the consequences of filing a frivolous application; (2) A specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application; (3) Sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated; and (4) An indication that the alien has been afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.
In other words, it’s not easy to have your asylum case found frivolous. This is as it as it should be, given the harsh consequences for a frivolous finding.
In a strongly-worded dissenting opinion, Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit Court wrote that an immigration attorney provided ineffective assistance of counsel for failing to ask her client about whether the client had been subject to female genital mutilation (“FGM”).
An attorney representing an asylum seeker has a duty to investigate all grounds upon which an applicant may be entitled to relief… [and must] inquire as to whether her female client has suffered female genital mutilation when (1) nearly 90 percent of women in the client’s home country endure such a brutal procedure, and (2) it is well-settled that female genital mutilation constitutes persecution sufficient to warrant a grant of asylum.
The Judge concludes by rejecting the majority’s reasoning that an attorney should not be required to inquire about something as personal as FGM:
The panel majority fails to recognize that most political asylum applications are intensely personal, often painful, and may involve questions of sexual torture, rape, and humiliation. It is entirely expected that clients may not want to readily reveal such circumstances to their attorneys. It is precisely because the subject matter of an asylum claim based on female genital mutilation is so intensely personal and our immigration system so complex that an attorney has a special responsibility to adequately explain to her female clients their rights to asylum and diligently investigate all grounds for relief. The panel majority’s decision allowing attorneys to forego investigating intensely personal facts in an asylum claim diminishes the attorney’s role in the asylum process. Our precedent tells us that competent attorney performance requires more. I believe that our court should instill a greater sense of professional responsibility in attorneys who represent asylum seekers.
It’s a powerful argument–and a cautionary tale for those of us who represent women from countries where FGM is widespread. If Judge Pregerson’s position were adopted, attorneys would be required to ask about FGM not just in asylum cases, but also for clients seeking other forms of relief. And we would–I suppose–be required to file FGM-based asylum applications for all clients who have been victims of the practice. I have mixed feelings about this.
An anti-FGM poster in Kenya.
One problem is that it takes considerable time to develop an asylum case; particularly a case based on FGM. For private attorneys, we would need to charge money for this time. For non-profit attorneys, more time on one case means taking fewer cases overall. Thus, fewer asylum seekers would be represented.
Another problem is that adding an additional claim for relief may weaken the overall case. It’s a question of strategy, but generally, if I have a strong basis for relief, I would rather not include a second, weaker claim for relief. The weaker application tends to distract from the stronger, and increase the odds that both applications will fail. Under the regime outlined by Judge Pregerson, I might feel obliged to include the FGM claim, even if I felt it would distract from the main focus of the case (if only for CYA–cover your ass–purposes).
On the other hand, if asylum might be available to a client based on FGM, the lawyer has a duty to at least explore that option. I think it goes too far to label an attorney “ineffective” for failing to file an FGM asylum claim, especially where the attorney determines that such a claim is not the best strategy for the case. However, where the attorney fails to ask about FGM when the client hales from a country where that practice is prevalent, there is a good argument that the attorney has provided ineffective assistance of counsel.
A recent article in the Baptist Press illustrates just how diverse the refugee advocacy community really is–and now, some pro-immigrant organizations have joined forces with an anti-Moslem, anti-gay hate group. The issue that has brought together this “coalition of religious, conservative, and human rights leaders” is the material support bar and the Obama Administration’s failure to adopt reforms to prevent innocent refugees from being classified as terrorists (I touched on this problem in a previous post).
Among the groups that joined together to call for reform are the Southern Baptist Ethics & Religious Liberty Commission, the Hebrew Immigrant Aid Society (HIAS), Human Rights First, Concerned Women for America, the National Association of Evangelicals, and the U.S. Conference of Catholic Bishops.
The group that really stands out to me is Concerned Women for America. Here are some quotes from their website:
In a time when families are struggling to pay their mortgages and utility bills, much less buy Christmas presents for their loved ones, the Smithsonian Institution, which is partly funded by American taxpayers, is promoting an exhibit that degrades Christianity and exalts homosexuality…. I urge Congress to swiftly take steps to defund the Smithsonian Institution for their reckless and inexcusable judgment in funding such a project.
On September 15, 2011, CWA will present an in-depth discussion with experts on America’s most important policy issue. This issue affects foreign policy, human rights and perhaps even our own system of law in the future. Come join us and our panel as we expose underlying tenets of Sharia Law and how it threatens our nation and your family.
Another measure that failed during the lame duck session was the DREAM Act, a back door amnesty bill that would grant automatic citizenship to the children of illegal immigrants, with “children” defined as anyone up to the age of 35.
So, CWA hates Moslems and DREAM Act children. They also hate gay people: the Southern Poverty Law Center notes that the organization’s founder “has blamed gay people for a ‘radical leftist crusade’ in America and, over the years, has occasionally equated homosexuality with pedophilia.” But the CWA supports reforming the material support bar for refugees, and is thus part of the broader coalition.
What’s surprising to me is that mainstream groups such as HIAS and Human Rights First–groups that I strongly support–would join together with a group like CWA. Maybe I am naive to think that reform can occur without a broad coalition, but it seems to me that some groups are simply beyond the pale. Don’t get me wrong–I greatly respect most of the groups that have joined together to call for reforming the material support bar. But I respectfully suggest that they should be more careful about who they partner with in the future. To me at least, the ends simply do not justify the means.
Mladen Todorovic is a gay man from Serbian who came to the United States in 2000. He applied for asylum in 2003, claiming to have endured several acts of persecution in Serbia on account of his sexual orientation. Some of the persecution was perpetrated by government officials. Mr. Todorovic was also persecuted by private individuals, but the government would not protect him. His asylum claim was filed late, and his case was referred to the Immigration Court.
The Eleventh Circuit rules against offensive gay stereotypes. Sorry Bruno.
In his decision, the IJ stated, “[t]he Court studied the demeanor of this individual very carefully throughout his testimony in Court today, and this gentleman does not appear to be overtly gay.” The IJ continued, “it is not readily apparent to a person who would see this gentleman for the first time that, that is the case, since he bears no effeminate traits or any other trait that would mark him as a homosexual.” In reaching his conclusion, the IJ again noted that Mr. Todorovic “is not overtly homosexual,” and, therefore, that there was no reason to believe he would be “immediately recognized” as gay.
The Eleventh Circuit first noted that “One clearly impermissible form of conjecture and speculation, sometimes disguised as a ‘demeanor’ determination, is the use of stereotypes as a substitute for evidence.” A number of other circuits have “rejected credibility determinations that rest on stereotypes about how persons belonging to a particular group would act, sound, or appear.”
The Court held:
As we see it, this so-called “demeanor” determination rests on wholly speculative assumptions made by the IJ; it is untethered from any evidential foundation; and it is thoroughly vague in its reference to “other trait[s]” that would mark the petitioner as a homosexual. Whatever else these offensive observations made by the fact-finder were, they were not credibility findings based on demeanor, but instead were driven by stereotypes about how a homosexual is supposed to look… The IJ’s comments elevated these ungrounded assumptions to demeanor evidence, and the IJ drew adverse inferences about the petitioner’s credibility and legal conclusions from them… These stereotypes most assuredly are not substantial evidence. They “would not be tolerated in other contexts, such as race or religion.” … We see no reason to tolerate them here.
The Court vacated the agency’s decision and remand the matter for a new hearing, “free of any impermissible stereotyping or ungrounded assumptions about how gay men are supposed to look or act.”
In a recent broadcast on San Diego Public Radio, Amita Sharma reports on Somali asylum seekers who “are taking a suspicious route” to the United States. This, at a time when “the Al-Qaeda-linked Somali Islamist group al-Shabab has threatened to attack the United States.”
The asylum seekers leave Somalia for Kenya, where they obtain false passports. From there, they travel to Cuba and then Central America, where they make their way to Mexico. In Mexico, they surrender to the authorities and receive an expulsion document, which allows them to travel through Mexico. The Somalis then enter the U.S. illegally and file for asylum.
According to the KPBS report, the Somalis have no identification and use the Mexican expulsion document–which is issued by the Mexican government based on the alien’s representations–as their ID when they apply for asylum. The fear, of course, is that these Somalis are terrorists coming here to attack our country. Federal agents say that the criminal background check performed on all asylum seekers is inadequate: “if they’ve never been to America, there won’t be any criminal record of them.”
I have represented many Africans who have traveled to the U.S. in a similar fashion. The route often takes them through different African countries, then to South America, Central America, Mexico, and the United States. They use one or more false passports and meet several different smugglers along the way. The trip is circuitous and strange, and it is not clear why people pass through so many different countries (my guess is that the smugglers can get more money if they make the journey longer).
Many of my clients have been instructed to surrender to the Mexican authorities in order to obtain the “expulsion document,” which they use to prove their date of entry into the United States (aliens are only eligible for asylum if they show that they filed their application within one year of arrival; the Mexican document demonstrates that they were in Mexico on the date that the document was issued). In my experience, the Mexican document does not–as the article states–prove the alien’s identity. To establish identity, we submit other documents, such as school and work records, a driver’s license or a birth certificate.
Nevertheless, people are crossing our Southern border and applying for asylum, and we do not know much about them. This certainly does present a security threat, but it must be viewed in context–Many more people cross the border, never claim asylum, and live here illegally. Given that asylum seekers undergo a background check (albeit imperfect) and government interviews (also imperfect), it seems that any terrorist would be better off entering the U.S. and not seeking asylum. Why initiiate contact with government authorities if you plan to engage in criminal activity?
I can imagine scenerios where a terrorist would come here and falsely claim asylum. However, given the level of government scrutiny involved, asylum is probably one of the least effective means for a terrorist to infiltrate our country.
The Court ultimately concluded that whether an alien submitted a frivolous asylum application is a “distinct question requiring a separate analysis.”
