Let’s Deny Asylum to Sick People!

by Jason Dzubow

Horace Walpole famously observed that the world is a comedy to those who think, and a tragedy to those who feel. That about sums up my view of the Trump Administration’s immigration policies: They are so ludicrous and so removed from reality that they would be funny if it weren’t for the fact that people are dying. The most recent proposed regulation neatly fits into this dichotomy; it is as absurd as it is harmful.

Using the pandemic as an excuse, the Administration proposes expanding an existing bar–applicable to aliens deemed a “danger to the security of the United States”–to deny asylum to “aliens who potentially risk bringing in deadly infectious disease to, or facilitating its spread within, the United States.” As usual, the main targets of this latest policy are aliens seeking asylum at the Southern border, but other applicants might be effected as well. Also, unlike some of the prior bans, this one specifically targets non-citizens seeking protection under the United Nations Convention Against Torture. 

Let’s start with the law. Under the Immigration and Nationality Act (“INA”), there are several “bars” to obtaining asylum. These bars prohibit granting asylum to aliens who (1) “ordered, incited, assisted, or otherwise participated” in the persecution of others on account of a protected ground; (2) were convicted of a “particularly serious crime”; (3) committed a “serious nonpolitical crime outside the United States”; (4) are a “danger to the security of the United States”; (5) are involved in terrorist-related activities; or (6) were “firmly resettled in another country prior to arriving in the United States.”

Gesundheit! That’s German for “Asylum Denied.”

Do you notice anything about these different bars? Except for number 6, they all involve people doing bad things. While “danger to the security of the United States” could theoretically be interpreted to include sick people, when considered in relation to the other bars, that interpretation doesn’t make a lot of sense. Indeed, there is a principle of statutory construction called ejusdem generis, which basically says that when you have a list that contains a vague term, you should interpret that term consistent with other items on the list. The BIA famously invoked ejusdem generis (and called it a “well-established doctrine”) in Matter of Acosta, when it interpreted the meaning of particular social group. So it seems more than a small stretch for the Trump Administration to define “danger to the security of the United States” in such broad terms, and we can hold out some hope that this provision will be struck down because it violates the INA (and, by the way, the proposed regulation invokes similar logic to try to block people from obtaining Withholding of Removal). 

Assuming the new rule goes into effect, what constitutes a danger to security? According to the proposed regulation, “In determining whether there are reasonable grounds for regarding an alien or a class of aliens as a danger to the security of the United States… the Secretary of Homeland Security may consider whether the alien exhibits symptoms consistent with being afflicted with any contagious or infectious disease or has come into contact with such disease, or whether the alien or class of aliens is coming from a country, or a political subdivision or region of that country, or has embarked at a place, where such disease is prevalent or epidemic.” So if an alien seems sick, or if she traveled through an area that the U.S. government believes contains an epidemic, she will be barred from asylum. Worse, this regulation gives the government the power to bar a “class of aliens” from asylum. Presumably, that would be aliens from a particular country, or who passed through a particular area.

While this rule applies to all asylum seekers, I suspect that if it is implemented, it will mostly affect those who arrive at the border (or an airport) and request protection. Such aliens undergo a credible fear interview (an initial evaluation of asylum eligibility). If the alien “passes” the credible fear interview, he can present his claim to an Immigration Judge, who then grants asylum, some other relief, or orders the person deported. Up until now, the asylum bars did not apply to credible fear interviews. However, under the proposed regulation, an alien subject to a bar would “fail” the credible fear interview and likely be deported. This means that if an alien comes from, or passes through, an area where an epidemic is prevalent, or if she appears sick, her request for protection in the U.S. will be automatically rejected. 

Let’s think about this for a moment. Under this new rule, if a person was imprisoned, beaten and raped due to her political opinion, and then she escapes her country, she will be denied protection in the United States and sent home simply because she traveled through an area that is experiencing an epidemic. Even if she herself is not sick! How nice.

One last element of this proposed regulation that I want to discuss is the rule related to Convention Against Torture (“CAT”) relief. Under the CAT, the U.S. cannot return a person to a country where he will be tortured. There are essentially no exceptions to this rule. But the proposed regulation seeks to change this–

If the alien makes this showing [that he is more likely than not to suffer torture in the home country], then DHS can choose in its discretion to place the alien in [Immigration Court] proceedings… or return the alien to a third country under appropriate standards.

In other words, when the alien arrives at the border to request protection, she must show that it is “more likely than not” that she will be tortured in the home country. This is a very high standard of proof for someone just arriving in the U.S. who likely does not understand the asylum system or have access to a legal counsel. Further, even if the alien somehow manages to demonstrate that she will be tortured in the home country, DHS can simply choose to send her to a third country (and this can happen–the Trump Administration has bullied or convinced Guatemala to accept some asylum seekers). Basically, we get to wash our hand of our responsibility to protect torture survivors.    

The only saving grace here is that this regulation is so poorly thought out that it is susceptible to a court challenge. Also, it seems to me that there is a much easier way to determine whether an asylum seeker is a “danger to the security of the United States” due to disease: Give him a test for that disease. If he is negative, there is no reason to bar him from asylum. If he is positive, maybe–I don’t know, this may sound crazy–help him get better. Treating human beings humanely. Sadly, it’s a novel concept in Trump’s America.

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The What and the Why of Torture Convention Relief

by Jason Dzubow

When a person applies for asylum, she generally seeks three different types of relief: Asylum, Withholding of Removal under INA § 241(b)(3), and relief under the United Nations Convention Against Torture.

CAT WOR

Of the three, asylum is the best–if you win asylum, you can remain permanently in the United States, you can get a travel document, you can petition to bring certain immediate family members to the U.S., and you can eventually get a green card and become a U.S. citizen.

But some poor souls do not qualify for asylum. Perhaps they filed too late, or maybe they are barred due to a criminal conviction or for some other reason. Such people may still be eligible for Withholding of Removal (“WOR”) under INA § 241(b)(3) or relief under the United Nations Convention Against Torture (“CAT”). I’ve written previously about the benefits (or lack thereof) of WOR. Today I want to discuss CAT: Who qualifies for CAT? How does it differ from asylum and WOR? What are its benefits?

To qualify for CAT, you need to show that it is “more likely than not” that you will face torture at the hands of your home government or by a non-state actor with the consent or acquiescence of the home government. If you fear harm from a terrorist group, for example, you likely cannot qualify for CAT, unless the group is controlled by the government or acting with government sanction.

Of the applicants who fear torture, there are basically two categories of people who receive CAT: (1) Those who are ineligible for other relief (asylum or WOR) because there is no “nexus” between the feared harm and a protected ground, and (2) Those ineligible for other relief because of a criminal conviction.

Let’s talk about nexus first. “Nexus” is a fancy word for “connection.” There has to be a nexus between the feared persecution and a protected ground. An alien may receive asylum or WOR only if she fears persecution on account of race, religion, nationality, political opinion or particular social group. In other words, if you fear that you will be harmed in your home country because someone hates your political opinion, you can receive asylum. If you fear harm because someone wants to steal your money, you probably don’t qualify for asylum, since common crimes do not generally fall within a protected category (I’ve written a critique about the whole nexus thing here).

In my practice, we sometimes encounter the nexus issue in cases from Eritrea. That country has a form of national service that is akin to slavery. People who try to escape are punished severely. However, fleeing national service does not easily fit into a protected category, and thus many Eritreans who face persecution for this reason cannot qualify for asylum or WOR. Such people are eligible for CAT, however, since the harm is perpetrated by the government and constitutes torture.

Now let’s discuss the other group that sometimes receives CAT–people with criminal convictions. Some crimes are so serious under the Immigration and Nationality Act (“INA”) that they bar a person from asylum or WOR. For example, if you murder someone, you can pretty much forget about asylum or WOR. Drug crimes are also taken very seriously by the INA, as are domestic violence offenses. In fact, there is a whole area of law–dubbed “crimmigration”–that deals with the immigration consequences of criminal behavior. Suffice it to say that certain convictions will block you from asylum and/or WOR, and it is not always intuitive which crimes are considered the most serious under the immigration law.

If you are ineligible for asylum or WOR due to a conviction, you will not be barred from CAT. The United States has signed and ratified the CAT, which basically says that we will not return a person to a country where she faces torture. So even the worst criminals may qualify for CAT relief.

So what do you get if you are granted CAT?

There are two sub-categories of CAT: Withholding of Removal under the CAT (which is different from WOR under INA § 241(b)(3)) and Deferral of Removal under the CAT. This means that the Immigration Judge will order the alien deported, but will “withhold” or “defer” removal to the country of feared torture. Of the two types of relief, Withholding is the more stable status. It is granted to people who do not qualify for asylum or CAT due to a nexus problem. It is also available to certain criminals, but not the most serious offenders. Deferral can be granted to anyone who faces torture in the home country, regardless of the person’s criminal history. Deferral is–theoretically at least–more likely to be revoked if conditions in the home country change. In practical terms, however, there is not much difference between the two types of CAT relief.

For both types of CAT relief, the recipient receives an employment authorization document (“EAD”) that must be renewed every year. The person cannot travel outside the U.S. and return. She cannot petition for relatives to come to the United States. She can never get a green card or become a U.S. citizen (unless she is eligible for the green card some other way).

CAT beneficiaries who are detained are not necessarily released. If the U.S. government believes that the person is a danger to the community or security of the United States, she can be kept in detention forever (in practical terms, this is pretty rare, but it is certainly possible).

Also, sometimes ICE harassers CAT (and WOR) beneficiaries by ordering them to apply for residency in third countries. ICE officers know very well that third countries are not clamoring to accept people who we want to deport, so essentially, this is a pointless exercise. When my clients are in this situation, I advise them to comply with ICE’s demands, and eventually (usually), ICE will leave you alone.

CAT relief is certainly better than being deported to a country where you face torture. But for many people, it does not offer the security and stability of asylum. I view CAT as a last resort. We try to get something better for our clients, but we are glad it is available when all else fails.

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Virginia Denies Driver’s Licenses to Refugees

by Jason Dzubow

The Washington Post recently did an article about my client Hirut Bekele who has Withholding of Removal and who has a valid Employment Authorization Document (“EAD”), but who was denied a driver’s license by the Virginia DMV.  As a result of losing her license, Ms. Bekele also lost her job and now she and her young daughter may become homeless.

I suppose the Virginia DMV figures that refugees are used to walking.

The Commonwealth of Virginia had issued driver’s licenses to people with valid EADs, but changed its policy after Carlos Martinelly-Montano, an illegal immigrant, killed a nun in a drunk-driving accident last summer.

The change affects not only people like Mr. Martinelly-Montano, who receive an EAD while his removal case was pending, but also people like my client, who have been granted Withholding of Removal. 

Withholding of Removal is a legal status granted to people who face persecution in their homeland, but who are not otherwise qualified for asylum.  In Ms. Bekele’s case, she received Withholding as a compromise with the DHS Trial Attorney; she had lived in Germany for a number of years before she came to the U.S., and her case was weakened by the fact that she did not seek asylum in Germany (she was married to a German citizen, but the marriage failed and she lost her status in that country).  Other people receive Withholding instead of asylum because they failed to file for asylum within one year of their arrival in the United States, or because they committed a crime rendering them ineligible for asylum. 

While asylum is the better form of relief (an asylee can get a green card after one year and eventually become a U.S. citizen), the legal standard to obtain Withholding is more difficult than for asylum.  This means that my client had to demonstrate by a preponderance of the evidence (i.e., a more than 50% likelihood), that she would be persecuted in Ethiopia.  An asylum seeker need only show a 10% chance of persecution to obtain asylum. 

The Virginia DMV’s excuse for refusing to grant Ms. Bekele a driver’s license is that her immigration status in “under review.”  I had a brief quote in the article on this point:

Because the federal government is technically required to keep trying to resettle her, said Jason Dzubow, a Washington lawyer who is helping Bekele, “I suppose one could argue that Hirut’s ability to remain in the U.S. is ‘under review’ because DHS can continue to look for a third country to send her to, but I have never heard of DHS removing someone like her to a third country [Withholding of Removal prevents removal only to the home country; not to a third country].”

Another part of my comment did not appear in the article, but I think it is relevant:

I do not see how the DMV can say that her “legal status” is under review – it is not.  She has been granted Withholding of Removal.  That order has not been appealed, and it is final.  There is nothing more to review.  It seems to me that her legal status–not some theoretical action that DHS might take [to deport her]–should determine whether Hirut is eligible for a driver’s license.  Her legal status is Withholding of Removal.  It is a permanent status, even if it does not guarantee that she can remain in the U.S. forever.

Thus, it seems unclear to me why Virginia is denying driver’s licenses to refugees like Ms. Bekele.  It is also unclear whether Virginia will face a lawsuit to force it to issue driver’s licenses to people with EADs.  My guess is that the lawsuits are coming.  Let’s hope so.

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DHS and Mentally Ill Respondents: Why Is the Fox Guarding the Hen House?

by Jason Dzubow

I recently learned about the removal case of mentally ill man from Africa.  Several years ago, the man was granted Withholding of Removal from his country because he faced persecution there.  His immigration case was recently re-opened after he committed a crime rendering him ineligible for Withholding.  He might still be eligible for relief under the UN Convention Against Torture, if he demonstrates that it is more likely than not that he would be tortured in his country.   

Based on an expert report, the Immigration Judge found that the man (who cannot be identified here) was not competent to represent himself.  At the IJ’s insistence, DHS appointed a custodian, an ICE Detention and Removal Officer.  At the hearing, the ICE officer failed to appear, so the IJ dismissed the case.  The IJ found that, because the alien could not represent himself, the absence of a custodian violated his right to due process of law.  DHS appealed and the case is currently before the Board of Immigration Appeals.

What concerns me is not the failure of the custodian to appear for the hearing (it seemed to be an honest mistake), but the fact that the custodian was an ICE Detention and Removal Officer.  Why is the person charged with physically detaining and removing the alien the same person who is supposed to represent the alien’s interests in court?  Clearly, something needs to be done.

According to the Immigration Policy Center, over the last year or so, DHS has been working with stakeholders to improve the situation for mentally ill aliens in immigration court.  Some issues are: (1) The absence of a formal mechanism to identify mentally ill aliens in immigration court; (2) Mentally disabled aliens are not appointed counsel in immigration court; (3) Aliens with mental disabilities cannot effectively represent themselves in court; and (4) Immigration judges have too many cases to effectively address the needs of aliens with mental disabilities.  Perhaps DHS will issue some standards to protect mentally ill aliens, though it is unlikely that the standards currently under consideration would satisfy advocates for the mentally ill.  (The Legal Action Center of the American Immigration Counsel has an informative website about this issue).

In the mean time, the BIA might take matters into its own hands.  In the pending case of Matter of L-T-, the Boards has requested briefing on issues related to mentally ill aliens in immigration court.  An amicus brief filed in this case by the Legal Action Center (formerly AILF) is available here.

Mentally ill aliens in immigration court face many difficulties.  At the minimum, we should try to ensure that their due process rights are protected.  As things stand now, that is not the case. 

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Amicus Brief on Sexual Violence as Torture in Argentine Case

by Jason Dzubow

Earlier this month, the European Center for Constitutional and Human Rights submitted an Amicus Brief titled Sexual Violence as Torture in several cases stemming from the military dictatorship in Argentina.

In a 1976 coup, the Argentine military seized power and ruled until 1983.  During those years, the government violently suppressed dissent.  As part of the repression, government officers committed sexual violence against women (and men).  These crimes were generally committed in clandestine detention centers as part of a systematic and deliberate plan, orchestrated within the highest government levels.  The Amicus Brief argues that these actions are crimes against humanity.  From the brief:

This amicus curiae brief is submitted in order to call the Court’s attention to the universal acceptance of sexual violence and rape – as a special form of it – as torture when committed by state agents in the context of military repression, when those actions are perpetrated as a part of an orchestrated plan of repression.  It is also important to note that an interpretation and application of the crime of torture excluding the gender perspective, and in this case, excluding the sexual violence would be discriminatory and would have a substantially negative impact on international law and international human rights law.

The brief states that in the present case, Argentina has the opportunity to “develop model case law that can assist the international community and other countries undergoing similar historical proceedings, based on the notion of state sponsored sexual violence against women as torture.”

The brief notes that international law concerning sexual violence is a relatively recent development: “When the International Criminal Tribunals for Former Yugoslavia and for Rwanda began their work, they encountered a lack of definition of sexual violence under international treaty and customary law and accordingly made great efforts to build a definition in accordance with international standards defining these crimes in such a way that they cover acts which were previously considered lesser offences, sexual assaults or indecent actions under national laws.”

The following principles have emerged from international humanitarian law: (1) Sexual violence is not limited to the sexual act of penetration, but could include other behaviors; (2) Rape may be understood as a serious crime of sexual violence; (3) Women as well as men can be victim of these crimes given that the established elements are gender neutral; (4) Coercion should be interpreted broadly, and not only in regard to physical strength, because there may be coercive circumstances in situations of abuse of power or psychological oppression, where it is not necessary to mediate physical strength; and (5) Coercion presumes a lack of consent on the part of the victim, thereby rendering the conduct illegal.

While the ECCHR Amicus Brief has been filed in a criminal case, the principles could be applied to asylum and Convention Against Torture claims, and help to establish that sexual violence is a form of torture.

I have a copy of the brief (English version), but it is not available on-line.  Feel free to contact me if you would like a copy.

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Third Circuit Grants Relief to Mentally Ill Respondent

by Jason Dzubow

In a long running case that has received attention in the Guyanese press, the U.S. Court of Appeals for the Third Circuit has reversed the BIA’s denial of Torture Convention relief for a mentally ill man from Guyana. See Soobrian v. Attorney General, Case No. 08-4626 (3rd Cir. July 23, 2010).

Ronald Soobrian came to the United States from Guyana in 1974 as a lawful permanent resident.  He was eight years old.  Over time, he developed a mental illness and was convicted of attempted assault, an aggravated felony, which landed him in removal proceedings.  Mr. Soobrian argued that if he were returned to Guyana, he would face persecution on account of his mental health, his status as a criminal deportee, and his Indo-Guyanese ethnicity.  His conviction made him ineligible for asylum (or any other relief), and so he sought Withholding of Removal and withholding under the United Nations Convention Against Torture (“CAT”).  He also asked for an indefinite continuance so that his competency could be determined. 

The IJ (in York, Pennsylvania) denied the motion for a continuance.  The IJ also denied the application for Withholding of Removal after he found that Mr. Soobrian did not face persecution “on account of” a protected ground.  However, he granted Ms. Soobrian’s application for CAT relief, finding that it was likely that the police would arrest and torture him due to his mental illness.

The BIA affirmed the denial of Withholding, but reversed the CAT grant, holding that there was “no evidence that the authorities intentionally create and maintain poor prison conditions in order to inflict torture.”  Mr. Soobrian filed a Petition for Review in the Third Circuit.  Based on an unopposed motion, the case was remanded “for consideration of whether the class of mentally ill persons is a ‘particular social group’ for purposes of withholding of removal and to clarify the standard of review used to decide whether Soobrian established that he was ‘more likely than not’ to be tortured if removed.”

On remand, the IJ held that “mentally ill persons” could constitute a particular social group.  However, he found that the government of Guyana did not persecute mentally ill people; at worst, the government neglected them due to lack of resources.  He also found no evidence that the government could not or would not protect such people.  As such, he denied Withholding of Removal.  Once again, the IJ found that Mr. Soobrian would face arrest and torture in Guyana, and he granted CAT relief.

On appeal, the BIA again affirmed the IJ’s finding vis-a-vis Withholding of Removal.  The Board did not rule on whether “mentally ill persons” constitute a particular social group.  Instead, the Board found that even if this were a cognizable social group, the evidence did not support a finding that the government persecutes such people on account of their mental illness.  The BIA again reversed the CAT grant, holding under a de novo standard of review that “the evidence was not alone sufficient to demonstrate that his prospective torturer will have the required specific intent of inflicting severe pain or suffering.” 

In his second Petition for Review, Mr. Soobrian raised several issues, including (1) whether the BIA improperly disturbed the IJ’s decision on Mr. Soobrian’s CAT claim by reviewing the factual findings de novo, and (2) whether Mr. Soobrian should have been granted a mental competency evaluation to determine if he understood the nature of the proceedings.

As to the CAT claim, the Third Circuit agreed with Mr. Soobrian and held that the BIA erred when it reviewed that claim de novo.  Whether or not Mr. Soobrian would face torture in Guyana is a mixed question of law and fact.  Under those circumstances, “the BIA must break down the inquiry into its parts and apply the correct standard of review to the respective components.”  Because the Board did not give proper deference to the findings of the IJ, the Court granted Mr. Soobrian’s Petition concerning the CAT claim.

The Court also held that Mr. Soobrian’s due process rights were not violated when the IJ refused him a continuance due to his mental health issues.  The Court reasoned:

Under our immigration laws, there is only a passing reference to an alien’s mental competency at a removal hearing.  If it is impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.

The Court ultimately found that Mr. Soobrian had received sufficient procedural protections.  In dicta (and relying on a Tenth Circuit decision), the Court also found that “the statute and the regulation facially appear to require no procedural safeguards if an unrepresented, mentally incompetent alien is nevertheless able to be present at his removal proceeding.” 

Fortunately for Mr. Soobrian, his family members were present at the hearing to assist him, and he seems to have been represented by excellent legal counsel.  Most mentally ill respondents will not be so lucky.  For such aliens, the minimalist procedural protections endorsed by the Third Circuit do not bode well.

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Charles Taylor’s Son Attempts to Invalidate the Torture Convention in Order to Save Himself

by Jason Dzubow

Attorneys who specialize in political asylum generally think of the United Nations Convention Against Torture (“CAT”) as a defense to deportation.  If an alien does not qualify for asylum, he may qualify for relief under the CAT.  But a recent Eleventh Circuit decision reminds us that the CAT is a sword as well as a shield.

Glamour shot of Chuckie Taylor

On July 15, 2010, the Eleventh Circuit upheld the torture convictions and 97-year sentence imposed on the son of former Liberian President Charles Taylor, who led a notorious paramilitary unit during his father’s bloody rule.  According to the Associated Press, the younger Taylor, Charles McArthur Emmanuel, also known as Chuckie Taylor is– 

a 33-year-old U.S. citizen born in Boston while his father was a student there, [and] was convicted in 2008 of torturing or ordering the torture of dozens of the Taylor government’s political opponents with numerous gruesome techniques. These included electric shocks; bayonet stabbing; burning with cigarettes, clothes irons, melted plastic and scalding water; shoveling of biting ants on people’s bodies; and imprisoning people in water-filled holes covered by iron bars.

For his crimes, which are detailed in the Eleventh Circuit’s decision, “Chuckie” Emmanuel was sentenced to 97 years in prison.  The Court notes that his was the first prosecution under the Torture Act and sets forth the basis for the appeal:

Emmanuel, who is the first individual to be prosecuted under the Torture Act, 18 U.S.C. § 2340-2340A (“the Torture Act”), seeks reversal of his convictions on the ground that the Torture Act is unconstitutional. Primarily, Emmanuel contends that congressional authority to pass the Torture Act derives solely from the United States’s obligations as a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (the “CAT”); he says the Torture Act impermissibly exceeds the bounds of that authority, both in its definition of torture and its proscription against conspiracies to commit torture.

So let’s get this straight, in an effort to avoid punishment for his crimes, Mr. Emmanuel–a man who tortured and murdered countless individuals–is attempting to limit or invalidate the CAT, a law used primarily to protect people who fear torture in their home countries.  Nice.  Fortunately, the Court soundly rejected his arguments:

After thorough review, we conclude that all of Emmanuel’s convictions are constitutional. The United States validly adopted the CAT pursuant to the President’s Article II treaty-making authority, and it was well within Congress’s power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture. Furthermore, we hold that… the Torture Act [applies] to extraterritorial conduct, and that [its] application in this case was proper…. Accordingly, we affirm Emmanuel’s convictions and sentence in all respects.

Mr. Emmanuel is currently serving his sentence in a federal prison in Kentucky.

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Two Unpublished BIA Victories for Mentally Ill Respondents

by Jason Dzubow

Here are two recent decisions from the BIA involving mentally ill defendants who faced persecution in their homelands:

(1) Professor Muneer Ahmad of the Yale Law School Worker & Immigrant Rights Advocacy Clinic reports that the BIA has reversed a decision by the IJ denying Convention Against Torture relief to a mentally ill Haitian man.  The Haitian man argued that he would be jailed in Haiti and that he would not receive his medication.  Without medication, the man would not be able to comply or adapt to the conditions in prison.  As a result of this non-compliance, he would be beaten and tortured in prison.  The BIA found that it was more likely than not that he would be tortured.  The Board’s decision reversed the IJ and remanded the case for a grant of CAT relief.  The student attorneys on the case were Alice Hwang, Dale Kotchka-Alanes, Rebecca Scholtz, and Matt Vogel.

(2) Attorney Bob Jobe represented the respondent in another unpublished BIA decision.  In that case, the Board originally denied the claim, but the Ninth Circuit remanded to assess whether “Peruvians with serious chronic mental disabilities” constitutes a particular social group.  On remand, the BIA held: “Mental disabilities are clearly immutable characteristics in that those suffering from them cannot change their disability. Furthermore, people with serious and chronic mental disabilities are socially visible and the evidence of record establishes that [in Peru] they are often discriminated against and treated in an inhumane manner.” 

Mazel Tov to all on these successful outcomes.

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A Short “Wish List” for the Refugee Protection Act

by Jason Dzubow

The RPA provides important new protections to asylum seekers, particularly the most vulnerable asylum seekers such as people who are pro se or detained.  However, I can think of a couple important issues that are not addressed.  Below are some problems that my clients have faced over and over again, and some suggested solutions.

The Asylum Clock 

The broken asylum clock isn't even correct twice a day

Within the circle of attorneys who represent asylum seekers, the “asylum clock” may be the most discussed problem in need of resolution (Penn State Dickinson School of Law recently issued a comprehensive report about the asylum clock). When a client files an affirmative application for asylum, the clock starts to run.  When the clock reaches 150 days, the applicant may file for an Employment Authorization Document (“EAD”).  The EAD is very important because it allows an asylum seeker to work legally in the United States, and serves as a form of identification.  The problem is, if the alien does anything to delay his case, the clock stops, and generally will not re-start.  So, for example, if an alien is represented by counsel, and the attorney cannot accept a particular court date due to a conflict, the clock stops and the alien never receives an EAD.  Also, when an unrepresented asylum seeker asks for more time to find an attorney, the clock stops.  It is usually impossible to restart the clock. 

Aliens who enter the United States without inspection or aliens who file for asylum after one year in the U.S. do not have a clock, and it is usually not possible for them to obtain an EAD.

Thus, many asylum seekers endure one to two year waits (which are common in Immigration Court) without the ability to work legally, and without any form of identification.

One possible solution to this problem is to give the Immigration Judges more authority to grant an EAD.  If the alien is deliberately causing delay in his case, the IJ should not grant an EAD.  But where the delay is not caused by the alien or is reasonable, the alien should receive an EAD.

Employment Authorization Document

A second area in need of reform is the EAD itself.  Aliens granted asylum, withholding of removal, or relief under the UN Convention Against Torture (“CAT”) are entitled to an EAD.  The EAD is valid for one year and must then be renewed.  The validity period of the EAD should be changed to at least two years.

Aliens with asylum generally apply for their lawful permanent residency (i.e., their green card) after one year.  However, aliens who have withholding of removal or CAT relief are not eligible to become LPRs.  Such aliens must renew their EADs every year.  This can be problematic for a number of reasons.  First, the cost to renew is $340.00 every year.  For aliens with limited means, this sum may be prohibitive.  Second, assuming the alien remembers to file on time, the new EAD may or may not arrive prior to the expiration of the old EAD.  If the new EAD does not arrive in time, the alien’s job might be jeopardized, as employers will often terminate employees without a valid EAD.  Third, many states link the driver’s license to the EAD, so when the EAD expires, the driver’s license expires.  Even if the EAD arrives on time, there may be a delay in renewing the driver’s license.  The alien could be left without a valid driver’s license (or any valid ID).

These problems would be greatly reduced if the EAD were valid for two (or more) years, instead of one year. 

Finally, Some Media Attention

The RPA has been largly ignored by the media.  Last week, Josh Shahyar had an article in the Huffington Post, “The Immigration Bill No One Is Talking About.”  Hopefully the article adds some momentum to the push for this worthy piece of legislation.

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BIA Grants CAT to Mexican Drug Informant

by Jason Dzubow

In Matter of Ramirez-Peyro, an unpublished decision dated March 18, 2010, the BIA finalized a grant of Convention Against Torture relief for a Mexican drug informant, Guillermo “Lalo” Ramirez-Peyro.  The BIA held:

In the absence of a showing that the Mexican government has succeeded in its efforts to curtail corruption in law enforcement, the respondent has proven that he more likely than not would be tortured upon removal by or with the acquiescence of a public official of the Mexican government.

Of the successful outcome, Ramirez-Peyro’s attorney, Jodi Goodwin, writes:

Guillermo Ramirez-Peyro

 The BIA FINALLY dismisses the DHS’ appeal.  The matter was remanded for the purpose of updating law enforcement/ security checks and the entry of an order.  The decision does not leave open any further fact finding and finally is a determination by the BIA of the Department of Justice that Lalo should be granted Convention Against Torture protection.  This is a super-huge victory that has been 5 long years in the making.  At this point, Lalo is protected from being removed to Mexico where he will be tortured and killed.  The next step in Lalo’s legal plight will be to attempt to force the government to finally release him from the solitary confinement he has endured for 5 long years.  Lalo was happy to hear of the decision today when I spoke with him, however does not understand the ultra-huge legal victory as it pales in comparison to the suffering  he has endured at the hands of the [United States] government in solitary confinement over these years.

A link to the unpublished decision is available here.  Some background on this fascinating case is available from the Washington Times and National Public Radio.

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