An Immigration Judge in Boston granted asylum to President Obama’s aunt Zeituni Onyango, a Kenyan national who has been in the U.S. since 2000. Ms. Onyango first applied for asylum in 2002. She was initially denied, but then either appealed or reopened her case (I have found nothing definitive about the course of the litigation). Earlier today, the IJ granted her application for asylum.
Obama's aunt holds a photo of herself and a little-known state senator
At least as far as I can tell, the basis for Ms. Onyango’s claim has not been made public. My guess is that after Obama was elected president (or at least after he became nationally and internationally known), Ms. Onyango filed a motion to reopen her case and asserted that she would face persecution from people who wished to harm her family (the Obama family). Given the various threats to our country, this seems a reasonable claim. Although perhaps the possibility of her facing harm in Kenya is remote (Obama’s grandmother is living there peacefully), it’s easy to understand why an IJ would be reluctant to send her back. She would make a tempting target for extremists, and it would be a blow to the U.S. if she were harmed. Under these circumstances–and given the fairly low threshold for asylum–it’s not a surprise that the IJ granted Ms. Onyango’s claim.
Professional Obama-hater Michelle Malkin and others have raised the question of whether Ms. Onyango received special treatment because of her relationship with the President. Of course, I have no idea (and neither do they), but special treatment hardly seems necessary in a case like Ms. Onyango’s. I once represented an Afghani woman who received a fellowship to study in the United States. A university brought her here and supported her, and the local press covered her progress for four years. Towards the end of her fellowship, extremists in her country threatened her, and we applied for asylum. I argued that she was a prime target for anti-American extremists because of her relationship with our country–had she been harmed in Afghanistan, it would have been seen as a major victory for our enemies. The Asylum Office granted her application. Ms. Onyango’s situation was similar to my client’s, in that our enemies would view an attack against her as an attack against the United States. Not surprisingly, the IJ was not willing to take that risk.
Biao Yang probably isn’t the first man to tell an exaggerated story about his courage in defense of a woman’s honor. Similarly self-aggrandizing stories have no doubt been told in countless bars and around hundreds of water coolers.
Narrative license of this sort usually carries little risk. A drinking buddy or co-worker might express disbelief by making reference to bovine excrement.
But the personal consequences of Yang’s embellishments are far more serious, as they will likely result in his deportation and the imposition of a lifetime bar to future immigration benefits. The consequences of Yang’s narrative excesses also had a broader effect, as they were the focus of a recent BIA decision that added to the administrative corpus of immigration law by clarifying the standards under which asylum claims are determined to have been made frivolously.
TOUGH GUY
Yang, a Chinese national, arrived in Chicago in 2002. After touching down, he told immigration officials at O’Hare that he had fled his country because “family planning authorities” – bureaucrats tasked with enforcing the country’s “One Child” policies – had forced his girlfriend to abort her pregnancy and that they wanted to arrest him.
Poster extolling the virtues of the one child policy
The embellishments would come in an asylum application filed 18 months later. In that application, Yang asserted that he got into a scuffle with and injured one of the abortionist bureaucrats who had come to his house to escort his girlfriend to the hospital. He further claimed to have been beaten and detained for his fearless acts. And then he claimed that he made a prison break and left the country.
IJ DECISION AND SECOND CIRCUIT REMAND
None of these details had been mentioned during the airport interview, however. This and other suspicious aspects of Yang’s story – including chronological discrepancies , “rank inconsistencies” within his testimony, and the sheer “implausibility” of his prison-break story – led an immigration judge to render an “adverse credibility determination.”
The result was denial of Yang’s asylum claim. But the IJ further held that these inconsistencies indicated that Yang’s asylum claim had been filed frivolously – which resulted in the imposition of a lifetime bar to future immigration benefits.
The IJ’s decision was affirmed by the BIA. However, the U.S. Court of Appeals for the 2nd Circuit remanded because the case exposed vagueness in the existing BIA standard for making a “frivolousness” determination. Those standards included:
[A] specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application … [and] … sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated
The Second Circuit examined:
to what extent the IJ is required to set out his or her factual findings to support a frivolousness determination separately from the adverse credibility determination and to what extent he or she is permitted to incorporate by reference the findings made to support an adverse credibility determination.
Factual findings made in reaching an adverse credibility determination can be incorporated into the findings made in reaching a frivolousness determination … but will not be sufficient … the frivolousness determination requires additional, explicit findings of “materiality” and “deliberate fabrication.”
The BIA stated:
In this case, as is often the situation, fact-finding regarding credibility overlaps with fact-finding as to whether an asylum application was frivolously filed. Both determinations involve the identification of inconsistencies and discrepancies in the asylum claim and consideration of any explanations offered for them. There may be circumstances where the pertinent facts do not overlap, and separate factual findings by an Immigration Judge will be necessary.
However, neither fairness nor clarity requires an Immigration Judge to separate and repeat those aspects of the credibility determination that overlap with the frivolousness determination.
… The frivolousness determination, however, requires explicit findings as to “materiality” and “deliberate fabrication” that are not required for an adverse credibility determination. As we indicated in Matter of Y-L-, 24 I&N Dec. at 156, “[T]he Immigration Judge must separately address the question of frivolousness, including a discussion of the evidence supporting a finding that the respondent deliberately fabricated a material element of the asylum claim.”
This is part four in a series of posts about the Refugee Protection Act (“RPA”), a bill introduced by Senators Leahy and Levin in the United States Senate. The RPA would modify the requirements for asylum by changing the requirement that a “central reason” for the persecution is a protected ground.
In order to qualify for asylum, an applicant must demonstrate a well-founded fear of persecution based on a protected ground (race, religion, nationality, political opinion, particular social group). The REAL ID Act (effective May 11, 2005) modified this definition, and the law now requires that “at least one central reason” for the persecution must be a protected ground. The BIA found that this new requirement did not “radically alter[]” existing law. See In re: J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007).
While the law may not have been radically altered, the REAL ID Act makes it more difficult for asylum seekers to obtain relief. I worked on a case in the Fourth Circuit (ably litigated at the agency level by the University of Maryland Law School Clinic) where an El Salvadoran man had been repeatedly harassed and beaten by members of the MS-13 gang. The gang attacked him for several reasons: (1) they did not want him to date a certain girl; (2) they wanted to steal his money; and (3) they did not want him to attend the Seventh Day Adventist Church. The Immigration Judge (“IJ”) specifically found that the harm faced by the asylum seeker rose to the level of persecution, and she told him: “I think you are in a terrible situation and I could not have more sympathy for you.” However, both the IJ and the BIA found that the “central reasons” for the persecution were that the gang did not want my client to date the girl and the gang wanted to rob him–these are not protected grounds. The BIA found that “even assuming… religion was one motive, we do not find his religion to be ‘at least one central reason’ for the persecution.” The Fourth Circuit agreed and denied our Petition for Review. See Quinteros-Mendoza v. Holder, 556 F.3d 159 (4th Cir. 2009).
What motivates this guy?
The difficulty in Quinteros-Mendoza was that the IJ had to determine the motivation of the gang members. It is difficult enough to establish the motivation of a persecutor, let alone to rank that motivation as “one central reason” for the persecution. The RPA would relax this requirement. The law would be changed so that the applicant must prove only that a protected ground is “a factor in the applicant’s persecution or fear of persecution.”
Where an asylum applicant faces persecution, he should not be required to demonstrate the motivation for his persecutor’s actions with such specificity. The RPA would correct this problem.
Sometimes it seems that the purpose of the ICE Detention and Removal Office is to make life so miserable that people would rather return to a country where they fear persecution than remain any longer in the United States. At least that is what the DRO has been doing to one of my clients. Here’s the story:
My client worked for her country’s government at an international organization in the United States. She was politically active in favor of an opposition party. Once her superiors learned about her activity, they ordered her to report to the home office. She feared–for good reason–that her government planned to arrest her upon her return, and so she filed for political asylum.
The Asylum Office referred the case to an Immigration Judge because the client had not filed for asylum within one year of her arrival in the U.S. (she had been working here for several years before she filed for asylum). At that point, she hired me, and we prepared a case for the IJ. I planned to argue that the client’s failure to file for asylum within one year should be excused by “changed circumstances” in her case, but I knew this argument was weak.
When we arrived in court, the DHS Attorney said he would agree to Withholding of Removal under INA 241(b)(3). An alien who receives Withholding of Removal cannot be removed to the country where she fears persecution. She is entitled to a work permit, which must be renewed every year, but if she leaves the U.S., she cannot re-enter. I had already discussed the possibility of Withholding with my client, and she agreed. In fact, she was relieved to avoid a trial. With the consent of DHS, the IJ granted Withholding of Removal.
A few years later, my client is still here. She is working hard and trying to make a life for herself.
Recently, however, DRO has begun an effort to force her to relocate to a third country. Why they have chosen my client for this attention, I do not know. She has no criminal history and she is employed, and the DHS attorney and the IJ both agreed that she faces persecution in her home country.
The DRO has the legal authority to remove my client to a third country: Withholding of Removal protects an alien from removal to the country where she fears persecution, but it does not prevent ICE from removing her to another country. Thus, every month for the last few months, DRO has made my client report to their office. For the client, this means losing a day of work (and having to make excuses to her employer), waiting for hours, and then receiving a lecture about how she will be deported, how the DRO has “power” over her, how they can make her report every month, every week or every day; in short, how they can disrupt her life to the point where she can no longer remain in the U.S. They leave her with instructions to find a visa to a third country, and to report back about her efforts to get a visa. The repeated threats from the DRO officers are the worst part. They terrorize and demoralize the client, who, of course, has no where else to go.
My client has dutifully contacted different embassies, none of which offer her a visa. More stress and wasted time. She and I both know that no country will offer her residency. The DRO officers know it as well. Yet they persist in their efforts to make her keep looking. As a result, my client is depressed and fearful, she may lose her job due to the frequent absences (to report to DRO and to visit embassies), and she has no certainty about her future in this country.
I suppose I should not speculate about the motivation behind the DRO officers’ actions, but I can clearly see the results of their behavior: They are harming a person who has been granted protection by our country. And to me, that is a disgrace.
This is part three in a series about the Refugee Protection Act. The RPA provides guidance about what constitutes a “particular social group.”
A refugee is defined as a person with a well founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group. See INA § 101(a)(42)(A). There has been much litigation concerning what constitutes a “particular social group.”
The Refugee Protection Act provides helpful guidance on what constitutes a “particular social group.” The RPA states:
For purposes of determinations under the Act, any group whose members share a characteristic that is either immutable or fundamental to identity, conscience, or the exercise of the person’s human rights such that the person should not be required to change it, shall be deemed a particular social group, without any additional requirement.
While this provision makes the definition of “particular social group” more specific, it still leaves open at least one important question: Will the definition of “particular social group” apply to former members of criminal organizations? In the Seventh Circuit case, Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), the court held that former gang members might constitute a particular social group. If the Refugee Protection Act defines a “particular social group” as “any group whose members share a characteristic that is… immutable,” then former gang members would qualify as a particular social group. Current–as opposed to former–gang members would not qualify as a particular social group because gang membership is not immutable. In other words, it is possible to quit the gang. Former gang membership is immutable, because it is not possible for an alien to change the fact that he once belonged to a criminal gang. Under the RPA, it seems that a former member of any organization would be part of a particular social group
Ex-members of the knitting circle form a particular social group
Even if former gang members constitute a particular social group, they would likely be ineligible for asylum based on criminal and security-related grounds.
I have worked on several cases where former gang members feared persecution by gangs. In one case, several members of my client’s family had been killed. My client was granting withholding of removal based on his particular social group (his family; not his former gang membership). In another case, my client was denied relief where the IJ found that he did not belong to a particular social group. In both cases, the clients faced harm from the gang because they quit the gang. The danger of gang violence against former gang members is very real. In a well known case, Edgar Chocoy, a 16-year-old former member of the MS-13 gang, was ordered removed from the United States. Shortly after he returned to Guatemala, gang members murdered him.
The Refugee Protection Act should provide protection for former gang members who face harm in their countries. While we must be cognizant of security concerns (and of offering benefits to criminals), we must also recognize the severe threat faced by legitimate former gang members.
This is part dieux in our series of posts about the Refugee Protection Act. Today’s topic is the “Material Support Bar,” INA § 212(a)(3)(B)(iv)(VI), which states that an alien who commits an act that he “knows, or reasonably should know, affords material support” to a terrorist organization is inadmissible. As written, the law makes no exception for instances where the alien has been coerced into providing support. The RPA would change that.
About a year ago, I represented an elderly Iraqi Christian woman who had received threats from unknown people seeking to extort money. The people threatened to murder her son. As a result of the threats, and in order to save her son, the women gave money to the extortionists. Given that these people were likely terrorists, the woman faced a bar to obtaining asylum in the U.S. We relied on a USCIS memorandum, which allowed for limited exceptions to the material support bar in the case of duress, and the woman received asylum. A pro se applicant might not have access to that memorandum, and might not be able to relate the relevant facts necessary to meet the exception to the material support bar.
The Refugee Protection Act creates an exception to the material support bar for people who have been coerced to provide material support to terrorists. This would reduce or eliminate the problem of denying asylum to people who have been victimized by terrorists.
The Refugee Protection Act of 2010 is currently working its way through Congress. The proposed law makes some pretty significant changes to the asylum laws of the United States. Most advocacy groups are endorsing the bill, though it seems not to have captured the attention of the mainstream media. As an attorney who represents asylum seekers, I thought I would share my perspective on the legislation by examining how it would have affected some of my cases had it been the law. The RFA (or at least my copy of the RFA) is 78 pages long, so there is a lot to discuss. So this will be the first part in a series of posts about the RFA. Today’s topic: The Refugee Protection Act of 2010 eliminates the requirement that an asylum seeker files for asylum within one year of arrival in the United States.
The current law puts the "dead" in deadline
INA § 208(a)(2)(B) states that in order to qualify for asylum an alien must demonstrate by “clear and convincing evidence that the application [for asylum] has been filed within 1 year after the date of alien’s arrival in the United States.” If the alien fails to timely file for asylum, he or she will not qualify for that relief, but may still apply for withholding of removal pursuant to INA § 241(b)(3) or relief pursuant to the UN Convention Against Torture (“CAT”).
For aliens represented by competent counsel, it is often possible to demonstrate “changed circumstances” or “extraordinary circumstances,” either of which can excuse the one year filing deadline. See INA § 208(a)(2)(D). In my own practice, I have encountered many cases where the alien has not filed within one year of arrival. In most cases, we have been able to demonstrate “changed circumstances” or “extraordinary circumstances,” and the alien has qualified for asylum.
For aliens who are unrepresented, the one-year bar presents a barrier to legitimate claims. The purpose of the bar is to help eliminate fraudulent claims. However, there are legitimate reasons why an alien might fail to file for asylum within one year of arrival in our country. Some examples:
Avoidance – I had one case where a political activist from Zimbabwe was arrested and then raped by the police. After she came to the U.S., the psychological trauma the alien suffered caused her to avoid re-visiting the events in her country (which would have been necessary in order to prepare her asylum application). As a result, she did not complete the asylum application within one year. The Asylum Office denied her case because she failed to file for asylum within one year of her arrival (she was pro se), and her case was referred to an Immigration Judge (“IJ”). The IJ ultimately granted asylum (with the agreement of the DHS attorney) after we demonstrated that the alien’s failure to file within one year was due to “extraordinary circumstances,” i.e., the psychological trauma of her rape, and the resulting avoidance of re-visiting those events. Had this alien been unrepresented, she might not have been able to demonstrate that she qualified for an exception to the one-year rule.
Alternative Relief – I represented a man from a prominent family in Peru. After a change in government, the man received anonymous death threats and was followed by unknown people. He came to the United States, but did not file for asylum because he expected to obtain his residency based on marriage to a U.S. citizen. The marriage did not succeed, so he applied late for asylum. He was not represented by counsel. The Asylum Office referred his case to the IJ based on the failure to comply with the one-year filing requirement. As a compromise, the DHS attorney and the IJ agreed to grant of withholding of removal under INA § 241(b)(3). As a result, the alien has been able to remain in the U.S., but he repeatedly had to appear before the Detention and Removal Office, officers in that office improperly threatened to remove him to a third country, and he has had to renew his work permit every year, which makes it difficult to maintain employment. If he marries a U.S. citizen, he could re-open his case and obtain his residency based on the marriage.
Changed Circumstances & Other Obligations – In another example, I represented a Tuareg woman from Niger who feared return to her country after the government began a war with the Tuareg people and after her grandmother was killed by a land mine. The woman, who represented herself, failed to file for asylum within one year because (1) the conflict was dormant when she first arrived in the United States, so she did not fear return, and (2) she was the primary caretaker for her father, and was too occupied to prepare her case. Her sister, who had the exact same case and also filed late, received asylum from the Asylum Office. My client’s case was referred to the IJ, and after much discussion, the IJ and the DHS attorney agreed to a grant of asylum.
In the above examples, the one-year bar resulted in wasted judicial resources and hardship for legitimate asylum seekers. Had these aliens been unrepresented before the IJ, their cases would likely have been denied (all the cases were denied by the Asylum Office, where the aliens were without representation). Thus, these aliens—who were later determined to be legitimate refugees—were initially denied asylum solely because they had not complied with the one-year filing requirement for asylum. Had they not been represented before the IJ, these aliens likely would have been ordered removed to countries where they faced persecution.
The Refugee Protection Act would eliminate the one year filing deadline, and would protect legitimate asylum seekers such as the aliens discussed above.
Maybe I need a vacation, but I keep coming back to the Commonwealth of the Northern Mariana Islands – the United States’s possession (technically a commonwealth in political union with the U.S.) that adopted the Immigration and Nationality Act on November 28, 2009.
Among the strange new laws in this remote corner of the Pacific is the provision that aliens seeking asylum in the CNMI cannot do so until January 1, 2015. In the interim, aliens fearing persecution can apply for withholding of removal under INA § 241(b)(3) or the United Nations Convention Against Torture. Chief Immigration Judge Brian M. O’Leary has issued a memorandum discussing the transition to the INA. Chief Judge O’Leary points to a number of “novel” legal issues that might arise:
There may also be a variety of issues involving the provision that aliens “physically present in or arriving in” the CNMI cannot apply for asylum until January 1, 2015. For example, the law is silent on whether an alien who transited through the CNMI en route to another area of the United States is barred from applying for asylum until January 1, 2015. Other issues may involve what type of legal status aliens who have previously been granted refugee protection under CNMI law are entitled to.
These issues and others seem like fertile ground for litigation. Maybe we will revisit the Mariana Islands soon.
A recent decision by the Ninth Circuit reveals how attorney error can destroy an alien’s asylum case.
In Singh v. Holder, No. 08-70434 (9th Cir. April 19, 2010), the Ninth Circuit concluded that an IJ may require corroborating evidence even where an alien has testified credibly. In the underlying case, the question before the IJ was whether Mr. Singh had filed for asylum within one year of his arrival in the United States (in general, an alien who does not file for asylum within one year of arriving in the U.S. is ineligible for asylum). The IJ found that Mr. Singh testified credibly about his arrival date in the U.S., but the IJ concluded that Mr. Singh had failed to prove his entry date by “clear and convincing” evidence because he did not submit any additional evidence of his entry date.
The Ninth Circuit found that the IJ could require corroboration of the entry date. The Court held:
With section 1158(b)(1)(B)(ii) [the REAL ID Act], Congress has expressly empowered the IJ to require corroborating evidence even when the applicant has provided otherwise credible testimony. Should the applicant fail to offer corroboration, the IJ may conclude that despite the applicant’s credible testimony, he has failed to meet his burden of demonstrating that he is entitled to asylum relief. Accordingly, the IJ’s conclusion that Singh’s uncorroborated testimony was insufficient to carry his burden to prove his date of entry was proper.
This result is not that surprising. The REAL ID Act, which went into effect on May 11, 2005, provides that, “Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” In Singh, the Court concluded that evidence corroborating Mr. Singh’s entry date was readily available:
This is the sort of fact which is “easily subject to verification,'” whether by some form of official documentation or by supporting documents of a more informal variety, i.e., affidavits or letters from family, friends, or traveling companions.Travelers typically accumulate paper as they move, such as receipts from gas stations, motels, and restaurants, and often take snapshots providing dating information, and reaching a refuge from persecution might well generate a particular desire to preserve souvenirs of arrival. Accordingly, it is eminently “reasonable to expect” an applicant to provide some corroborating evidence of his date of entry
While I am not sure I agree that people fleeing persecution “typically accumulate paper as they move,” Mr. Singh should at least have tried to get evidence concerning his entry. Had he made an effort to obtain corroboration, he would likely have satisfied the REAL ID Act’s requirement to either obtain the evidence or demonstrate that the evidence is not reasonably available.
The REAL ID Act went into effect in 2005. According to the Ninth Circuit decision, the IJ informed Mr. Singh’s counsel at an initial hearing to obtain evidence concerning the date of entry. Either Mr. Singh’s attorney asked his client for the evidence or he did not. If he asked and Mr. Singh failed to make any effort to obtain the evidence, then Mr. Singh is to blame for the loss. If the attorney failed to instruct Mr. Singh to get evidence, then the attorney is to blame.
The Montreal Gazette reports that Canada will offer incentives to persuade rejected refugee claimants to leave the country. The measure is part of a comprehensive overhaul designed to speed up the refugee-determination process, mired in a 60,000-person backlog. Immigration Minister Jason Kenney said “We’re going to try to use carrots instead of sticks,” and said the Canadian government would provide allowances of up to $2,000 to asylum-seekers whose claims are rejected.
A rejected Canadian asylum seeker?
The Canadian government hopes to decrease the average departure time for failed refugee claimants from 4.5 years to two years. Mr. Kenny states that the new measure would help prevent fraud: “The longer the queue, the more false claimants come,” he said.
Similar programs in Britain and Australia have dramatically improved compliance with deportation orders, said Kenney, who acknowledged he was initially skeptical about subsidizing rejected refugee claimants.
Whether or not a similar plan would work in the United States, it seems unlikely that there exists the political will to pay rejected asylum seekers to leave our country, even if this might be cheaper than rounding people up and deporting them.
As drug and gang violence in northern Mexico increases, KOB News reports that terrified resident–and even police officers–are fleeing across the border:
The police chief of a Mexican border town has requested asylum in the United States, where he told authorities his two officers have fled and he does not know their whereabouts. The Luna County Sheriff’s Department and the U.S. Border Patrol say Emilio Perez of Palomas came to the port of entry at Columbus late Tuesday night, requesting political asylum.
In a related story, Fox Newsreports, “At least 30 residents of El Porvenir, located about four miles from the Texas border town of Fort Hancock, have crossed into the U.S. and asked for political asylum, telling authorities that they fear for their lives.”
Violence in Mexico seems to be spiraling out of control. For this past Tuesday, the total 24-hour death toll for Tamaulipas was 18 people killed and four injured in the latest round of violence throughout the state.
Asylum claims in connection with activities of organized gangs have recently come to the fore in different parts of the world. The purpose of this Guidance Note is to assist adjudicators with the assessment of such claims and to ensure a consistent interpretation of the refugee definition. It presents a brief overview of gangs and their practices, as well as a typology of victims of gang-related violence. The Note also contains a brief analysis of the international legal framework, and builds on jurisprudential developments.
I worked on a gang case a few years ago where the Immigration Judge granted my client withholding of removal. I think what impressed the Judge was the extreme violence of the gang (MS-13), and the real possibility that my client would be harmed or killed if he returned to his country.
On March 26, 2010, the Board of Immigration Appeals issued a published decision in Matter of H-L-H- & Z-Y-Z, 25 I&N Dec. 209, Interim Decision # 3676 (BIA 2010). In that case, the IJ granted asylum to a couple from China who feared persecution / forced sterilization. DHS appealed. The Board sustained the appeal and ordered the couple removed to China. Some key points from that decision:
While the Immigration Judge’s findings of fact are reviewed under the “clearly erroneous” standard, the question whether the facts are sufficient to establish that the respondent has a well-founded fear of persecution upon return to China is a legal determination that we review de novo.
Determining whether a fear of what may happen in the future is well founded essentially involves predicting future events, and “it is impossible to declare as ‘fact’ things that have not yet occurred.” … We therefore review de novo the question whether the respondent has carried her burden of establishing a well-founded fear [of future persecution].
In order to determine, under de novo review, whether specific facts are sufficient to meet a legal standard such as a “well-founded fear,” the Board has authority to give different weight to the evidence from that given by the Immigration Judge…. This authority is critical to permit the Board to determine whether the facts as found by the Immigration Judge meet the relevant legal standard….
State Department reports on country conditions, including the Profiles of Asylum Claims & Country Conditions, are highly probative evidence and are usually the best source of information on conditions in foreign nations.
The Board seems to have discounted letters and news articles that did not accord with the State Department reports on China. While it is understandable that the BIA would give significant weight to reports from the U.S. government, it seems a bad precedent to minimize evidence that may be more specific to the asylum seekers’ circumstances.
In In re C-T-L, the BIA invited amicus curiae briefing on the question of whether the “one central reason” standard adopted by the REAL ID Act, and indisputably applicable in asylum cases, also applies to withholding of removal cases. Engaging in a comprehensive statutory interpretation analysis, AILA’s amicus brief [available to AILA members only] demonstrates that this standard does apply to withholding cases.At the same time, AILA urges the BIA to reconsider an earlier precedential asylum case that unlawfully restricts the meaning of the “one central reason” standard. Unfortunately, AILA is not alone as amicus. The anti-immigrant Federation for American Immigration Reform (FAIR) submitted an amicus brief which argues for the opposite result, although without the same thorough analysis found in AILA’s brief [ed. note: we cannot comment on the quality of the FAIR brief, since it is not available on the internet].
Last month, the BIA also heard oral argument in another asylum case in which the Northwest Immigrant Rights Project (NWIRP), the Immigration Council, and AILA all participated as amici. There, the BIA was concerned with whether, under National Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (Brand X), it could refuse to follow Ninth Circuit precedent that sets forth the “disfavored group” analysis for asylum cases. At oral argument, counsel for NWIRP (Matt Adams), representing amici, explained how the disfavored group standard arises directly from the asylum statute itself and is an entirely reasonable doctrine, not inconsistent with the case law of the other circuits. For these reasons, amici argue that the Board must apply this standard in cases arising in the Ninth Circuit.
Given the glacial pace of the BIA, don’t expect a decision any time soon on these cases.
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.
Asylum in the United States is meant to be a confidential process. However, it is not uncommon for the BIA and the federal circuit courts to identify asylum seekers by name in their decisions, and to describe the applicants’ claims of persecution. We lawyers sometimes wonder whether anyone in the home country ever learns about such cases.
In a recent example from the Ninth Circuit, a Cambodian couple was denied asylum before the Immigration Judge and the Board of Immigration Appeals. They filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit, which was denied. See Kin v. Holder, No. 05-73079 (9th Cir. Feb. 18, 2010). Someone in Cambodia was paying attention, and the case recently appeared in the English language Phnom Penh Post:
Two Sam Rainsy Party (SRP) members who say they were tortured by authorities after participating in a 1998 political rally have had their bid for political asylum in the United States blocked by an appeal court there. In a legal opinion filed on Thursday, Judge Richard C Tallman of the US Court of Appeals for the Ninth Circuit upheld an earlier ruling by the Board of Immigration Appeals (BIA) rejecting the pair’s asylum requests, saying their asylum claim was riddled with inconsistencies.
The article goes on to identify the couple by name, and to describe their claims of persecution in detail. The article concludes:
Senior CPP [Cambodian People’s Party – the ruling party of Cambodia] lawmaker Cheam Yeap could not confirm or deny the validity of the allegations raised by Kin Sambath and Prak Bunnary, but stated that peddling falsehood was not uncommon for the opposition. “It is characteristic of the SRP that they raise untrue issues because they want to live in a third country,” he said.
Now that the Ninth Circuit’s decision has exposed the names and stories of the two asylum seekers and a “Senior CPP lawmaker” is aware of their claims, they may have an argument to reopen their case in the U.S.: Even if their initial stories were not credible, the Cambodian government has become aware that they applied for asylum in the United States. The very fact that they made this application–and accused the Cambodian government of persecuting them–might result in the government punishing them upon their return. And that may be enough to support a new claim for asylum.
