The Great Asylum Officer Rebellion of 2019

by Jason Dzubow

The Trump Administration has been doing everything it can to block asylum seekers from reaching our shores (everything, that is, except working with Congress to reform the law). Many of the Administration’s policies are legally questionable (to put it mildly), and have been challenged in federal court. Now, in an extraordinary move, a union that represents Asylum Officers has filed an amicus brief opposing a policy of President Trump (their boss).

The Administration policy at issue is officially known as the Migrant Protection Protocols or MPP. It is also called the “Remain in Mexico” plan, and it requires many asylum seekers entering the United States from Mexico illegally or without proper documentation to be returned to Mexico for the duration of their immigration proceeding. As a result of the MPP, over 12,000 people have been forced to wait in Mexico while their cases are adjudicated in the U.S.

Acting USCIS Director Ken Cuccinelli responds to the question, “How many asylum seekers will be interviewed this year under the MPP?”

The problems with the MPP are too numerous to list here. But for starters, Mexico is not a safe place for many asylum seekers, especially women, children, and sexual and ethnic minorities. Another problem is that asylum applicants stuck in Mexico have less access to legal assistance and less due process of law. Of course, all this is by design, as the MPP is clearly meant to deter people from seeking asylum by punishing those who have the temerity to ask us for help.

Apparently, the MPP was also too much for many Asylum Officers, who are charged with evaluating asylum claims made by people arriving at our Southern border. Through their union, Local 1924, a group of Officers filed an “amicus” or “friend of the court” brief supporting a lawsuit that seeks to block the MPP. Amicus briefs must include a “statement of interest,” explaining why the filing party has an interest in the matter. Here is what Local 1924 had to say:

Local 1924 has a special interest in this case because, as the collective bargaining unit of federal government employees who are at the forefront of interviewing and adjudicating the claims of individuals seeking asylum in the United States, Local 1924’s members have first-hand knowledge as to whether the MPP assures the United States’ compliance with international and domestic laws concerning due process for asylum seekers and the protection of refugees and whether the MPP is necessary to deal with the flow of migrants through our Nation’s Southern Border.

There are two main reasons that Local 1924 objects to the MPP:

  • In the course of waiting [in Mexico] for a determination of their asylum applications, many [asylum seekers] will face persecution because of their race, religion, nationality, political opinion, or membership in a particular social group. By forcing a vulnerable population to return to a hostile territory where they are likely to face persecution, the MPP abandons our tradition of providing a safe haven to the persecuted and violates our international and domestic legal obligations.
  • Moreover, the MPP is entirely unnecessary, as our immigration system has the foundation and agility necessary to deal with the flow of migrants through our Southern Border. The system has been tested time and again, and it is fully capable—with additional resources where appropriate–of efficiently processing asylum claims… The MPP, contrary to the Administration’s claim, does nothing to streamline the process, but instead increases the burdens on our immigration courts and makes the system more inefficient.

In short, the officers charged with enforcing the asylum law at the Southern border think that the MPP violates the law and endangers people who our country is obliged (under international and domestic law) to protect.

Predictably, the Acting Director of USCIS (which oversees the Asylum Division), Ken Cuccinelli, issued a statement “blasting” the amicus brief:

Union leadership continues to play games while the border crisis intensifies. Lives are being lost, detention facilities are unsustainably overcrowded, and illegal aliens with frivolous claims continue to overwhelm our system. The fact of the matter remains that our officers signed up to protect the truly vulnerable, our asylum system, and most importantly, our country. A cheap political stunt helps no one and certainly does not help to contain this crisis.

In his statement, Mr. Cuccinelli fails to address any of the substantive claims raised in the amicus brief (shocking, I know). Instead, he falls back on the old talking point that frivolous asylum claims are somehow to blame for the crisis at the border. Of course, there is little evidence to support this position, but as a climate-change denier, Mr. Cuccinelli is obviously not beholden to concepts such as evidence or common sense (or common decency).

In my experience, most Asylum Officers take their jobs very seriously. They recognize their duty to uphold the asylum law and to grant or deny protection where appropriate. They also recognize their duty to protect the United States. This sense of responsibility to country stands in sharp contrast to the arrogance of the Trump Administration and the USCIS Acting Director, who seem to think they can run roughshod over our nation’s laws and force government employees to do the same. For this reason, I think the amicus brief is significant: It stands as an expression of independence of Asylum Officers (or at least those in Local 1924) to make decisions in accordance with the law, even when their higher-ups demand that they do otherwise.

I hope Asylum Officers and Immigration Judges around the country will take note. I hope that they will read the amicus brief, particularly the recitation of our country’s proud (but imperfect) history of protecting people fleeing harm. And most of all, I hope Officers and Judges will continue to follow the law, even when the political leadership pushes them to ignore it. Following and enforcing the law is the ultimate “rebellion” against the current Administration’s lawlessness. Our asylum system, our country’s moral integrity, and the lives of asylum seekers all depend on it.

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Mandamus for the Rest of Us

by Jason Dzubow

This posting is by David L. Cleveland, a staff attorney at Catholic Charities in Washington, DC. David was Chair of the AILA Asylum Committee from 2004 to 2005, and has secured asylum or Withholding of Removal for people from 47 countries. A graduate of the University of Rochester and Case Western Reserve University School of Law, he has published articles about asylum in Bender’s Immigration Bulletin, ILW.com, AILA, and Lexis-Nexis.

When I was in high school, I liked music by a British group called “The Kinks.” One of their songs was “Tired of Waiting.”  It goes: “Tired of waiting, Tired of waiting for you, So tired….”

Now, I am an immigration lawyer. I file cases. I wait. I get tired from time to time. My clients, of course, suffer more than me. They are really tired of waiting.

What can be done about this?

David Cleveland, pictured here listening to the Kinks.

First, I try to determine if the application is, or is not, in the hands of a real human being. There are cases that “slip through the cracks.” Supervisors at USCIS have told me–more than once–that at times, cases get “lost.” For example, an asylum case file is assigned to Officer “A” in January 2015. His boss tells him to make a decision. But, six months later, Officer A quits his job. His boss realizes that the case should be assigned to a new officer, but it doesn’t happen. The case is not re-assigned. It sits in a box in the asylum office, but no officer is assigned to it.

In such a case, the applicant can make an inquiry at the asylum office, and ask, “What is the name of the officer assigned to my case?” The applicant can ask at the asylum office reception window, “Where is my case? In whose office is it?” If the case has not been assigned, the applicant’s inquiry might cause it to be assigned. The applicant can also email the Asylum Office, but sometimes, it is more effective to go in person.

Second, the applicant can try to force the Asylum Office to make a decision by filing a complaint in the local U.S. District Court. The theory of the case is simple:

(1) Congress enacted a law–the Administrative Procedures Act–that provides that a federal court “may” compel an agency to act in a case if it is “unreasonably delayed.”

(2) The applicant filed–for example–an asylum application with the USCIS more than three years ago, and there has been no action on the application.

(3) A three-year delay is “unreasonable.”

Therefore: Judge, make the agency do something! Make them adjudicate the case!

Is a three-year delay unreasonable?

Many judges have said “No, a three-year delay is not unreasonable. Applicant loses.”

In fact, applicants waiting more than three years have been denied relief: A judge in Missouri denied relief to an applicant who had been waiting six years. A California judge agreed: Six years is not unreasonable. A judge in New York denied relief in a case involving a five-year delay. A DC judge agreed that five years was not unreasonable.

But, another DC judge said 2.75 years was too slow. SAI v. Dep’t of Homeland Security, 149 F. Supp.3d 99, 121 (D.D.C. 2015) (airport patron who alleged harassment at airport filed an administrative complaint).

In another case, Haus v. Nielsen, 2018 WL 1035870 (N.D. Illinois 2018), the government filed a motion to dismiss, arguing that a three-year delay was reasonable. The Judge denied the motion, stating that he was not “prepared to hold” that a three-year delay was reasonable. He did not say it was unreasonable, either. This case illustrates the confusion and difficulty judges have with these kinds of cases.

What happens after a complaint is filed in federal court?

A copy of the complaint is delivered to the agency (in an asylum case, the agency is USCIS). The agency then gives the complaint to its lawyer; very often, this is a lawyer at the Department of Justice (“DOJ”). The Judge sets a deadline for the agency to file a response with the court–often 60 days after the complaint was filed.

The DOJ lawyer could file a motion to dismiss the case, citing precedent that holds a six-year delay is reasonable.

Or, the DOJ lawyer could telephone the agency, and ask, “Why haven’t you made a decision on this case? Why don’t you make a decision soon? If you do, then I do not need to file a motion with the Court.” Such phone calls, at times, result in agency action.

I am aware of three recent cases in the Washington, DC area: (1) In January 2017, an asylum applicant filed a complaint in court. He was granted asylum in March; (2) In June 2017, an asylum applicant filed a complaint. USCIS interviewed the applicant a second time, and then denied asylum in September; (3) In June 2018, the applicant filed a complaint. He was granted asylum in July. In these three cases, the agency did not file a motion to dismiss. Instead, the agency did what the applicant wanted by adjudicating the case (even if the result was not always what the applicant had hoped for).

Each case is different. Many applicants who file complaints lose. But some win. If you would like more information, contact me at David.Cleveland@cc-dc.org.

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Return of the Travel Ban

by Jason Dzubow

Days after President Trump took office, he moved to implement one of his campaign promises: To bar Muslims, refugees, and others from coming to the United States. Courts were not amused, and blocked significant portions of the President’s executive orders (thanks largely to the brilliant work of lawyers at the ACLU and at several states attorneys offices). The President tried again, with a new, more limited executive order (“EO”). The new EO was also severely limited by the courts.

You’d think a bunch of people in burkas would be a bit more sympathetic to Muslims.

But now, the Supreme Court has spoken, and the EO is back, at least in part. So what’s the story? Here is a nice summary (with some comments by yours truly) of where we are now, courtesy of Aaron Reichlin-Melnick at the American Immigration Council (and if you want to do something to help resist the travel ban, consider donating to the AIC–they are a terrific organization that does yeoman’s work in all areas of the immigration field):

“[The] the Court ruled that the government can only enforce the travel ban against foreign nationals who do not have ‘a credible claim of a bona fide relationship with a person or entity in the United States.’

“What this means is that individuals from the six countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] will be permitted to enter the United States if they have a ‘close familial relationship’ with someone already here or if they have a ‘formal, documented’ relationship with an American entity formed ‘in the ordinary course’ of business. However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in the limited fashion permitted by the Supreme Court on June 29, 2017.

“Who is likely to be allowed to enter the United States?

  • Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017: These individuals are not included in the travel ban [However, it seems to me that the decision leaves open the possibility of a new EO where such people are banned, and so I am concerned about that as well].
  • Individuals with visas coming to live or visit with family members: The Court’s order is clear that individuals who ‘wish [] to enter the United States to live with or visit a family member’ have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
  • Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience: The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.
  • Other types of business travelers: It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.
  • Refugees: Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies [I read this a bit more pessimistically–I do not know whether a pre-existing relationship with a resettlement agency is enough to avoid the ban]. The Court ruled that such individuals may not be excluded even if the 50,000 [person] cap on refugees has been reached or exceeded.

“Who may have trouble entering the United States?

  • Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017: The Court’s decision is not clear on whether it is prospective or retrospective only. Individuals who form such relationships to avoid the travel ban are barred from entering.
  • Tourists: Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering [I also read this more pessimistically–it seems to me that anyone from a banned country who does not merit an exception as discussed in the decision will be denied a visa, including people coming to the U.S. for business, pleasure or medical treatment].”

As I read the decision and the EO, asylum seekers who are already in the United States, as well as people who have asylum or have a green card based on asylum, are not blocked from traveling and re-entering the country. They are also not blocked from receiving additional immigration benefits (like asylum, a green card, a work permit, travel documents or naturalization). However, the proof will be in the implementation–how the Department of Homeland Security (“DHS”) interprets and applies the Supreme Court decision in actual, real-life cases.

In that regard, I agree with Justice Thomas, who “fear[s] that the Court’s remedy will prove unworkable” and will invite a “flood of litigation.” Who is a qualifying relative for purposes of this decision? Must that person be a U.S. citizen? Or can the person be a resident or an asylee (as in a refugee/asylee following-to-join petition, form I-730)? Could the qualifying relative simply be someone here on a work visa or a visitor visa? What if the person is here illegally? And what is a business relationship, and how do we know whether it is bona fide or created solely for the purpose of subverting the EO?

In short, while the Supreme Court decision is reasonably clear for some aliens, it leaves large gray areas that will require interpretation, meaning more litigation. Such litigation is expensive and time consuming, and so the Court’s decision is likely to leave some people who might qualify to come here stranded, depending on how DHS implements the EO, and depending on whether they can get legal help. Overall, that’s not a great situation to be in.

Finally, yesterday’s decision perhaps telegraphs where the Justices will come down on the merits of the EO when they look at the case this fall (the Court’s decision relates only to whether to stop implementation of the EO pending a decision on the merits). Three Justices (Thomas, Alito, and Gorsuch) seem likely to allow a broader version of the ban to go forward. Given what we see in this decision, it may be that the other Justices are more skeptical of the ban and will limited it in some ways (and with luck, if the Trump Administration fears that the Court will limit the ban, it may just declare victory and allow the EO to expire, as originally intended).

All this remains to be seen, but for now, anyone from a banned country should pay attention to how the EO is implemented in the coming days, and perhaps avoid traveling outside the U.S. until we know more.

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Fred Korematsu and the Forgotten Legacy of Lies

by Jason Dzubow

Seventy-five years ago this week, Fred Korematsu was arrested on a street corner in San Leandro, California. His crime: Failing to report to an internment center for Japanese immigrants and Americans of Japanese decent who were detained en masse once the United States entered World War II.

Fred Korematsu and the Presidential Medal of Freedom.

After three months in pre-trial detention (he wasn’t released even though he posted bail), Mr. Korematsu was convicted in federal court for violating the military relocation order, sentenced to five months’ probation, and sent to an internment camp where he lived in a horse stall. He later said, “Jail was better than this.” Over 100,000 Japanese Americans were confined to such camps during the course of the war because the government feared they were disloyal (German- and Italian-Americans were not subject to such treatment).

The American Civil Liberties Union (“ACLU”) represented Mr. Korematsu at trial and in his appeals. Eventually, the case reached the United States Supreme Court, which issued a 6-3 decision upholding the conviction as justified due to the circumstances of “direst emergency and peril.”

Over time, the Supreme Court’s decision—and the internment of Japanese Americans—came to be viewed as a great injustice. President Ford issued a proclamation apologizing for the internment. A commission established by President Carter concluded that the decision to remove those of Japanese ancestry to prison camps occurred because of “race prejudice, war hysteria, and a failure of political leadership.” And President Reagan signed a bill providing compensation to surviving internment camp residents. In 1998, President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom, stating:

In the long history of our country’s constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy, Brown, Parks… to that distinguished list, today we add the name of Fred Korematsu.

Mr. Korematsu himself remained active in civil rights until his death in 2005. After the September 11, 2001 terrorist attacks, he spoke out about how the United States government should not let the same thing happen to people of Middle-Eastern descent as happened to Japanese Americans during WWII. He also filed amicus (friend of the court) briefs in several cases involving lengthy detention of suspects at Guantanamo Bay.

With the Trump Administration’s attempted crackdown on Muslim immigrants, Korematsu v. United States is again in the news. A few (misguided) individuals have suggested that Korematsu provides precedent for the President’s crackdown on Muslims (though it seems highly doubtful that any modern court would rely on Korematsu for precedent). Others view the case as a cautionary tale: We should not abandon our ideals in the face of a perceived threat.

But there is another lesson from Korematsu; a lesson that has received surprisingly little attention in our “post truth” age: The U.S. government, including the Solicitor General who argued the case, Charles Fahy, knowingly lied to the Supreme Court about the alleged threat posed by Japanese Americans during the war, and those lies very likely influenced the outcome of the case.

The government’s mendacity came to light in the early 1980’s when Peter Irons, a law professor writing a book about the internment camps, discovered that the Solicitor General had deliberately suppressed reports from the FBI and military intelligence which concluded that Japanese-American citizens posed no security risk. The documents revealed that the military had lied to the Supreme Court, and that government lawyers had willingly made false arguments.

As a result of these discoveries, a District Court in San Francisco formally vacated Mr. Korematsu’s conviction on November 10, 1983–more than 40 years after he was found guilty. Mr. Korematsu told the Judge, “I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed, or color.” He continued, “If anyone should do any pardoning, I should be the one pardoning the government for what they did to the Japanese-American people.”

In 2011, the Acting Solicitor General stated:

By the time the [case of] Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”

[The District Judge that overturned Mr. Korematsu’s conviction] thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.

And so, the U.S. government recognized that its lies did real damage. Over 100,000 Japanese Americans were uprooted from their homes and lives, confined to camps, and excluded from American society. In addition, our country lost the benefit of those citizens’ contributions—to our nation and to the war effort.

Yet here we are again. Refugees—particularly Muslim refugees—are painted as a threat to our security. The President says they are a “Trojan Horse” for terrorists. Precious little evidence supports these claims. And much of that evidence has been discredited. Indeed, to me, it sounds a lot like “race prejudice, war hysteria, and a failure of political leadership,” with an emphasis on the latter.

Which all leads to the final point: Will the current Administration follow the lead of Solicitor General Fahy? If the evidence does not support its assertions about Muslim immigrants, will it suppress the truth? And how will judges respond? For now, it seems that our courts remain the only level-headed branch of government, and the only real bulwark against the bigotry and falsehoods peddled by our President. When the government ignores the evidence and makes policy decisions based on fantasy, it’s not just Muslims and immigrants who will suffer. Fred Korematsu is gone, but let’s hope his legacy is never forgotten.

Learn more about Fred Korematsu and his on-going story at the Korematsu Institute.

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What Is “Persecution”?

by Jason Dzubow

Language is intensely personal. When I say the word “house,” I have one image in mind, and when you hear it, you have your own image in mind. Indeed, every person on Earth who hears the word “house” will have his own mental image of what that means. Despite all this, we manage to communicate.

The "comfy chair" constitutes persecution only in the Ninth Circuit.
The “comfy chair” constitutes persecution only in the Ninth Circuit.

But when we move from interpersonal communication to the more precise language of the courts, the problem becomes more acute. Perhaps it was best summed up by Supreme Court Justice Potter Stewart, who famously declined to define the term “pornography.” Instead, he stated, “I know it when I see it” (less well-known was his next line: “And I enjoy seeing it at least twice a day”).

In asylum law, we have a similar problem–not with pornography, heaven forbid–but with another “p” word: “persecution.”

“Persecution” is not defined by statute, and the Board of Immigration Appeals–the agency tasked with interpreting the immigration law–has failed to provide much useful guidance (as usual). And so the buck has been passed to the various federal circuit courts.

A recent article by Scott Rempell, an Associate Professor at South Texas College of Law/Houston, surveys the landscape with regards to definitions of “persecution.” Prof. Rempell finds that while certain conduct is universally viewed as persecution, there exists “staggering inconsistencies” between the various federal appeals courts: “eleven different appellate courts independently pass judgment on EOIR’s assessments of whether harm rises to the level of persecution—a significant number of spoons stirring the persecution pot.” The study revealed what Prof. Rempell calls an “unequivocal chasm” in the consistency of persecution decisions:

For example, the results [of the study] illustrate how a one-day detention involving electric shock compelled a finding of persecution, while a ten-day detention involving electric shock did not. Similarly, while several weeks of psychological suffering necessarily established persecution, several years of even greater psychological suffering failed to cross the persecution threshold.

To those of us who have litigated these cases in the federal courts, Prof. Rempell’s observation rings all-too true. But quantifying the problem is quite difficult because, as Prof. Rempell notes, the cases are so fact-specific:

Courts… compare and contrast to previous persecution cases. And due to differing opinions on what the harm threshold should be, panels are free to emphasize or deemphasize any factual nuance they choose between the cases that they are reviewing and previous cases they have decided.

Despite this problem, the article attempts to categorize the different types of harm and discern areas of consistency and inconsistency. Prof. Rempell finds five broad areas of consistency–conduct that all courts consider persecution:

(1) Brutal and systematic abuse, where the applicant has sustained harm on a consistent basis over a prolonged period of time; (2) Sufficiently Recurrent Combination of Cumulatively Severe Harms, where there is an ongoing pattern of physical, psychological, and other types of harm, as long as the harms cumulatively establish a sufficiently high level of severity; (3) Recurrent Injury Preceding a Harm Crescendo, where there are multiple incidents of relatively severe harm that culminates in particularly egregious harm; (4) Sufficient Harm Preceding a Substantiated Flight Precipitator, where a series of harmful events culminates in a credible and substantial threat of harm, causing the applicant to flee; and (5) Sufficiently Severe or Recurring Sexual Abuse.

The problem with this list (aside from the fact that I did not give you all the details of the Professor’s analysis) is pretty obvious–we are stuck using words to describe harm, and this is difficult. One person’s idea of “brutal and systematic abuse” may not be the same as the next person’s. Nevertheless, the list gives us the broad parameters of what constitutes persecution in all federal courts.

When the persecution is less severe–as it is in most contested cases–things become even more tricky. Prof. Rempell identifies four areas where the appellate courts produce inconsistent decisions:

(1) A single instance of physical abuse and detention; (2) Psychological harm where there is a single fear-inducing incident; (3) Psychological harm where there are continuous fear-inducing incidents; and (4) “Other Harm Inconsistencies,” where courts looked at similar incidents and reached opposite conclusions concerning persecution.

The disparities between judges and circuits when it comes to determining persecution are stark. For example, the First Circuit (New England) reversed the BIA’s persecution finding in just 5% of cases. The Ninth Circuit (California, et al) reversed the BIA’s findings in 65% of cases.

Prof. Rempell attributes much of the disparity to “the way courts interpret the meaning of persecution, and how they characterize and measure harm.” “The fact that decades of adjudications involving over a million asylum claims have failed to yield a consistent approach on the systematic harm question is nothing short of astounding.” So what’s to be done? 

The article suggests some preliminary reforms, but the bottom line is this: Immigration agencies–and specifically the Board of Immigration Appeals–need to provide “guiding principles” on what constitutes persecution. Of course these inquiries are fact specific, and of course it is difficult to quantify physical or psychological harm, but as Prof. Rempell says, the “fact-intensive nature of persecution inquiries… should not act as a shield to prevent the creation of general severity principles, by means of regulation or adjudication.”

As a lawyer who frequently encounters the question “What is persecution?,” I believe Prof. Rempell’s article is important. He has quantified a problem that we have all experienced in our practice. Now it’s time for the BIA to do something about it.

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For Every Child, a Lawyer

by Jason Dzubow

A case recently argued before the U.S. District Court in Seattle seeks to ensure that every child in removal proceedings is represented by an attorney. The case–styled J.E.F.M., et al. v. Holder–was filed by the Northwest Immigrant Rights Project, and claims that without the assistance of a lawyer, children in Immigration Court cannot receive due process of law.

Some children probably don't need lawyers.
Some children probably don’t need lawyers.

The Complaint notes that despite the efforts of many non-profit organizations, volunteer lawyers, and the government itself, the majority of children who appear before Immigration Judges go unrepresented. It compares the situation of children in Immigration Court with children in juvenile delinquency proceedings:

[The] Supreme Court recognized that when the Government initiates proceedings against children facing juvenile delinquency charges, the Due Process Clause requires the Government to provide those children with legal representation to ensure that the proceedings are fundamentally fair. In re Gault, 387 U.S. 1, 41 (1967). The Court held that “[t]he juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it… The Constitution guarantees children this safeguard notwithstanding the civil, rather than criminal, character of juvenile delinquency proceedings.

Immigrants, including immigrant children, are also entitled to Due Process when facing deportation [and Immigration Court proceedings, like juvenile delinquency proceedings, are civil, not criminal]. Reno v. Flores, 507 U.S. 292, 306 (1993). Both the Constitution and the immigration laws guarantee all children the right to a full and fair removal hearing, including the opportunity to defend against deportation and seek any forms of relief that would enable them to remain in the United States. And just as in juvenile delinquency proceedings, children cannot receive that fair hearing without legal representation.

In terms of the basic legal argument, this seems like a slam dunk: There is no way a child–or even your average non-English-speaking adult–can navigate the Immigration Court system without the assistance of someone who knows what she’s doing (i.e., a lawyer). But of course, the hard realities of life in the immigration world are not so simple, and there are a few policy arguments that may carry more weight than the legal claim. 

The first policy argument against providing lawyers to unaccompanied minors is cost. I view this argument as a bit of a red herring because I am not convinced that the cost of paying for lawyers is much different than the cost of not paying for lawyers. In cases where the alien is unrepresented, the Immigration Judge and the Trial Attorney must spend significant extra time on the case, and this time obviously costs the government money. I imagine this problem is particularly acute in cases involving children, who cannot easily articulate their claims. Where the child is represented, her attorney can prepare the case, communicate with DHS counsel, and present the case efficiently. Whether paying for this attorney is much more expensive than making the IJ and DHS sort out the case, I don’t know. But I would imagine that the difference in cost is not as significant as opponents of providing lawyer might have us believe.

The second policy argument concerns the incentives that providing lawyers will create. To me, this is the strongest policy argument against giving lawyers to children. The so-called “surge” of unaccompanied minors does not correlate with a spike in violence–the source countries have been very violent places for years. Rather, it seems likely that the surge was caused by “pull” factors–maybe the belief that immigration reform in the United States would grant benefits to people, if only they could get here before the reforms were implemented. I have little doubt that providing lawyers to unaccompanied minors would further incentivize children (and everyone else) to come here. Whether this is necessarily a bad thing, I am not sure. On the one hand, many of the young people who have come here face real harm in their home countries. On the other hand, more people coming to seek asylum in the U.S. burdens an already overwhelmed system and causes long delays–and great hardship–for everyone in the system. Of course, there are already many incentives for people to come to the United States: Safety, jobs, family reunification. I am not sure that one more incentive–the guaranteed assistance of an attorney–will make much difference.

Finally, there is the issue of public perception. It’s unclear to me where the public stands on asylum in general, and on unaccompanied minors in particular. There are loud voices on both ends of the spectrum: Advocates on one side who essentially believe in open borders and who want to use the asylum system to achieve that goal, versus restrictionists on the other side, like some in Congress who hope to “protect” these children by sending them all home. Frankly, I am not much of a fan of either camp, and I suspect that the general public is also somewhere in the middle. If the asylum system becomes too costly, or too much of an open door, we will likely see a shift in opinion against it, which will be bad for everyone. Whether or not providing lawyers to unaccompanied children will be the straw that breaks the camel’s back, I do not know, but given the current mood in Congress, it is a danger that needs to be considered.

All these policy considerations should (theoretically) not count for much with a court of law, but traditionally, such arguments have impacted decision-making in asylum and immigration cases. As advocates have continually expanded the categories of people eligible for asylum and the protections available to asylum seekers, we run the risk of making asylum a victim of its own success. For the sake of the many people who receive protection in our country, I hope that will not be the case.

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Negative Judicial Metaphors Harm Immigrants

by Jason Dzubow

A recent article in the Fordham Law Review posits that negative metaphors used by judges to describe immigrants contribute to negative public perceptions of immigrants and lead to adverse judicial decisions. 

Before now, I never metaphor that I didn't like.

In Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, Keith Cunningham-Parmeter discusses different metaphors used in judicial decisions related to immigration.  The most common metaphors can be classified into three categories: (1) Immigrants are aliens; (2) Immigrants are a flood; and (3) Immigrants are invaders.  Each of these metaphors carries negative associations–for example, floods cause us to drown; invaders try to kill us.  Employing these metaphors, writes Mr. Cunningham-Parmeter, affects how we think about immigrants, which in turn affects judicial decisions.

One set of figures cited in the article struck me as particularly noteworthy—In examining 4,200 federal cases related to immigration, Mr. Cunningham-Parmeter found that the phrase most commonly used to describe immigrants was “illegal alien:”

“[I]llegal alien” was “by far the most common term, appearing in 69% of opinions (2905 cases).  No other term appeared in more than 10% of opinions, except “undocumented alien,” which accounted for 16% of the results in 670 cases.  

It seems likely that the overwhelming use of negative metaphors for immigrants would impact how judges think about people who are in the U.S. illegally.  This, of course, could result in more adverse decisions.  

To counter these negative metaphors, Mr. Cunningham-Parmeter proposes some positive metaphors; words that connote entrepreneurial economic migrants (i.e., people with the get-up-and-go necessary to cross borders and start new, productive lives):

[M]igrants are neither criminals nor invaders, but instead people who cross international borders in order to survive.  As such, the economic sanctuary metaphor brings focus to the human consequence of globalization.

I certainly appreciate the effort to de-stigmatize immigrants (and in writing this blog post, I find myself avoiding the term “alien,” a term of art defined in the INA, but also a metaphor with negative connotations).  In the end, though, I am skeptical that we can replace existing metaphors with something more benign.  There is a tribal aspect to these metaphors that is deeply ingrained.  We do tend to view outsiders as “invaders” and as a threat.  Maybe that is just the way of human nature.  Or, hopefully, I am wrong, and Mr. Cunningham-Parmeter’s article will help plant a seed that will lead to a more positive—and constructive—view of people who immigrate to the United States.

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Liu v. Holder: Frivolous Asylum Applications

by Jason Dzubow

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.

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The Eleventh Circuit Rules on Impermissible Gay Stereotypes

by Jason Dzubow

Last week, the U.S. Court of Appeals for the Eleventh Circuit ruled that an Immigration Judge improperly relied on gay stereotypes to reach an adverse credibility determination. See Todorovic v. Attorney General, Case No. 09-11652 (11th Cir. Sept. 27, 2010). 

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.”

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Second Circuit Denies Chinese Asylum Cases En Masse

by Jason Dzubow

The United States Court of Appeals for the Second Circuit recently issued a summary order denying petitions for review in 24 separate cases involving Chinese asylum seekers.  The Court held:

Each of these petitioners, all Chinese citizens, challenges a decision of the BIA denying their applications for relief based on the birth of one or more children in the United States. For largely the same reasons this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), we find no error in the BIA’s decision denying each application.

The Court’s Internal Operating Procedures allow for such orders, and this is not the first time the Court has denied cases like this en masse.  But are these mass denials fair to the petitioners and proper under the law?

First, some background.  In response to the “one family, one child” population control measures in China, Congress passed a law modifying the definition of “refugee” to include anyone subject to forced sterilization or forced abortion, as well as people who resist coercive population control measures.  This (predictably) led to hundreds of claims by Chinese nationals who had not been subject to past persecution or credible threats of future persecution.  Rather, these asylum seekers argued that because they had more than one child–which is not allowed under Chinese law–they would be subject to forced sterilization if returned to China, and should thus be granted asylum. 

Sometimes one is enough.

Because laws are enforced differently throughout China, the BIA found that cases involving Chinese nationals with more than one child must be examined on a case-by-case basis to determine whether each alien has a well founded fear of persecution.  Thus, the BIA has restricted a provision that was arguably meant to be expansive.  In Jian Hui Shao, the Second Circuit accepted the case-by-case analysis endorsed by the BIA, and held that it would not disturb the BIA’s ruling unless it concluded that “no reasonable fact-finder could have failed to find in favor of petitioner.”

Turning to the summary order disposing of the 24 Chinese asylum cases, all of those cases involve Chinese nationals who fear persecution because they have more than one child.  Apparently, some of the asylum seekers were originally granted asylum, but those decisions were reversed by the BIA.  Other asylum seekers were denied by the Immigration Judge and the BIA.  The asylum seekers are represented by different attorneys and have all filed their own briefs.  Aside from the fact that they share similar legal issues, the cases are unrelated.  But the Court denied them en masse.

Whether intentional or not, the cursory review and mass denials send a message that the Second Circuit will not entertain Chinese forced-sterilization cases.  This seems inconsistent with our system of justice and unfair to the litigants, who deserve to know (1) that the Court actually considered their individual claim, and (2) the reason for the Court’s decision.  It is also unfair to the attorneys (the private attorneys and the Department of Justice attorneys) who have spent many hours briefing their cases.  I doubt a federal appeals court would issue mass denials in cases involving civil or criminal appeals.  Immigration cases should be treated with the same respect.  It is understandable that the Court would be frustrated with the large number of cases coming from the Board of Immigration Appeals.  However, all litigants deserve to have their cases heard and considered.  Perhaps the Second Circuit has carefully reviewed each litigant’s claim, but the summary orders and mass denials send a message that the Court simply does not care about these cases.

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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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Ninth Circuit Rules that Guatemalan Women May Be a Particular Social Group

by Jason Dzubow

Earlier this week, the U.S. Court of Appeals for the Ninth Circuit remanded a case to the BIA to “determine in the first instance whether women in Guatemala constitute a particular social group, and, if so, whether Perdomo [the alien seeking asylum] has demonstrated a fear of persecution ‘on account of’ her membership in such a group.” See Perdomo v. Holder, No. No. 06-71652 (9th Cir. July 12, 2010). 

In that case, Lesly Yajayra Perdomo, a native and citizen of Guatemala, sought asylum based on her fear of persecution as a young woman in Guatemala.  Specifically, Ms. Perdomo argued that women were murdered in Guatemala at a high rate with impunity.  The IJ denied the application because she found that young women in Guatemala were not a cognizable social group.  The BIA affirmed, finding that a social group consisting of “all women in Guatemala” is over-broad and “a mere demographic division of the population rather than a particular social group.”  Ms. Perdomo entered the U.S. in 1991 when she was 15.  In 2003, the government issued a Notice to Appear, and Ms. Perdomo conceded removability and applied for asylum.

Guatemalan women celebrate their new social group.

The Ninth Circuit noted, “Whether females in a particular country, without any other defining characteristics, could constitute a protected social group remains an unresolved question for the BIA.”  The Court further noted, “Our case law examining asylum claims based on membership in a particular social group continues to evolve.”  The Court had previously defined “particular social group:”

A “particular social group” is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.

The Court had also previously concluded that “females, or young girls of a particular clan, met our definition of a particular social group.” See Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005).  In Mohammed, the Ninth Circuit recognized that gender is an “innate characteristic” that is “fundamental to one’s identity.” Id.  The Court found that the social group “Guatemalan women” was not necessarily overbroad: “To the extent we have rejected certain social groups as too broad, we have done so where there is no unifying relationship or characteristic to narrow the diverse and disconnected group.”  Further, the Court “rejected the notion that a persecuted group may simply represent too large a portion of a population to allow its members to qualify for asylum.”  Based on this precedential case law, the Court remanded the matter to the BIA to determine in the first instance whether “Guatemalan women” constitute a social group and, if so, whether Ms. Perdomo has demonstrated a fear of persecution “on account of” her membership in such a group.

Perdomo v. Holder is an important victory for advocates of gender based claims and, according to Karen Musalo, director of the Center for Gender Studies and a professor at Hastings College of Law, this is the first case to reach this high in the United States’ court system, which has grappled with determining gender-based claims for asylum.

This is not the end of the matter for Ms. Perdomo.  The case will be remanded for further consideration.  She will still need to prove that Guatemalan women are a social group and that her feared persecution is “on account of” her gender.  It seems like she also may not be eligible for asylum, since she filed more than one year after her arrival in the United States.  Although she still has some obstacles before her, at least the Ninth Circuit has given Ms. Perdomo a chance.

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OIL’s Adverse Credibility Project

by Jason Dzubow

The Department of Justice’s Office of Immigration Litigation (“OIL”)–the office that defends BIA decisions in the federal courts of appeals–recently released data on federal court decisions concerning credibility.  Most credibility determinations involve asylum cases, where the decision maker (the Board of Immigration Appeals on appeal and the Immigration Judge in the first instance) must assess the alien’s credibility to determine whether to grant asylum.  Under existing law, a decision maker must give a specific, cogent reason for rejecting an alien’s testimony.  The REAL ID Act of 2005 tightened these requirements.  Among other things, the REAL ID requires corroboration of an alien’s testimony in certain circumstances.

OIL’s Adverse Credibility Project tracks appeals court decisions concerning credibility.  OIL describes the data used for the study:

The data… reflects a tally of all decisions in which – regardless of the ultimate outcome of the petition for review – the appellate court has either approved of, or reversed, the adverse credibility holding reached by the immigration judge or Board of Immigration Appeals.

The report found that the “adverse credibility win percentage in 2009 roughly parallels the overall OIL win/loss trends from that year, though the overall numbers are slightly less favorable across the board.”  For all federal appeals courts in 2009, 87% of credibility determinations were upheld and 13% were reversed.  This represents a small change from 2008, during which 83% of credibility determinations were upheld and 17% were reversed. 

The overall numbers mask some diversity between the different circuit courts.  In the Second, Fourth, Fifth, and Eleventh Circuits, approximately 96% of credibility determinations were upheld.  The Sixth Circuit upheld 100% of EOIR’s credibility determinations (according to OIL, the Sixth Circuit reviewed 58 cases involving credibility determinations; all were upheld).  The Third Circuit upheld 74% of credibility determinations, and the Ninth Circuit upheld 73%.  In the Eighth Circuit, 86% of credibility determinations were upheld.  According to OIL, the other circuit courts–the First, Seventh, and Tenth–heard no cases involving credibility determinations.  This seems a bit odd, especially in the Seventh Circuit, which seems to review many BIA decisions.

The circuit courts with the most changes in “win” rates for OIL are the Second and the Ninth:

Reflected in the 2009 statistics is the continued rise in win percentage within the Second Circuit. This percentage has risen steadily, from 14% in 2006 to 54% in 2007 to 90% in 2008 to 96% in 2009. Ninth Circuit win percentage, historically close to 60%, has risen in 2009 to 73%. This increase may be due, in part, to a greater percentage of post-REAL ID cases on the docket in 2009.

The bottom line, I suppose, is that it is difficult–and sometimes almost impossible–to reverse the agency’s credibility determinations.  Hopefully, this is a reflection of the BIA’s increased competence at adjudicating aliens’ credibility, and not simply a result of stricter laws concerning federal court review.  I guess that is a possibility, but I have my doubts.

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Gang Membership May Be a Particular Social Group

by Jason Dzubow

A very particular social group
Joseph E. Langlois, Chief of the Asylum Division at USCIS, issued a memo declaring that within the Seventh Circuit, former gang membership “may” form a “particular social group.” The memo was prompted by a decision in the Seventh Circuit, Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), which held that former gang membership is a cognizable social group for asylum purposes.  Writing for the Court, Judge Posner notes that, “the term ‘particular social groups’ surely was not intended for the protection of members of the criminal class in this country, merely upon a showing that a foreign country deals with them even more harshly than we do.” 

The decision continues: “A gang is a group, and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group.”

Judge Posner suggests that even where former gang members meet the requirements for asylum, they could be denied as a matter of discretion, or on statutory grounds:

We can imagine the Board’s exercising its discretion to decide that a “refugee” (that is, a person eligible for asylum) whose claim for asylum is based on former membership in a criminal gang should not be granted asylum [because, for example, he is not a person of good moral character and does not deserve a favorable exercise of discretion].

[In this case,] Ramos was a member of a violent criminal group for nine years. If he is found to have committed violent acts while a member of the gang (as apparently he did, although the evidence is not entirely clear), he may be barred from the relief he seeks for reasons unrelated to whether he is a member of a “particular social group”; for remember the bar for aliens who commit a serious nonpolitical crime.

The USCIS Memo states that within the Seventh Circuit, “former gang membership may form a particular social group if the former membership is immutable and the group of former gang members is socially distinct.”  Outside of that circuit, Asylum Officers should remember that criminal activity, “past or present, cannot form the basis of a particular social group.”  The memo also states that all Asylum Officers, regardless of jurisdiction, should note that past “gang-related activity may serve as an adverse discretionary factor that is weighed against positive factors.”

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