FAIR Asks EOIR to Violate the Law in Aunt Onyango’s Case

by Jason Dzubow

The Federation for American Immigration Reform is calling upon the Justice Department and the Executive Office for Immigration Review (“EOIR”) to violate the law and make public the record in the recently-decided asylum case of President Obama’s aunt.  PR Newswire reports:

Today’s decision granting President Obama’s aunt, Zeituni Onyango, political asylum provides a case study in how those seeking to evade U.S. immigration laws can manipulate the system, charged the Federation for American Immigration Reform (FAIR).  FAIR also demanded that the entire record of her case, which was rendered after years of delay and after Ms. Onyango refused to comply with a deportation order, be made public.

Judge Leonard Shapiro did not reveal the basis for his decision to grant asylum to Ms. Onyango and Ms. Onyango’s attorney has declared that his client wants to keep the decision confidential.  “Given Onyango’s relationship to the president, the American people have a right to know on what grounds Ms. Onyango’s asylum was granted,” [FAIR President Dan] Stein said.  “Illness and political turmoil in one’s homeland are not recognized as grounds for being granted asylum.  Defining asylum so broadly not only exceeds any reasonable interpretation of the law, but would make countless millions of people around the world eligible for asylum in the U.S.   Americans deserve to know whether the system worked.”

Of course Mr. Stein has no idea why Ms. Onyango was granted asylum, but that clearly did not stop him from forming an opinion.  Worse, his “demand” that the decision be made public directly contradicts the law.  From the EOIR Practice Manual:

Evidentiary hearings involving an application for asylum or withholding of removal (“restriction on removal”), or a claim brought under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, are open to the public unless the respondent expressly requests that the hearing be closed.  In cases involving these applications or claims, the Immigration Judge inquires whether the respondent requests such closure. 

Ms. Onyango has requested that the hearing be closed and that should be the end of the matter.  Confidentiality in asylum cases is important to protect asylum seekers and their families.  While there are legitimate issues to be raised concerning the asylum process, Mr. Stein’s “demand” demonstrates his callous disregard for the rights and safety of asylum seekers.   

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Senate Hearing on the Refugee Protection Act

by Jason Dzubow

The Senate Judiciary committee held a hearing yesterday on the Refugee Protection Act.  I wasn’t able to attend, but the Senate conveniently records such hearings, and you can view it here. 

Doggone it, people like the RPA

My friend who attended thought it did not go very well for supporters of the bill.  I can’t say I agree, though the last five minutes, when neither of the pro-RPA witnesses could answer Senator Franken’s softball questions and each tried to defer to the other, was not a shining moment.  Here are some other moments worth mentioning:

The ranking Republican, Senator Sessions from Alabama, raised some legitimate (and some not-so-legitimate) concerns that will probably need to be addressed if the bill is ever to become law.  Of course, the first issue was national security.  He felt that the RPA would allow Osama Bin Laden’s wife (wives?) and children to claim asylum in the United States, as the law relaxes barriers for family members of terrorists.  Given the limited number of people we can admit each year, he argued, we would be better off admitting people without close ties to terrorists.  He also stated that the RPA would broaden the definition of “asylum seeker,” and thus encourage more fraudulent claims.  He questioned how many people we could realistically allow to enter the United States as refugees and asylees.  He argued that we could not admit everyone who meets the definition of a refugee, and said that if things fell apart in Afghanistan or Iraq, we could not take in all the people who sided with us in those wars.

There were two pro-RPA witnesses, Dan Glickman of Refugees International and Patrick Giantonio of Vermont Immigration and Asylum Advocates.  They argued that the one-year filing deadline does not serve its intended purpose of reducing fraud.  Mr. Giantonio noted that many asylum seekers who fail to file within one year of arrival receive withholding of removal or relief under the UN Convention Against Torture.  Both forms of relief have a higher burden of proof than asylum.  Thus, if the one year deadline were not an issue, such people would have qualified for asylum (I agree with this point).  From the alien’s point of view, asylum is a more desirable outcome than the other forms of relief, but the witnesses did not mention the benefits of asylum.  The pro-RPA witnesses also emphasized that the bill would not compromise national security because refugees and asylum seekers would remain subject to all the same background checks that are currently required.  Mr. Giantonio also briefly mentioned some of the deleterious effects of immigration detention on asylum seekers.

Igor V. Timofeyev, a former DHS official and a Soviet Jewish refugee, testified in his personal capacity.  He appeared as the anti-RPA witness, though his criticisms were fairly tame (refreshing given the normal discourse on most immigration-related issues).  His concerns were national security, national security, and national security.  He also mentioned that federal appeals courts are overburdened with immigration cases.

Finally, it bears mentioning that Senator Leahy included in the record a letter signed by 89 faith-based, human rights, legal services and refugee assistance organizations and 99 individual asylum law practitioners, pro bono attorneys, law professors and other experts in the field (including this humble blogger).    

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The Refugee Protection Act and Asylum Interviews

by Jason Dzubow

Under INA § 235(b), an alien who appears at the border and claims asylum or expresses a fear of persecution must be interviewed.  The Refugee Protection Act would require DHS to record these interviews.

A DHS employee demonstrates the agency's latest recording equipment

Currently, asylum interviews at the border (or the airport) are generally not recorded.  As a result, there are often disputes about what the alien said at the interview.  For example, I worked on a case recently where an Ethiopian asylum seeker entered the United States at the Mexican border.  He was immediately detained and requested asylum.  His friend and traveling companion served as my client’s interpreter.  The Border Patrol agent wrote down the client’s responses to the agent’s questions.  The written statement was not consistent with my client’s statements in court, and the IJ found the client’s testimony incredible; she denied asylum.  On appeal, the BIA reversed and remanded the case for, among other things, a more thorough examination of what happened at the border.  Had the border conversation been recorded, the IJ could have more definitively determined whether an inconsistency existed, and could have made a more accurate credibility determination.

IJs often rely on prior inconsistent statements to make adverse credibility findings, and I have worked on a number of cases where prior statements were used for impeachment purposes.  Such statements are often not recorded (neither the Border Patrol nor the Asylum Office records interviews).  Thus, the accuracy of the prior statements is frequently an issue.  If the interviews were recorded, we would have a more accurate record, and hence, more accurate credibility determinations.  The RPA provides for recorded interviews at the border.  It should also provide for recorded interviews at the Asylum Office.

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President Obama’s Aunt Wins Asylum

by Jason Dzubow

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.

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Senate Hearing on the Refugee Protection Act

by Jason Dzubow

The Senate Committee on the Judiciary has scheduled a hearing on “Renewing America’s Commitment to the Refugee Convention: The Refugee Protection Act of 2010” for Wednesday, May 19, 2010 at 10:00 a.m. in Room 226 of the Dirksen Senate Office Building.  The scheduled witnesses are: (1) The Honorable Dan Glickman, President, Refugees International; (2) Patrick Giantonio, Executive Director, Vermont Immigration and Asylum Advocates; and (3) Igor V. Timofeyev, Paul, Hastings, Janofsky & Walker LLP

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The BIA on Frivolous Asylum Applications

by Jason Dzubow

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.

BIA CLARIFICATIONS

On remand, Matter of B-Y-, 25 I&N Dec. 236 (BIA 2010), the BIA made the following clarifications:

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.”

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Laotian Asylum Seeker Just Wants to Go Home

by Jason Dzubow

An 88-year-old Hmong man from Laos who requested political asylum in 2007 has filed suit against the Department of Homeland Security seeking to have DHS return his passport so he can go home.  According to KMPH News in Fresno, California, Mr. Xiong–who has not revealed his full name in order to protect his identity–is a veteran who fought alongside U.S. forces during the Vietnam War:

Xiong’s attorney describes his client as a war hero.  He says the Hmong veteran can’t return to his native country without his passport.  It was confiscated when he filed for political asylum in the U.S. and until the process is complete he won’t be able to go home. “He’s an old man,” Attorney Ken Seeger said.  “He’s been in poor health over the past year or so.”

The veteran filed for political asylum in 2007.  “But, he’s changed his mind and he’s willing to take a risk back in Laos just because he’s really old and in bad health and thinks the end is near and he wants to die in his homeland,” Seeger said.

DHS has refused to return the passport, so Mr. Xiong filed suit to get it back.  DHS routinely keeps travel documents (and other original documents) that belong to asylum seekers.  Even after a case is completed, it is often difficult or impossible to retrieve documents.  In Mr. Xiong’s case, it would seem that DHS has every incentive to return the passport.  Let’s hope that they do.   

Traditional Hmong story cloth depicting a modern scene of war and refugees

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The Refugee Protection Act and Improved Access to Legal Services

by Jason Dzubow

This is the fifth part in an ongoing series about the Refugee Protection Act.  The RPA contains many provisions to improve legal services and legal access for asylum seekers.

The root cause of many problems in the asylum system is that aliens are not provided with counsel.  According to TRAC, a website that gathers statistical information on immigration matters, 86% of unrepresented asylum seekers are denied asylum in Immigration Court.  That compares with an overall national average denial rate of 57% (this figure includes represented and unrepresented asylum seekers in Court).  Although I have not seen any statistics, I imagine that the success rate of detained asylum seekers is even lower—such aliens have limited access to attorneys and resources to help them with their applications.  The RPA would improve this situation.

The RPA provides improved access to attorneys in several ways.  First, the new law allows the Attorney General or his designee (presumably the Immigration Judge) to appoint counsel “if the fair resolution or effective adjudication of the proceedings would be served by appointment of counsel.”  Currently, IJs can work with local non-profits or AILA to find pro bono counsel for certain cases.  This method of procuring counsel is ad hoc, and depends on the availability of pro bono counsel.  The RPA would improve the situation, but would still give the IJ (an interested party) the authority to decide whether an attorney is needed.  Ideally, any alien who expresses a fear of return should be screened by an independent reviewer to determine whether an attorney is necessary.  The RPA as written does not provide for an independent decision concerning the need for counsel.

Second, the RPA provides detained asylum seekers with improved access to legal services and resources.  It requires an on-site law library at every detention facility, free access to legal research and correspondence, including computers and printers, access to confidential meeting space to confer with legal counsel, and reasonable access to telephones to call legal representatives without charge.  The RPA also prohibits the transfer of a detainee if it would impair an existing attorney-client relationship.  Under the RPA, all new detention facilities must be located within 50 miles of a “community in which there is a demonstrated capacity to provide free or low-cost legal representation,” and by January 2014, all detention facilities must comply with this location requirement. 

Third, the RPA establishes a National Legal Orientation Support and Training Center to “ensure quality and consistent implementation of group legal orientation programs nationwide.”  The Center will provide training to non-profit agencies that will, in turn, provide legal orientation and “know your rights” presentations to detained aliens.  The RPA would also provide grants to the non-profit agencies.

By increasing access to counsel for detained and non-detained asylum seekers, the RPA would help protect legitimate asylum seekers by ensuring that their claims are properly prepared and presented for adjudication.

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Lawsuit Challenges USCIS Policy on Asylee Family Reunification

by Jason Dzubow

On May 5, 2010 The New York Legal Assistance Group (NYLAG) filed a class action complaint in the U.S. District Court for the Eastern District of New York.  The lawsuit, styled Tsamcho v. Napolitano, challenged a USCIS policy that threatens to deprive asylees of the opportunity to bring their spouses and children into this country.  

For its bad policy, USCIS gets a wag of the finger.

The plaintiff, Lhakpa Tsamcho, is a Tibetan woman who received asylum in the United States after she fled persecution in the People’s Republic of China.  USCIS approved the petitions to bring her husband and three children to the United States.  However, due to travel restrictions imposed on Tibetans by the Chinese government following unrest in March 2008, Tsamcho’s family members were unable to reach the U.S. consulate.  After they failed to appear for their interviews, USCIS reopened their approved cases and denied the petitions.

Thus, the same persecution against Tibetans that was the basis for USCIS’s grant of asylum to Tsamcho has now lead to USCIS’s refusal to allow Tsamcho’s relatives to join her in the United States.  

“Asylees affected by the [U.S.] government’s new policy have done everything required by law to reunite their families in the United States, yet they may now be permanently prevented from doing so,” said Jason Parkin, one of the NYLAG attorneys on the case.  “It makes no sense to tell an asylee that her relatives are eligible to join her in this country, only to later reverse that decision simply because they weren’t able to appear at an appointment or bring certain documents.”

The lawsuit challenges USCIS’s new asylee family reunification policy, charging the agency with acting in violation of its own regulations, taking actions that are arbitrary and capricious, and implementing a new policy without providing proper notice to the public.

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American Academy of Pediatrics Eases Up on FGM

by Jason Dzubow

The American Academy of Pediatrics has issued a revised policy statement on Female Genital Mutilation (also called Female Genital Circumcision or Cutting).  The new statement reads as follows:

The traditional custom of ritual cutting and alteration of the genitalia of female infants, children, and adolescents, referred to as female genital mutilation or female genital cutting (FGC), persists primarily in Africa and among certain communities in the Middle East and Asia. Immigrants in the United States from areas in which FGC is common may have daughters who have undergone a ritual genital procedure or may request that such a procedure be performed by a physician. The American Academy of Pediatrics believes that pediatricians and pediatric surgical specialists should be aware that this practice has life-threatening health risks for children and women. The American Academy of Pediatrics opposes all types of female genital cutting that pose risks of physical or psychological harm, counsels its members not to perform such procedures, recommends that its members actively seek to dissuade families from carrying out harmful forms of FGC, and urges its members to provide patients and their parents with compassionate education about the harms of FGC while remaining sensitive to the cultural and religious reasons that motivate parents to seek this procedure for their daughters.  

The highlighted language is new, and represents a step back from the AAP’s previous position, which opposed FGM under all circumstances. 

Since the landmark Kasinga case, women and girls have been able to qualify for asylum in the United States based on a fear of FGM.  Whether the AAP’s watered-down position will impact such asylum seekers remains to be seen.

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The Refugee Protection Act and the “Central Reason” for Persecution

by Jason Dzubow

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.

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Disgrace at the DRO

by Jason Dzubow

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.

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The Refugee Protection Act and Particular Social Groups

by Jason Dzubow

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. 

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The Refugee Protection Act and the Material Support Bar

by Jason Dzubow

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.

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