The U.S. is not the only country that detains asylum seekers. Nor is it the only country where asylum seekers allege abuses during detention. Four female asylum seekers in Great Britain have brought suit claiming that they were abused at that country’s Yarl’s Woods detention center, a 405-bed detention facility for women and families. The Guardian reports that the four women allege physical and sexual abuse, separation of children from parents, and poor living conditions resulting in illness:
Last month, the High Court ruled that it would hear the women’s claims, a development that means the Home Office will be obliged to demonstrate in open court how Yarl’s Wood complies with the UK’s obligation to asylum seekers and to defend the centre against charges that its treatment of asylum-seeking women and children constitutes a “systematic disregard for human dignity.”
Yalr's Woods houses women and children asylum seekers For its part, the Home Office maintains that all four “have attacked and abused our staff,” and that “Yarl’s Wood is a well run centre with highly professional and caring staff.” Earlier this year, the facility was the scene of a hunger strike to protest the long periods of detention for women and children at the center. A recent report from the UK Children’s Commissioner found that children held at Yarl’s Woods face “extremely distressing” arrest and transportation procedures, and are subjected to prolonged and sometimes repeated periods of detention. The report further noted that healthcare problems include a failure to assess “even at an elementary level” the general psychological well being of a child on arrival and a failure to recognise psychological harm when faced with dramatic changes in a child’s behaviour. Britain detains about 1,000 children per year at the Yarl’s Woods detention center.
The Home School Legal Defense Association has set up a program to match foreign home schoolers who have fled persecution in their homelands with host families in the United States. From the HSLDA website:
Unfortunately, there are a number of countries around the world where homeschooling is actively opposed and where foreign governments seek to stamp out fledgling homeschool movements. In particular, Brazil, Germany, and Sweden are aggressively persecuting homeschoolers. Yet, brave families living in these three countries still choose to homeschool their children—in spite of intense persecution in the form of punishing fines, criminal prosecution, or the loss of custody of their children. In an increasing number of cases, families are forced to flee their homelands in the face of this aggressive, government-sponsored persecution. HSLDA has reported widely on the plight of these homeschoolers. We recently won political asylum for the Romeike family from Germany. Sadly, the United States government has chosen to appeal this ruling.
Below is the story of an asylee from Eritrea. She prefers to keep her name confidential:
I was born in 1979 in Addis Ababa, Ethiopia. I was an Ethiopian at birth but I am an Eritrean national.
Eritrea is a little known country in East Africa of about 5 million people. Eritrea was forcefully annexed with Ethiopia in 1962. Freedom fighters struggled for Eritrea’s independence against the Derg, the Ethiopian government from 1974 to 1991. The struggle ended in 1991, when the freedom fighters won the fight. A referendum was held in 1993. Eritreans overwhelmingly voted to be independent from Ethiopia. My parents decided it was time to move to Eritrea. We moved to Eritrea for good in 1993.
The Beauty of Culture by Eritrean artist Yosief Indrias I came to the U.S. on August 10, 2007, a year after I left my country. I left my country in August 2006. I won a scholarship to pursue higher studies in Geneva, Switzerland. While in Geneva, I received a tuition waiver to study at a university in Washington, DC.
I am an Evangelical Christian. While I went to Evangelical Christian churches since I was a child, I did not become a devoted Evangelical Christian until March 2005. Unfortunately, that was after the faith was banned in Eritrea and when hundreds of evangelical Christians were thrown in jail for their faith. In 2001, the government declared that only Orthodox, Catholic, Lutheran and Islam were complying churches. All other faiths, including Evangelical/Pentecostals, Jehovah Witnesses, Bahai, and Seventh Day Adventists, were declared non-compliant faiths and banned.
Going to Bible or Prayer cells in houses or even carrying the Bible could lead to arrest, detention or even death in some cases. That did not stop my desire to attend Bible study and prayer meetings. I was eager to learn God’s Word and become a mature Christian. I went to a friend’s house to pray and study the Bible.
At the time I left Eritrea, the government imprisoned hundreds of Evangelical Christians. The government did not show any signs of stopping the persecution against Evangelical Christians. I was too afraid to go back home when I finished my studies in the United States. I talked to a couple of my professors about my intention to apply for asylum. They strongly advised me against applying for asylum without legal representation. One of my professors talked to the Immigration Clinic of the Law School. The clinic contacted me and set up an appointment to interview me. Two interns at the clinic interviewed me and made copies of my documents.
About a week later, the clinic notified me that it would take my case and represent me in my asylum application. I was relieved to hear that news. My next concern was to get my asylum application filed before the one year dead line. I had only a few weeks to write my affidavit, gather documents and mail the package. I had more interviews with the interns at the clinic to write my affidavit. After the affidavit was ready, the package was mailed on August 1, 2008, just a few days before the one year deadline.
The next step was to wait for my fingerprint appointment. I had my fingerprints taken on August 21. Because the interns that prepared my application finished their internship at the end of August, the professor asked for a continuance of my asylum interview, which was originally set for the beginning of September. My interview was rescheduled for September 15, 2008. Another intern was assigned to be my student council. I had a moot interview with the clinic team a few days before my interview. The moot helped me to get prepared for the interview. I felt less anxious about the interview at the asylum office.
Then came September 15. I arrived at the asylum office early. I met the professor and the student counsel outside the building. My interview was scheduled at 9:00 AM. The three of us got up to the third floor. We sat in the waiting room. Almost three hours went by before the asylum officer called me. The long wait made me nervous.
Around 11:50, I was called by the asylum officer. We followed her to the interview room. After the oath was administered, the officer started to ask me questions. She typed my answers to her questions. She asked me questions for an hour and a half. I had not anticipated some of the questions but I had a feeling it went well. The officer told me the decision will be sent to me by mail in about two weeks.
A month and a half went by before I heard anything from the asylum office. I was very anxious to know the decision. When I get home from work, the first thing I did was to go to the kitchen table to see if anything came in the mail for me. I was so happy when I finally got the good news. It was a huge relief. I did not have to go back to my country and risks persecution from the government of Eritrea.
My getting asylum in the United States was wonderful news. However, my personal life got a little complicated because of it. My fiancé had proposed to me after I had left the country and I said yes! Now that I can not go back to Eritrea because of my asylum status, and because it is difficult for him to leave the country, we do not know when we will see each other again. We can only hope that it is sooner than we think. For now, I’m happy that I am safe until I meet the love of my life and start a new journey.
In an article about Mexicans seeking asylum for fear of drug violence, John Feere writes on the Center for Immigration Studies website that:
it should be obvious to any Immigration Judge that our nation’s asylum laws are not applicable to the situation at hand. Nevertheless, if they are successful it would represent a massive expansion of asylum law and it would undoubtedly result in increased asylum claims by Mexicans living illegally in the United States. It would also encourage more Mexicans to cross the border illegally.
I disagree with Mr. Feere’s first assertion–that our asylum laws are not applicable to those fleeing gang and drug violence. The harm faced by some asylum seekers (death at the hands of criminal gangs or corrupt government officials) would certainly qualify as persecution. In many cases, the government of Mexico cannot or will not protect people from drug violence. The main question seems to be whether such persons face persecution on account of a protected ground. That will depend on the individual case. Former police officers, for example, have been defined as a particular social group. See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). As discussed in a recent post, the Seventh Circuit has held that “former gang members” may constitute a particular social group. Ordinary citizens caught in the crossfire will have a harder time demonstrating a nexus (though they still might qualify for relief under the Torture Convention, as the harm faced might constitute torture, and–it could be argued–the persecutors are either government or quasi-government actors).
It is more difficult to argue with Mr. Feere’s second assertion–that granting asylum to some Mexicans fleeing the drug war will create incentives for more people to file for asylum, and more people to cross illegally into the U.S. Of course, if the goal of asylum is to protect people from harm, this might not be such a terrible thing (assuming the harm they face crossing the border is less than the harm they face in Mexico).
The balance between offering protection to refugees on the one hand, and not opening the floodgates on the other, is particularly difficult when it comes to our closest neighbor. However, the numbers, at least so far, do not support a conclusion that increasing violence has led to more Mexican asylum seekers or more asylum grants for Mexicans. The Justice Department figures for Mexican asylum seekers during the last decade:
Year
Asylum Seekers
Asylum Granted
Mexicans in United States Illegally
2000
5,490
47
4,700,000
2001
2,670
46
4,920,000
2002
4,994
37
5,140,000
2003
7,808
64
5,360,000
2004
3,505
68
5,580,000
2005
2,947
34
5,800,000
2006
2,793
49
6,020,000
2007
3,042
49
6,240,000
2008
3,459
72
6,460,000
2009
2,816
62
6,680,000
The (rough) estimates of the number of Mexicans residing illegally in the U.S. is based on a report from the Migration Policy Institute. Based on these numbers, on average, about 220,000 Mexicans enter the United States illegally every year. Only a very small percentage (usually <2%) of illegal Mexican migrants seek asylum each year in our country. Of those, only about 2% are granted asylum. For 2009, only 62 Mexican asylum seekers–or about 1 out of every 3,500 people–were granted asylum. Given the remote possibility of an asylum grant, Mr. Feere’s concern about creating incentives for further migration from Mexico seems overblown.
As opposed to Mr. Feere, I am an advocate for asylum seekers, and my inclination is to err on the side of offering protection. However, if the situation in Mexico continues to deteriorate and we see a spike in asylum applications (which so far we have not), we may need to address how to fulfill our humanitarian obligations without compromising our territorial integrity.
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.”
According to the Brownsville (Texas) Herald, “tens of thousands of Mexican nationals, including many journalists, officials and business leaders… have relocated to the United States since Mexican President Felipe Calderón launched a sweeping offensive against drug organizations in 2006. But because the legal standards of asylum are so high — and some researchers say even outdated — many… face devastating challenges when it comes to reaching a safe haven in the United States.”
The number of succesful asylum seekers from Mexico is small. According to the Executive Office for Immigration Review, in 2009, only 62 out of 2,816 (or 2.2%) of Mexican asylum seekers received asylum in the U.S. The numbers are relatively unchanged from previous years: In 2008, we granted 2.1% of claims and in 2007, we granted 1.6%.
“The reason so many petitions are rejected is that asylum standards were set in an older time period,” said Susan Ginsburg of the Migration Policy Institute. “Most people who have qualified for the status have fled communist regimes, dictatorships and civil wars — not criminal violence or genuine fear of violent death at the hands of drug gangs.”
“We are used to seeing the need for protection from governments and states, and this (the migration we are seeing now) is a fear of persecution from nonstate actors, criminal gangs that have taken control of areas of the country.” If the crisis continues to escalate, perhaps we will need to rethink our asylum policies.
The Montreal Gazette reports that Canada will offer incentives to persuade rejected refugee claimants to leave the country. The measure is part of a comprehensive overhaul designed to speed up the refugee-determination process, mired in a 60,000-person backlog. Immigration Minister Jason Kenney said “We’re going to try to use carrots instead of sticks,” and said the Canadian government would provide allowances of up to $2,000 to asylum-seekers whose claims are rejected.
A rejected Canadian asylum seeker?
The Canadian government hopes to decrease the average departure time for failed refugee claimants from 4.5 years to two years. Mr. Kenny states that the new measure would help prevent fraud: “The longer the queue, the more false claimants come,” he said.
Similar programs in Britain and Australia have dramatically improved compliance with deportation orders, said Kenney, who acknowledged he was initially skeptical about subsidizing rejected refugee claimants.
Whether or not a similar plan would work in the United States, it seems unlikely that there exists the political will to pay rejected asylum seekers to leave our country, even if this might be cheaper than rounding people up and deporting them.
Human Rights First is commemorating the Refugee Protection Act with a new video, featuring a bi-partisan group of commentators. I particularly like the quote from Zbigniew Brzezinski, that helping refugees is not only true to America’s moral values, but it has enriched our nation. From the HRF website:
The 30th Anniversary of this landmark piece of legislation offers an occasion to highlight the United States achievements under the Refugee Act, honor the contributions refugees and their children have made to the diverse fabric of American society, and evaluate the ways in which policymakers can work together to overcome the current challenges in the U.S. refugee resettlement and asylum systems.
The Refugee Protection Act of 2010 has been introduced to address some of the “current challenges in the U.S. refugee resettlement and asylum systems.”
As drug and gang violence in northern Mexico increases, KOB News reports that terrified resident–and even police officers–are fleeing across the border:
The police chief of a Mexican border town has requested asylum in the United States, where he told authorities his two officers have fled and he does not know their whereabouts. The Luna County Sheriff’s Department and the U.S. Border Patrol say Emilio Perez of Palomas came to the port of entry at Columbus late Tuesday night, requesting political asylum.
In a related story, Fox Newsreports, “At least 30 residents of El Porvenir, located about four miles from the Texas border town of Fort Hancock, have crossed into the U.S. and asked for political asylum, telling authorities that they fear for their lives.”
Violence in Mexico seems to be spiraling out of control. For this past Tuesday, the total 24-hour death toll for Tamaulipas was 18 people killed and four injured in the latest round of violence throughout the state.
Asylum claims in connection with activities of organized gangs have recently come to the fore in different parts of the world. The purpose of this Guidance Note is to assist adjudicators with the assessment of such claims and to ensure a consistent interpretation of the refugee definition. It presents a brief overview of gangs and their practices, as well as a typology of victims of gang-related violence. The Note also contains a brief analysis of the international legal framework, and builds on jurisprudential developments.
I worked on a gang case a few years ago where the Immigration Judge granted my client withholding of removal. I think what impressed the Judge was the extreme violence of the gang (MS-13), and the real possibility that my client would be harmed or killed if he returned to his country.
Asylum applicants must demonstrate that their stories of persecution are reliable, and few things set off judicial “reliability detectors” as much as a shifting narrative.
The problem is exacerbated by the fact that a refugee will typically go through a battery of interviews with many different authorities before her claim is adjudicated. As the mound of interview transcripts grows, so too do the odds of conflicting testimony.
Ming Zhang recently learned this the hard way. Zhang, who entered the U.S. in 2003 and made a Chinese “family planning” claim – premised on protections offered for victims of China’s coercive family planning policies – was denied asylum on the basis of inconsistencies between her testimony before an immigration judge, in her “airport interview,” and in her “credible fear” interview. Zhang’s appeal of this denial was upheld in an October 2009 decision that established new precedent in the Second Circuit on the issue of the extent to which reviewing courts may consider the record of “credible fear” interviews when evaluating an alien’s reliability. See Zhang v. Holder, No. 07-0327 (2nd Cir. Oct. 30, 2009):
[Zhang’s] asylum application emphasized that she had undergone two forced abortions and had been driven to attempt suicide. [She] did not, however, discuss any of these events at her airport interview, or at her later credible fear interview.
Zhang, who does not speak English and was interviewed through a Mandarin translator, had told her airport interviewer that she immigrated because the Chinese government was forcing her to “have a birth control device” implanted in her, that she had been detained for refusing to submit to the procedure, and that if she was sent back she “would die.” She repeated but did not add to those claims a week later, in a “credible fear” interview at an INS facility where she had been detained.
When asked why she did not discuss the forced abortions and suicide attempt at those interviews, Zhang said she was “confused” and did not know what to say. She further asserted that she had mentioned “suicide” in her airport interview, and that the omission of that statement from the transcript was wrong. This explanation did not sway the IJ, the BIA, or the federal court.
The new Immigration Court in the Northern Mariana Islands is up and running. An article in the Saipan Tribune reports that “The Department of Homeland Security’s Immigration and Customs Enforcement has filed 30 new removal cases, bringing to 51 the total number of cases that have been filed with the Saipan U.S. Immigration Court since the federalization law took effect on Nov. 28.”
From Tuesday until Thursday, Immigration Judge Philip L. DiMarzio heard the 51 cases, mostly Chinese nationals involved in human smuggling cases. In what appears to be a blatant breach of confidentiality, the paper reported and named a Chinese asylum seeker who appeared before the court. For more on confidentiality and Immigration Courts, click here.
On March 30, 2010, 27 refugees from countries such as Ethiopia, Iran, Iraq, Pakistan, Somalia, and Vietnam were sworn in as new United States citizens. President Obama addressed the new citizens by video:
“It’s now officially your country,” Obama said in this message, broadcast at the offices of the Immigration and Nationality (USCIS), where the ceremony took place. “In America, no dream is impossible. Like the millions of immigrants who came before you, you have the opportunity to enrich the country by your contributions to the society of citizens”, he added.
“This ceremony speaks of our country as a refuge for people who are fleeing despair or circumstances that our country does not tolerate within its borders,” Alejandro Mayorkas, director of the USCIS said after the ceremony. The ceremony was held on Tuesday in Washington, DC. More details are available here.
On March 26, 2010, the Board of Immigration Appeals issued a published decision in Matter of H-L-H- & Z-Y-Z, 25 I&N Dec. 209, Interim Decision # 3676 (BIA 2010). In that case, the IJ granted asylum to a couple from China who feared persecution / forced sterilization. DHS appealed. The Board sustained the appeal and ordered the couple removed to China. Some key points from that decision:
While the Immigration Judge’s findings of fact are reviewed under the “clearly erroneous” standard, the question whether the facts are sufficient to establish that the respondent has a well-founded fear of persecution upon return to China is a legal determination that we review de novo.
Determining whether a fear of what may happen in the future is well founded essentially involves predicting future events, and “it is impossible to declare as ‘fact’ things that have not yet occurred.” … We therefore review de novo the question whether the respondent has carried her burden of establishing a well-founded fear [of future persecution].
In order to determine, under de novo review, whether specific facts are sufficient to meet a legal standard such as a “well-founded fear,” the Board has authority to give different weight to the evidence from that given by the Immigration Judge…. This authority is critical to permit the Board to determine whether the facts as found by the Immigration Judge meet the relevant legal standard….
State Department reports on country conditions, including the Profiles of Asylum Claims & Country Conditions, are highly probative evidence and are usually the best source of information on conditions in foreign nations.
The Board seems to have discounted letters and news articles that did not accord with the State Department reports on China. While it is understandable that the BIA would give significant weight to reports from the U.S. government, it seems a bad precedent to minimize evidence that may be more specific to the asylum seekers’ circumstances.
The Refugee Opportunity Act (s.2960), sponsored by Senators Leahy (D-VT), Cardin (D-MD), Feingold (D-WI), and Lugar (R-IN), would exempt aliens who are admitted into the U.S. as refugees or granted asylum and are employed abroad by the federal government or a federal contractor from the continued physical presence requirement. Under current law, refugees who enter the U.S. must be present in the country for one year in order to have their immigration status adjusted to lawful permanent resident (LPR).
In a published decision, the BIA has reversed an Immigration Judge’s ruling that an application for asylum filed within one year of “changed circumstances” was timely. The IJ granted asylum to a couple from China who feared persecution based on the Chinese government’s coercive family planning policy. The couple filed for asylum within one year of the birth of their second child. The IJ found that the couple’s asylum application was filed within a reasonable period of the changed circumstances and granted relief. In Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193, Interim Decision # 3673 (BIA 2010), the Board reversed, holding:
[W]e disagree with the Immigration Judge’s legal determination that the respondents satisfy an exception to the 1-year asylum filing deadline simply because their applications were filed within 1 year of “changed circumstances” that materially affect their eligibility for relief.
The Board noted that asylum applications must be filed within a “reasonable period” of the changed circumstances. Normally, such reasonable period cannot exceed six months. The BIA remanded with instructions for the IJ to determine whether the “respondents’ situation warrants an exception to the 1-year asylum application filing deadline.”
If passed into law, the Refugee Protection Act would eliminate the one-year filing deadline and might modify the “reasonable period” examined here.
