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.
Last December, I attended a funeral for a close friend at the Hebrew Free Burial Association on Staten Island. The HFBA provides burial services to indigent Jews. They assist hundreds of grieving families every year. They also ensure that people without family or friends have a proper funeral under Jewish law. In the Passover issue of the HFBA newsletter, the Association pays tribute to Jews who fled the Soviet Union in search of freedom:
The Former Soviet Union reserved its most oppressive measures for religious minorities, especially Jews. As we celebrate Passover, the Festival of Freedom, it is appropriate to recount the following end-of-life stories of some who fled for freedom in the United States.
Iosif [not his real name] was a Russian veteran of World War II and subsequently was an active dissident against the Soviet government. Prior to leaving the USSR for the United States, he was beaten by authorities and his kidneys were severely damaged. In New York, despite ill health, he participated in the campaign to free Soviet Jewry and to educate efforts of Yad Vashem to identify victims of the Holocaust. As his kidneys failed, we were contacted by his old friend to arrange for his eventual burial next to the brother who had followed him to New York and pre-deceased him. Iosif who remained true to his Jewish values during a difficult life, received the proper Jewish burial he wanted and deserved.
Mikhail [not his real name] was referred to HFBA by a social worker in the JASA-sponsored building in which he lived. He had emigrated from the former Soviet Union to New York at the same time that his daughter Larisa had moved to Bulgaria. Although highly educated, Mikhail was unable to make a living in the United States and relied on government assistance. When he died, HFBA contacted his daughter who was distraught that she had no funds for the burial. We put her mind at east about the burial arrangements. HFBA’s Rabbi Plafker patiently educated Larisa who knew nothing of her Jewish heritage, about Jewish funeral procedures. We also arranged for Larisa to have access to her father’s apartment so she could retrieve precious mementos.
I was struck by both stories. In the first, after Iosif came to the United States, he continued his political activism and tried to help others who remained behind. I sometimes see this in my asylum clients, who have come to the United States, but remain politically active in organization devoted to improving their homelands.
In Mikhail’s case, we have someone who fled persecution and reached safety, but was never able to fulfill his potential and had to rely on government assistance to survive. These days, there are many organizations that help refugees and asylum seekers adjust to their new lives. One organization that I find particularly helpful is CLINIC, the Catholic Legal Immigration Network, Inc., which has a referral line to assist asylees:
CLINIC’s National Asylee Information and Referral Line refers asylees to more than 500 local providers of resettlement services such as English language classes, job placement assistance, temporary cash assistance, and health care.
This excellent program has assisted over 30,000 asylees since its inception in 2001. The telephone number is 1-800-354-0365. I refer my clients there, and they report that it is very helpful.
Now that the State Department Report on Human Rights Practices is out, the critics are weighing in. Mark Weisbrot writes in the Guardian that “After Abu Ghraib, Gitmo and extraordinary renditions, other countries now challenge America’s standing on human rights.” In his piece, “Who is America to Judge?,” Weisbrot writes:
Clearly, a state that is responsible for such high-profile torture and abuses as took place at Abu Ghraib and Guantánamo, that regularly killed civilians in Afghanistan and Iraq and that reserved for itself the right to kidnap people and send them to prisons in other countries to be tortured (“extraordinary rendition”) has a credibility problem on human rights issues.
In other words: Who are we to cast the first stone? I suppose I don’t quite get his point. The report speaks for itself. Whether our own human rights record is spotless or horrible is not the issue. The issue is whether the report is accurate. If there exists inaccuracies in the report (which undoubtebly there are), those inaccuracies can be examined. But the fact that America is imperfect is not a valid basis to reject the State Department’s conclusions.
One government that has been particularly sensitive to U.S. criticism is the People’s Republic of China. After the 2008 Human Rights Report was released, the Chinese government issued a report of its own, discussing human rights in the United States. The introductory section of the report reveals the report’s main purpose, which seems to be payback for the State Department’s negative comments on China:
The State Department of the United States released its Country Reports on Human Rights Practices for 2008 on February 25, 2009. As in previous years, the reports are full of accusations of the human rights situation in more than 190 countries and regions including China, but mentioned nothing of the widespread human rights abuses on its own territory. The Human Rights Record of the United States in 2008 is prepared to help people around the world understand the real situation of human rights in the United States, and as a reminder for the United States to reflect upon it s own issues.
The Denying Duo: Meles Zenawi and Hu Jintao
The Chinese accusation of U.S. hypocricy rings hollow for several reasons. First, the Chinese government has issued its human rights report about the United States, but not about any other country. It seems, then, that the PRC is more concerned with retaliating against the U.S. than promoting human rights. Second, the Chinese report demonstrates a fundamental misunderstanding of the State Department Report. The State Department reports on foreign governments, not on the internal situation in the United States. We have other agencies to do that. Indeed, much of the Chinese report is culled from United States government agencies that have issued reports on the domestic situation. The premise of China’s report–that the U.S. criticizes others without looking inward–is simply wrong. It’s just that the list of agencies that examine human rights inside the United States does not include the State Department. Finally, the Chinese government has not responded to the substantive accusations in the DOS report. Rather than examine its own substantial problems, the PRC government has tried to distract attention by shooting the messenger. On one point, however, I agree with China: We in the United States would do well to reflect on our own human rights record. Of course, given the myriad reports from different U.S. government agencies, we can do that very well without the help of the Chinese government.
Another government that has been critical of the DOS report is Ethiopia. The Voice of America (which, by the way, is being jammed by the Ethiopian government) reports:
Ethiopia’s Prime Minister Meles Zenawi has blasted the latest U.S. State Department human rights report, saying it is full of lies and loopholes that expose its authors to ridicule… The prime minister accused the State Department’s human rights investigators of sloppy work in compiling the 61-page annual report on Ethiopia.
As opposed to China, at least Mr. Meles has pointed to some alleged inaccuracies in the report: “one person listed in the report as ‘disappeared’ could easily have been found alive and well at his workplace,” said the Prime Minister. “Acting US Ambassador to Ethiopia John Yates said experts had gone to great lengths to ensure the document’s accuracy, and rejected information that could not be verified.” Having litigated over 100 asylum cases from Ethiopia, I’ve spent considerable time examining different sources on that country’s human rights record. It’s not just the DOS that has criticized Ethiopia. Even if there are inaccuracies in the report, my guess is that the report is closer to reality than Mr. Meles cares to admit.
In In re C-T-L, the BIA invited amicus curiae briefing on the question of whether the “one central reason” standard adopted by the REAL ID Act, and indisputably applicable in asylum cases, also applies to withholding of removal cases. Engaging in a comprehensive statutory interpretation analysis, AILA’s amicus brief [available to AILA members only] demonstrates that this standard does apply to withholding cases.At the same time, AILA urges the BIA to reconsider an earlier precedential asylum case that unlawfully restricts the meaning of the “one central reason” standard. Unfortunately, AILA is not alone as amicus. The anti-immigrant Federation for American Immigration Reform (FAIR) submitted an amicus brief which argues for the opposite result, although without the same thorough analysis found in AILA’s brief [ed. note: we cannot comment on the quality of the FAIR brief, since it is not available on the internet].
Last month, the BIA also heard oral argument in another asylum case in which the Northwest Immigrant Rights Project (NWIRP), the Immigration Council, and AILA all participated as amici. There, the BIA was concerned with whether, under National Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (Brand X), it could refuse to follow Ninth Circuit precedent that sets forth the “disfavored group” analysis for asylum cases. At oral argument, counsel for NWIRP (Matt Adams), representing amici, explained how the disfavored group standard arises directly from the asylum statute itself and is an entirely reasonable doctrine, not inconsistent with the case law of the other circuits. For these reasons, amici argue that the Board must apply this standard in cases arising in the Ninth Circuit.
Given the glacial pace of the BIA, don’t expect a decision any time soon on these cases.
Compared to 2008, the overall number of asylum-seekers remained the same with 377,000 applications, despite significant regional disparities highlighted by the report.
Afghans topped the list of asylum applicants with 26,800 submissions representing a 45 per cent increase over 2008. Iraqis dropped to second place with some 24,000 claims, while Somalis moved to third position with 22,600 asylum applications. Among the top countries of origin were also the Russian Federation, China, Serbia, and Nigeria.
In terms of regions of origin, nearly half of the total 377,000 applicants originate from Asia and the Middle East (45%), followed by Africa (29%), Europe (15.5%), and the Americas (9%).
The United States stayed the main destination country for the fourth year, with 13 percent of the claims representing an estimated 49,000 people, in particular from China. Second was France, receiving 42,000 new applications in 2009, a 19 percent hike compared to 2008, due to increasing claims from citizens of Serbia originating predominantly from Kosovo. Canada, while still ranking third among receiving countries, saw the number of asylum applications decrease by 10 percent in 2009 down to 33,000 after a drop in Mexican and Haitian claims. Following was The United Kingdom which also registered a drop in claims with 29,800 applications, one of the lowest in 15 years. On the other hand, claims in Germany increased by 25 percent with 27,600 applications recorded in 2009, making it the fifth largest receiving country. Together, these five top destination countries received 48 percent of the total claims recorded in 2009.
The overall stability in the number of asylum seekers belies regional increases and decreases. For example, countries in southern Europe (like Italy, Turkey, and Greece) experienced a 33% decrease in the number of asylum seekers from 2008 to 2009. The Nordic countries experiences a 13% increase and Australia and New Zealand reported increases of 30% over the previous year. The United States experienced a small decrease (49,600 in 2008 compared with 49,000 in 2009), and Canada reported a 10% decrease.
