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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Mexican Violence Challenges US Asylum System

by Jason Dzubow

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.

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Canada to Pay Asylum Seekers to Leave

by Jason Dzubow

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.

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Commemorating the Refugee Protection Act of 1980

by Jason Dzubow

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.”

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Mexican Police Chief Seeks Asylum

by Jason Dzubow

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.

Besides ramping up border enforcement, the U.S. will need to find a way to deal with refugees from Mexico’s drug war.  In March, the United Nations released a report examing asylum claims based on fear of persecution by criminal gangs: Guidance Note on Refugee Claims Relating to Victims of Organized Gangs.  A UNHCR press release describes the report:

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.

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The Ghost of Credible Fear Interviews Past

by Jason Dzubow

Inconsistency can doom an asylum application.

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.

(more…)

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Northern Mariana Islands Court Ramps Up

by Jason Dzubow
Who wouldn't want asylum here?

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.

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