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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