Liu v. Holder: Frivolous Asylum Applications

The Ninth Circuit recently examined “the distinction between an applicant for asylum whose testimony lacks credibility and one who has ‘deliberately fabricated’ material aspects of her application. See Liu v. Holder, No. 08-72849 (9th Cir. Feb. 23, 2011).  The Court held:

“[A]n asylum application is frivolous if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20. If found to have “knowingly made a frivolous application for asylum,” an applicant will be “permanently ineligible for any benefits under [the Immigration and Nationality Act],” including asylum relief. 8 U.S.C. § 1158(d)(6). Given these harsh consequences, the distinctions between the requirements for an adverse credibility determination and a frivolousness finding are of critical importance.

The Court ultimately concluded that whether an alien submitted a frivolous asylum application is a “distinct question requiring a separate analysis.”

In examining Ms. Liu’s case, the Court found that the Board’s adverse credibility finding was supported by substantial evidence.  However, “a finding of frivolousness does not flow automatically from an adverse credibility determination.”  The Court noted four substantive requirements that distinguish an adverse credibility finding from a finding of frivolousness:

First, an asylum application may be deemed frivolous only if it contains a deliberate fabrication, and the applicant has thus perpetrated a fraud on the court.  Second, a frivolousness determination requires a finding that a “material element” of the claim was fabricated, whereas an adverse credibility determination may be supported by an inconsistency or apparent falsehood that merely relates to a material element of the claim.  Third, although the “applicant for relief from removal has the burden of demonstrating that he or she meets all of the requirements” for such relief, the burden shifts to the government to prove the applicant has filed a frivolous application.  Fourth, a frivolousness finding requires a stronger evidentiary showing than an adverse credibility finding: frivolousness must be proven by a preponderance of the evidence, whereas an adverse credibility finding must be supported only by substantial evidence.

Besides the substantive requirements, there are also procedural requirements for a finding of frivolousness.  In Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), the Board set forth four procedural requirements for a frivolous finding: 

(1) Notice to the alien of the consequences of filing a frivolous application; (2) A specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application; (3) Sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated; and (4) An indication that the alien has been afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.

In other words, it’s not easy to have your asylum case found frivolous.  This is as it as it should be, given the harsh consequences for a frivolous finding.

DHS and Mentally Ill Respondents: Why Is the Fox Guarding the Hen House?

I recently learned about the removal case of mentally ill man from Africa.  Several years ago, the man was granted Withholding of Removal from his country because he faced persecution there.  His immigration case was recently re-opened after he committed a crime rendering him ineligible for Withholding.  He might still be eligible for relief under the UN Convention Against Torture, if he demonstrates that it is more likely than not that he would be tortured in his country.   

Based on an expert report, the Immigration Judge found that the man (who cannot be identified here) was not competent to represent himself.  At the IJ’s insistence, DHS appointed a custodian, an ICE Detention and Removal Officer.  At the hearing, the ICE officer failed to appear, so the IJ dismissed the case.  The IJ found that, because the alien could not represent himself, the absence of a custodian violated his right to due process of law.  DHS appealed and the case is currently before the Board of Immigration Appeals.

What concerns me is not the failure of the custodian to appear for the hearing (it seemed to be an honest mistake), but the fact that the custodian was an ICE Detention and Removal Officer.  Why is the person charged with physically detaining and removing the alien the same person who is supposed to represent the alien’s interests in court?  Clearly, something needs to be done.

According to the Immigration Policy Center, over the last year or so, DHS has been working with stakeholders to improve the situation for mentally ill aliens in immigration court.  Some issues are: (1) The absence of a formal mechanism to identify mentally ill aliens in immigration court; (2) Mentally disabled aliens are not appointed counsel in immigration court; (3) Aliens with mental disabilities cannot effectively represent themselves in court; and (4) Immigration judges have too many cases to effectively address the needs of aliens with mental disabilities.  Perhaps DHS will issue some standards to protect mentally ill aliens, though it is unlikely that the standards currently under consideration would satisfy advocates for the mentally ill.  (The Legal Action Center of the American Immigration Counsel has an informative website about this issue).

In the mean time, the BIA might take matters into its own hands.  In the pending case of Matter of L-T-, the Boards has requested briefing on issues related to mentally ill aliens in immigration court.  An amicus brief filed in this case by the Legal Action Center (formerly AILF) is available here.

Mentally ill aliens in immigration court face many difficulties.  At the minimum, we should try to ensure that their due process rights are protected.  As things stand now, that is not the case. 

In Defense of Government Bureaucrats

As an immigration attorney, I have plenty of contact with “government bureaucrats:” USCIS and ICE officers, DHS attorneys, CBP officials, and Immigration Judges, to name a few.  Some of them can be annoying (why can’t they always just do what I want?).  A few are downright mean or incompetent.  But the current attack against government workers gives me pause.

Do you love your country? Thank a bureaucrat.
Do you love your country? Thank a bureaucrat.

John Boehner recently dismissed concerns that proposed budget cuts would cost tens or hundreds of thousands of government jobs: “So be it,” he said.  And in Wisconsin, the Republican governor has used the budget crisis as an excuse to bust government employee unions.  It’s all part of a philosophy of government that stretches back to President Reagan, who famous told us that “government is the problem.”

My view is that the current climate of disrespect for government workers is dangerous to our democracy and reflects a naiveté bordering on stupidity.

Ours is a nation of laws, and those laws are enforced by government workers.  Whether their responsibility is to enforce immigration laws, protect the environment, educate our children or ensure that our food is safe, government workers implement the law.  They are not always perfect, to be sure, but generally they have helped perpetuate a democratic system based on the rule of law.  Thus, the attacks against them are dangerous to our democracy.

Also, these attacks are incredibly naive.  Anyone who has spent time in a country that does not have an established, (relatively) corruption-free bureaucracy understands how crucial it is to have honest civil servants.  If you want to know why the United States is different from any number of third world countries, look no further than the people who enforce our laws.  The idea that attacking them and devaluing their service is somehow patriotic is ridiculous.

While I can’t say I always love the government workers I interact with, I recognize that they are an indispensible part of our system of government.  The recent attacks against “government bureaucrats” are not only wrong-headed, they are downright unpatriotic.

Federal Government Provides Grants to Help Refugee Children

The Office of Refugee Resettlement (“ORR”) at the U.S. Department of Health and Human Services provides grant money to support local school systems that are impacted by significant numbers of newly arrived refugee children.  Last year, ORR provided about $15 million in grants. 

Children everywhere are celebrating the ORR grants.

The ORR Program “target[s] school-age refugees between the ages of five (5) and 18 years of age with program activities that include English as a Second Language instruction, after-school tutorials, programs that encourage high school completion and full participation in school activities, after-school and/or summer clubs and activities, parental involvement programs, bilingual/bicultural counselors, interpreter services and other services.”

The San Jose Mercury News reports that about $890,000 in grants were awarded to school districts in California.  The money went to districts that received more than 300 refugee school-age children during the past three fiscal years.  “We are excited to announce these awards,” said state Department of Social Services Director John Wagner.  “These funds will allow our local partners to provide needed supplemental educational services to refugee students.”

From the information I could gather (in a very difficult to understand chart from ORR), it appears that the program has assisted over 69,000 refugee children from FY 2007 to FY 2009. 

It’s unclear whether the cuts in the upcoming budget will affect the ORR grant program.  Hopefully not, as refugee children are some of the most vulnerable people in our community, and the federal money for helping them integrate will likely yield long term benefits for them and for our country.

Think You Can Do Better Than USCIS – Let Them Know!

The Refugee, Asylum, and International Operations (RAIO) Directorate will hold a stakeholders meeting on March 2, 2011 at 2:00 PM (EST) in Washington, DC.  The purpose of the meeting is

to discuss changes to the organizational structure of the Directorate. RAIO aims to strengthen cohesion between its three divisions by developing directorate-level functions that will allow for more integrated planning, guidance, and management of knowledge assets. During the session, USCIS will provide an overview of the organizational changes and plans for the transition as well as address questions and concerns from stakeholders.

RAIO is the office responsible for overseeing, planning, and implementing policies and activities related to asylum and refugee issues as well as immigration services overseas.  It is made up of three divisions: (1) The Refugee Affairs Division, which is a principal partner in the United States Refugee Admissions Program, and is responsible for providing the humanitarian benefit of refugee resettlement to applicants in need of protection throughout the world while diligently protecting the U.S. homeland; (2) The Asylum Division, which manages the U.S. affirmative asylum process; and (3) The International Operations Division, which has 29 international field offices around the world and serves as the face of USCIS overseas.  The international offices play a critical role in extending immigration benefits to eligible individuals and exercising vigilance in matters of fraud detection and national security.

For more information or to sign up to attend the meeting (in person or by phone), click here.

Mubarak Is Not Eligible for Asylum

When your photo is crossed out AND burned, you know it's time to go.

After 30 years of autocratic rule, the people of Egypt have forced President Hosni Mubarak to resign.  There has been much talk about Mr. Mubarak seeking asylum abroad, but does he qualify for asylum under international law?  I think the answer is an unqualified “No!”

A person who faces a well founded fear of persecution on account of race, religion, nationality, political opinion or particular social group, may qualify for asylum.  However, one who “ordered, incited, assisted, or otherwise participated in the persecution of any person” on account of a protected ground is barred from asylum.  Under this provision, Mr. Mubarak is barred from receiving asylum.

Here are some reports about Mr. Mubarak’s Egypt.  First, from the U.S. State Department:

The government’s respect for human rights remained poor, and serious abuses continued in many areas.  The government limited citizens’ right to change their government and continued a state of emergency that has been in place almost continuously since 1967.  Security forces used unwarranted lethal force and tortured and abused prisoners and detainees, in most cases with impunity….  Security forces arbitrarily arrested and detained individuals, in some cases for political purposes, and kept them in prolonged pretrial detention.

Amnesty International reports:

The government continued to use state of emergency powers to detain peaceful critics and opponents….  Some were held under administrative detention orders; others were sentenced to prison terms after unfair trials before military courts.  Torture and other ill-treatment remained widespread in police cells, security police detention centres and prisons, and in most cases were committed with impunity.

And this, from the Daily Beast:

Few know the cruelty of Mubarak’s regime better than [Kareem] Amer, who spent the last four years in prison for criticizing the dictator and “insulting” Islam on his blog.  When I asked him to describe Mubarak’s record, he said: “Many human-rights activists and journalists were imprisoned during his reign.  Some were beaten and tortured.  Others were abducted or disappeared without a trace.  The most important of these incidents was the disappearance of the Egyptian journalist Reda Helal in the heart of Cairo in 2003.  Many believe the security services were behind the abduction because of his political views.”

Mr. Mubarak has been an ally of the U.S. and he respected the peace treaty with Israel, but he was a human rights abuser who held power by torturing and killing his own people.  With such a record, it is clear that Mr. Mubarak would be barred from asylum under international law.

Ethiopian Asylum Seekers Die Along the Smuggling Route

I’ve written a number of times about the route East African asylum seekers take to reach the United States.  The journey usually takes them through Africa to South Africa, and then to South America, Central America, and finally the U.S.  Along the way, the asylum seekers are passed from one smuggler to the next.  Because I deal with the people who make it here, I don’t usually think about those who do not survive the trip.

Voice of America reports that on February 2, eight Ethiopian asylum seekers suffocated to death in a closed container truck while attempting to reach South Africa:

The UN refugee agency [UNHCR] said the Ethiopian asylum seekers had been living in the Maratane refugee camp in northern Mozambique, from where they embarked on their ill-fated journey.  The driver of the truck in which they were traveling reportedly only realized the eight had suffocated when he made a stop at Mocuba, after seven hours of driving from the camp.

Statistics on asylum seeker deaths are hard to come by, so the magnitude of the problem is not well known, but I’d venture to guess that the number of deaths is quite high.  I sometimes hear anecdotal evidence from my clients about this problem.  For example, an Eritrean client recently told me about two Eritrean women who drowned while crossing a swamp in Panama.  I could not find statistics for asylum seekers coming to the U.S., but I did find some information about Britain and Australia:

The New Statesman report that 77 asylum seekers died in Great Britain during the last four years: Of the deaths, more than a third (28) were suicides following rejected asylum claims. Seven people died after being denied healthcare for “preventable medical problems.” Seven more died in police custody, while 15 lost their lives during “highly risky” attempts to enter the country. Seven were killed in racist street attacks, four after deportation to a country where they feared for their safety, two as a result of destitution, and four because they had been forced into dangerous work in the black economy. 

A website called Abolish Foreignness reports that between 2000 and 2010, 1,053 asylum seekers died in Australia or en route to that country.  The majority of the deaths were from people drowned at sea.

It is probably impossible to know how many asylum seekers die on the long and dangerous journey to the United States.  But it is clear that, despite the risk, many people are willing to make the trip.  

Immigration Judges Repudiate Asylum Officers

The Executive Office for Immigration Review has released its Statistical Yearbook for FY 2010.  Page 33 of the report lists the Immigration Court grant rates for affirmative and defensive asylum cases.  According to the report:

There is some difference in the grant rates depending on whether the asylum application was filed affirmatively or defensively.  There are two ways that aliens may request asylum: “affirmatively,” by completing an asylum application and filing it with a DHS Asylum Office; or “defensively,” by requesting asylum before an immigration judge [after the alien has been placed into removal proceedings]. 

The IJ grant rate for affirmative cases is significantly higher than for defensive cases:

Year

 IJ Grant Rate for Affirmative Asylum Cases

IJ Grant Rate for Defensive Asylum Cases

 FY 2006

 51%

 34%

 FY 2007

 51%

 39%

 FY 2008

 51%

 37%

 FY 2009

 55%

 36%

 FY 2010

 61%

 35%

This seems counterintuitive–affirmative cases have already been reviewed by the Asylum Office, which should have granted the applications that qualify for asylum, so the Immigration Courts are only reviewing affirmative cases that have previously been denied.  Defensive cases, on the other hand, come before the Court for the first time, so the judges are reviewing the good cases and the bad cases.  The low grant rate for defensive cases can be explained (many are denied because they are not filed within the one year deadline or because the claims are barred for other reasons, such as criminal convictions), but what interests me is the relatively high grant rate for affirmative cases.

Judges are not pleased by the high number of referred asylum cases.

Each affirmative asylum case has already been reviewed and denied (technically, referred) by the Asylum Office.  Thus, all the affirmative cases that come before the Immigration Court have been examined and rejected by a trained asylum officer.  Why, then, are 61% of those decisions being reversed by Immigration Judges? 

One reason may be that more asylum seekers are represented before judges than before the Asylum Office.  There is no doubt that a good attorney makes a difference in whether a case is granted (88% of unrepresented asylum seekers are denied, as compared with about 55% of represented asylum seekers). 

Also, because Asylum Officers generally do not need to describe their reasons for a denial, they can be more sloppy than IJs.  I experienced this in a recent decision referring one of my clients to court: the Asylum Officer used a boilerplate excuse–that there were “material inconsistencies” in the client’s testimony–to deny the case.  In fact, the client’s testimony was consistent with her affidavit, supporting documents, and country conditions.  However, because the Asylum Officer is not accountable to anyone for his decision, he can deny the case without explaining himself (and in a manner that–to me at least–was intellectually dishonest).   

When Asylum Officers refer cases to court that should be granted, it is a waste of government resources.  It also causes unnecessary stress and expense (not to mention wasted time) for the alien.  I don’t know whether it has been done before, but it would seem worthwhile to study referred cases that have been granted by IJs.  Perhaps such a study would lead to improvements in how the Asylum Offices (or the Immigration Courts) adjudicate cases.

New Asylum Law in Mexico Could Reduce the Flow of Refugees to the U.S.

Mexican President Felipe Calderon last week signed into law a new provision meant to bring Mexican asylum law in line with international standards.  Fox News Latino reports that the law was drafted taking into account the model legislation from the United Nations High Commissioner for Refugees.

Cantinflas
Until recently, Mexican asylum law was enforced by this guy.

“From now on,” President Calderon said, “Mexico will consider applications for refugee status from any person who cites a fear of being persecuted for his race, religion, nationality, membership in a particular social group or political opinion.”  Gender persecution will also be considered legitimate grounds for an asylum claim, he said.  Officially recognized refugees will have a right to work and to access health care and education.

UNHCR hailed the move:

Mexico has long been a signatory of the 1951 Refugee Convention and its 1967 Protocol and the country has a history of protecting asylum-seekers and refugees.  But, until now, Mexico lacked a specific legal framework for dealing with refugees as previous laws did not comply with international standards.

This law conforms to such standards.  It includes important principles such as non-refoulement (non forced returns); non-discrimination; no penalty for irregular entry; family unity; best interests of the child; and confidentiality.

If–and it is a big if–the new law is properly implemented, it could have an impact on the flow of asylum seekers into the U.S. via our Southern border.  As I’ve discussed in this blog previously, African, Chinese, and other asylum seekers enter the United States at the Mexican border and then file for asylum in the U.S.  If these people pass through Mexico without requesting asylum, it could negatively impact their chances for success in the United States (for example, they might be deemed less credible).  If they request asylum in Mexico, and their request is granted, they would be ineligible for asylum in the U.S., as they would be “firmly resettled” in Mexico for purposes of the immigration law. 

In addition, the U.S. currently has a “safe third-country” agreement with Canada, meaning that people denied asylum in Canada cannot apply for asylum here, and vice versa (at least that is how the agreement is supposed to work).  If the Mexican asylum law meets international standards, perhaps we will enter into such an agreement with Mexico.  This would further reduce the possibility for asylum seekers to pass through Mexico and then seek asylum in the United States.

The impact of the Mexican law on the flow of asylum seekers into the United States will depend on how effectively the new law is implemented.  Given the Mexican government’s current challenges, I’m a bit skeptical of its ability to live up to the high standards it has set for itself.  I suppose we’ll have to wait and see.