Let’s Deny Asylum to Sick People!

Horace Walpole famously observed that the world is a comedy to those who think, and a tragedy to those who feel. That about sums up my view of the Trump Administration’s immigration policies: They are so ludicrous and so removed from reality that they would be funny if it weren’t for the fact that people are dying. The most recent proposed regulation neatly fits into this dichotomy; it is as absurd as it is harmful.

Using the pandemic as an excuse, the Administration proposes expanding an existing bar–applicable to aliens deemed a “danger to the security of the United States”–to deny asylum to “aliens who potentially risk bringing in deadly infectious disease to, or facilitating its spread within, the United States.” As usual, the main targets of this latest policy are aliens seeking asylum at the Southern border, but other applicants might be effected as well. Also, unlike some of the prior bans, this one specifically targets non-citizens seeking protection under the United Nations Convention Against Torture

Let’s start with the law. Under the Immigration and Nationality Act (“INA”), there are several “bars” to obtaining asylum. These bars prohibit granting asylum to aliens who (1) “ordered, incited, assisted, or otherwise participated” in the persecution of others on account of a protected ground; (2) were convicted of a “particularly serious crime”; (3) committed a “serious nonpolitical crime outside the United States”; (4) are a “danger to the security of the United States”; (5) are involved in terrorist-related activities; or (6) were “firmly resettled in another country prior to arriving in the United States.”

Gesundheit! That’s German for “Asylum Denied.”

Do you notice anything about these different bars? Except for number 6, they all involve people doing bad things. While “danger to the security of the United States” could theoretically be interpreted to include sick people, when considered in relation to the other bars, that interpretation doesn’t make a lot of sense. Indeed, there is a principle of statutory construction called ejusdem generis, which basically says that when you have a list that contains a vague term, you should interpret that term consistent with other items on the list. The BIA famously invoked ejusdem generis (and called it a “well-established doctrine”) in Matter of Acosta, when it interpreted the meaning of particular social group. So it seems more than a small stretch for the Trump Administration to define “danger to the security of the United States” in such broad terms, and we can hold out some hope that this provision will be struck down because it violates the INA (and, by the way, the proposed regulation invokes similar logic to try to block people from obtaining Withholding of Removal). 

Assuming the new rule goes into effect, what constitutes a danger to security? According to the proposed regulation, “In determining whether there are reasonable grounds for regarding an alien or a class of aliens as a danger to the security of the United States… the Secretary of Homeland Security may consider whether the alien exhibits symptoms consistent with being afflicted with any contagious or infectious disease or has come into contact with such disease, or whether the alien or class of aliens is coming from a country, or a political subdivision or region of that country, or has embarked at a place, where such disease is prevalent or epidemic.” So if an alien seems sick, or if she traveled through an area that the U.S. government believes contains an epidemic, she will be barred from asylum. Worse, this regulation gives the government the power to bar a “class of aliens” from asylum. Presumably, that would be aliens from a particular country, or who passed through a particular area.

While this rule applies to all asylum seekers, I suspect that if it is implemented, it will mostly affect those who arrive at the border (or an airport) and request protection. Such aliens undergo a credible fear interview (an initial evaluation of asylum eligibility). If the alien “passes” the credible fear interview, he can present his claim to an Immigration Judge, who then grants asylum, some other relief, or orders the person deported. Up until now, the asylum bars did not apply to credible fear interviews. However, under the proposed regulation, an alien subject to a bar would “fail” the credible fear interview and likely be deported. This means that if an alien comes from, or passes through, an area where an epidemic is prevalent, or if she appears sick, her request for protection in the U.S. will be automatically rejected. 

Let’s think about this for a moment. Under this new rule, if a person was imprisoned, beaten and raped due to her political opinion, and then she escapes her country, she will be denied protection in the United States and sent home simply because she traveled through an area that is experiencing an epidemic. Even if she herself is not sick! How nice.

One last element of this proposed regulation that I want to discuss is the rule related to Convention Against Torture (“CAT”) relief. Under the CAT, the U.S. cannot return a person to a country where he will be tortured. There are essentially no exceptions to this rule. But the proposed regulation seeks to change this–

If the alien makes this showing [that he is more likely than not to suffer torture in the home country], then DHS can choose in its discretion to place the alien in [Immigration Court] proceedings… or return the alien to a third country under appropriate standards.

In other words, when the alien arrives at the border to request protection, she must show that it is “more likely than not” that she will be tortured in the home country. This is a very high standard of proof for someone just arriving in the U.S. who likely does not understand the asylum system or have access to a legal counsel. Further, even if the alien somehow manages to demonstrate that she will be tortured in the home country, DHS can simply choose to send her to a third country (and this can happen–the Trump Administration has bullied or convinced Guatemala to accept some asylum seekers). Basically, we get to wash our hand of our responsibility to protect torture survivors.    

The only saving grace here is that this regulation is so poorly thought out that it is susceptible to a court challenge. Also, it seems to me that there is a much easier way to determine whether an asylum seeker is a “danger to the security of the United States” due to disease: Give him a test for that disease. If he is negative, there is no reason to bar him from asylum. If he is positive, maybe–I don’t know, this may sound crazy–help him get better. Treating human beings humanely. Sadly, it’s a novel concept in Trump’s America.

I Hate Withholding of Removal. Here’s Why.

I was in court recently for an asylum case where the DHS attorney offered my clients Withholding of Removal as a “courtesy” in lieu of asylum. DHS did not believe that my clients were legally eligible for asylum, but made the offer in order to settle the case. I negotiated as best I could for asylum, and I think the DHS attorney listened carefully, but ultimately, he was unmoved. When the Immigration Judge (“IJ”) learned that DHS would agree to Withholding, he remarked that the offer was “generous,” which I took as a sign that he wanted us to accept it. In the end, my clients did not agree to Withholding of Removal, and so the IJ reserved decision. We shall see what happens.

So what is Withholding of Removal? Why did the IJ view an offer of Withholding as generous? And why did my clients refuse this offer?

Stop complaining - You're lucky we give you anything to eat at all.
Stop complaining – You’re lucky we give you anything to eat at all.

Withholding of Removal under INA § 241(b)(3) is a lesser form of relief than asylum. If a person has asylum, he can remain permanently in the U.S., obtain a travel document, petition to bring immediate relatives here, and become a lawful permanent resident and then a U.S. citizen.

A person with Withholding of Removal, on the other hand, has technically been ordered deported, but the deportation is “withheld” vis-à-vis the country of feared persecution. This means that the person cannot be deported to that country, but she could (theoretically) be deported to a third country. A person with Withholding of Removal is eligible for an employment authorization document (“EAD”), which must be renewed each year. However, unlike with asylum, she cannot leave the U.S. and return, she is not eligible to become a resident or citizen, and she cannot petition for family members. In addition, on occasion, ICE (Immigration and Customs Enforcement) attempts to deport the person to a third country. Normally, this consists of ICE ordering the person to apply to various countries for residency. This is essentially a futile exercise, and it usually involves hours of wasted time preparing applications and sitting around the ICE office. Maybe it is designed to intimidate the person into leaving, but at a minimum, it is another stressful hassle that the Withholding-of-Removal recipient must endure.

The bottom line for Withholding of Removal is that those who have it are never truly settled here. They risk losing their jobs and drivers’ licenses if their EAD renewal is delayed (which it often is). They cannot qualify for certain jobs or certain government benefits. They usually cannot get in-state tuition for school. They can never travel outside the U.S. to visit relatives or friends, even those who are gravely ill. They are here, but not really here.

For me, Withholding of Removal is more appropriate for some recipients than others: One reason a person gets Withholding instead of asylum is that he has criminal convictions that make him ineligible for asylum. In the case of a convicted criminal, it is easier to justify denying the benefit of asylum, even if we do not want to send the person back to a country where he could be persecuted.

In other cases, it is more difficult to justify Withholding. If a person fails to file for asylum within one year of his arrival in the United States, he generally becomes ineligible for asylum. He remains eligible for Withholding, but downgrading his status from asylum to Withholding because he failed to file on time seems a harsh consequence for a relatively minor infraction. Other people—like my clients mentioned above—might be ineligible for asylum because the government believes they were resettled in a third country before they came to the U.S. “Firm resettlement” is a legal construct and it does not necessarily mean that the person can live in the third country now (my clients cannot).

Despite the limitations of Withholding of Removal, many IJs (and DHS attorneys) seem to view it as a generous benefit, and they encourage asylum applicants to accept Withholding as a way to settle removal cases. They also tend to take a dim view of applicants who refuse an offer of Withholding: If the person is so afraid of persecution in the home country, why won’t she accept Withholding and avoid deportation to the place of feared persecution? I understand their perspective, but I think it fails to account for the very basic desire of people like my clients to make the U.S. their home. They don’t want to live forever unsettled and uncertain. Having escaped danger, they want to live somewhere where they can make a life for themselves and—more importantly—for their children. Withholding does not give them that.

Frankly, I think that most IJs and DHS attorneys underestimate the difficulty of living in the U.S. with Withholding of Removal. And these difficulties are not limited to practical problems related to jobs and driver’s licenses, attending and paying for school, and the indefinite separation from family members. For my clients at least, Withholding of Removal does not alleviate the stress of their situation. They have fled uncertainty only to find more uncertainty. Will they be deported to a third country? Will they lose their job if the EAD renewal is delayed? If their driver’s license expires and they must drive anyway, will they be arrested? Can their children afford college? If they buy property and invest in life here, will they ultimately lose it all? Such uncertainty would be bad enough for the average person, but we are talking here about people who have already had to flee their homelands. Asylum is a balm to this wound; Withholding of Removal, in many cases, is an aggravating factor.

Perhaps if IJs and DHS attorneys knew more about the consequences of Withholding of Removal, they would be more understanding of asylum applicants who are reluctant to accept that form of relief, and they would be more generous about interpreting the law to allow for a grant of asylum whenever possible.

Don’t, Until You Do!

DD is a former client who is now my intern. She was granted Withholding of Removal about a year ago. The Immigration Judge in her case denied asylum because DD had failed to file her application within one year of arriving in the U.S. For many reasons, Withholding is not as good as asylum–you never get a green card or become a U.S. citizen; you cannot travel outside the country; you need to renew your work permit every year; some aliens with Withholding are required to report again and again to DHS to be “monitored.” While my client was grateful that she was not deported, she was not (and is not) thrilled with the restrictions of Withholding of Removal. She wrote a poem about her impression of the asylum experience in the United States–

Don’t talk to me about immigration until you have walked a mile in my shoes on the long road in search of freedom in a foreign land, leaving everything behind to start from the beginning. 

Don’t declare to know what is best for immigrants (legal or illegal) until you have fought this web of a system.

Don’t tell me I stole your job, for you will never agree to clean toilets for $5.00 an hour in order to feed your family.  Besides, how can I steal the job you have hired me to do?  Are you not my employer, taking advantage of my desperate situation for your own gain?

Don’t tell me I am stealing your child’s right to good education; for knowledge can never be taken from an individual who has acquired it.

Don’t force me to learn English, because unlike you, English will be my 4th language. 

Don’t immigrant hate until you can prove your ancestors originated from this land like the Native Americans (Remember them?  The non-immigrants and the one true Americans).

If you ask me to go back to the land from whence I came, I will ask you to find your way first. 

If you tell me that this land is your land, I will ask you how did you acquire it… with blood or gold?

And finally, don’t tell me I broke the law, when instead it’s the law that has broken me.

Originally from Liberia, DD grew up on three continents in five different countries (Liberia, Egypt, Syria, Ghana, and the United States). She speaks English and is proficient in American Sign Language and French. In 2004, she obtained her BA Degree in Criminal Justice, French, and Psychology. She has worked in the field of mental health and career counseling since graduating from college.

Virginia Denies Driver’s Licenses to Refugees

The Washington Post recently did an article about my client Hirut Bekele who has Withholding of Removal and who has a valid Employment Authorization Document (“EAD”), but who was denied a driver’s license by the Virginia DMV.  As a result of losing her license, Ms. Bekele also lost her job and now she and her young daughter may become homeless.

I suppose the Virginia DMV figures that refugees are used to walking.

The Commonwealth of Virginia had issued driver’s licenses to people with valid EADs, but changed its policy after Carlos Martinelly-Montano, an illegal immigrant, killed a nun in a drunk-driving accident last summer.

The change affects not only people like Mr. Martinelly-Montano, who receive an EAD while his removal case was pending, but also people like my client, who have been granted Withholding of Removal. 

Withholding of Removal is a legal status granted to people who face persecution in their homeland, but who are not otherwise qualified for asylum.  In Ms. Bekele’s case, she received Withholding as a compromise with the DHS Trial Attorney; she had lived in Germany for a number of years before she came to the U.S., and her case was weakened by the fact that she did not seek asylum in Germany (she was married to a German citizen, but the marriage failed and she lost her status in that country).  Other people receive Withholding instead of asylum because they failed to file for asylum within one year of their arrival in the United States, or because they committed a crime rendering them ineligible for asylum. 

While asylum is the better form of relief (an asylee can get a green card after one year and eventually become a U.S. citizen), the legal standard to obtain Withholding is more difficult than for asylum.  This means that my client had to demonstrate by a preponderance of the evidence (i.e., a more than 50% likelihood), that she would be persecuted in Ethiopia.  An asylum seeker need only show a 10% chance of persecution to obtain asylum. 

The Virginia DMV’s excuse for refusing to grant Ms. Bekele a driver’s license is that her immigration status in “under review.”  I had a brief quote in the article on this point:

Because the federal government is technically required to keep trying to resettle her, said Jason Dzubow, a Washington lawyer who is helping Bekele, “I suppose one could argue that Hirut’s ability to remain in the U.S. is ‘under review’ because DHS can continue to look for a third country to send her to, but I have never heard of DHS removing someone like her to a third country [Withholding of Removal prevents removal only to the home country; not to a third country].”

Another part of my comment did not appear in the article, but I think it is relevant:

I do not see how the DMV can say that her “legal status” is under review – it is not.  She has been granted Withholding of Removal.  That order has not been appealed, and it is final.  There is nothing more to review.  It seems to me that her legal status–not some theoretical action that DHS might take [to deport her]–should determine whether Hirut is eligible for a driver’s license.  Her legal status is Withholding of Removal.  It is a permanent status, even if it does not guarantee that she can remain in the U.S. forever.

Thus, it seems unclear to me why Virginia is denying driver’s licenses to refugees like Ms. Bekele.  It is also unclear whether Virginia will face a lawsuit to force it to issue driver’s licenses to people with EADs.  My guess is that the lawsuits are coming.  Let’s hope so.

Asylum for Albinos

In some parts of Africa, Albinism can be a death sentence.  A Canadian organization that advocates for people with Albinism (“PWA”), Under the Same Sun, reports on the dire situation of Albinos in Tanzania:

[The sale of Albino body parts is] driven by the belief (in some areas of the country) that the body parts of PWA possess magical powers capable of bringing riches if used in potions produced by local witchdoctors. Between 2007 & the present, official reports indicate that 68 PWA have been brutally attacked and their body parts hacked off and sold to witchdoctors. Of the 68 attacks, 59 were murders and 9 are mutilated survivors. Leaders in the albinism community believe the actual number of attacks & deaths are closer to 100 or more. Reports also indicate that albino body parts are being exported outside of Tanzania. In one instance, a Tanzanian trader was caught travelling to the Democratic Republic of the Congo with the head of an infant with albinism in his possession. He told police that a businessman there was going to pay him for the head according to its weight.

The problem exists to varying degrees in different countries throughout sub-Saharan Africa.  Earlier this month, an Albino man from Nigeria received Withholding of Removal from an Immigration Court in Florida. 

Under the Same Sun co-founder Peter Ash in Tanzania with a friend
Franklin Ibeabuchi came to the United States when he was 10 years old.  He grew up in Jacksonville, married, and is raising three children.  In 2003, he was arrested for assault.  The charges were dropped, but he was placed into removal proceedings.  With the help of the Florida Coastal School of Law’s immigration clinic, he applied for political asylum based on his fear of being persecuted for Albinism.  It is unclear why he received Withholding of Removal instead of asylum (asylum is the better form of relief); perhaps because he failed to file for asylum within one year of his arrival in the U.S.  In any case, this seems like an important victory, and may be the first case of an Albino person demonstrating a well-founded fear of persecution based on the particular social group of PWA. 

As an aside, the issue of Albino people seeking asylum has recently gotten some popular attention.  Earlier this year, an NBC show called Harry’s Law, which stars Kathy Bates as a “misfit lawyer,” featured a story about four young people with Albinism seeking asylum from Tanzania.  I must admit that I’ve never seen the show (I am still afraid of Kathy Bates thanks to her role in the movie Misery), but it looks like Matlock with a social conscience.  Anyway, if you are interested, you can learn more about the episode here (and by the way, the immigration trial seems completely unrealistic – the Judge finds that the case is a toss-up, so he will rule based on the current national consensus on immigration – maybe you can guess how it turns out).

Fortunately for Mr. Ibeabuchi, he will be able to remain safely in the United States with his family, and congratulations to the Florida Coastal School of Law on their important win.

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. 

“One Central Reason” and Withholding of Removal

In a decision issued last week, the Board of Immigration Appeals held that the “one central reason” standard for asylum also applied to withholding of removal pursuant to INA § 241(b)(3). See Matter of C-T-L-, 25 I&N Dec. 341 (BIA Sept. 14, 2010).

Under the REAL ID Act, an alien is eligible for asylum only if “one central reason” for the feared persecution is race, religion, nationality, particular social group or political opinion. See INA § 208(b)(i)(B)(I).  Now the BIA has held that the same standard applies to claims for withholding of removal under INA § 241(b)(3).  The Board reasoned that “all indications are that Congress intended to apply the ‘one central reason’ standard uniformly to both asylum and withholding claims:”

Applying this standard to withholding claims has two distinct practical advantages. The first is that it will avoid the application of the different standards adopted by the courts of appeals in “mixed motive” cases….  The second is that the burden of proof standard would be consistent between asylum and withholding of removal claims.

What motivates a persecutor?

The BIA found that “Applying a different standard in ‘mixed-motive’ cases to asylum and withholding of removal would create inherent difficulties because it would require a bifurcated analysis on a single subissue in the overall case.”  “An application for asylum necessarily includes the similar but lesser form of relief of withholding of removal….  applying the same standard promotes consistency and predictability, which are important principles in immigration law.”

The Board concluded:

Considering the language and design of the statute, congressional intent to create a uniform standard, and the inherent difficulties in applying different burden of proof standards on the subissue of the persecutor’s motive, we conclude that an applicant for withholding of removal must demonstrate that race, religion, nationality, membership in a particular social group, or political opinion was or will be “at least one central reason” for the claimed persecution.

With that, the Board dismissed the alien’s appeal.

While consistency is a laudable goal, the fact remains that in the REAL ID Act, Congress amended the standard for asylum and not the standard for withholding of removal.  I imagine that we have not heard the last of this issue.  A petition for review to the Ninth Circuit seems likely, and we will see how that court interprets the statute.

A Short “Wish List” for the Refugee Protection Act

The RPA provides important new protections to asylum seekers, particularly the most vulnerable asylum seekers such as people who are pro se or detained.  However, I can think of a couple important issues that are not addressed.  Below are some problems that my clients have faced over and over again, and some suggested solutions.

The Asylum Clock 

The broken asylum clock isn't even correct twice a day

Within the circle of attorneys who represent asylum seekers, the “asylum clock” may be the most discussed problem in need of resolution (Penn State Dickinson School of Law recently issued a comprehensive report about the asylum clock). When a client files an affirmative application for asylum, the clock starts to run.  When the clock reaches 150 days, the applicant may file for an Employment Authorization Document (“EAD”).  The EAD is very important because it allows an asylum seeker to work legally in the United States, and serves as a form of identification.  The problem is, if the alien does anything to delay his case, the clock stops, and generally will not re-start.  So, for example, if an alien is represented by counsel, and the attorney cannot accept a particular court date due to a conflict, the clock stops and the alien never receives an EAD.  Also, when an unrepresented asylum seeker asks for more time to find an attorney, the clock stops.  It is usually impossible to restart the clock. 

Aliens who enter the United States without inspection or aliens who file for asylum after one year in the U.S. do not have a clock, and it is usually not possible for them to obtain an EAD.

Thus, many asylum seekers endure one to two year waits (which are common in Immigration Court) without the ability to work legally, and without any form of identification.

One possible solution to this problem is to give the Immigration Judges more authority to grant an EAD.  If the alien is deliberately causing delay in his case, the IJ should not grant an EAD.  But where the delay is not caused by the alien or is reasonable, the alien should receive an EAD.

Employment Authorization Document

A second area in need of reform is the EAD itself.  Aliens granted asylum, withholding of removal, or relief under the UN Convention Against Torture (“CAT”) are entitled to an EAD.  The EAD is valid for one year and must then be renewed.  The validity period of the EAD should be changed to at least two years.

Aliens with asylum generally apply for their lawful permanent residency (i.e., their green card) after one year.  However, aliens who have withholding of removal or CAT relief are not eligible to become LPRs.  Such aliens must renew their EADs every year.  This can be problematic for a number of reasons.  First, the cost to renew is $340.00 every year.  For aliens with limited means, this sum may be prohibitive.  Second, assuming the alien remembers to file on time, the new EAD may or may not arrive prior to the expiration of the old EAD.  If the new EAD does not arrive in time, the alien’s job might be jeopardized, as employers will often terminate employees without a valid EAD.  Third, many states link the driver’s license to the EAD, so when the EAD expires, the driver’s license expires.  Even if the EAD arrives on time, there may be a delay in renewing the driver’s license.  The alien could be left without a valid driver’s license (or any valid ID).

These problems would be greatly reduced if the EAD were valid for two (or more) years, instead of one year. 

Finally, Some Media Attention

The RPA has been largly ignored by the media.  Last week, Josh Shahyar had an article in the Huffington Post, “The Immigration Bill No One Is Talking About.”  Hopefully the article adds some momentum to the push for this worthy piece of legislation.

Disgrace at the DRO

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.