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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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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New BIA Decision on Well Founded Fear

by Jason Dzubow

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.

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BIA Asylum Cases to Watch

by Jason Dzubow

AILA reports on two significant asylum cases pending before the BIA:

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.

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How Confidential Is the Asylum Process?

by Jason Dzubow

Asylum in the United States is meant to be a confidential process.  However, it is not uncommon for the BIA and the federal circuit courts to identify asylum seekers by name in their decisions, and to describe the applicants’ claims of persecution.  We lawyers sometimes wonder whether anyone in the home country ever learns about such cases.

In a recent example from the Ninth Circuit, a Cambodian couple was denied asylum before the Immigration Judge and the Board of Immigration Appeals.  They filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit, which was denied. See Kin v. Holder, No. 05-73079 (9th Cir. Feb. 18, 2010).  Someone in Cambodia was paying attention, and the case recently appeared in the English language Phnom Penh Post:

Two Sam Rainsy Party (SRP) members who say they were tortured by authorities after participating in a 1998 political rally have had their bid for political asylum in the United States blocked by an appeal court there. In a legal opinion filed on Thursday, Judge Richard C Tallman of the US Court of Appeals for the Ninth Circuit upheld an earlier ruling by the Board of Immigration Appeals (BIA) rejecting the pair’s asylum requests, saying their asylum claim was riddled with inconsistencies.

The article goes on to identify the couple by name, and to describe their claims of persecution in detail.  The article concludes:

Senior CPP [Cambodian People’s Party – the ruling party of Cambodia] lawmaker Cheam Yeap could not confirm or deny the validity of the allegations raised by Kin Sambath and Prak Bunnary, but stated that peddling falsehood was not uncommon for the opposition. “It is characteristic of the SRP that they raise untrue issues because they want to live in a third country,” he said.

Now that the Ninth Circuit’s decision has exposed the names and stories of the two asylum seekers and a “Senior CPP lawmaker” is aware of their claims, they may have an argument to reopen their case in the U.S.: Even if their initial stories were not credible, the Cambodian government has become aware that they applied for asylum in the United States.  The very fact that they made this application–and accused the Cambodian government of persecuting them–might result in the government punishing them upon their return.  And that may be enough to support a new claim for asylum.

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The Fourth Circuit and Asylum

by Jason Dzubow

Among lawyers (like me) who practice in the U.S. Court of Appeals for the Fourth Circuit, there has been ongoing speculation about whether the conservative court is moving to the left.  AILA’s Immigration Slip Opinions discusses several positive asylum decisions from the last few months, including my case, Baharon v. Holder, 588 F.3d 228 (4th Cir. 2009).   The one common factor in these cases is Judge Gregory, who seems to favor a more expansive judicial review of asylum cases than many of his colleagues.  The Fourth Circuit has traditionally been considered very conservative when it comes to immigration cases in general, and asylum cases in particular, but that may be changing.  The newest judge, Barbara Milano Keenan, confirmed last week may further tip the balance.  And there are currently four more vacancies on the Court.  We’ll see if the new appointments make the Fourth Circuit friendlier terrain for asylum seekers.

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