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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The Refugee Protection Act and the One Year Asylum Bar

by Jason Dzubow

The Refugee Protection Act of 2010 is currently working its way through Congress.  The proposed law makes some pretty significant changes to the asylum laws of the United States.  Most advocacy groups are endorsing the bill, though it seems not to have captured the attention of the mainstream media.  As an attorney who represents asylum seekers, I thought I would share my perspective on the legislation by examining how it would have affected some of my cases had it been the law.  The RFA (or at least my copy of the RFA) is 78 pages long, so there is a lot to discuss.  So this will be the first part in a series of posts about the RFA.  Today’s topic: The Refugee Protection Act of 2010 eliminates the requirement that an asylum seeker files for asylum within one year of arrival in the United States.  

The current law puts the "dead" in deadline

INA § 208(a)(2)(B) states that in order to qualify for asylum an alien must demonstrate by “clear and convincing evidence that the application [for asylum] has been filed within 1 year after the date of alien’s arrival in the United States.”  If the alien fails to timely file for asylum, he or she will not qualify for that relief, but may still apply for withholding of removal pursuant to INA § 241(b)(3) or relief pursuant to the UN Convention Against Torture (“CAT”).

For aliens represented by competent counsel, it is often possible to demonstrate “changed circumstances” or “extraordinary circumstances,” either of which can excuse the one year filing deadline. See INA § 208(a)(2)(D).  In my own practice, I have encountered many cases where the alien has not filed within one year of arrival.  In most cases, we have been able to demonstrate “changed circumstances” or “extraordinary circumstances,” and the alien has qualified for asylum.

For aliens who are unrepresented, the one-year bar presents a barrier to legitimate claims.  The purpose of the bar is to help eliminate fraudulent claims.  However, there are legitimate reasons why an alien might fail to file for asylum within one year of arrival in our country.  Some examples:

Avoidance – I had one case where a political activist from Zimbabwe was arrested and then raped by the police.  After she came to the U.S., the psychological trauma the alien suffered caused her to avoid re-visiting the events in her country (which would have been necessary in order to prepare her asylum application).  As a result, she did not complete the asylum application within one year.  The Asylum Office denied her case because she failed to file for asylum within one year of her arrival (she was pro se), and her case was referred to an Immigration Judge (“IJ”).  The IJ ultimately granted asylum (with the agreement of the DHS attorney) after we demonstrated that the alien’s failure to file within one year was due to “extraordinary circumstances,” i.e., the psychological trauma of her rape, and the resulting avoidance of re-visiting those events.  Had this alien been unrepresented, she might not have been able to demonstrate that she qualified for an exception to the one-year rule.

Alternative Relief – I represented a man from a prominent family in Peru.  After a change in government, the man received anonymous death threats and was followed by unknown people.  He came to the United States, but did not file for asylum because he expected to obtain his residency based on marriage to a U.S. citizen.  The marriage did not succeed, so he applied late for asylum.  He was not represented by counsel.  The Asylum Office referred his case to the IJ based on the failure to comply with the one-year filing requirement.  As a compromise, the DHS attorney and the IJ agreed to grant of withholding of removal under INA § 241(b)(3).  As a result, the alien has been able to remain in the U.S., but he repeatedly had to appear before the Detention and Removal Office, officers in that office improperly threatened to remove him to a third country, and he has had to renew his work permit every year, which makes it difficult to maintain employment.  If he marries a U.S. citizen, he could re-open his case and obtain his residency based on the marriage.

Changed Circumstances & Other Obligations – In another example, I represented a Tuareg woman from Niger who feared return to her country after the government began a war with the Tuareg people and after her grandmother was killed by a land mine.  The woman, who represented herself, failed to file for asylum within one year because (1) the conflict was dormant when she first arrived in the United States, so she did not fear return, and (2) she was the primary caretaker for her father, and was too occupied to prepare her case.  Her sister, who had the exact same case and also filed late, received asylum from the Asylum Office.  My client’s case was referred to the IJ, and after much discussion, the IJ and the DHS attorney agreed to a grant of asylum.       

In the above examples, the one-year bar resulted in wasted judicial resources and hardship for legitimate asylum seekers.  Had these aliens been unrepresented before the IJ, their cases would likely have been denied (all the cases were denied by the Asylum Office, where the aliens were without representation).  Thus, these aliens—who were later determined to be legitimate refugees—were initially denied asylum solely because they had not complied with the one-year filing requirement for asylum.  Had they not been represented before the IJ, these aliens likely would have been ordered removed to countries where they faced persecution. 

The Refugee Protection Act would eliminate the one year filing deadline, and would protect legitimate asylum seekers such as the aliens discussed above.

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More from the Mariana Islands

by Jason Dzubow

I will be applying for asylum here in 2015

Maybe I need a vacation, but I keep coming back to the Commonwealth of the Northern Mariana Islands – the United States’s possession (technically a commonwealth in political union with the U.S.) that adopted the Immigration and Nationality Act on November 28, 2009.

Among the strange new laws in this remote corner of the Pacific is the provision that aliens seeking asylum in the CNMI cannot do so until January 1, 2015.  In the interim, aliens fearing persecution can apply for withholding of removal under INA § 241(b)(3) or the United Nations Convention Against Torture.  Chief Immigration Judge Brian M. O’Leary has issued a memorandum discussing the transition to the INA.  Chief Judge O’Leary points to a number of “novel” legal issues that might arise:

There may also be a variety of issues involving the provision that aliens “physically present in or arriving in” the CNMI cannot apply for asylum until January 1, 2015. For example, the law is silent on whether an alien who transited through the CNMI en route to another area of the United States is barred from applying for asylum until January 1, 2015. Other issues may involve what type of legal status aliens who have previously been granted refugee protection under CNMI law are entitled to.

These issues and others seem like fertile ground for litigation.  Maybe we will revisit the Mariana Islands soon.

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Singh v. Holder: Is Attorney Error to Blame?

by Jason Dzubow

A recent decision by the Ninth Circuit reveals how attorney error can destroy an alien’s asylum case.

In Singh v. Holder, No. 08-70434 (9th Cir. April 19, 2010), the Ninth Circuit concluded that an IJ may require corroborating evidence even where an alien has testified credibly.  In the underlying case, the question before the IJ was whether Mr. Singh had filed for asylum within one year of his arrival in the United States (in general, an alien who does not file for asylum within one year of arriving in the U.S. is ineligible for asylum).  The IJ found that Mr. Singh testified credibly about his arrival date in the U.S., but the IJ concluded that Mr. Singh had failed to prove his entry date by “clear and convincing” evidence because he did not submit any additional evidence of his entry date.

The Ninth Circuit found that the IJ could require corroboration of the entry date.  The Court held:

With section 1158(b)(1)(B)(ii) [the REAL ID Act], Congress has expressly empowered the IJ to require corroborating evidence even when the applicant has provided otherwise credible testimony. Should the applicant fail to offer corroboration, the IJ may conclude that despite the applicant’s credible testimony, he has failed to meet his burden of demonstrating that he is entitled to asylum relief. Accordingly, the IJ’s conclusion that Singh’s uncorroborated testimony was insufficient to carry his burden to prove his date of entry was proper.

This result is not that surprising.  The REAL ID Act, which went into effect on May 11, 2005, provides that, “Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”  In Singh, the Court concluded that evidence corroborating Mr. Singh’s entry date was readily available:

This is the sort of fact which is “easily subject to verification,'” whether by some form of official documentation or by supporting documents of a more informal variety, i.e., affidavits or letters from family, friends, or traveling companions.  Travelers typically accumulate paper as they move, such as receipts from gas stations, motels, and restaurants, and often take snapshots providing dating information, and reaching a refuge from persecution might well generate a particular desire to preserve souvenirs of arrival. Accordingly, it is eminently “reasonable to expect” an applicant to provide some corroborating evidence of his date of entry

While I am not sure I agree that people fleeing persecution “typically accumulate paper as they move,” Mr. Singh should at least have tried to get evidence concerning his entry.  Had he made an effort to obtain corroboration, he would likely have satisfied the REAL ID Act’s requirement to either obtain the evidence or demonstrate that the evidence is not reasonably available.

The REAL ID Act went into effect in 2005.  According to the Ninth Circuit decision, the IJ informed Mr. Singh’s counsel at an initial hearing to obtain evidence concerning the date of entry.  Either Mr. Singh’s attorney asked his client for the evidence or he did not.  If he asked and Mr. Singh failed to make any effort to obtain the evidence, then Mr. Singh is to blame for the loss.  If the attorney failed to instruct Mr. Singh to get evidence, then the attorney is to blame.

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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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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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BIA Grants CAT to Mexican Drug Informant

by Jason Dzubow

In Matter of Ramirez-Peyro, an unpublished decision dated March 18, 2010, the BIA finalized a grant of Convention Against Torture relief for a Mexican drug informant, Guillermo “Lalo” Ramirez-Peyro.  The BIA held:

In the absence of a showing that the Mexican government has succeeded in its efforts to curtail corruption in law enforcement, the respondent has proven that he more likely than not would be tortured upon removal by or with the acquiescence of a public official of the Mexican government.

Of the successful outcome, Ramirez-Peyro’s attorney, Jodi Goodwin, writes:

Guillermo Ramirez-Peyro

 The BIA FINALLY dismisses the DHS’ appeal.  The matter was remanded for the purpose of updating law enforcement/ security checks and the entry of an order.  The decision does not leave open any further fact finding and finally is a determination by the BIA of the Department of Justice that Lalo should be granted Convention Against Torture protection.  This is a super-huge victory that has been 5 long years in the making.  At this point, Lalo is protected from being removed to Mexico where he will be tortured and killed.  The next step in Lalo’s legal plight will be to attempt to force the government to finally release him from the solitary confinement he has endured for 5 long years.  Lalo was happy to hear of the decision today when I spoke with him, however does not understand the ultra-huge legal victory as it pales in comparison to the suffering  he has endured at the hands of the [United States] government in solitary confinement over these years.

A link to the unpublished decision is available here.  Some background on this fascinating case is available from the Washington Times and National Public Radio.

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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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