Sixteen Years and 20 Minutes to “Other Serious Harm” Asylum

by Jason Dzubow

Our guest blogger today is Jonathan Bialosky, an attorney at the George Washington University Law School Immigration Clinic. He recently had an important win in an “other serious harm” asylum case. It also happens that he was a student in Todd Pilcher and my Asylum Law class at GW last semester. Congratulations on the win (and on passing our class – which you could have taught). Enjoy– 

On September 3rd, 16 years after filing his application, and two years after first approaching the GW Immigration Clinic, my client was granted asylum. Sixteen years is a long time, even in the glacially slow world of EOIR, but more significant is that the Immigration Judge granted my client “humanitarian asylum” on a basis that seems to be greatly under-utilized.

Jonathan Bialosky, who claims that taking Todd and my class constitutes "other serious harm."
Jonathan Bialosky, who claims that taking Todd and my class constitutes “other serious harm.”

There are two types of humanitarian asylum. The first is for individuals whose past persecution was so severe that they cannot be expected to return to their home country, even if—typically because of changed country conditions—they no longer have a well-founded fear of return on account of a protected ground. The BIA first addressed this type of humanitarian asylum in 1989 in the precedent decision Matter of Chen, and this type of humanitarian asylum was codified as a regulation in 1990. 

Matter of Chen seems pretty well-known, but a second type of humanitarian asylum is apparently much less common. Pursuant to a regulation that became effective in 2001, under a different type of humanitarian asylum, applicants who suffered past persecution on account of a protected ground but who no longer have a well-founded fear of persecution on account of a protected ground remain eligible for asylum if there is a reasonable possibility that they would suffer “other serious harm” upon removal. The BIA, in the 2012 precedent decision, Matter of L-S-, explained that the “other serious harm” need not be related to the past persecution or even have a nexus to a protected ground.

My client qualified for “other serious harm” asylum because he previously suffered past persecution on account of his imputed political opinion and now, due to serious medical conditions, he would die if he were removed to his home country, where the medical care he needs to survive is not available. My client is from Sierra Leone and he served in a regimental band in the country’s army. In 1998, during the civil war, he was falsely accused of involvement with anti-government rebels. He was detained at a military barracks for two weeks, beaten with sticks and weapons, and burned with cigarettes. He escaped and made his way to the U.S. Sadly, beginning in 2000, when he was diagnosed with HIV, my client suffered a series of medical problems. His kidneys failed, he went into a coma, and then, after finally receiving a kidney transplant, his body rejected the new organ. All the while, his asylum application (first filed in 1998 within six months of his arrival in the U.S.) remained administratively closed by USCIS—for 13 years—hence the long wait for a decision.

Through dialysis and participation in a clinical trial of anti-retroviral drugs with the NIH, my client’s medical condition is more or less stable, but he leads a pretty grim life: He has many dietary restrictions, he’s on dialysis three days a week for four hours at a time, and he’s constantly tired. In addition, he has chronic nightmares about what happened in Sierra Leone. All these problems, combined with the generally poor quality of medical care and the recent Ebola outbreak in Sierra Leone, made it pretty clear that, even though the civil war has ended, my client would suffer “other serious harm” upon removal. Dialysis is not widely available and is prohibitively expensive in Sierra Leone, and kidney transplants are even more rare. One doctor wrote a letter stating that sending my client to Sierra Leone was a “death sentence,” and that he wouldn’t last more than a few weeks there.

The ICE trial attorney and, more importantly, the Immigration Judge, agreed. After 16 years, my client’s asylum merits hearing lasted just 20 minutes. ICE and the IJ were satisfied with the evidence we submitted before the hearing that my client was deserving of humanitarian asylum.

It wasn’t me who identified the legal theory that ultimately won my client’s asylum. Others far sharper than me identified the legal basis that essentially made my client’s case a shoo-in. I had no idea about humanitarian asylum. When I told an immigration attorney friend that I was working on a humanitarian asylum case, she was only familiar with the Matter of Chen type claim. I was also surprised to see very few judicial opinions discussing “other serious harm asylum” (though admittedly, this made the legal research for my brief much easier).

“Other serious harm” asylum has the potential to help many people, even those who have been in the U.S. for more than one year and never applied for asylum. Actually, “other serious harm” humanitarian asylum may render the one-year filing deadline meaningless for some. Consider those that suffered past persecution on account of a protected ground and now cannot return to their home country for some other reason. As my client’s case demonstrates, the reason could be that the individual has a medical condition that cannot be effectively treated in the home country. In addition, Matter of L-S- states that “civil strife, extreme economic deprivation and new physical or psychological harm” could be the causes of other serious harm. The inquiry is prospective, so changed circumstances matter. A recently diagnosed medical condition or outbreak of violence in the home country could constitute changed circumstances that serve both as an excuse for the late filing of the asylum application and as the basis of “other serious harm.” To my knowledge, this has not been tested, but for individuals who did not comply with the one-year filing deadline, “other serious harm” humanitarian asylum may present a viable option for relief where there otherwise would be none.

My client’s experience seems almost tailored-made for “other serious harm” humanitarian asylum, but maybe there are others out there who could benefit from this basis for asylum. With a little publicity for this relatively obscure regulation, maybe some of them can win asylum too. With any luck, they might even be able to do so in fewer than 16 years.

Jonathan Bialosky, Esq., supervises Immigration Clinic law students and provides legal representation to asylum seekers and respondents facing deportation in Immigration Court.  He previously served as director of the Maxwell Street Legal Clinic in Lexington, Kentucky from January 2011 until July 2013, serving as the sole attorney at a nonprofit immigration law practice. Jonathan is a May 2010 honors graduate of the George Washington University School of Law.

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FGM + Other Serious Harm = Asylum

by Jason Dzubow

I had a case last week where the Eritrean government arrested and beat my client because they believed she helped her brother escape from the national military service.  We tried to frame the case in terms of imputed political opinion (our claim was that the authorities thought my client was “anti-government” because she helped her brother escape), but it was a bit of a tough sell.  We came up with a strategy that may have saved the day (she received asylum), so I thought I would share, as this strategy could be employed by many women who face persecution that is not based on a protected ground.

The key to our strategy was that my client had been a victim of female genital mutilation (“FGM”) early in her life.  In a well known decision, the Board of Immigration Appeals held that FGM could form the basis for an asylum claim.  Thus, FGM may be considered past persecution based on a protected ground.

Until the recent BIA decision, these guys had done more than anyone to define "other serious harm."

Where a person has been subject to past persecution based on a protected ground, she is eligible for asylum if there is a “reasonable possibility” that she will face “other serious harm” in her country, regardless of whether that harm is based on a protected ground and regardless of whether that harm is related to the original persecution. See 8 C.F.R. § 208.13(b)(1)(iii)(B).  While I had written previously about “other serious harm,” it had not occurred to me how useful this provision could be for many female asylum seekers.

FGM is prevalent in a number of African countries and elsewhere.  A woman who has been subjected to FGM has likely satisfied the first prong of the requirement for “other serious harm” asylum.   To satisfy the other requirement, the asylum seeker must demonstrate that she faces a reasonable possibility of other serious harm in her country.  This could be any type of harm and does not have to be based on a protected ground or related to the original persecution.  

Until recently, there has been little guidance about what constitutes “other serious harm,” but last month, the BIA published a decision examining this basis for asylum. See Matter of L-S-, 25 I&N Dec. 705 (BIA 2012).  In that case, the Board held that to qualify as “other serious harm,” the harm must be as severe as persecution, and the Board has given some examples:

Such conditions may include, but are not limited to, those involving civil strife, extreme economic deprivation beyond economic disadvantage, or situations where the claimant could experience severe mental or emotional harm or physical injury.

A number of federal circuit courts (all listed in Matter of L-S-) have given examples of what might constitute other serious harm.  The list is quite diverse: (1) harm resulting from the unavailability of necessary medical care; (2) the mental anguish of a mother who was herself a victim of FGM whose daughter faces the same fate; (3) the unavailability of needed psychiatric medications; (4) victimization by criminals or militias; (5) unavailability of necessary AIDS medications coupled with social stigma.  While diverse, this list is obviously not exhaustive, and it seems to me there is a lot of room for creative lawyering (for example, might criminal prosecution qualify if the punishment is severe enough?).

Thus, for victims of FGM, the “other serious harm” category of asylum could be a useful tool to obtain asylum, even if the harm they face is not based on a protected ground.

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The Forgotten Path to Asylum: “Other Serious Harm”

by Jason Dzubow

In most cases, to obtain asylum, an applicant must demonstrate a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group.  But there are a couple of exceptions: “Humanitarian Asylum” and “Other Serious Harm.”

Humanitarian asylum allows an applicant to receive asylum if she “demonstrate[s] compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.” 8 C.F.R. § 208.13(b)(1)(iii)(A).  In other words, we don’t send a person back to a country where she faced severe past persecution based on a protected ground, even if it would be safe for her to return to that country today.  I had a case a few years ago that illustrates this type of relief–My client was a 10-year-old Tutsi girl in Rwanda in 1994.  When the genocide began, she went with her mother and two siblings to hide in a church.  The Interhamwe militia arrived and separated the people in the church into two groups: one group that would live and one that would die.  The little girl fainted (mercifully) before she could see her mother and one sibling murdered.  Years later, she was in the U.S. seeking asylum.  For some reason, the Asylum Office referred her case to the Immigration Court and she hired me.  We were able to get humanitarian asylum based on the severity of her past persecution.  In a sense (the legal sense), this was an easy case.  Humanitarian asylum is well-known and relatively common.

Kids, eating your vegetables is not "other serious harm."

A less well known form of relief is asylum based on other serious harm.  To obtain asylum on this basis, an applicant who has suffered past persecution based on a protected ground must “establish[] that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.” 8 C.F.R. § 208.13(b)(1)(iii)(B).  Put another way, where an asylum applicant suffered past persecution based on a protected ground, but he no longer has a well-founded fear of future persecution based on that ground, he can still obtain asylum if he demonstrates that he could suffer “other serious harm” in his country.  “Other serious harm” does not have to be based on a protected ground, and it does not have to be related to the original persecution. 

I had a case recently where this would have been an appropriate form of relief, had I known about it (why is it that I always learn these types of things after the fact?).  My case involved a guard who worked for the Special Court for Sierra Leone–the court that tried war criminals from the time of the civil war. During the civil war, my client was persecuted based on his political party affiliation.  In 1991, rebels killed his parents in order to retaliate against him for his political activity.  My client was working for the Special Court more recently, and he was assigned to protect an important witness.  Former rebels who did not want the witness to testify asked my client to murder the witness in exchange for money.  He refused, and reported the incident to his superiors.  After his refusal, the former rebels repeatedly threatened to kill him, they broke into his house and left a warning note, and finally they invaded his house to kill him.  He ran from the house and fled the country.

My client satisfied the first prong for “other serious harm” relief–He was persecuted on account of his political opinion during the time of the civil war.  He also satisfied the second prong–He was facing harm or death because he failed to comply with the demands of the former rebels to murder the witness.  Unfortunately, at the time, I did not know about relief based on “other serious harm.” 

Luckily for my client (and me), the DHS attorney felt that my client qualified for humanitarian asylum based on the severity of the past persecution, and so asylum was granted.  However, the more appropriate form of relief was asylum based on “other serious harm.”  I learned about this avenue of relief at the First Annual USCIS Ombudsman’s Conference, which took place about a week after my case.  Aside from the bad timing, it was a great conference.  Anyway, now that I know, I thought I would share some information about “other serious harm,” as it might be helpful to others in their cases.

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