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  1. Another Pillar of Asylum Law Comes Under Attack. By Roger Algase


    In my July 29 post, I showed that an overly restrictive interpretation of one of the most often used grounds for claiming asylum in the United States - showing that fear of persecution is based on membership in a particular social group (PSG) - has been regularly used by the Board of Immigration Appeals (BIA) to deny asylum claims based on fear of gang violence in Central America over the past 30 years. As I also mentioned, the alleged difficulty of overturning these decisions is now being used by immigration opponents as an excuse for advocating a change in the current law (TVPRA) guaranteeing an asylum hearing before an immigration judge to unaccompanied children (UAC's) from every country in the world (except for Mexico and, for some reason, Canada) who arrive at the US border and can show a credible fear of persecution in their home countries at their initial screening by a DHS officer.

    The argument for changing the law in order to turn UAC's away without a hearing is based on the theory that almost all of them would lose at their asylum hearings and ultimately be deported anyway for the above reason.

    However, some immigration opponents are apparently not satisfied with attempting to change the law in order to take away the right to an automatic removal hearing for UAC children from countries such as Guatemala, Honduras and El Salvador, with their powerful gangs and high homicide rates, who pass the initial screening.

    Even if the BIA or the federal appellate courts (which in some cases are showing more openness than the BIA to claims that refusal to join or remain in a gang is a valid basis for PSG membership - at least if the gang is located in East Africa rather than Central America - see my July 29 post), were to abandon the restrictive approach to the PSG issue, these same immigration opponents apparently want to make sure that fewer Central American children will pass the initial screening required by the TVPRA.

    Accordingly, with some signs of support from the Obama administration itself, immigration opponents in the House are trying to weaken another pillar of asylum law - namely the "credible fear" doctrine. See POLITICO: Johnson said to favor asylum law change (July 30).

    Evidently, House Judiciary Committee Chairman Bob Goodlatte (R-VA), whom some immigration supporters had hoped (without much basis) would turn out to be a Knight in Shining Armor riding to the rescue of immigration reform less than a year ago, is worried that even the BIA's long standing unreasonably narrow PSG standard (which my colleague Nolan Rappaport thinks may take many years to change - I respectfully disagree with him, as I will discuss in an upcoming post) will not be enough to stop as many Central American border children (UAC's) from being granted asylum as Goodlatte would like to see sent home.

    POLITICO reports that Goodlatte and Rep. Jason Chaffetz (R-Utah) have introduced a bill that seeks to tighten the credible fear standard by requiring UAC's to show that they have a credible fear of persecution according to a preponderance of the evidence in the initial screening, not just before an immigration judge.

    This would make it harder, if not impossible, for Central American border children to pass the initial screening test for asylum hearings.

    POLITICO quotes Goodlatte as sayibng that 92 per cent of asylum applicant are clearing the initial screening hurdle and gaining the right to asylum hearings before an immigration judge. If his proposed change goes into effect, the number may rapidly drop toward zero, because immigration judges are trained to determine whether someone has meet this strict legal standard. DHS border screening officers have no such expertise.

    Therefore, Goodlatte's proposal amounts to another way of abolishing the TVPRA's guarantee of a full asylum hearing to Central American border children who can show a credible fear of persecution.

    The even bigger danger in Goodlatte's proposal is that it could spill over into the way credible fear is interpreted in all asylum cases, not just the ones involving Central American children seeking refuge from gang violence.

    POLITICO quotes Eleanor Acer of Human Right First as saying:

    "A statutory change to the credible fear standard would undermine this country's global commitment to the persecuted and put lives at risk..."

    And the same report quotes Law Professor Bill Ong Hing of the University of San Francisco as follows:

    "You don't want to make a mistake when it comes to asylum...To me it's really disappointing to talok about setting up in a way that you don't find credible fear in so many cases."

    He added:

    "I'm very disappointed in the Obama administration. They're buying into the rhetoric of the critics of the border [children] that these kids couldn't possibly have valid claims for asylum..."

    Even for those who (unlike myself) believe that most of these these children will be ultimately unsuccessful in showing that they have a credible fear of persecution or that they are members of a PSG, letting them have their day in court as provided for in our current law is the best way to uphold the values of America's justice system and its commitment to protecting people from every part of the world who are in danger of persecution in their own countries.

    These protections need to be made stronger, not weaker.


    Updated 07-31-2014 at 07:38 AM by ImmigrationLawBlogs

  2. Redefining "Social Group" to Uphold Border Children's Asylum Rights. By Roger Algase


    Almost on a daily basis, new reports are coming out emphasizing the gravity of the humanitarian crisis caused in large part by uncontrolled gang violence in Central America's "Northern Triangle" (Guatemala, Honduras and El Salvador) which is causing thousands of unaccompanied children, many under the age of 12, to flee their homes and seek asylum, not only in the US, but in other Central and Latin American countries as well. My colleague Nolan Rappaport, who is an expert in asylum and refugee law and worked for the Board of Immigration Appeals for many years, has forwarded a report to me from the Center for American Progress dated July 24, 2014 discussing the root causes of the humanitarian crisis at the US border involving these children. See The Surge of Unaccompanied Children from Central America: Root Causes and Policy Solutions

    (As a disclaimer on Nolan's behalf, I wish to make clear that his forwarding articles on this or any other subject does not necessarily imply that he endorses or agrees with their content.)

    The above report states that because of high rates of homicide and violence in the above countries and lack of economic opportunity the number of children expected to reach the US/Mexican border by the end of the current fiscal year in September, 2014, is as high as 90,000. The report is valuable for its detailed analysis of the reasons for the mass exodus of children from these countries, especially gang violence and the activities of drug cartels. It also makes many recommendations for action by the US and other counties on the international scale to deal with this problem. However, the report also states:

    "This brief, however, does not delve into the needed policy changes in the areas of immigration and refugee law."

    Nolan is pessimistic about the possibilities for change in internal US policies, especially relating to asylum law, because of political factors. He therefore recommends changing current law in order to deny entry to all children at the Southern border seeking asylum in the US (not only those from Mexico), and to process them through the UN for refugee status outside the US. In his view, at least some of the children would eventually qualify for admission to the US as refugees.

    ilw.com is not a political discussion site, but is devoted to immigration law only, so I will not discuss the political factors. I will only discuss one of the most important legal issues which Nolan correctly identifies as a major barrier to asylum claims in the US, including claims based on fear of gang violence. This obstacle to asylum is the definition of a "particular social group" ("PSG").

    The definition of a PSG by the Board of Immigration Appeals and the federal courts has a history going back three decades, beginning with the decision in Matter of Acosta, 19 I&N Dec., 211 (BIA, 1985). From the time of that decision up to now, the BIA has (more or less) stuck to a narrow definition of this term which, if applied consistently across the board, could make asylum impossible for almost anyone to obtain.

    However, the BIA has been far from consistent in applying its definition and has often contradicted itself, used circular reasoning, and been forced to change its rationales for upholding to its narrow definition of the sbove term. It has also run into some harsh criticism from the federal courts.

    In a recent 7th Circuit Court of Appeals decision
    , Gatimi v Holder, 578 F. 3rd 611, 616 (2009), Judge Richard Posner, one of the most highly respected judges in America, wrote:

    "The only way, in the Board's view, that the Mungiki [a violent Kenyan organization] defectors can qualify as members to a particular social group is by pinning a target to their backs with the legend 'I am a Mungiki defector'".
    (Emphasis added.)

    A detailed analysis, including withering criticism of the BIA's lack of internal logic or consistency in its application of the PSG standard is contained in the Chicago-based National Immigrant Justice Center's February 2014 study, Particular Social Group Practice Advisory: "Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R-"

    In my opinion, no one who has not read and absorbed this study thoroughly can claim to be truly knowledgeable about the current state of asylum law.

    However, even Judge Posner, in his above decision stated: "We have no quarrel" with a 9th Circuit case in which young Honduran men who resisted being recruited into into gangs were denied asylum for failing to qualify as member of a PSG. See Ramos-Lopez v Holder, 563 F. 3rd, 855, 869-861 (2009).

    Therefore, a more careful look at the above two cases, as well as other related decisions, is in order.

    To be continued.

    Updated 07-29-2014 at 09:59 AM by ImmigrationLawBlogs

  3. New York Officials Support Border Children's Best Interest Rights. By Roger Algase


    Update, July 28, 8:25 am:

    And in an example of rank hypocrisy, Maryland Governor Martin O'Malley (D), who has spoken out eloquently on behalf of the border children, protested when federal officials proposed to house some of them temporarily at an Army Reserve facility in his state. See the Washington Post Editorial: Gov. O'Malley is all talk, no action, on immigrant children ​(July 27).


    Update: July 28, 6:30 am:


    Municipal officials in New York and Syracuse are not the only ones who are supporting the rights that Central American children have under current federal law to stay in the US pending immigration court determination of their claims for asylum or other relief. Chicago has also offered temporary shelter to 1,000 border children fleeing gang violence and other dangerous conditions in Guatemala, Honduras and El Salvador.

    Fox News Latino quotes Chicago Mayor Rahm Emanuel as stating:

    "We cannot turn our backs on children that are fleeing dangerous conditions. We will do our part to ensure that these children are given access to services and treated fairly and humanely."


    See City Of Chicago Offers Temporary Shelter To 1,000 Central American Migrant Children, July 27

    Indiana has also accepted 245 border children, according to the Indianapolis Business Journal: Indiana Receives 245 Children Caught at U.S. Border (reprinting a July 24 Associated Press report).

    On a related note, there is a widespread belief that if the TVPRA (discussed below and in my previous posts) were amended in order to eliminate the guarantee of an asylum hearing before an immigration judge now afforded to children from every country in the world except Mexico (and Canada, which was obviously thrown in for cosmetic purposes, since no one expects any influx of child refugees on America's northern border), then it would be easy to send all of the border children back home without any legal process at all. In what would amount to "immigration reform" in reverse, Congressional Republicans are trying to change the TVPRA in order to eliminate the guarantee of immigration court hearings.

    But assuming that this would make it possible to send every child caught at the border on a plane back to Central America without further ado is based on a serious misunderstanding of the rights of children from contiguous countries under the same statute. This issue is discussed in detail in an analysis of asylum claims by Mexican children at the US border by the Immigration Policy Center. See Mexican and Central American Asylum and Credible Fear Claims: Background and Context (May 21).

    This study will be the subject of my forthcoming post.

    My original post appears below:

    Huffington Post Latino Voices reports on July 25 that New York City Council Speaker Melissa Mark-Viverito is suggesting that New York City should provide shelter to some of the Central American border children who are in the US awaiting asylum hearings (as required by current law). She said:

    "...I think we should be humane about the way we deal with situations like this."

    Meanwhile Stephanie Miner, Mayor of Syracuse NY, which has recently offered shelter to some of the children, has written a letter to President Obama saying:

    "As a city with a rich immigrant tradition, we strongly feel that these children should be welcomed and protected."

    And Nisha Agarwal, New York City's Commissioner of Immigrant Affairs, stated:

    "My reaction to the whole situation is that these are children and they are the victims here...There are deeper root causes that we need to be addressing rather than shuttling these kids as fast as we possibly can back to situations of violence."

    The statements of these officials are also entirely in accordance with Section 235(c) of the TVPRA, which mandates that the best interests of the child should be protected in all arrangements concerning custody of the children pending removal hearings.

    Opponents of this law regard this protection as an aberration, with the consequences of allowing children to remain in the US beyond the actual intention of Congress, but this is simply not true.

    As shown below, despite its title, the TVPRA (Trafficking Victims Protection Reauthorization Act) is not limited to protecting child trafficking victims, but is meant to protect other vulnerable children as well. The doctrine of respecting the best interests of unaccompanied children in immigration custody grew out of the INS settlement agreement in the Supreme Court Case of Reno v. Flores, 507 U.S. 292 (1993). Repealing section 235(c) would turn the clock back on immigrant children's rights in the US to the pre-Flores era.

    Considering the best interests of the child is not only required with regard to shelter/custody arrangements, according to the above statute. TVPRA Section 235(c) also provides for the appointment of Child Advocates to assist the children in immigration court proceedings.

    The Young Center for Immigrant Children's Rights (of the University of Chicago) points out the following in its Young Center Proposal for a Best Interests of the Child Visa (January, 2011 with revisions dated June, 2013):

    "At present, TVPRA Section 235(c)(6) provides for the appointment of Child Advocates for trafficking victims and other vulnerable unaccompanied immigrant children and provides that the role of the Child Advocate is to advocate for the best interests of the child. The Child Advocate makes best interests recommendations to decision-makers using standards set forth in state child welfare laws and international law. However at present, many immigration judges still do not consider the child's safety and well-being when making decisions regarding removal." (Emphasis added.)

    Sheltering the children in immigrant-friendly localities such as Syracuse and New York City, instead of parts of the country controlled by politicians who are more hostile to Latin American immigrants of all ages (and status, legal or otherwise) could make it easier to achieve the above statutory goal of making sure that the children's best interests are protected in all matters relating to removal proceedings.

    The Huffpost article is called New York City May Begin Housing Unaccompanied Border Children.

    The link is

    http://www.huffingtonpost.com/2014/0..._5620292.html?








    Updated 07-28-2014 at 07:25 AM by ImmigrationLawBlogs

  4. Has the BIA found a Better Way to Deprive Children of Asylum Rights? By Roger Algase


    Update: July 25, 10:00 pm

    The Hill reports that on July 25, President Obama told Central American leaders that only a few of the more than 50,000 children from El Salvador, Guatemala and Honduras who have been seeking entry to the US would be able to apply for refugee status. He said:

    "As I explained to my fellow presidents [of Guatemala, Honduras and El Salvador], under US law, we admit a certain number of refugees from all around the world based on some fairly narrow criteria."

    The president continued:

    "If that were the case it would be better for them to apply in-country rather than take a very dangerous journey up to Texas to make those same claims...But I think it's important to recognize that that would not necessarily accommodate a large number of additional migrants."

    In other words, the president is telling the children to go back and apply at home, but don't expect to be let into the US unless they are among a very lucky few who would be allowed in.

    With this attitude on the president's part, and faced with an opposition party whose basic attitude appears to be that no Central American children at all would be too many (as a Canadian immigration minister was reported to have said with regard to admitting Jewish refugees to his country during WW2), anyone who thinks that returning to Central America to apply for refugee status is a substitute for pursuing an asylum claim before an immigration judge in the US would be fooling himself or herself.

    My original post follows.

    There are now news reports to the effect that not only some "centrist" Democrats in Congress, but Hillary Clinton herself, may be jumping on the bandwagon of changing the TVPRA to give the president greater "flexibility" in dealing with the Central America border children. "Flexibility", in effect, is little more than a euphemism for gutting the protections of TVPRA Section 235, which prohibits returning children from non-contiguous countries without first allowing them an asylum hearing before an immigration judge.

    My colleague Nolan Rappaport, a distinguished legal scholar with extensive experience in the Congressional legislative process regarding immigration, argues that depriving children of their right to an asylum hearing would not do them any significant harm, because few of them would be eligible for asylum anyway under strict BIA interpretations of the asylum law, especially the requirement that the fear of persecution in gang violence related cases has to be based on membership in a "social group".

    He advocates a "better way" of turning them away from safe haven in the US and putting them in charge of the UN for refugee screening in "safe" areas in their own countries (which may or may not exist). Then, he argues, at least some of the children could later be admitted to the US as refugees. But is the assumption that few if any of these children will be granted asylum if given hearings in the US justified?

    The BIA has held in numerous decisions that individuals who have or may be threatened with gang violence because of opposition to joining a gang, or having been a former gang member and then left the gang, are too amorphous to be considered as members of a "social group" for asylum purposes.

    As a result, even some individuals who can show that they have in fact been threatened by gang members, or even been seriously injured by them, have been denied asylum for this reason.

    Some Federal Circuit Courts of Appeal have upheld these decisions because of a doctrine that an agency's interpretation of the law its own area of "expertise" should be given deference.

    But other circuits, notably the 3rd and 7th Circuits. have been highly critical of the BIA's narrow approach to this question. In my July 22nd post, I mentioned the recent BIA decision in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), in which the BIA reopened a gang-violence related case in which it had previously denied asylum and remanded ot to an immigration judge for further fact finding with strong encouragement to do so from the 3rd Circuit.

    However, on the same day (February 7, 2014), the BIA decided a companion case, Matter of W-G-R-, 26 I&N Dec. 20 (BIA 2014), in which it stated that even former gang members failed the test of "particularity" for a social group, because former gang members could include "persons of age, sex or background".

    In a February 2014 study by the Chicago-based National Immigrant Justice Center entitled "Particular Social Group Advisory: Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R-", the NIJC states that these decisions:

    "...seek to rationalize a legal test that is simply irreconcilable with existing domestic and international asylum law".

    The reasons for this statement will be discussed in a forthcoming post. The importance of this issue lies in the fact that the politicians in both parties who want to deny children the right to asylum hearings that they have under current law have been assuming that the children have no rights under our immigration laws so the sooner they can be returned to their gang-infested countries, the better for the US.

    Nolan Rappaport, while sympathizing with and supporting humane treatment for the children, also mentions the W-G-R- decision as support for the proposition that the great majority of the border children have no right to asylum in the US. As the exhaustive NIJC analysis which I will be discussing shows in great detail, this conclusion is open to very serious question.

    However, Nolan has also referred me to materials dealing with the 1990's Haitian boat people issue which may contradict the BIA's most recent pronouncement on this issue. I will discuss those in a future post as well.

    .

    Updated 07-25-2014 at 09:00 PM by ImmigrationLawBlogs

  5. Is Removing Children Without Asylum Hearings a "Better Way"? By Roger Algase


    In my July 22 post, I began a discussion of Nolan Rappaport's article A Better Way, in which he suggests an alternative way of dealing with the large number of unaccompanied children who have been arriving at the US border seeking refuge from gang violence and other dangerous conditions in the three Central American countries of El Salvador, Guatemala and Honduras. This post will continue this discussion, from the perspective that Nolan urges, and which it would be hard to dispute, namely determining what is in the child's best interests. This is also the stated purpose of the TVPRA itself.

    The solution that Nolan suggests, boiled down to its essentials, consists of turning the children over to the United Nations for protection outside the US instead of processing them for asylum hearings in the US. Ultimately, Nolan contends, at least some of the children could then be admitted to the United States as refugees after being screened by UN staff to see if they qualify for refugee status. The others would be returned to their countries under UN supervision, working closely with the governments of the countries concerned, as well as the US.

    There can be no doubt that the UN agency involved, UNHCR, has great expertise in asylum and refugee issues, including those affecting children. Nolan refers to an exhaustive study of Mexican and Central American children's refugee issues in the UNHCR report Children on the Run, which was released in March, 2014, as an example of the UN's ability to deal with child refugee issues in a way that would respect the best interests of each child more than America's flawed asylum system. Nolan argues that under current asylum policies, only a small percentage of the children involved would actually be granted asylum even if granted the full asylum hearings in immigration court which current law guarantees them (see Section 235, TVPRA). He also mentions the many practical difficulties of caring for the children in the US pending their hearings, providing for enough judges, and, most of all, persuading Congress to appropriate money to enforce the TVPRA.

    In short, Nolan argues that the children would be better off under the protection of the UN, outside the United States, rather than in the custody of the US Department of Health and Human Services (HHS) inside the US, as provided by the TVPRA.

    He states:

    "The United States does not have to assume sole responsibility for helping the unaccompanied alien children from El Salvador, Guatemala and Honduras. Their plight is an international problem. The United Nations High Commissioner for Refugees (UNCHR) should be involved in finding a way to help them."

    He continues:

    "UNCHR Washington has developed a Refugee Protection and Mixed Migration 10-Point Plan of Action, which is described in their Report, 'Children on the Run'...Congress can make it possible for unaccompanied alien children from El Salvador, Guatemala and Honduras to benefit from the implementation of the 10-Point Plan by passing a bill that would exempt them from the removal-hearing requirement in TVPRA and remove any other obstacles to moving them out of the United States."


    What would then happen to the children after being moved out of the United States? Nolan proposes:

    "The children could then be moved to temporary locations outside of the United States, which could be chosen by agreements among the Governments of El Salvador, Guatemala and Honduras and the United States. When the children are safely placed in these locations, UNCHR could screen them to see which ones are eligible for refugee status. The rest of the children could be returned to their native countries when arrangements have been made with the governments of these countries to provide safe environments for them."

    The above may sound reasonable in theory. But in practice, it overlooks the fact that Nolan's plan depends on the cooperation of the same Central American governments that have done so much to create the refugee crisis by failing to protect the children from gang-related violence in the first place. In essence, Nolan's proposal is little more than an elaborate form of refoulement, something that goes against the most basic principles of international refugee law, as an Appendix to the above UNHCR report points out.

    Beyond this, Nolan's proposal directly conflicts with the UNHCR report's goal of strengthening, not weakening, asylum rights in the countries which child refugees are seeking to enter. In this critically important respect, Nolan's proposal would not support the UN's objective of protecting child refugees. Instead, it would undermine the UN's purpose.

    In its March 12 press release for the Children on the Run report, UNHCR states:

    "The number of children making the perilous journey [from Central America] alone and unaccompanied has doubled each year since 2010. The US government estimated, and is on track to reach, 60,000 children reaching United States territory this year in search of safe haven.

    Although the US receives the majority of new asylum claims by both children and adults from El Salvador, Guatemala Honduras, it is not alone...

    Globally, the protection of children is a core priority for UNHCR. The international community has long recognized both the right of children to seek asylum and their vulnerability."
    [Emphasis added.]

    And in the opening remarks by Antonio Guterres, UNHCR High Commissioner, made on the same day in launching the above report he stated:

    "We must uphold the human rights of the child as laid out in the relevant international and regional instruments - as well as the right to seek asylum and protection under the 1951 Convention and its 1967 Ptotocol.
    [Emphasis added.]

    Do the above UNHCR statements support changing US law in order to deny asylum hearings to Central American children arriving at our border so they can be more speedily removed from the US? Only an Alice in Wonderland reading of the UNHCR pronouncements would support this view.

    The conclusion that Nolan is debating against the UN, instead furthering its goal of protecting Central American refugee children to the greatest extent possible, finds even greater support when the appendix to the Children on the Run report dealing specifically with asylum and refugee issues is examined in more detail. This will be done in my next post about this issue.

    I do not mean to overlook the fact that Nolan's proposal may have some merit on its own, particularly since it contemplates that some of the children might be eligible to return to the US in refugee status, which he appears to assume might be easier to obtain outside the US than political asylum would be in the US. But whatever merits (if any) Nolan's proposal might have in its own right, he should not imply that his plan is consistent with UNHCR's goals or objectives, at least as far as the all-important issue of whether US law should be changed to deny the children the right that they have to asylum hearings under current law.

    It is quite clear that the UN plan which Nolan recommends so highly would be opposed to such a change.

    Updated 07-24-2014 at 10:31 AM by ImmigrationLawBlogs

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