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Jason Dzubow on Political Asylum


  1. The Refugee Protection Act and Improved Access to Legal Services

    This is the fifth part in an ongoing series about the Refugee Protection Act.  The RPA contains many provisions to improve legal services and legal access for asylum seekers.
    The root cause of many problems in the asylum system is that aliens are not provided with counsel.  According to TRAC, a website that gathers statistical information on immigration matters, 86% of unrepresented asylum seekers are denied asylum in Immigration Court.  That compares with an overall national average denial rate of 57% (this figure includes represented and unrepresented asylum seekers in Court).  Although I have not seen any statistics, I imagine that the success rate of detained asylum seekers is even lower--such aliens have limited access to attorneys and resources to help them with their applications.  The RPA would improve this situation.
    The RPA provides improved access to attorneys in several ways.  First, the new law allows the Attorney General or his designee (presumably the Immigration Judge) to appoint counsel "if the fair resolution or effective adjudication of the proceedings would be served by appointment of counsel."  Currently, IJs can work with local non-profits or AILA to find pro bono counsel for certain cases.  This method of procuring counsel is ad hoc, and depends on the availability of pro bono counsel.  The RPA would improve the situation, but would still give the IJ (an interested party) the authority to decide whether an attorney is needed.  Ideally, any alien who expresses a fear of return should be screened by an independent reviewer to determine whether an attorney is necessary.  The RPA as written does not provide for an independent decision concerning the need for counsel.
    Second, the RPA provides detained asylum seekers with improved access to legal services and resources.  It requires an on-site law library at every detention facility, free access to legal research and correspondence, including computers and printers, access to confidential meeting space to confer with legal counsel, and reasonable access to telephones to call legal representatives without charge.  The RPA also prohibits the transfer of a detainee if it would impair an existing attorney-client relationship.  Under the RPA, all new detention facilities must be located within 50 miles of a "community in which there is a demonstrated capacity to provide free or low-cost legal representation," and by January 2014, all detention facilities must comply with this location requirement. 
    Third, the RPA establishes a National Legal Orientation Support and Training Center to "ensure quality and consistent implementation of group legal orientation programs nationwide."  The Center will provide training to non-profit agencies that will, in turn, provide legal orientation and "know your rights" presentations to detained aliens.  The RPA would also provide grants to the non-profit agencies.
    By increasing access to counsel for detained and non-detained asylum seekers, the RPA would help protect legitimate asylum seekers by ensuring that their claims are properly prepared and presented for adjudication.
    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.
  2. Immigration Court Backlog Keeps Getting Worse

    A new report by TRAC, a group that collects information on immigration cases, finds that the backlog in Immigration Courts is worse than ever: 
    The number of cases awaiting resolution before the Immigration Courts reached a new all-time high of 242,776 at the end of March 2010, according to very timely government enforcement data obtained by the Transactional Records Access Clearinghouse (TRAC). The case backlog has continued to grow -- up 6.3 percent -- since TRAC's last report four months ago, and nearly a third higher (30.4%) than levels a mere 18 months ago.

    "Is it time for my immigration hearing yet?"
    The backlog has resulted in longer delays in Immigration Court:
    Wait times have also continued to inch upward. The average time these pending cases have been waiting in the Immigration Courts of the Executive Office for Immigration Review (EOIR) is now 443 days.
    The longest delays are in California, where the average wait time is 627 days.  TRAC blames the delays mainly on an insufficient number of IJs.  I've discussed that issue before (We Need More Judges).  In a recent exchange with the Federation for American Immigration Reform (FAIR), that group argued that aliens are largly to blame for delays since they abuse the system to prolong (or completely avoid) removal.  Maybe I will devote a future blog post to the reasons for delay, but for now, it seems the wait times are longer than ever and there is little relief in sight.
  3. The Refugee Protection Act and the “Central Reason” for Persecution

    This is part four in a series of posts about the Refugee Protection Act ("RPA"), a bill introduced by Senators Leahy and Levin in the United States Senate.  The RPA would modify the requirements for asylum by changing the requirement that a "central reason" for the persecution is a protected ground.
    In order to qualify for asylum, an applicant must demonstrate a well-founded fear of persecution based on a protected ground (race, religion, nationality, political opinion, particular social group).  The REAL ID Act (effective May 11, 2005) modified this definition, and the law now requires that "at least one central reason" for the persecution must be a protected ground.  The BIA found that this new requirement did not "radically alter[]" existing law. See In re: J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007). 
    While the law may not have been radically altered, the REAL ID Act makes it more difficult for asylum seekers to obtain relief.  I worked on a case in the Fourth Circuit (ably litigated at the agency level by the University of Maryland Law School Clinic) where an El Salvadoran man had been repeatedly harassed and beaten by members of the MS-13 gang.  The gang attacked him for several reasons: (1) they did not want him to date a certain girl; (2) they wanted to steal his money; and (3) they did not want him to attend the Seventh Day Adventist Church.  The Immigration Judge ("IJ") specifically found that the harm faced by the asylum seeker rose to the level of persecution, and she told him: "I think you are in a terrible situation and I could not have more sympathy for you."  However, both the IJ and the BIA found that the "central reasons" for the persecution were that the gang did not want my client to date the girl and the gang wanted to rob him-these are not protected grounds.  The BIA found that "even assuming... religion was one motive, we do not find his religion to be 'at least one central reason' for the persecution."  The Fourth Circuit agreed and denied our Petition for Review. See Quinteros-Mendoza v. Holder, 556 F.3d 159 (4th Cir. 2009). 
    The difficulty in Quinteros-Mendoza was that the IJ had to determine the motivation of the gang members.  It is difficult enough to establish the motivation of a persecutor, let alone to rank that motivation as "one central reason" for the persecution.  The RPA would relax this requirement.  The law would be changed so that the applicant must prove only that a protected ground is "a factor in the applicant's persecution or fear of persecution." 
    Where an asylum applicant faces persecution, he should not be required to demonstrate the motivation for his persecutor's actions with such specificity.  The RPA would correct this problem.
  4. FAIR Asks EOIR to Violate the Law in Aunt Onyango's Case

    The Federation for American Immigration Reform is calling upon the Justice Department and the Executive Office for Immigration Review ("EOIR") to violate the law and make public the record in the recently-decided asylum case of President Obama's aunt.  PR Newswire reports:
    Today's decision granting President Obama's aunt, Zeituni Onyango, political asylum provides a case study in how those seeking to evade U.S. immigration laws can manipulate the system, charged the Federation for American Immigration Reform (FAIR).  FAIR also demanded that the entire record of her case, which was rendered after years of delay and after Ms. Onyango refused to comply with a deportation order, be made public.
    Judge Leonard Shapiro did not reveal the basis for his decision to grant asylum to Ms. Onyango and Ms. Onyango's attorney has declared that his client wants to keep the decision confidential.  "Given Onyango's relationship to the president, the American people have a right to know on what grounds Ms. Onyango's asylum was granted," [FAIR President Dan] Stein said.  "Illness and political turmoil in one's homeland are not recognized as grounds for being granted asylum.  Defining asylum so broadly not only exceeds any reasonable interpretation of the law, but would make countless millions of people around the world eligible for asylum in the U.S.   Americans deserve to know whether the system worked."
    Of course Mr. Stein has no idea why Ms. Onyango was granted asylum, but that clearly did not stop him from forming an opinion.  Worse, his "demand" that the decision be made public directly contradicts the law.  From the EOIR Practice Manual:
    Evidentiary hearings involving an application for asylum or withholding of removal ("restriction on removal"), or a claim brought under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, are open to the public unless the respondent expressly requests that the hearing be closed.  In cases involving these applications or claims, the Immigration Judge inquires whether the respondent requests such closure. 
    Ms. Onyango has requested that the hearing be closed and that should be the end of the matter.  Confidentiality in asylum cases is important to protect asylum seekers and their families.  While there are legitimate issues to be raised concerning the asylum process, Mr. Stein's "demand" demonstrates his callous disregard for the rights and safety of asylum seekers.
  5. The Refugee Protection Act and Particular Social Groups

    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.
    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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