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Jason Dzubow on Political Asylum


  1. Ninth Circuit Rules that Guatemalan Women May Be a Particular Social Group

    Earlier this week, the U.S. Court of Appeals for the Ninth Circuit remanded a case to the BIA to "determine in the first instance whether women in Guatemala constitute a particular social group, and, if so, whether Perdomo [the alien seeking asylum] has demonstrated a fear of persecution 'on account of' her membership in such a group." See Perdomo v. Holder, No. No. 06-71652 (9th Cir. July 12, 2010). 
    In that case, Lesly Yajayra Perdomo, a native and citizen of Guatemala, sought asylum based on her fear of persecution as a young woman in Guatemala.  Specifically, Ms. Perdomo argued that women were murdered in Guatemala at a high rate with impunity.  The IJ denied the application because she found that young women in Guatemala were not a cognizable social group.  The BIA affirmed, finding that a social group consisting of "all women in Guatemala" is over-broad and "a mere demographic division of the population rather than a particular social group."  Ms. Perdomo entered the U.S. in 1991 when she was 15.  In 2003, the government issued a Notice to Appear, and Ms. Perdomo conceded removability and applied for asylum.

    Guatemalan women celebrate their new social group.
    The Ninth Circuit noted, "Whether females in a particular country, without any other defining characteristics, could constitute a protected social group remains an unresolved question for the BIA."  The Court further noted, "Our case law examining asylum claims based on membership in a particular social group continues to evolve."  The Court had previously defined "particular social group:"
    A "particular social group" is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.
    The Court had also previously concluded that "females, or young girls of a particular clan, met our definition of a particular social group." See Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005).  In Mohammed, the Ninth Circuit recognized that gender is an "innate characteristic" that is "fundamental to one's identity." Id.  The Court found that the social group "Guatemalan women" was not necessarily overbroad: "To the extent we have rejected certain social groups as too broad, we have done so where there is no unifying relationship or characteristic to narrow the diverse and disconnected group."  Further, the Court "rejected the notion that a persecuted group may simply represent too large a portion of a population to allow its members to qualify for asylum."  Based on this precedential case law, the Court remanded the matter to the BIA to determine in the first instance whether "Guatemalan women" constitute a social group and, if so, whether Ms. Perdomo has demonstrated a fear of persecution "on account of" her membership in such a group.
    Perdomo v. Holder is an important victory for advocates of gender based claims and, according to Karen Musalo, director of the Center for Gender Studies and a professor at Hastings College of Law, this is the first case to reach this high in the United States' court system, which has grappled with determining gender-based claims for asylum.
    This is not the end of the matter for Ms. Perdomo.  The case will be remanded for further consideration.  She will still need to prove that Guatemalan women are a social group and that her feared persecution is "on account of" her gender.  It seems like she also may not be eligible for asylum, since she filed more than one year after her arrival in the United States.  Although she still has some obstacles before her, at least the Ninth Circuit has given Ms. Perdomo a chance.
  2. More from EOIR

    I recently wrote about Chief Immigration Judge O'Leay's comments at the AILA Conference.  Another EOIR official who spoke was David Neal, the Acting Chairman of the BIA. 
    Mr. Neal told us that the Board of Immigration Appeals receives about 3,000 new cases per month.  This is slightly down from years past, and Mr. Neal speculates that this is because there are more detained respondents-detained respondents are less likely to appeal.  Mr. Neal says that detained cases should be processed within 150 days of arrival at the BIA and, in fact, 95% of detained cases are completed in less than 150 days.  The average time for a detained case at the Board is 95 to 100 days. 
    Mr. Neal also mentioned the Emergency Stay section of the BIA, and he praised their dedication.  I strongly second that opinion.  The Emergency Stay sections deals with respondents who are in imminent danger of being deported.  I had occasion to interact with the Emergency Stay clerks a few years ago for a Lozada motion to reopen case (a motion to reopen based on the previous attorney's ineffective assistance of counsel).  The Emergency Stay clerks always returned my calls promptly, did what they told me they would do (and in a timely manner), and provided helpful assistance.  Thanks to their assistance, the Board reopened my client's case, he was released from detention, and he ultimately received his lawful permanent residence.  
    Mr. Neal also told us that the Board's practice of "affirmance without opinion" has been greatly reduced.  Three years ago, 30% of cases were decided without a written opinion.  Today, only 4% of cases are decided that way, and most of those are bond appeals.  He also said that more decisions are made using a three-Member panel (as opposed to a single Board Member).  Currently, 11% of cases are decided by three Board Members.  A few years ago, 7% of cases were decided by three Members.  Mr. Neal noted that three-Member decisions are uncommon because it takes a lot of resources for three Board Members to work on a single appeal.
    Another area that takes more resources is published decisions.  Mr. Neal stated that the Board is issuing more precedent decisions than previously; the numbers are up by 20 or 30% over past years.  He responded to a criticism that the BIA tends to publish precedent decisions in cases where the alien is pro se (without a lawyer).  This situation could be problematic, as an unrepresented alien may not make the most effective arguments in his case, and this could result in more unfavorable precedential decisions.  Mr. Neal stated that the Board prefers not to issue precedential decisions in cases where the alien is unrepresented.  He noted that very few recent precedential decisions involved unrepresented aliens.
    Finally, Mr. Neal noted that the trend in the circuit courts was to uphold more BIA decisions.  Over the last few years, reversal rates have declined from 20% to 10%.  The biggest improvements (well, improvements from the BIA's point of view) have been in the Second and Ninth Circuits.
    I have a few items on my wish list for the BIA.  For one, I would like to see more precedent decisions.  Such decisions are important because they give more guidance to IJs.  Although precedential decisions require more time and resources, over the long run, if the Immigration Judges have more guidance, they might make better and more consistent decisions.  This would result in less work for the Board.  Second, the average time for a non-detained appeal (at least for my cases) is almost two years.  I know this wait time is substantially lower today than it was 10 years ago, but I would like to see it reduced further.  Finally-and this is more of a pet peeve-I would like the Board to give more time to prepare the appellate brief.  Currently, after an appeal is filed, the BIA sends the transcript of proceedings to the alien's attorney.  The attorney then has three weeks (plus a three-week extension upon request) to file the brief.  I can see no reason for such a short turn around time, especially when it takes the Board close to two years to reach a decision once the brief is filed.  Why not give attorneys more time to file the brief, say 60 days.  That would allow us to prepare better briefs and would accommodate our often busy schedules.
  3. OIL's Adverse Credibility Project

    The Department of Justice's Office of Immigration Litigation ("OIL")--the office that defends BIA decisions in the federal courts of appeals--recently released data on federal court decisions concerning credibility.  Most credibility determinations involve asylum cases, where the decision maker (the Board of Immigration Appeals on appeal and the Immigration Judge in the first instance) must assess the alien's credibility to determine whether to grant asylum.  Under existing law, a decision maker must give a specific, cogent reason for rejecting an alien's testimony.  The REAL ID Act of 2005 tightened these requirements.  Among other things, the REAL ID requires corroboration of an alien's testimony in certain circumstances.
    OIL's Adverse Credibility Project tracks appeals court decisions concerning credibility.  OIL describes the data used for the study:
    The data... reflects a tally of all decisions in which - regardless of the ultimate outcome of the petition for review - the appellate court has either approved of, or reversed, the adverse credibility holding reached by the immigration judge or Board of Immigration Appeals.
    The report found that the "adverse credibility win percentage in 2009 roughly parallels the overall OIL win/loss trends from that year, though the overall numbers are slightly less favorable across the board."  For all federal appeals courts in 2009, 87% of credibility determinations were upheld and 13% were reversed.  This represents a small change from 2008, during which 83% of credibility determinations were upheld and 17% were reversed. 
    The overall numbers mask some diversity between the different circuit courts.  In the Second, Fourth, Fifth, and Eleventh Circuits, approximately 96% of credibility determinations were upheld.  The Sixth Circuit upheld 100% of EOIR's credibility determinations (according to OIL, the Sixth Circuit reviewed 58 cases involving credibility determinations; all were upheld).  The Third Circuit upheld 74% of credibility determinations, and the Ninth Circuit upheld 73%.  In the Eighth Circuit, 86% of credibility determinations were upheld.  According to OIL, the other circuit courts--the First, Seventh, and Tenth--heard no cases involving credibility determinations.  This seems a bit odd, especially in the Seventh Circuit, which seems to review many BIA decisions.
    The circuit courts with the most changes in "win" rates for OIL are the Second and the Ninth:
    Reflected in the 2009 statistics is the continued rise in win percentage within the Second Circuit. This percentage has risen steadily, from 14% in 2006 to 54% in 2007 to 90% in 2008 to 96% in 2009. Ninth Circuit win percentage, historically close to 60%, has risen in 2009 to 73%. This increase may be due, in part, to a greater percentage of post-REAL ID cases on the docket in 2009.
    The bottom line, I suppose, is that it is difficult--and sometimes almost impossible--to reverse the agency's credibility determinations.  Hopefully, this is a reflection of the BIA's increased competence at adjudicating aliens' credibility, and not simply a result of stricter laws concerning federal court review.  I guess that is a possibility, but I have my doubts.
  4. The “Unobservable Factors” that Influence Asylum Decisions

    I recently came across an interesting article from the Journal of Refugee Studies, "A Rare Examination of Typically Unobservable Factors in US Asylum Decisions," which analyzes data from 81 asylum cases to determine the "unobservable factors" that influenced the decisions in those cases.  The authors had access to cases litigated by the Human Rights Initiative of North Texas ("HRI") between 1998 and 2005.  As the authors explain, the small number of cases and the selection bias in the samples (HRI only takes cases deemed to have a good prospect of success) makes their findings suggestive only.  Nevertheless, the study points to some interesting possibilities concerning how decisions are made. 
    The authors refer to prior studies, which correlate asylum grants with factors other than a "well-founded fear" of persecution, for example, "the judge's prior work experience (particularly prior INS experience), and legal representation strongly influence asylum outcomes."  Also-
    While some legal scholars and human rights activists might expect that human rights conditions and evidence of credible fear of persecution would be the most important factors in the determination of whether to prevent a particular asylum seeker from being returned to a situation that would threaten their life or physical integrity, these empirical studies suggest that outcomes are more likely to be based on economic and security concerns of the state than the merit of the claim.
    Unlike most prior studies, the authors here, Linda Camp Keith and Jennifer S. Holmes, had access to the asylum seekers' files, and could look at many factors-gender, marital status, education level, religion-that are not normally available.  Some of the findings are quite surprising, and are examined below: 
    The authors write: "we expect that a female will be less likely to receive asylum due to possible cultural biases of the decision makers concerning women as viable threats to government and due to possible cultural differences that affect women's credibility."  In fact, the authors found that within the cases studied, being female decreased the chances of an asylum grant by a statistically significant amount.  Indeed, of all the factors studied (except possibly religion), gender was the most significant "unobservable factor" that determined the outcome in an asylum seeker's case. 
    The authors expected that asylum seekers with higher levels of education might be viewed as economic migrants.  They found "applicants with a primary or middle school education had greater success than higher educated applicants."  However, they noted that "the sample size is small in the primary and middle categories" (although the results do seem to have some statistical significance).  They concluded, "Overall, there does not seem to be much variation in the grant rate due to educational attainment."  People who speak English, however, are statistically more likely to succeed in their cases. 
    In my own experience, I have always believed that more educated applicants are more likely to win asylum.  More educated people are better able to understand the system, they are more likely to articulate their stories consistently (which decision makers rely on to judge credibility), it is easier for well-educated decision makers to relate to them, and they are considered less likely to become a burden on our society.  I imagine that these positive factors outweigh any negative perception that well-educated asylum seekers are economic migrants.

    What are the odds that this single Christian female would qualify for asylum?
    The authors distinguished between asylum seekers with Judeo-Christian religions and those with non-Judeo-Christian religions.  They expected that asylum seekers with non-Judeo-Christian religions would be more likely to win asylum.  In fact, the authors found that having a non-Judeo-Christian religion was the most influential "unobservable factor" in gaining asylum.  Their results in this regard were considered statistically significant.
    This is the one observation that seems to me flawed.  The authors' cases come from an NGO in Texas, and so many of their Judeo-Christian asylum seekers likely come from Mexico, Central America, and South America.  People from these countries are very unlikely to gain asylum in the U.S.  Asylum seekers with non-Judeo-Christian religions, on the other hand, likely come from other regions of the world-regions where it is more likely that they will be granted asylum.  For example, many of my cllients are asylum seekers from Ethiopia and most are Christian.  They have a very high likelihood of success in their cases (usually based on political persecution).  Thus, had the authors used data from an NGO in my area (where we have many Christian asylum seekers), their results concerning religion would likely have been different.
    Marital Status
    A 2000 study suggested that single people were less likely to gain asylum in the United States, presumably because decision makers view them as likely economic migrants.  However, the authors of the current study found that being married significantly decreases the odds of an asylum grant.  I've never noticed any difference in the grant rates for my married vs. single clients.  However, whenever an asylum applicant lists numerous young children on their application, it makes me worry that an adjudicator will be more hesitant to grant, knowing that the grantee's entire family will be "following to join" him in the United States.
    Some Thoughts
    As the authors point out, their sample size is small, and the results are only suggestive.  Nevertheless, it seems safe to say that "unobservable factors"-or at least factors that are not related to the legal requirements for asylum-do influence decisions in asylum cases.  I imagine the same is true in criminal cases and civil cases.  Not that this makes the situation any better, but the fact is, such "improper" influences are difficult to eliminate in any type of case.  More study is clearly needed.  If Immigration Judges and Asylum Officers can be made aware of the biases that influence their decisions, perhaps that will be a first step towards reducing those biases.
  5. Update from EOIR at the AILA Conference

    As I mentioned in a previous post, I attended the American Immigration Lawyers Association annual conference last week.  One panel I went to included a talk by the Chief Immigration Judge of the United States, Brian M. O'Leary.  Judge O'Leary previously served as an IJ in Arlington, Virginia, and I tried a number of cases before him.  As much as I think he is doing a great job as Chief Judge, he is certainly missed by those of us who practice in Virginia.
    Judge O'Leary updated us on the news at EOIR.  We learned that there are 43 new IJs "in the pipeline" and they are expected to start work by the end of the year.  During the last round of hiring, over 1,700 people applied for 28 positions, and Judge O'Leary is confident that the new IJs will be very competent.  EOIR will be opening a new Immigration Court in Texas later this summer; this will be the 59th Immigration Court in the United States.  Hopefully all this will help alleviate the long waits that have become so common in almost all Immigration Courts.
    Speaking of long waits, Judge O'Leary noted that receipt of new cases was up 17% from 2007 to 2009, with an 11% rise in the last year alone.  This is because DHS is bringing more aliens into the system.  Completion rates are also up, but only by 4%, which is not keeping pace with the ever-growing case load.  Judge O'Leary also stated-and this was a surprise to me-that the detained docket has reached nearly 50% of all cases in Court.  He speculated that this may be because DHS has more beds available and they are making a greater effort to detain criminal aliens.  Apparently, DOJ/EOIR and DHS have been meeting to review the immigration process.  Hopefully, this will give EOIR a heads up about how many new cases are coming into the system (DHS brings new cases to EOIR when they file papers to remove an alien), which will allow EOIR to better anticipate its docket.
    We also heard that there will be a new Assistant Chief Immigration Judge ("ACIJ") whose portfolio will include only "vulnerable populations," such as juveniles and aliens with mental disabilities.  Such people have often had great difficulty in Immigration Court, and hopefully an ACIJ devoted completely to them will improve the situation.  Another ACIJ has a portfolio that includes training new (and old) IJs.
    In terms of improvements to the Court facilities, Judge O'Leary noted that most Courts now have digital-audio recording.  The only exceptions are Los Angeles and Hawaii, and those Courts should have the new system by August.  The digital-audio recording system records Court proceedings on a computer hard drive.  This is an improvement over the old system, which used cassette tapes.  The system is controlled by the IJ on the bench and cannot be used to listen to conversations going on when the IJ is not in the courtroom (I must admit that wasn't sure whether anyone could listen in when I was in the courtroom and I have been careful about what I say; despite Judge O'Leary's assurance, I guess I am too paranoid to change my ways).
    There have also been some personnel changes.  EOIR has been increasing the number of judicial law clerks.  Currently there are 65 JLCs.  In FY 2011, there will be 90.  In addition, the tenure for the clerks has been increased from one year to two years.  This latter development is very significant.  I served as a JLC back in the late 1990s.  I felt like I was reaching my stride after the first year, and I think I could have made a greater contribution to the Court if I had had a second year.  I think the IJs will notice a difference in the quality of their help during the JLC's second year.
    If you are interested in learning more about EOIR (from their point of view), visit their website.  For independent statistical information about EOIR, visit the TRAC website, which collects and publishes a wide range of data on the agency.
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