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Jason Dzubow on Political Asylum


  1. 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.
  2. 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. 
  3. Senate Hearing on the Refugee Protection Act

    The Senate Judiciary committee held a hearing yesterday on the Refugee Protection Act.  I wasn't able to attend, but the Senate conveniently records such hearings, and you can view it here. 

    Doggone it, people like the RPA
    My friend who attended thought it did not go very well for supporters of the bill.  I can't say I agree, though the last five minutes, when neither of the pro-RPA witnesses could answer Senator Franken's softball questions and each tried to defer to the other, was not a shining moment.  Here are some other moments worth mentioning:
    The ranking Republican, Senator Sessions from Alabama, raised some legitimate (and some not-so-legitimate) concerns that will probably need to be addressed if the bill is ever to become law.  Of course, the first issue was national security.  He felt that the RPA would allow Osama Bin Laden's wife (wives?) and children to claim asylum in the United States, as the law relaxes barriers for family members of terrorists.  Given the limited number of people we can admit each year, he argued, we would be better off admitting people without close ties to terrorists.  He also stated that the RPA would broaden the definition of "asylum seeker," and thus encourage more fraudulent claims.  He questioned how many people we could realistically allow to enter the United States as refugees and asylees.  He argued that we could not admit everyone who meets the definition of a refugee, and said that if things fell apart in Afghanistan or Iraq, we could not take in all the people who sided with us in those wars.
    There were two pro-RPA witnesses, Dan Glickman of Refugees International and Patrick Giantonio of Vermont Immigration and Asylum Advocates.  They argued that the one-year filing deadline does not serve its intended purpose of reducing fraud.  Mr. Giantonio noted that many asylum seekers who fail to file within one year of arrival receive withholding of removal or relief under the UN Convention Against Torture.  Both forms of relief have a higher burden of proof than asylum.  Thus, if the one year deadline were not an issue, such people would have qualified for asylum (I agree with this point).  From the alien's point of view, asylum is a more desirable outcome than the other forms of relief, but the witnesses did not mention the benefits of asylum.  The pro-RPA witnesses also emphasized that the bill would not compromise national security because refugees and asylum seekers would remain subject to all the same background checks that are currently required.  Mr. Giantonio also briefly mentioned some of the deleterious effects of immigration detention on asylum seekers.
    Igor V. Timofeyev, a former DHS official and a Soviet Jewish refugee, testified in his personal capacity.  He appeared as the anti-RPA witness, though his criticisms were fairly tame (refreshing given the normal discourse on most immigration-related issues).  His concerns were national security, national security, and national security.  He also mentioned that federal appeals courts are overburdened with immigration cases.
    Finally, it bears mentioning that Senator Leahy included in the record a letter signed by 89 faith-based, human rights, legal services and refugee assistance organizations and 99 individual asylum law practitioners, pro bono attorneys, law professors and other experts in the field (including this humble blogger). 
  4. The Refugee Protection Act and the Material Support Bar

    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.
  5. The Refugee Protection Act and the One Year Asylum Bar

    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.  
    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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