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Lory D. Rosenberg on Appeal Matters


  1. BIA and Reprehensible Determinations

    In Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017), the BIA has ruled that the Oregon crime of burglary of a dwelling is a crime involving moral turpitude (CIMT) even though a defendant can be convicted of burglary under the Oregon statute for entering or remaining in an unoccupied home. The Board's analysis is somewhat confounding, ultimately favoring a categorical conclusion that is clearly to the disadvantage of those in the respondent's position.

    (In one fell swoop, the BIA rejected the respondent's request for withholding and deferral of removal under the Convention Against Torture (CAT) on the basis that the respondent failed to identify an acceptable particular social group as the reason for the threat to his life or freedom and fear of torture, ruling that, "he asserted that he would be targeted by criminals because he would be recognized as someone who has lived in the United States for a long period of time based on his clothing and accent. However, this proposed group lacks particularity, because it is amorphous and lacks definable boundaries. As described, the proposed group could include persons of any age, sex, or background." Id. at 86.)

    There are two central issues presented: Does the Oregon statute in question and, if divisible, the crime of which the respondent was convicted under the Oregon statute, amount to a generic burglary? Assuming it amounts to a burglary, is the crime of which the respondent was convicted a CIMT, involving reprehensible conduct and some degree of scienter?

    A few comments in response to the precedential aspects of this decision are warranted.

    A conviction of the crime of burglary does not make removal inevitable, not only because there may be post-conviction remedies available, but because the underlying offense is not necessarily a crime involving moral turpitude or an aggravated felony conviction.

    As we know, burglary convictions must be analyzed according to the state law under which the crime is defined. The elements of the offense described under state law must match the elements contained in the generic definition of burglary, i.e., unlawful entry into or remaining in a building or structure with the intent to commit a crime. Taylor v. U.S., 495 U.S. 575 (1990).

    The respondent argued that the statute was overbroad. Although the respondent asserted that “a violation of the statute does not necessarily involve reprehensible conduct or a culpable mental state since it does not require that a defendant unlawfully enter a dwelling or intend to commit a crime involving moral turpitude at the time he or she enters the building,” id. at 83, the BIA rejected the respondent's arguments.

    The BIA concluded instead that the statute was divisible “with respect to whether a first degree burglary offense involved entering or remaining unlawfully in a dwelling, as opposed to a building other than a dwelling.” Id. at 84-85. Cf. Mathis v. United States, 136 S. Ct. 2243,2249 (2016) (deeming a statute to be divisible if “it list[s] elements in the alternative, and thereby define[s] multiple crimes”)

    Under section 164.205(2), the term “dwelling” means a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present. However, the BIA ruled that the statute was not divisible as to whether the building was occupied or not, cutting of any examination of the record with respect to that aspect of the crime.

    The records in the instant case contained no equivocation regarding the nature of the respondent's conviction. In fact, once the statute in the instant case was treated as divisible as to “entering or remaining unlawfully,” the record clearly identified the crime of which the respondent was convicted. As the BIA stated expressly, "the judgment and plea agreement for the respondent’s conviction show that he pleaded to “Burglary I” as charged in Count 2 of the charging document, which alleged that the offense occurred 'in an occupied dwelling.'” Consequently, the BIA affirmed the IJ's conclusion that, "according to the respondent’s record of conviction, he was convicted under the prong of section 164.225 that requires entering or remaining unlawfully in a “dwelling” with the intent to commit a crime." Id. at 86.

    But that begs the question.

    Today's decision in Matter of J-G-D-F-, expands on the BIA’s prior precedent in Matter of Louissaint, 24 I&N Dec. 754, 756 (BIA 2009), and distorts the longstanding BIA standard requiring that crimes involving moral turpitude must contain “two essential elements: reprehensible conduct and a culpable mental state,” Matter of Silva-Trevino, 26 I&N Dec. 826, 834 (BIA 2016). Prior to Louissant, the BIA honored the reasonable limitation that a crime was to be considered a CIMT only if the crime accompanying the unlawful entry was itself turpitudinous.

    In Louissaint, the BIA held that the “conscious and overt act of unlawfully entering or remaining in an occupied dwelling with the intent to commit a crime is inherently ‘reprehensible conduct’ committed ‘with some form of scienter.’” Matter of F-G-D-F-, supra. at 87 (quoting Matter of Louissaint, 24 I&N Dec. at 758 (citation omitted)). The rationale underlying this conclusion was the fact that the building was occupied and the victim’s presence involved an expectation of privacy and security. By drawing the conclusion that every unlawful entry of a dwelling, whether occupied or not at the time of the offense, amounts to "reprehensible conduct" the BIA evades prior caselaw which had focused on the specific crime that was intended. Cf. Matter of M-, 2 I&N Dec. 721 (BIA, A.G. 1946).

    c. 2017 Lory D. Rosenberg,

    Updated 08-18-2017 at 06:07 PM by Lrosenberg

  2. Why President Trump's VOICE is Misplaced and Serves No One

    The VOICE office announced by President Trump in his SOTU speech on Tuesday night is the most disturbing, offensive, and misplaced priority he could have chosen to address the pressing need for immigration reform.

    Moreover, it astonishes me how anyone with an understanding of the reality of the overwhelmingly positive immigrant contributions to our workforce, our communities, and our society as a whole could applaud such folly. It is mind-boggling that a person who purports to understand immigration law can honestly praise its introduction. Cf. N. Rappoport, Opinion Contributor, The Hill, “On immigrant crime, Trump's right. Americans deserve more data” (3/1/17).

    Establishment of such a new office panders to unsubstantiated, and in fact, soundly refuted, fears of an immigrant crime wave, and fosters public hysteria that is utterly unfounded. Are there serious crimes committed by immigrants? Yes, although very few are violent offenses. They generally involve violations of state, not federal, law, and they are duly prosecuted and punished in our courts, without regard to the perpetrator’s immigration status. Any claimed value to the victim in connecting ICE to removable aliens for “information” is pure fantasy.

    Moreover, proportionately, the immigrant crime rate is minimal compared to the crimes committed by the native population in the United States. See Ewing, W and Rumbaut, R., SPECIAL REPORT The Criminalization of Immigration in the United States, http://www.americanimmigration A federal program for victims of crime committed by an immigrant as opposed to a United States citizen, erroneously propagates the destructive misconception that immigrants are mostly criminals. Cf. Spenkuch, Jörg L., Understanding the Impact of Immigration on Crime, 16 American Law and Economics Review 1,177-219 (2014),

    As leading scholar on immigrants and crime, Professor Ruben G. Rumbaut
    has stated,

    "It [the VOICE office] will serve further to drive up fear and to sigmatize entire immigrant populations as criminals, using rare anecdotes to publicize misleading claims, even though every research study over many decades shows exactly the opposite: immigrants, including the undocumented, have the lowest crime (both violent and property crimes) and the lowest incarceration rates in the US."

    What is more, the policy changes anticipated since President Trump’s inauguration may dismantle much needed agency resources that support implementation of critical humanitarian and domestic violence efforts, such as VAWA and other critical programs that have been part of DHS's portfolio. Those are the most important victim support resources that are needed. Information collection and communication can be achieved easily and made available to victims, policymakers, and scholars alike through accurate agency reporting.

    There are more than adequate local police programs, as well as private and faith-based programs, available to victims of all crime in their communities. That is where victims will find the information and restitution they may seek. One would think an administration that seeks to reduce the the federal bureaucracy and rely upon the states to address all but those problems that demand federal intervention would shrink from imposing a duplicative and unnecessary venture that is likely to offer little more than one night of celebrity in a television audience.

    Trump’s self-indulgent VOICE office paints a target on the backs of honorable, hard-working immigrants - and others who look like immigrants - in our population. He may derive satisfaction from the publicity of such a pointless gesture, but the office’s establishment does nothing to reform a deeply broken system that victimizes immigrants and citizens alike each day that nothing is done to reform it.

    c.2017 Lory D. Rosenberg
  3. The Harm That Confirmation of Jeff Sessions as Attorney General Can Do to Immigration Law and Due Process.

    Claiming a "cycle of amnesty" as justification for opposing all immigration reform ever proposed in Congress during his tenure, including the Dream Act, nominee Jeff Sessions responded to Senator Dick Durbin that by electing Trump as President, "the people have spoken."

    Sessions argued in his confirmation hearing on January 10, 2017, that we should "fix this system" by passing immigration reform in Congress - reform that he opposed consistently while serving as a Senator. He refused to acknowledge the importance of protecting the status of those protected currently by DACA, President Obama's executive order, and gave no guarantees about the fate of these individuals once Trump assumes the Presidency or during any extended period while reform legislation would be pending.

    Sessions' alarming refusal to acknowledge either his past or currently objectionable attitudes and actions as a Senator and a state official is made only more dismal by the Republican apologists on the Senate Judiciary Committee, who are attempting to paint Sessions' history as irrelevant or nothing more than one reflecting permissibly different views on policy.

    If (when) he is confirmed as Attorney General, Jeff Sessions will have an exclusive level of authority over the course of immigration law and policy, as well as its impact on those subject to the immigration laws. This power will manifest in 2 principal ways:

    • in hiring and removing Immigration Judges and Board Members on the Board of Immigration Appeals
    • in certifying and deciding immigration decisions made by the Board of Immigration Appeals

    The Attorney General, as head of the Department of Justice (DOJ) in which the Executive Office of Immigration Review (EOIR) is housed, selects and appoints all of the individual Immigration Judges (IJ) and the members of the Board of Immigration Appeals (BIA). The situation of Immigration Judges and appellate Board Members within an Executive Branch agency such as the DOJ presents an inherent institutional tension, even apart from the ideological or political leanings of the individual in the Attorney General position.

    A.G. Control Over Immigration Judge and Board Member Hiring

    Indeed, as the BIA is a creature of regulation and not of statute, the members of the BIA serve "at the pleasure" of the Attorney General. This unfettered authority has been exercised abusively in the all too recent past, when former Attorney General John Ashcroft removed several BIA members from their positions in 2002-2003, reportedly because they were considered "too liberal" in exercising their responsibilities of impartially and independently deciding appeals from removal decisions. 1/

    The President of the National Association of Immigration Judges, Hon. Dana Marks, has observed that, "The current court structure is marked by the absence of traditional checks and balances, a concept fundamental to the separation of powers doctrine. This structural flaw is readily apparent to lawyers, scholars and jurists. At present, the Attorney General, our nation’s chief prosecutor in terrorism cases, acts as the boss of the judges who decide whether an accused non-citizen should be removed from the United States." 2/

    Moreover, EOIR continues to be subject to criticism for the apparently preferential treatment given in hiring IJ applicants employed by the federal government to the exclusion of a fair representation of IJ candidates from the non-profit and private sector. The population of the IJ corps by persons who have served primarily as prosecutors of immigrants and refugees, with little or no exposure to the representation of and advocacy for these persons, tends to perpetuate a culture in favor of enforcement objectives no matter what the equities or how well-intentioned an IJ may be.

    A.G. Power To Certify and Review BIA Decisions

    Furthermore, the Attorney General has certification authority over all appellate decisions by the BIA -- authority to declare precedent that is reviewable only by the federal circuit courts of appeal.3/ The decision of the A.G. upon certification is binding on all lower bodies, and the impact of this authority is often disruptive, having unnecessarily adverse consequences on litigants and delaying hearings and the issuance of individual decisions nationwide. Although it is possible that a decision by the A.G. on certification can have a beneficial impact, the all-too-common prosecutorial, enforcement-oriented bent of many Attorneys General often results in undesirable, misguided, and even legally erroneous precedent.

    An example of this disruption is the case of Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), in which former A.G. Michael B. Mukasey reversed upon certification a decision made by the BIA concerning the construction of section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA). The A.G. ruled that IJs were permitted to inquire into the conduct of a respondent if it was not possible to determine that a conviction was for a crime involving moral turpitude (CIMT) under either the categorical or modified categorical approach.

    As a result, for the past 8 years, IJs and the BIA were bound by this A.G. precedent. Countless respondents in removal proceedings were found to be deportable or ineligible for relief from removal on the basis that a conviction in their records amounted to a CIMT due to consideration of factors beyond the elements of the crime as defined in the criminal statute.

    Following 7 years of litigation and the involvement of numerous federal circuit courts of appeal, the Mukasey approach was rejected by A.G. Eric H. Holder Jr. See Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (A.G. 2015)(vacating Matter of Silva-Trevino (“Silva-Trevino I”), 24 I. & N. Dec. 687 (A.G. 2008) and remanding the record to the BIA for a new decision).
    Too late for some, this odyssey resulted in a 2016 decision in which the BIA declared a uniform standard for the proper construction and application of the INA -- one that did not involve an inquiry into what the defendant had done -- consistent with the categorical approach as repeatedly articulated and affirmed by the U.S. Supreme Court. See Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016).

    Placing the power in the Attorney General to appoint the Board Members on the BIA and the IJs, and to review BIA decisions on certification, has the potential for harm that goes well beyond the implicit bias that accompanies all decision making. Simply stated, the policy making functions of an Executive Branch agency such as the DOJ simply do not facilitate the impartial decision making expected of a judicial body. This situation only is exacerbated when an Attorney General who has a racially biased history and a documented anti-immigrant agenda is confirmed.


    1. See
    Peter J. Levinson, The Façade of QuasiJudicialIndependence in Immigration Appellate Adjudications 15 (2004) (conference paper delivered at the 2004 Annual Meeting of the American Political Science Association), 9 Bender’s Immigr. Bull. 1154 (Oct. 1, 2004). The existence of ideological bias also is established by the testimony of former government attorney and Republican staffer Monica Goodling before the Senate Judiciary Committee on May 23, 2007, admitting that political considerations influenced the hiringdecisions for the career position of Immigration Judge. See e.g., Susan Crabtree, Goodling Asked DoJ Applicants PoliticalQuestions,, May, 23, 2007; Sandra Hernandez & Lawrence Hurley, Goodling Weighed Politics inRecommendations, Daily J., May 24, 2007.

    Hon. Dana Leigh Marks, 13 Benders Immigration Bulletin 3, "An Urgent Priority:Why Congress Should Establish an Article I Immigration Court" (January 2008).

    3. 8 CFR 1003.1(h) provides for referral to the Attorney General for review all cases (1) that are directed by the AG for referral, (2) that the BIA Chairman or a majority of the Board Members believe should be referred, or (3) that the Secretary of DHS or specific DHS officials in concurrence with the AG, believe should be referred for review.

    Updated 01-13-2017 at 01:34 PM by Lrosenberg

  4. Order in the Playpen

    I’m not going to mince words. According to the Washington Post, assistant chief immigration judge Jack H. Weil offered testimony recently, contending that there must be a case-by-case basis determination of competency, even for 3- and 4-year-olds, despite the fact that “[i]n all of our policies, the overlying concern is due process.” Reportedly, Judge Weil claimed that, although it takes patience, “I have trained 3-year-olds and 4-year-olds in immigration law.” See

    I don’t doubt that such statements may not “present an accurate assessment of my views on this topic,” as Judge Weil reportedly protested in an email to the Washington Post. Id. Nevertheless, there is no claim made that these ludicrous statements were not offered as part of Judge Weil’s deposition testimony on behalf of the EOIR. It should be plain that there is no context in which such statements could be viewed as rational. Id.

    What is particularly incomprehensible about this deposition testimony from Judge Weil is that this very same judge has dedicated a considerable amount of his time and energy over the past 4 or 5 years shepherding through EOIR a nationwide plan to provide enhanced procedural protections to certain respondents who lack competency to represent themselves. If anyone should be sensitive to the complexity of removal proceedings, what is at stake in such proceedings, and the express need for competency to understand and meaningfully participate in those proceedings, it is Judge Weil.

    Indeed, on April 22, 2013, the Office of the Chief Immigration Judge, in which Judge Weil serves, announced a “Nationwide Policy to Provide Enhanced Procedural Protections to Unrepresented Detained Aliens with Serious Mental Disorders or Conditions.” This policy, the outcome of a project on which Judge Weil worked personally, makes a qualified legal representative available in removal and custody redetermination proceedings if it is determined that a respondent with a serious mental disorder or condition is detained, unrepresented, and incompetent to represent him or herself. Phase 1 of the policy's implementation began on August 15, 2013.

    Recognition of the complexity of immigration proceedings and the requirements of fundamental fairness and due process in relation to the competency of the respondent was expressly addressed by the Board of Immigration Appeals in 2011. In Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), the Board held that to be competent to participate in an immigration proceeding, an individual must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by law. Id. at 479.

    The core rights and privileges to which the Board refers, as addressed in Phase I of the EOIR’s Plan to Provide Enhanced Procedural Protections to Unrepresented Detained Respondents with Mental Disorders (“Plan”), include,

    1. A rational and factual understanding of:
    a. the nature and object of the proceeding;
    b. the privilege of representation, including but not limited to, the ability to
    consult with a representative if one is present;
    c. the right to present, examine, and object to evidence;
    d. the right to cross-examine witnesses; and
    e. the right to appeal.
    2. The reasonable ability to:
    a. make decisions about asserting and waiving rights;
    b. respond to the allegations and charges in the proceeding; and
    c. present information and respond to questions relevant to eligibility for relief.

    The Plan provides that a respondent “is incompetent to represent him or herself in a removal or custody redetermination proceeding if he or she is unable because of a mental disorder to perform any of the functions listed in the definition of competence to represent oneself.” Id. In the Plan, the term, “ ‘Mental disorder’ (including Intellectual Disability) is defined as a significant impairment of the cognitive, emotional, or behavioral functioning of a person that substantially interferes with the ability to meet the ordinary demands of living.” One might as well substitute the phrase “because of infancy or age” in place of “because of a mental disorder” language in in the Plan.

    Equally of interest is the Plan’s advisal to immigration judges that they make a judicial inquiry that begins “by explaining to the respondent the purpose and process for conducting the judicial inquiry,” which includes a description of the purpose of the proceedings, e.g., “I am an Immigration Judge. My job is to decide whether you will be allowed to stay in the United States. I am going to hold a hearing to gather information from you and the representative of the Government to help me decide whether you will be allowed to stay in the United States.”

    The suggested advisal text continues, “It is important that you understand what is happening in court. It is important that you understand what is being said about you. It is also important that you are able to tell your side of the story. To make sure that you are able to understand and tell your story, I am going to ask some questions about you and your case. I will use this information to decide whether you will need any special help in the hearing.”

    The advisal then instructs the immigration judge to ask the respondent,
    “Can you explain to me what I just said in your own words?

    I’d love to see the transcript of those responses. Is the time it takes to individually question traumatized 3 and 4 year olds really the best way for immigration judges facing a 4-year case backlog at EOIR to spend their time?

    As an attorney of over 35 years, who served as a Board Member on the Board of Immigration Appeals between 1995 and 2002, deciding over 20,000 appeals from the decisions of immigration judges, and as a former adjunct professor of law, I can say without hesitation that immigration law is extremely dense and the statute and regulations often are barely intelligible. Likewise, removal proceedings often are confusing and mystifying. To adults. To educated adults. To attorneys from other fields of practice volunteering pro bono. Too often, to some immigration attorneys regularly representing respondents in these proceedings. And even, to immigration judges.

    The brains of 3 and 4 year olds are not developed to a point where they can fathom the goings on in immigration court, or represent themselves in any way, shape or form. The brains of adults should be better developed. It is inconceivable and everyone involved in defending the deposition should know better.
  5. Syrians Fleeing the War in Syria Are “Refugees” As Defined by United States Law: Set

    Syrians Fleeing the War in Syria Are “Refugees” As Defined by United States Law: Setting the Record Straight Regarding the Refugee Definition

    In today’s climate, there is a danger of throwing the baby out with the bath water. Heightened security concerns and a sense of urgency regarding the protection of Syrian refugees have given rise to critics, writing in this publication and others, who posit that the majority of Syrians fleeing the war in Syria are not refugees (and presumptively not deserving of U.S. protection).

    Responding to the imminent arrival of 10,000 Syrian refugees, as ordered by President Obama, may tempt critics of this policy to resort to unfounded assumptions, indifference to existing procedures, and even disregard for governing law. Nevertheless, the inadequate analysis and inaccurate conclusions flowing from such assessments serve no one. We, as attorneys, have an obligation to provide accurate information to clients, to the courts, in the classroom, in publications, and in the media.

    The assertion that Syrians fleeing the war in Syria (whom this country will welcome and resettle) fall outside of the refugee definition is incorrect. This blog explains why that is the case, and clarifies the importance of accuracy and consistency in discussing the underlying law.

    The question whether Syrians fleeing the war in Syria are “really” refugees, as
    defined by U.S. law, requires us to assess their status according to established
    principles in asylum/refugee law, rather than to rely on unfounded presumptions.

    As I illustrate below, the failure to properly analyze the statutory definition of “refugee” in the context of our refugee laws today frustrates an accurate assessment of Syrians’ potential refugee status.

    To be sure, the statutory codification of the definition of “refugee” is settled and binding. It originates with the 1951 United Nations Convention on the Status of Refugees and the 1967 Protocol (incorporating the Convention by reference) (Refugee Convention), international treaties to which we are signatory. Nevertheless, adherence to the statutory definition of “refugee” does not require a rigid, static interpretation of the qualifying statutory grounds of “race, religion, nationality, membership in a particular social group or political opinion” as they may have been understood and applied in the post- WWII era in which the Convention and Protocol were adopted.

    Indeed, when the drafters of the Refugee Convention included “membership in a particular social group,” in the text, they did so with the express awareness that the category would develop over the coming years. Similarly, as reflected consistently in the decisions of agency adjudicators and immigration judges and in controlling case law, discussed below, the concepts contained in the refugee definition have evolved over the 50 years since the adoption of the Convention and Protocol. Failure to acknowledge current interpretations is misleading.

    Two essential principles point the way towards a proper examination of the question whether Syrians fleeing the war in their country are refugees as defined in U.S. law.

    I. The first principle: An Individual Factual Adjudication Is Required

    Whether an individual is a refugee requires a factual determination that must be made on a case by case basis. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987). See also Matter of Mogharrabi, 19 I&N Dec. 439, 441 (BIA 1987). In Mogharrabi, the Board of Immigration Appeals observed that the Supreme Court ruled that a more concrete definition of the term “well-founded fear of persecution” would be left to the process of case-by-case adjudication. 448.

    Ordinarily, an individual applicant is expected to establish that s/he is likely to be singled out for persecution. The regulations, however, create an exception – one that may be pertinent in Syrian cases based on religion, political opinion, or a cognizable social group. They allow for classification of similarly-situated individuals as refugees where there is a pattern or practice of persecution on account of any of the protected grounds against a group or category of persons similarly situated to the applicant. See 8 C.F.R. § 208.13(b)(2)(iii)(A). The applicant must belong to or identify with the persecuted group, so that a reasonable person in the applicant’s position would fear persecution. See 8C.F.R. § 208.13(b)(2)(iii)(B). Moreover, in the course of its ongoing adjudications, the U.S. government has identified certain factors, which are applicable to all cases, and satisfy the standards for proving individual persecution as a refugee.

    A. Critics Should Avoid Jumping to (Adverse) Conclusions

    Sweeping predictions about the ineligibility of large groups of persons of the same ethnicity or religion should be considered suspect. As German Chancellor Angela Merkel recently urged in response to conservative criticism over opening Germany to an estimated one million refugees, “it is not human masses that are coming to us, but individual human beings.” See

    Reciting the statutory language that defines the term “refugee” while insisting on the need for an individual assessment and emphasizing that the government needs to make individualized determinations based upon the facts of each case, is not productive. Furthermore, offering guesstimates as the basis for determining that the mass of Syrians in question do not fit within any of the qualifying statutory grounds, as some critics have done, does not satisfy the need for individualized determinations. Without the benefit of individual factual inquiries, such an analysis is doomed to result in unfounded conclusions.

    B. Critics Should Respect Proven Refugee Processing Protocols

    It is important to understand that there are well-established overseas refugee processing procedures in place that involve United Nations screening individuals who are overseas and referring them to U.S. government agencies. These referrals are followed by close review of individual applications, scrutiny of supporting evidence, and intensive factual questioning. See In fact, DHS-USCIS is directly responsible for overseas refugee processing, in which “[h]ighly trained USCIS officers conduct extensive interviews with each refugee applicant to learn more about the applicant's claim for refugee status and admissibility.[1]

    In addition to their extensive training on refugee law, “[o]fficers conducting interviews of Syrian applicants undergo an expanded 1-week training focusing on Syria-specific topics, including a classified intelligence briefing. During the interview, the officer develops lines of questioning to obtain information on whether the applicant has been involved in terrorist activity, criminal activity, or the persecution/torture of others. The officer will also conduct a credibility assessment on each applicant.” See

    C. Critics Should Not Disparage Refugee Resettlement Agencies

    Ignorance of the fact that DHS-USCIS is responsible for conducting the Syrian refugee interviews abroad, which is stated clearly on the USCIS website, does not excuse critics from disparaging non-governmental refugee agencies. Critics have made unsupported contentions that the staff of these resettlement agencies are inclined to consider anyone fleeing conflict a refugee, and would stretch the facts to include unqualified individuals in the refugee classifications. To the contrary, non-governmental agencies do not make refugee determinations, but provide sustenance and humanitarian assistance to those in flight and during resettlement in the U.S.

    Critics may think it unwise to accept Muslim Syrians as refugees, but they are not entitled to presume that non-governmental refugee agencies would violate the law or otherwise attempt to find eligibility where none exists. Refugee agencies are integral parts of our refugee assistance and resettlement program and they are presumed to act honestly and with integrity.

    II. The second principle: Governing Law Must Be Observed and Followed

    A meaningful analysis of the question whether certain individuals are refugees requires not only consideration of the plain terms of the statute, and the regulations, but an accurate understanding of current administrative and judicial case law interpreting the statutory language. Making judgments about the extension of protection to Syrian refugees based on U.S. standards requires substantial knowledge of the case law and the procedures used to administer refugee programs.

    The claims made by critics -- that Syrians fleeing war in Syria are not really refugees because the harm they face they cannot be classified as being motivated by race, religion, nationality membership in a particular social group or political opinion -- are erroneous and contrary to law.

    First, persecution is frequently defined as “the infliction of suffering or harm upon those who differ in a way regarded as offensive.” See Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000); Matter of Mogharrabi, supra. Furthermore, the Board of Immigration Appeals has ruled that aggregated incidents of discrimination, physical harm, threats, and harassment may support a finding of suffering or harm that rises to the level of persecution. See Matter of OZ and IZ, 22 I & N Dec. 23 (BIA 1998).

    Second, persecution that triggers the need for refugee protection is not antithetical to an ongoing war, as illustrated by refugee protection having been extended to individuals from El Salvador, Afghanistan, Iraq, Liberia, Sri Lanka and other countries. The grounds for refugee protection during a war are not limited to war-related persecution nor is war-related persecution excluded as a basis for refugee protection. As clarified above, refugee status is properly based on individual facts that establish the likelihood that a persecutor can become aware that a person has a status or characteristic that the persecutor finds offensive and wants to quash, and the persecutor’s inclination and ability to impose harm on the individual because of that status or characteristic. Matter of Mogharrabi, supra.

    A. Religious Persecution Constitutes a Strong Ground for Protection

    With respect to religion as a ground for persecution, both Christian and Muslin adherents appear to easily qualify as refugees. There is no basis to clam, as some have, that the involvement in the war of multiple factions, some of them Muslim sects, affords protection or obliges Syrian Muslim refugees to seek in-country protection. Any argument in favor of excluding Syrian Muslims’ from eligibility for refugee status on this basis while extending protection to Syrian Christians is not authorized in the refugee statute. Instead, our law provides that qualifying individuals who face persecutors that the government cannot or will not control are refugees.

    Plainly, in the case of Syria, the Assad government cannot or will not control the fighting, threats, danger, and commission of atrocities including murder, rape, torture, kidnappings, deprivation of food, and forced disappearances that are a daily occurrence in Syria. The conflict, which originated in a 2011 pro-democracy uprising that gave way to sectarian fighting between the Shi’a Alawite and Sunni majority factions within the Muslim community, now includes Jihadist groups such as Hezbollah, Al-Qaeda and Daesh (IS) and has devolved into a full-blown civil war and humanitarian crisis. See (BBC report). Nothing in the refugee statute requires persons experiencing or facing persecution under these circumstances to seek refuge in the country of persecution merely because they might have an affinity with one or more of the groups involved in the fighting.

    We must not distort the actual rule of internal relocation, which obligates an applicant to relocate to “another part of the applicant’s country of nationality . . . to avoid persecution, ifunder all the circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 208.13 (b)(2)(ii) (emphasis added). See also Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997). Any suggestion that Syrian Muslims should look to Muslim fighters in Syria for protection, as some critics have suggested, is unfounded.

    What is more, controlling BIA precedent specifically endorses classification as a refugee on the basis of religion where the victim and the persecutor are of the same religion but at opposite ends of the religious spectrum. Matter of S-A-, supra. at 1336 (holding that a woman with liberal Muslim beliefs suffered past persecution and has a well-founded fear of future persecution by her father on account of her religious beliefs, which differ from her father’s orthodox Muslim views). This important BIA precedent addresses the viability of Syrian Muslim claims as fitting comfortably within the refugee definition. Thus, a Muslim could qualify as a refugee on the basis of religious persecution by another Muslim that the government cannot or will not control.

    B. Membership in a Particular Social Group Can Warrant Protection

    Any suggestion that membership in a particular social group cannot be a viable ground on which to grant some Syrians refugee status because a proposed group could be defined as “persons fleeing war” is spurious. There is no evidence to suggest that such a group definition has been or would be posited. In addition to religion, refugee jurisprudence presently recognizes family groups, gender–based groups, ethnic groups, and groups of LGBT persons as cognizable for refugee purposes. See e.g.,

    Furthermore, any argument that the Syrians fleeing the war in Syria have not experienced and do not face a sufficient level of persecution to qualify as refugees is unsustainable. Cf. Matter of OZ and IZ, supra. The degree of harm that Syrians are suffering or likely to suffer is not in issue.

    C. Political opinion Is a Well-founded Reason for Persecution

    Perceived or actual political allegiances, just like religious affiliations, provide a certain basis for persecution in Syria. In a vast majority of cases of persecution and torture in the present Syrian conflict, politics and religion overlap and are indistinguishable. As stated above, the popular uprising in 2011 began in opposition to the corrupt and tyrannical regime of Bashar al-Assad and some of its early leaders were Alawites, Christians, and Druze in addition to Sunnis.[2] Soon enough, the uprising was polarized and has devolved into a sectarian Shi’a Alawite versus Sunni Ba’athist religious war that was promptly engaged by the Jihadist opportunists in the region, including Hezbollah, Al-Qaeda and Daesh (IS).

    Nevertheless, some critics insist that few of those fleeing the current situation in Syria are fleeing because of political opinion. Some have objected to the classification of Syrian refugees in this category on the basis that a claim that one is fleeing because of political opinion would require an individualized determination. These naysayers opine that while there might be those who would qualify under this provision, many would not. Such unsupported contentions appear to be premised on the erroneous belief that there will be no individualized refugee determination for Syrian refugees.

    Those who deny the possibility of Syrian refugees qualifying under the refugee definition on the basis of political opinion do so because they apparently believe that such an evaluation differs from what the Obama Administration is proposing. As clarified above, however, that is precisely how the classification of Syrians fleeing the war in Syria as refugees will take place – each individual will be interviewed and considered by USCIS before a determination of refugee status is made.

    Furthermore, with regard to the speculative assumption that most Syrians will not qualify should there be an individualized determination, such a claim completely ignores the close relationship between religion and politics in Syria (and the Arab world in general). It also fails to recognize that an individual may qualify as a refugee based on imputed political opinion, which could easily result from religious affiliations or associations.

    III. Conclusion: Those Admitted as Syrian Refugees Are Refugees

    Those who are challenging the designation and admission of Syrians as refugees caution that our Constitution and laws must be observed and not circumvented each time an urgent situation arises. However, there is no evidence that this has occurred.

    There is no room for baseless claims and obfuscation. We deserve accurate and authoritative blogs and articles that provide straightforward information about Syrian refugees and the United States’ refugee process. Just as Chancellor Merkel lauded German civic efforts to welcome Syrian refugees as “the best and most convincing answer to all those who try . . . to whip up sentiment against strangers,” our response to distortion and fear-mongering about Syrian refugees must be adherence to the rule of law – as written and applied through adjudication and jurisprudence.

    [1] These officers have undergone specialized and extensive training on: Refugee law, Grounds of inadmissibility, Fraud detection and prevention, Security protocols, Interviewing techniques,
    Credibility analysis, and Country conditions research.

    [2] See generally,;;

    Copyright (c) 2015 Lory D. Rosenberg

    Updated 12-21-2015 at 09:58 PM by Lrosenberg

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