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Lory D. Rosenberg on Appeal Matters

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  1. The Relevance of Outrageous Conditions: A Blog in Two Parts

    Recently, I engaged in a friendly, late night debate with a dear friend and colleague who is a seasoned immigration lawyer and law professor. It was triggered by the story on the Immigration and Customs Enforcement (ICE) website of a little girl in the Artesia, New Mexico family detention facility, who almost died of a seizure caused by a high fever but was saved by an EMT-trained guard.[1] The government’s self-congratulatory article about its “humanitarian mission” not only overlooked the fact that the facility had failed to provide the child with adequate medical care to treat the fever, but even admitted that the toddler was taken, not to a hospital, but to the dispensary – all that is available to the 500+ mothers and children held at Artesia. It was the final straw.

    After reading this horrifying story and reports of ICE’s neglectful and shameful treatment of the mothers and children they have held without bond for over 3 months in the makeshift trailers encircled by barbed wire, my colleague was livid. Unable to sleep, he emailed me at about 3AM.

    “Immigration Judges should give considerable weight to evidence of these poor conditions. What do you think?” his email read.

    A long-time immigrants’ rights advocate himself, my friend and colleague was wide awake. He queried rhetorically whether the pro bono attorneys representing the detainees through the American Immigration Lawyers Association (AILA) Pro Bono Project should be filing “massive detention conditions evidence” in every bond redetermination case seeking their release from custody. He asserted that the unhealthy, repressive, and family un-friendly conditions in which the mothers and children are detained (glossy public relations videos of the Artesia detention facility notwithstanding), should be a significant factor in an Immigration Judge (IJ)’s analysis whether depriving these moms and kids of their liberty is justified. These conditions of detention, he opined, are a persuasive counterweight to ICE’s misguided contention that continued custody and high, impossible-to-pay bonds will effectively deter others jn Central America from fleeing the pervasive violence, poverty and persecution in their countries.

    I’m sure it was no surprise to him that I was working at that late hour, putting the final touches on a practice advisory for the pro bono volunteers tirelessly representing the mothers and children in Artesia. “I doubt that IJs will find that the Artesia detention conditions, no matter how inhumane or deleterious, are sufficient to overcome the specter touted by ICE, albeit erroneously, of a migration movement posing a national security threat to the U.S.” I skeptically replied by email.

    I told him that I agreed that conditions in Artesia are offensive to international refugee standards that prohibit penalizing individuals who are fleeing persecution and must cross borders in search of surrogate protection from a country such as the United States, which is a signatory to the United Nations Refugee Convention and Protocol. Indeed, I would argue that detaining such a vulnerable population in the miserable and restrictive conditions existing at Artesia violates the provisions of the Refugee Act of 1980, our own domestic statute, which authorizes persons fleeing persecution and threats to their lives and safety to apply for asylum at a U.S. port of entry or land border.

    However, I wrote back cynically, “that humanitarian promise obviously has been abrogated to some extent by the requirement that an asylum seeker must first pass the ‘credible fear test’ to access our asylum system.” That, and the fact that most, if not all, U.S. government officials deny that any aspect of our domestic law is meant to fulfill either the letter or the spirit of the United States’ international humanitarian obligations. Oh well.

    My colleague pressed forward nonetheless, “what about the evidence of conditions?”

    “I haven't reviewed all the specific custody conditions,” I emailed back, and besides, “I‘m not sure that egregious conditions overcome ICE’s objections to release or how an IJ would balance these factors. Clearly, detention itself isolates asylum seekers and handicaps them in seeking legal representation and being able to prepare their cases properly. It even may deter them from hanging in there to pursue relief, especially when they and their kids are so miserable and sick.” Barely awake, I asked, “Is there anecdotal evidence of any IJ decisions that rely on egregious detention conditions to undercut arguments in favor of maintaining custody?” And said good-night.

    But my colleague would not be put off. By the time I returned to my computer the next morning, there was his rejoinder: “I disagree strongly. You are being too legalistic. All factors are relevant. Sympathy goes a long way in cases like this and it is important to make the historical record.”

    Well, I concede that I am being legalistic, I replied, not taking offense. I also agree that as far as I can tell, the IJs have no idea of the actual conditions being endured by these poor mothers and their children. Or by their pro bono counsel, who are trying to provide excellent representation under challenging conditions.

    So exactly what are these conditions anyway?


    Part I. The “Family” Detention Facility

    It’s difficult to capture in a blog, the reality of mothers with one, two or even three children, some of them infants and even new-borns, held captive in jail - yes, the facility is within barbed wire fencing, no visitors allowed, situated in a remote corner of the New Mexico desert, and the mothers and baby inmates alike are monitored 24/7 by uniformed guards. Young mothers and their children who left their homes behind reluctantly and fearfully, to embark on an arduous and terrifying journey. Young women of 22 or maybe 25 or 30, travelling alone through Mexico with their 2 year olds, their 5 years olds, their pre-teens, their babies.

    It’s difficult to capture in words, the reality of young women who have suffered rape, torture, theft, assault, and even worse in their home countries and in the course of their flight to save their own and their childrens’ lives. And it’s equally hard to convey what it’s like to arrive here, exhausted and frightened, to be interviewed by border patrol officers who ask questions, write down responses and ask them to sign, and then to be flown to Artesia, to be told that they will be deported eventually.

    Does anyone really think that these young mothers are audacious enough to have put themselves and their kids at risk in such a dangerous, violent, and unsympathetic world, but for the utmost necessity?

    The mothers arrive scared, confused, and disoriented. They and their children are subject to the commands of strangers in uniforms. The children are often cold, always hungry, chronically sick, and subconsciously terrified, picking up on their own mothers’ fears and tears. The kids have no way of understanding the new rules: that playing with other kids is bad, that crayons can be “contraband,” that feeling hungry or tired is bad, that crying or screaming or running around can get their mothers in trouble. The mothers are constantly surrounded by screaming children and babies (which would drive me stark raving mad), and routinely insulted, ordered around, taunted and called names by the guards. And they can’t do anything about it.

    As reported by the pro bono lawyers who represent them, the mothers and children in Artesia are residing in anything but family friendly conditions. Rather, they are held in jail-like conditions, poorly operated and maintained jail-like conditions. Deborah S. Smith, one attorney who volunteered at Artesia over the summer, reflected upon reading the September 19th ICE article, “ I am appalled that ICE can refer to Artesia as a ‘humanitarian mission,’ and allege that it has an ‘open environment.’ Nothing in or about Artesia is ‘open’ or ‘humanitarian.’”[2]

    “Everything is controlled by the guards, both for the detainees and the legal volunteers. Everything. Including what we eat, where we walk, when we walk, when we come, when we go, where we sit, and on and on. When I was there, the playroom was never used . . . at that point it could only be used by a child whose mother was in a hearing or interview. A guard was the daycare provider. What kind of mother is going to leave her young child alone in a trailer with only an unknown ICE guard to watch over the child? No responsible parent would do that. In the real world, parents can get investigated by Family Services for leaving their children with total strangers who may be irresponsible or untrained, or worse. The playroom is window dressing.”

    She continued, “Medical care is a joke. Educational services remain non-existent. And social workers? Did I really overlook the availability of such professionals on the ground who could counsel our clients? I regret doing so because every single one of the women and kids could have benefitted from a supportive shoulder."

    And the children are getting sicker, not with the dread diseases that some phobic American citizens feared they were bringing into our country, but with colds, sore throats, and viruses that they caught here in the U.S., in Artesia. The children are running fevers constantly, not eating, losing weight and losing vitality. Yet, visits to the Artesia “dispensary” result in nothing more than advice that children who wake up in the middle of the night with nightmares, fever, and coughs, try ”breathing.” It was no accident, but a predictable event, that children left untreated for chronic colds and fever would experience life-threatening febrile seizures.

    (To Be Continued . . . )



    [1] See News Release of September 19, 2014,“ERO, HSI share a humanitarian mission at ICE Family Residential Facility in Artesia, New Mexico,” http://www.ice.gov/news/releases/1409/140919artesia.htm. (On file with author via Google cache as it appeared on Sep 24, 2014 12:57:36 GMT. No longer available on ICE’s website).

    [2] Email from Deborah S. Smith, Esq. on file with the author.

    (c) 2014. All rights reserved. Lory D. Rosenberg

    Updated 10-03-2014 at 02:03 PM by Lrosenberg

  2. BIA Denovo Adjudications Hoisted On Its Own Regulatory Petard

    After five years of ups and downs, Attorney Maria Baldini-Potermin wrangled a smashingly-great asylum decision from the Seventh Circuit - a decision that has implications reaching far beyond her gay, HIV positive Mexican client's individual case. Rosiles-Camarena v. Holder, No. 11-3086 (7th Cir. August 21, 2013). The crux of the case involves the appropriate standard of review allocated to the Board of Immigration Appeals by the regulations promulgated and adopted during the George W. Bush administration when John Ashcroft headed up the Department of Justice and served as Attorney General (aka, during the "streamlining" period when the BIA's appeal backlog was at an all-time high).

    Trust me, it's more interesting and impactful than it sounds.

    It's important to recall that the climate in which the "streamlining" regulations were devised and promulgated was one in which the BIA's 3 member deliberative panel decisions were disfavored, separate opinions (particularly lengthy ones) were disfavored, BIA precedent opinions were disfavored, and close scrutiny of IJ decisions, particularly credibility decisions, was disfavored. After Ashcroft and his successor Attorneys General departed, and the dust settled, the Board was left with the job of interpreting these regulations, which unquestionably constricted it's role, in the context of real life cases and decisions.

    In Matter of V– K–,24 I&N Dec. 500 (BIA 2008), the BIA attempted to create a rationale for viewing (and reviewing) determinations based on factual circumstances in asylum claims as mixed questions of fact and law, permitting the BIA to exercise de novo review authority when an IJ's decision was appealed by either the respondent or the government. The BIA ruled that an Immigration Judge’s prediction or finding regarding the likelihood that an alien will be tortured relates to whether the ultimate statutory requirement for establishing eligibility for relief from removal has been met and is therefore a mixed question of law and fact, or a question of judgment. Id. at 501-502. The BIA relied on the regulation providing that the Board “may review questions of law, discretion and judgment and all other issues in appeals from decisions of immigration judges de novo.” Id. at 501 (citing 8 C.F.R. §§ 1003.1(d)(3)(i)-(ii)).

    Ultimately, the Board's decision in Matter of V-K- rested on the observation that "it would appear essential to the performance of our appellate function as contemplated by the Attorney General that we possess the authority to review de novo findings deemed by an Immigration Judge to satisfy an ultimate statutory standard. Id. at 502. In other words, if the likelihood or possibility of something happening is left virtually unreviewable except for clear error, the function and role of the Board is diminished.

    Back at the Seventh Circuit, however, Judge Easterbrook understood what was going on. He elaborated that the "Board has interpreted §1003.1(d)(3)(i) in a way that it believes makes clauses (i) and (ii) harmonious by relying on the longstanding distinctions between adjudicative and legislative facts, and between historical (case-‐‑specific) facts and those aspects of discretion or judgment that concern country-wide conditions—subjects on which the Board thinks that the United States should be able to speak with one voice, rather than through a cacophony of immigration judges." Rosiles-Camarena, supra. at 7.

    To be sure, and why not? Uniformity and consistency were previously highly regarded values at the Board.

    To quote Judge Easterbrook: "The problem is that the Board’s arguments would be better as reasons to revise the regulation than as reasons to interpret it differently from the similar language that governs relations between federal trial and appellate courts." In ruling that the BIA exceeded its review authority by imposing a denovo review standard upon facts, the Seventh Circuit now has joined 5 other circuits. [1]

    Judge Easterbrook smoothly disposed of the Board's concern that it's function and role would be usurped if it were deprived of de novo review over the IJ's finding in a case such as Rosilies-Camerena byoffering an interesting perspective: "Perhaps the Board’s view that it may make independent decisions about predictions is a consequence of giving itself too little leeway to find IJs’ predictions clearly erroneous." Id. at 9. Judge Easterbrook noted in particular that the Board had raised concerns about whether evidence that there was no more than a 1-in-100,000 chance that any given gay man would be killed any given year meets a more--likely--than--not burden of persuasion.

    So - whereas the Board might justifiably find clear error in an unwarranted or unsupportable factual finding made by an IJ, the Board instead substituted it’s judgment and made the finding itself – exercising a denovo review authority that it had it lost under the Ashcroft regulations.

    I must say the Board appears to have been hoisted on its own petard - or on the petard Ashcroft created while he was at DOJ. In fact, at the time these regulations were promulgated in 2002, Ashcroft's intent was to strip the BIA of much of its de novo review authority. To my recollection, he viewed the BIA as his personal mouthpiece and felt it should function only to express his views. Now, these rules are coming back to confound the BIA's decisions.

    The Supplementary Information accompanying the final rule is replete with assertions and quotations underscoring this outlook, such as: “[T]he Board acts on the Attorney General's behalf rather than as an independent body. The relationship between the Board and the Attorney General thus is analogous to an employee and his superior rather than to the relationship between an administrative agency and a reviewing court.” Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 Fed. Reg. 54,878 (Aug. 26, 2002) (Procedural Reforms) (quoting Matter of Hernandez-Casillas, 20 I&N Dec. 262, 289 n.9 (BIA 1990, A.G. 1991).

    And there’s more. The regulatory history reflects a clearly expressed intent that the final rule "continues to focus on the primacy of immigration judges as factfinders and determiners of the cases before them." See Procedural Reforms, supra. (emphasis added). In contrast, "[t]he role of the Board is to identify clear errors of fact or errors of law in decisions under review . . . not to serve as a second-tier trier of fact." Id. Moreover, the Supplementary Information emphasizes that as an administrative body within the Department, the Board is subject to the Attorney General's direction to the extent that the Attorney General could dispense with Board review entirely. Id. Certainly not a resounding endorsement of the Board’s potential role.

    Judge Easterbrook hit the nail on the head in stating that the BIA has failed to use the authority it does possess to find clear error. Rosiles-Camerena, supra. at 9 (“Instead [the BIA] . . . claimed a right to substitute its judgment for that of the IJ without finding a clear error”) (emphasis in original). The reasons for the Board’s propensity to engage in denovo review rather than to make clear error determinations -- above and beyond the Board’s desire to retain as much of its review authority as possible -- are worthy of consideration.

    Since the regulations prohibit the Board from making factual findings, one apparent consequence of the Board’s ruling that an IJ’s factual or predictive finding is clearly erroneous is the necessity of remand to the IJ, increasing the already clogged and backed-up dockets in the immigration courts. Another consequence is a decrease in final orders of removal. Neither of these outcomes is desirable administratively and certainly won’t be popular with DOJ or Congress, not to mention the individual IJs whose cases are remanded to them – but that is what these regulations seem to require.

    And clear error rulings cut both ways. Assuming the Board accepts this invitation to recognize and rule on clear error more frequently, we may see more decisions reversed on that basis and the focus of review may turn to whether that standard is properly defined, invoked and applied. Hopefully, in the instant case, the BIA will use the remand from the Seventh Circuit as an opportunity to determine that relief is appropriate based on an aggregate of the evidence in the record demonstrating the probability of harm, and will not focus narrowly or exclusively on the one source that triggered it’s concern: that a 1‑in-100,000 chance of death cannot meet a more-likely-than-not burden of persuasion.



    [1] In En Hui Huang v. Attorney General, 620 F.3d 372, 381–87 (3d Cir. 2010), the Third Circuit it applied its holding in Kaplun v. Attorney General, 602 F.3d 260, 269–71 (3dCir. 2010) (CAT) rejecting the Board’s decision in Matter of V-K- to applications for withholding of removal. Four other circuits have agreed. See Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012); Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012); Zhou Hua Zhu v. Attorney General, 703 F.3d 1303 (11th Cir. 2013). The First Circuit , in contrast, has accepted the rule articulated in Matter of V-K-. See Sicaju-Diaz v. Holder, 663 F.3d 1, 5 (1st Cir. 2011).



    Updated 08-24-2013 at 02:09 PM by Lrosenberg

  3. Let's Get Clear About Credible Fear

    I strongly caution against anyone indulging in skepticism or cynicism in response to this week’s reports that the DREAM 9 satisfied the credible fear test. For that matter, restraint and neutrality is far preferable to the inappropriate and possibly biased comments reportedly made by at least one Immigration Judge, and this admonishment applies to anyone else tempted to opine on the merits of a case without knowing the details and before the case has been presented.

    Asylum from Mexico? That’s right. According to the latest government reports, out of 558 defensive asylum applications ultimately decided during the period, 49 defensive asylum applications claiming persecution in Mexico -- just under 9% - were granted.[1] See The U.S. Department of Justice Executive Office for Immigration Review Office of Planning, Analysis, and Technology, Immigration Court Statistics from FY 2010, issued in February 2013.[2] While not among the highest percentages of reported asylum grants, and very likely an under-representation of the claims that should be granted, this number reveals that persecution in Mexico is being acknowledged and asylum claims are being granted.

    The credible fear test is a very low level inquiry and is intended to be so. Contrary to a plethora of uninformed news reports circulating online, it is not a grant of asylum or temporary asylum. All it means is that the applicant has provided information that indicates a significant possibility that the applicant can demonstrate a well-founded fear of persecution in a merits hearing before an Immigration Judge. Accordingly, an applicant's expression of a fear of return on the basis of sharing a status or characteristics articulated in the refugee definition is generally adequate.

    The USCIS website defines credible fear as follows: Q. What is a Credible Fear of Persecution?
    A. A “significant possibility” that you can establish in a hearing before an Immigration Judge that you have been persecuted or have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion if returned to your country. See http://tinyurl.com/crediblefear

    The Immigration Court Practice Manual, Chapter 7, p 110, defines the credible fear standard, as: (i) Credible fear standard. -- “Credible fear of persecution” means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (“restriction on removal”) under INA § 241(b) (3). The credibility of the alien’s statements in support of the claim, and other facts known to the reviewing official, are taken into account. 8 C.F.R. §§ 208.30(e) (2), 1003.42(d).”

    Accordingly, the "significant possibility" is determined by the officer "taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, [such] that the alien could establish eligibility for asylum under §208.” Wesem, Asylum and “Credible Fear” Issues in U.S. Immigration Policy, p. 4, CRS (June 29, 2011) (citing INA §235(b) (1) (B) (v); 8 U.S.C. §1225). In short, the credible fear standard is a pre-screening mechanism in which the burden of proof is easier to meet than the well-founded fear of persecution standard required to obtain asylum. Id.

    It is important to remember that eligibility for asylum is established by demonstrating a well-founded fear of persecution, which is a 10% chance that the individual will be persecuted on account of race, religion nationality or membership in a particular social group. INS v Cardosa-Fonseca, 480 U.S. 421 (1987). The Board of Immigration Appeals (BIA) decision in Matter of T-M-B-, 21 I & N Dec. 775, 777 (BIA 1997) concluded that “an applicant for asylum need not show conclusively why persecution occurred in the past or is likely to occur in the future, [but must] produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or imputed protected ground.” Thus, in itself, the well-founded fear standard, as specified in the governing statute and interpreted in the controlling precedent decisions of the BIA, is quite inclusive.

    It cannot be emphasized enough that every asylum case is different and depends on the specific facts and circumstances that are unique to each case. As the BIA has observed, “It is clear that to a large degree the meaning of "well-founded fear" can in fact only be determined in the context of individual cases. Whatever words may be used in a definition, the approach must still be to assess each case independently on its particular merits.” Matter of Mogharrabi, 19 I. & N. Dec. 439, 442 (BIA 1987).

    An Immigration Judge who expresses skepticism towards the as-yet unheard claims of the DREAM 9 - and the unheard claims of other potential asylum applicants, or who engages in making cynical comments prior to an application being filed, should be monitored carefully and consistently for signs of pre-hearing bias or lack of impartiality in asylum cases coming before him or her. Nevertheless, although such expressions may be offensive or imprudent, they do not always mean that the IJ is prejudging every asylum case or incapable of fairly hearing a case and rendering a reasoned decision.

    An attorney who believes that the IJ is exhibiting bias or lack of impartiality during a hearing, however, always should raise the issue in a request for clarification or an in the form of an objection on the record, and at a minimum, ask the IJ to explain any statement or ruling that suggests such inappropriate pre-judgment. If the IJ fails to control his or her expressions of bias or pre-judgment, the attorney can make a motion on the record or in writing, asking the IJ to recuse himself or herself, although recusal motions rarely are granted.

    As an alternative to recusal, a wise attorney who is concerned about the IJ's potential for actual bias or lack of impartiality can have a third party attend and observe each hearing with the permission of the applicant. Then, at the end of any hearing, master or merits, both the attorney and the third party can prepare contemporaneous sworn affidavits stating what occurred and what they observed. These documents can be held until it becomes necessary to use them in an appeal or motion, or for some other action.

    The blurring of political and legal lines in the DREAM 9’s action and the political statement they seek to make is permissible and appropriate. This duality is not an excuse for immigration defense lawyers to ignore our roles, or for IJs to forget their duties of actual impartiality and to project the appearance of impartiality.

    The credible fear inquiry, as a pre-screening exercise, is meant to cast a broad net and not summarily exclude potential asylum seekers from consideration. Notably, it is not the only means to limit unfounded claims from being presented and unduly taking up the Immigration Court's time. The statute expressly sanctions those who submit frivolous asylum claims, but there is no suggestion whatsoever that recourse to these penalties would be applicable here. Nevertheless, should anyone worry that the credible fear standard is too broad, be assured that such sanctions can be readily invoked, if by chance, an asylum claim lacking an underlying credible fear of persecution slips through the cracks.


    [1] A 2012 Los Angeles Times article reported that “Last fiscal year, 4,042 Mexicans sought asylum [affirmatively] . . . more than triple the number of applications five years earlier. During the same period, the agency approval rate increased slightly — to 9% from 7%. Molly Hennessy-Fiske, Los Angeles Times October 28, 2012,
    http://articles.latimes.com/2012/oct...sylum-20121028

    [2] Prior reports indicate that “In 2009, the U.S. received some 2,816 defensive asylum requests from Mexico with 62 approved and 366 denied. In 2008, the figure was 3,459 with 72 approved and 250 denied, according to the Justice Department.” Nicholas Casey, Wall Street Journal, March 9, 2011, http://tinyurl.com/asy2010

    Updated 08-09-2013 at 07:46 PM by Lrosenberg

  4. Let's Get Clear About Credible Fear

    I strongly caution against anyone indulging in skepticism or cynicism in response to this week’s reports that the DREAM 9 satisfied the credible fear test. For that matter, restraint and neutrality is far preferable to the inappropriate and possibly biased comments reportedly made by at least one Immigration Judge, and this admonishment applies to anyone else tempted to opine on the merits of a case without knowing the details and before the case has been presented.

    Asylum from Mexico? That’s right. According to the latest government reports, out of 558 defensive asylum applications ultimately decided during the period, 49 defensive asylum applications claiming persecution in Mexico -- just under 9% - were granted.[1] See The U.S. Department of Justice Executive Office for Immigration Review Office of Planning, Analysis, and Technology, Immigration Court Statistics from FY 2010, issued in February 2013.[2] While not among the highest percentages of reported asylum grants, and very likely an under-representation of the claims that should be granted, this number reveals that persecution in Mexico is being acknowledged and asylum claims are being granted.

    The credible fear test is a very low level inquiry and is intended to be so. Contrary to a plethora of uninformed news reports circulating online, it is not a grant of asylum or temporary asylum. All it means is that the applicant has provided information that indicates a significant possibility that the applicant can demonstrate a well-founded fear of persecution in a merits hearing before an Immigration Judge. Accordingly, an applicant's expression of a fear of return on the basis of sharing a status or characteristics articulated in the refugee definition is generally adequate.

    The USCIS website defines credible fear as follows: Q. What is a Credible Fear of Persecution?
    A. A “significant possibility” that you can establish in a hearing before an Immigration Judge that you have been persecuted or have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion if returned to your country. See http://tinyurl.com/crediblefear
    The Immigration Court Practice Manual, Chapter 7, p 110, defines the credible fear standard, as: (i) Credible fear standard. -- “Credible fear of persecution” means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (“restriction on removal”) under INA § 241(b) (3). The credibility of the alien’s statements in support of the claim, and other facts known to the reviewing official, are taken into account. 8 C.F.R. §§ 208.30(e) (2), 1003.42(d).”

    Accordingly, the "significant possibility" is determined by the officer "taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, [such] that the alien could establish eligibility for asylum under §208.” Wesem, Asylum and “Credible Fear” Issues in U.S. Immigration Policy, p. 4, CRS (June 29, 2011) (citing INA §235(b) (1) (B) (v); 8 U.S.C. §1225). In short, the credible fear standard is a pre-screening mechanism in which the burden of proof is easier to meet than the well-founded fear of persecution standard required to obtain asylum. Id.

    It is important to remember that eligibility for asylum is established by demonstrating a well-founded fear of persecution, which is a 10% chance that the individual will be persecuted on account of race, religion nationality or membership in a particular social group. INS v Cardosa-Fonseca, 480 U.S. 421 (1987). The Board of Immigration Appeals (BIA) decision in Matter of T-M-B-, 21 I & N Dec. 775, 777 (BIA 1997) concluded that “an applicant for asylum need not show conclusively why persecution occurred in the past or is likely to occur in the future, [but must] produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or imputed protected ground.” Thus, in itself, the well-founded fear standard, as specified in the governing statute and interpreted in the controlling precedent decisions of the BIA, is quite inclusive.

    It cannot be emphasized enough that every asylum case is different and depends on the specific facts and circumstances that are unique to each case. As the BIA has observed, “It is clear that to a large degree the meaning of "well-founded fear" can in fact only be determined in the context of individual cases. Whatever words may be used in a definition, the approach must still be to assess each case independently on its particular merits.” Matter of Mogharrabi, 19 I. & N. Dec. 439, 442 (BIA 1987).

    An Immigration Judge who expresses skepticism towards the as-yet unheard claims of the DREAM 9 - and the unheard claims of other potential asylum applicants, or who engages in making cynical comments prior to an application being filed, should be monitored carefully and consistently for signs of pre-hearing bias or lack of impartiality in asylum cases coming before him or her. Nevertheless, although such expressions may be offensive or imprudent, they do not always mean that the IJ is prejudging every asylum case or incapable of fairly hearing a case and rendering a reasoned decision.

    An attorney who believes that the IJ is exhibiting bias or lack of impartiality during a hearing, however, always should raise the issue in a request for clarification or an in the form of an objection on the record, and at a minimum, ask the IJ to explain any statement or ruling that suggests such inappropriate pre-judgment. If the IJ fails to control his or her expressions of bias or pre-judgment, the attorney can make a motion on the record or in writing, asking the IJ to recuse himself or herself, although recusal motions rarely are granted.

    As an alternative to recusal, a wise attorney who is concerned about the IJ's potential for actual bias or lack of impartiality can have a third party attend and observe each hearing with the permission of the applicant. Then, at the end of any hearing, master or merits, both the attorney and the third party can prepare contemporaneous sworn affidavits stating what occurred and what they observed. These documents can be held until it becomes necessary to use them in an appeal or motion, or for some other action.

    The blurring of political and legal lines in the DREAM 9’s action and the political statement they seek to make is permissible and appropriate. This duality is not an excuse for immigration defense lawyers to ignore our roles, or for IJs to forget their duties of actual impartiality and to project the appearance of impartiality.

    The credible fear inquiry, as a pre-screening exercise, is meant to cast a broad net and not summarily exclude potential asylum seekers from consideration. Notably, it is not the only means to limit unfounded claims from being presented and unduly taking up the Immigration Court's time. The statute expressly sanctions those who submit frivolous asylum claims, but there is no suggestion whatsoever that recourse to these penalties would be applicable here. Nevertheless, should anyone worry that the credible fear standard is too broad, be assured that such sanctions can be readily invoked, if by chance, an asylum claim lacking an underlying credible fear of persecution slips through the cracks.


    [1] A 2012 Los Angeles Times article reported that “Last fiscal year, 4,042 Mexicans sought asylum [affirmatively] . . . more than triple the number of applications five years earlier. During the same period, the agency approval rate increased slightly — to 9% from 7%. Molly Hennessy-Fiske, Los Angeles Times October 28, 2012,
    http://articles.latimes.com/2012/oct...sylum-20121028

    [2] Prior reports indicate that “In 2009, the U.S. received some 2,816 defensive asylum requests from Mexico with 62 approved and 366 denied. In 2008, the figure was 3,459 with 72 approved and 250 denied, according to the Justice Department.” Nicholas Casey, Wall Street Journal, March 9, 2011, http://tinyurl.com/asy2010
  5. Let’s Be Clear About Persecution, Prosecution and The Need For Protection

    The dire need for protection from threatened and actual persecution continues to be one of the most pervasive and essential human needs worldwide. The United States is no stranger to treaties and statutes that constitute our commitment to extend such protection when an individual’s home country cannot or will not provide it. [1]

    Unfortunately, neither the history of U.S. immigration and refugee law, nor the specific track record created by individual asylum cases conducted before particular immigration judges and appealed to the Board of Immigration Appeals, is the most commendable or consistent when it comes to compliance with asylum principles. Instead, the principle of asylum as a humanitarian protection against persecution is too often honored in the breach.

    Having to resort to appeals via petitions for review in Article III courts in the federal circuit court system often is the only way that genuine asylum seekers can vindicate their claims and obtain the protection we have promised them.

    Which is why it is at best, curious, and at worst, appalling, that anyone who represents asylum seekers or claims to have strong ties to the immigration law community would choose to ignore the reality of persecution in its many forms, and resort to a linear, narrow concept of persecution to make a political point regarding the potential prosecution of Edward Snowden in the United States should he be returned to U.S. jurisdiction.

    Looking to federal circuit court decisions, it becomes immediately clear that, indeed, the line between persecution and prosecution is neither clear nor universally agreed upon by those examining and adjudicating asylum claims. Furthermore, the historical record reflects that persecutors are likely to take advantage of holding official governmental positions to cloak their actions, just as some government prosecutors may deliberately or negligently engage in self-serving or persecutory conduct that falls outside the laws they seek to enforce.

    As a former immigration appeals judge who examined thousands of appeals from both grants and denials of asylum in the United States, I can attest that there is no clear cut line between persecution and prosecution. For asylum purposes, detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, torture, or conduct that threatens any of these harms are included within the contours of persecution. Ahmed v. Gonzales, 467 F.3d 669 (7th Cir. 2006). Indeed, the statutory asylum definition, adopted from international treaty language, specifically refers to certain types of harm and mistreatment that a government cannot or will not control and it is the government in the asylum seeker’s country that many times is the bad actor and inflicts the persecution.

    Our law books are replete with decisions of United States federal courts illustrating this undeniable reality, as the following cases compiled by my fellow blogger, attorney Matthew Kolken, illustrate.

    For example, fear of prosecution under lawfully enacted but excessively harsh or brutally administered laws may entitle an alien to asylum or withholding of removal if the asylum seeker shows that the prosecution is based on a statutorily-protected ground and that punishment under that law is sufficiently extreme to constitute persecution. Scheerer v. U.S. Atty. Gen., 445 F.3d 1311 (11th Cir. 2006).

    In another case, the Third Circuit Court of Appeals found that punishment which an asylum seeker would likely face upon his return to China, resulting from China's prosecution of him for violating security laws by remaining in United States without authorization and failing to report suspicions that other Chinese citizens in a delegation he led would remain in United States, was sufficiently severe to constitute “persecution,” within the meaning of statutes governing asylum and withholding of deportation. Chang v. I.N.S., 119 F.3d 1055 (3d Cir. 1997). The court’s conclusion was based on evidence that violations of exit laws alone could result in years of punishment and that those expressing political opposition to the government faced imprisonment and torture.

    Furthermore, prosecution may constitute persecution subject to the production of evidence that criminal charges were improperly motivated and/or the individual would receive an unfair trial. Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004). Accordingly, as the Fourth Circuit Court of Appeals found, where the motive underlying purported criminal prosecution is illegitimate, such prosecution is more aptly called “persecution,” for purposes of the asylum claim. Menghesha v. Gonzales, 450 F.3d 142 (4th Cir. 2006).

    In other, unreported cases in the Fifth and Sixth Circuit Courts of Appeal respectively, evidence of the government’s intent to arrest and prosecute an asylum seeker, and evidence that an asylum seeker may be tortured if he is returned to face criminal prosecution, was found to warrant grants of protection. Qisheng Zhang v. Holder, 443 F. App'x 163 (6th Cir. 2011); Adam v. Gonzales, 156 F. App'x 635 (5th Cir. 2005).

    While still on the Second Circuit Court of Appeals, Justice Sonia Sotomayor ruled that:

    Retaliation for opposition to government corruption may, in appropriate circumstances, constitute persecution on account of political opinion within meaning of the asylum statute. . . no less than opposition to other government practices or policies, [it] may have a political dimension when [the opposition] transcends mere self-protection and represents a challenge to the legitimacy or authority of the ruling regime.

    See Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) (citing Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004). See also Hasan v. Ashcroft, 380 F.3d 1114, 1120 (9th Cir.2004) (holding that a journalist raised "indisputably political issues" when she accused a local political leader of "organizing a cadre of `terrorism, repression, and extortion,' of `misappropriation of public money,' . . . and of making his political office `an office of corruption.'"). In other words, a challenge to government authority that triggers retaliation, even under established government laws, may amount to persecution.

    What all these cases, and many others, illustrate, is that there is no definitive or fixed line differentiating prosecution from persecution, particularly in politically charged circumstances. Snide remarks (made by a colleague of mine) about first-year law students aside, it does a disservice to the development and practice of asylum law to suggest that the determination of what may constitute unacceptable harm done to human beings by any government is so clear-cut or easily made, or that fears of persecution may be so easily dismissed. Shame on any immigration attorney whose desire to make a political point would belie the complexity and variability of these necessarily case-by-case asylum determinations.


    [1] See Immigration and Nationality Act, §§ 208(a), 243(h), 8 U.S.C. §§ 1158(a), 1253(h). See also 8 C.F.R. § 208.13(a).

    Updated 07-18-2013 at 03:05 PM by Lrosenberg

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