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  1. 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
    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,

    [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,
  2. Immigration Reform Plan B: Is It Time? What Does Obama Think? By Roger Algase

    The following is an August 10 updated version of my post which originally appeared on Friday, August 9.

    Immigration supporters who were originally willing to give House Republicans the benefit of the doubt are now running out of patience with the GOP's obstruction tactics. If the House Republicans finally kill CIR, as they seem determined to do sooner or later, reformers are beginning to ask what the next step would be.

    An August 8 National Journal story: Immigration Plan B focuses on White House may provide an answer. The link is:

    The article starts off:

    "Immigration reform activists aren't supposed to talk publicly about a plan B...But as August wears out and there is no clear sense of what the House will do on immigration, some are starting to speak out...

    'We have the other track', said Adelina Nicholls, the executive director of the Georgia Latino Alliance for Human Rights. 'The other track is Barack Obama.' "

    The NJ continues:

    "The same legal reasoning for not seeking deportation for unauthorized immigrants - there is no safety-related reason for doing so - applies to other non-criminal aliens, immigration analysts argue. Politically, all President Obama needs is proof that Congress can't get the job done."

    How much more proof does anyone need that the House, while it could get the job done if it wanted to, has no wish to pass anything more than its usual enforcement-only bills, with at most, perhaps, a few breaks for unauthorized immigrant children, agricultural workers, and, possibly, some skilled workers?

    This is not to say that President Obama would be free now to rush into unilateral action to help the millions of immigrants and their families who would be devastated if legalization fails to pass Congress. If he does this too soon, Republicans will claim that they were ready to pass reform, but the president sabotaged it by jumping the gun first and showing that he "cannot be trusted" to enforce the law.

    The president would also need the courage to stand up against the immigrant-haters who would like nothing better than to use this issue as a means to bring impeachment proceedings against the nation's first African-American chief executive - whose legitimacy many of them have refused to recognize anyway during the past five years.

    Timing is important. But does that mean that the president should wait forever for the House to continue stalling and sabotaging reform? There could be an indication that President Obama, if not yet ready to consider Plan B, is at least also losing patience with the House Republicans.

    POLITICO's Seung Min Kim, whose coverage of the reform battle has been second to none, reports on the president's latest comment about this topic in her article Obama: GOP politics stopping immigration bill (July 9). Here is the link:

    She writes:

    "President Barack Obama insisted Friday that the Senate Gang of Eight immigration bill would pass the GOP-led House, but that 'internal Republican caucus politics' were preventing Congress from sending a comprehensive reform bill to his desk...

    In his news conference, Obama did not disclose specific initiatives he would take to enact political pressure on House Republicans to move immigration reform."

    She also quotes the President as follows:

    " 'When I hear about the opposition to immigration reform, I just run through the list of things [they] are concerned about...I look at what the Senate bill does and I say to myself, you know what? The Senate bill actually improves the situation on every issue they say they're concerned about.' "

    The message is clear. The House has no real excuse for not passing the Senate bill, or at least something like it. The president does not say so expressly, but neither does he rule out the possibility that he might take action on his own if the House fails to act.

    The extent to which the Senate bill already leans over backwards to address the concerns of the right wing border security and internal enforcement lobby is also illustrated in the above NJ article:

    "Meanwhile, the immigrant-advocacy community has a host of complaints about the Senate bill that passed in June, which would provide a tangled, treacherous 13-year path to citizenship for immigrants here illegally...

    Activists fear the Senate bill would militarize the border such that no one could live there without being constantly stopped and asked for a a passport. They fear that it will drive undocumented workers who don't qualify for legalization further underground."

    So far, the reform debate has been dominated by the anti-immigrant bigots and the politicians who are beholden to them, particularly in the House. It is time for reform advocates to make their voices heard more loudly and for the administration to be prepared if and when House Republicans put the final nails on the coffin of CIR.

    The president's comments could be at least a first sign that he might be thinking about Plan B too.

    Updated 08-10-2013 at 10:45 AM by ImmigrationLawBlogs

  3. Rachel Maddow: Students risk all for stand on immigration

    by , 08-09-2013 at 12:55 PM (Matthew Kolken on Deportation And Removal)
  4. Dave Reichert is 22nd Republican to Come Out for Legalization

    by , 08-08-2013 at 04:19 PM (Greg Siskind on Immigration Law and Policy)
    America's Voice is reporting Reichert, a Washington state Republican, told a radio station the following:

    The problem is that those people who came illegally have a responsibility and a debt to pay, but there also is a responsibility on our part to recognize that the fed govt and immigration system failed…failed to secure borders and hold people accountable…that brings us to today to the 12 million folks, what do we do? What about those folks who have been here 25 years?…what do you do with those people?….I want them to pay a fine, there’s some penalties they have to through, I want to hold them accountable and then they get citizenship and pay taxes.
  5. Guest Post: Congressman Smith, Please Do the Right Thing, Not the Same Old Thing by T

    by , 08-08-2013 at 01:35 PM (Greg Siskind on Immigration Law and Policy)
    Republican Congressman Steve King recently said something incredibly irresponsible – and it had nothing to do with calves, cantaloupes, or carrying caches of contraband cannabis. He appeared on Univision and, in response to a question about dealing with the unauthorized immigrant population in the U.S., he stated: “it isn't my responsibility to solve that problem.”[1]

    Representative King could be excused because he has only been in Congress for ten years and didn’t create the problem. In fact, there are other sitting members of Congress who have played a major role in the creation of this problem over the last 25 years, namely Congressman Lamar Smith, first elected in 1986.

    In May, Representative Smith advocated that immigration reform should be done “very carefully, methodically – and not quickly.”[2] In late-July, he penned an op-ed in the National Review, GOP Should Face Facts on Immigration Reform,[3] concluding that there is no need for significant reform, only more enforcement. He recycled the same short-sighted policy perspective embodied by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) [4] and that has stymied the creation of functional guest worker programs for more than two decades.

    There are other key facts that the GOP should consider.

    In 1986, President Ronald Reagan and Congress passed the Immigration Reform and Control Act (IRCA), which legalized 3 million unauthorized immigrants attracted by employment. The law created commissions to evaluate labor market needs, but did not create any new guest worker programs.
    Congress passed the Immigration Act of 1990, addressing temporary and permanent visas for the skilled, highly-talented, and highly-educated. It too failed to provide any meaningful options to employ workers in lesser-skilled positions. The green card quota for lesser-skilled workers was initially set at 10,000 per year, to cover both workers and family members, and Congress cut that quota to only 5,000 in 1997.[5]

    Congress passed IIRAIRA in 1996. Smith was one of the principal drivers of this law drafted to make penalties of not complying with U.S. immigration laws so severe, illegal immigration would be drastically reduced. That law failed to create guest worker programs or add visas for lesser-skilled workers, however, it did drastically impact the de facto guest worker program that had been in place for decades.
    Prior to IIRAIRA, unauthorized workers would visit the U.S. for short periods of time and then return to their home countries of residence. As a result of the IIRAIRA’s draconian penalties (e.g. 3 year, 10 year, and permanent bars), these unauthorized workers have since come to the U.S. and either brought their families with them or started families here in the U.S.

    From 2003 to present, most immigration legislation activity has been at the state level. These efforts generally mimic the ‘enforcement only’ approach of IIRAIRA. These laws reduce the effectiveness of local police efforts, but have not reduced the unauthorized immigrant populations in the targeted states or nationally.[6]

    In June, the Senate passed Senate Bill 744, a bi-partisan, mostly functional solution that both increases enforcement and legalizes the undocumented population. This bill increases immigrant visa availability to largely address backlogs, but inadequately addresses work visa needs for lesser-skilled workers.

    The ball has been in the House of Representative’s court since late-June and the Republican majority’s approach is puzzling. From the outside, they give the impression of fully evaluating all of the immigration issues and assure us that they will, in good time, come up with better solutions than the Senate did, without realistically dealing with the unauthorized immigrant population. Unfortunately, they are not objectively and critically looking at the failures of the ‘enforcement-only’ policies of IIRAIRA and state legislation. Instead, their position seems to both expand and embrace them both. Why?

    In large part because this one influential Republican member has, carefully, methodically – and not quickly, remained inflexible. He will not consider that his ‘enforcement only’ policies have not only failed, they have largely contributed to the fact that 11 million people are in the U.S. without legal status.

    President Ronald Reagan was right to advocate for and approve comprehensive immigration reform. His administration worked to achieve bi-partisan reform in 1986. In his words, that legislation took into consideration our country’s sovereignty and heritage of legal immigration in a manner intended to “improve the lives of a class of individuals who now must hide in the shadows, without access to many of the benefits of a free and open society” and provided them with the ability to “step into the sunlight and, ultimately, if they choose, they may become Americans.”[7] President Reagan clearly stated that our country’s objective should be “to establish a reasonable, fair, orderly, and secure system of immigration into this country and not to discriminate in any way against particular nations or people.”[8]

    Representative Smith, the American people and your political party deserve better. Please own up to your shortcomings and support comprehensive immigration reforms that provide a pathway to permanent resident status; the smart, effective and more efficient enforcement of the law; and a truly fair, orderly and secure system of immigration. It is the right thing to do.

    Bio: Anthony “Tony” Weigel practices immigration law in the Kansas City area. His practice focuses on business immigration sponsorship, for both temporary and permanent resident visas, and employer compliance (I-9/E-Verify). Twitter: @TonyWeigel.




    [4] Pub. Law 104-208, div. C; 110 Stat. 3009, 3009-46 to 724 (Sept. 30, 1996)

    [5] NACARA, Pub. Law 105-100, title II; 111 Stat. 2160, 2193-201

    [6] See:, Table on page 24. Although Arizona and Colorado show reductions, the states of Georgia, Louisiana, Missouri, Oklahoma, South Carolina, Utah and Nebraska, all states that have enacted laws, showed increases in estimated unauthorized immigrant populations. The overall unauthorized immigrant population estimates between 2005 and 2010 remained basically the same – around 11 million.


    [8] Id.
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