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  1. 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

  2. Reformers and Realists vs. Racists and Reactionaries

    Reformers and Realists vs. Racists and Reactionaries: The Republican Civil War Over Immigration Continues
    by Roger Algase

    Just over a half century ago, I was taught in law school that a criminal trial is over when the jury announces a verdict, is discharged and goes home. However, this relic from the distant legal past now seems quaint and out of date, judging by the non-stop television coverage in the days following the jury's verdict in the trial of George Zimmerman for the killing of Trayvon Martin.

    As I mentioned in my July 17 blogging, the focus on the Zimmerman trial is helpful in one sense because it dramatically illustrates how central race is in America. But the endless media obsession with the afterlife of this trial is also a profound disservice to the public, because it distracts viewers from other critically important events.

    None of these events is more important than the bitter civil war now taking place within the Republican Party over CIR. Turning the nation's focus away from immigration reform may turn out to be a devastating blow to the chances for passage of CIR.

    I will let POLITICO speak on this point (Immigration could hinge on August recess, July 18):

    "The White House and its immigration reform allies are banking on the August recess as their - next - and possibly last - major opportunity to compel House Republicans to act.

    With the issue stalled in the House, the monthlong Congressional break is the linchpin of a campaign that President Obama, Senate immigration leaders and a broad coalition of groups expect they'll have to wage through the end of the year. They realize that they must make progress in the next month in order to stand any chance of keeping the issue alive into the fall.

    'We're not winning this fight,' Sen. John McCain, a Gang of Eight leader, told POLITICO Wednesday. 'They are mounting a better campaign than we are - the opposition is.' "

    Meanshile, POLITICO also reports that another prominent Republican Senate GOE leader and CIR supporter, Marco Rubio, is feeling the heat from right wing immigration opponents who are out to punish him and wreck his presidential chances. (Marco Rubio Stumbles, July 17):

    "Rubio appears to have miscalculated how much Republican support he could win in the Senate - and how much conservative backlash he could avoid outside of it. And now he feels stuck. Conservative intellectual leaders - notably Rich Lowry of National Review (and also a POLITICO columnist) and Bill Kristol of The Weekly Standard - are crusading against his bill, backed by the vast majority of conservatives in the House."

    Let's take a closer look at the arguments against CIR by these two "Conservative intellectual leaders".

    In their joint editorial: Kill the Bill (July 9), William Kristol and Rich Lowry make the following main arguments against the Senate CIR bill (S.744):

    1) The bill (in their view) doesn't solve the illegal immigration problem, because the enforcement provisions are full of loopholes and President Obama will disregard them anyway,

    2) The bill (as they see it) will let in too many low-skilled immigrants (along with the high-skilled ones whom Kristol and Lowry profess to support),

    3) The bill is too big and was passed too quickly, (according to these two writers).

    4) There is no urgent need to act on immigration (in their opinion) and, finally, as they contend:

    5) Sure, it would be nice if the Republicans can win more Hispanic voters, but they should really concentrate on trying to attract more working-class (i.e. white) and younger voters instead. Besides, the Republicans will always be able to hold on to Arkansas, North Carolina, Iowa, Virginia [?] and Montana, even if they kill immigration reform.

    With the possible exception of the issue of how many low-skilled workers to let in, which can easily be decided in a Senate-House conference that these two columnists are so anxious to avoid, the above may be good slogans for people who cannot stand the idea of more brown people being allowed to stay in or come to America. But calling these slogans serious intellectual arguments would be quite a stretch.

    A real Republican intellectual, Kathleen Parker, demolishes Kristol and Lowry in her July 13 article The GOP's principled suicide:

    "At this stage in the second term of the president they couldn't defeat, Republicans seem more like stubborn children refusing to come out of their rooms for supper, even though the alternative is going to bed hungry."

    She continues:

    Likewise, Republicans are not shooting straight when they insist that the Senate bill's path to citizenship is de facto amnesty. As paths go, it's a 13-year pilgrimage along a precipice lined with bramble bushes - taxes, fines and various fire-burning hoops through which one must leap in order to stand in line. Hardly rose petal strewn.

    To the real point, many Republicans fear that allowing 11 million immigrants to become citizens essentially means 11 million more Democrats. This outcome wasn't pre-ordained, but given the tenor of recent debate, their fears are probably justified. Republican intransigence is further compounded by the echo chamber of the Tinker Bell coalition - The Weekly Standard's Bill Kristol and National Review's Rich Lowry, who recently co-authored an editorial urging Republicans to drive a stake through the heart of immigration reform. These are the same two who also thought Sarah Palin would be the perfect running mate for John McCain."

    Parker concludes:

    What Republicans are selling appeals to an ever-diminishing market that doesn't even include their erstwhile allies in the business community. And their self-immolation may prove to have been nothing more than a bonfire of vanities." gop's-principled-suicide.html

    Reason vs. reaction - reform vs. racism - this is the battle for the soul of the Republican party on which the fate of immigration reform now hangs.

    by , 07-18-2013 at 09:07 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The USCIS has just released its Characteristics of H1B Specialty Occupation Workers report. As its name implies, the report contends loads of data about the H-1B program. Notable for readers of this blog is that Occupations in Health and Medicine made up approximately five percent of all H-1Bs petitions approved in 2012 (Table 8A). Keep in mind that these figures include H-1B extensions and concurrent H-1Bs. The data does not break out H-1B cap-subject petitions.

    The report details a load of interesting data, including the below excerpt from the summary. The data refutes much of the complaints about the H-1B program, including the criticism that it is used as a way to facilitate cheap foreign labor. The median salary of $70,000 is much higher than the US median salary of $26,695. The average Computer Programmer salary was $71,380, more or less in-line with the overall H-1B salary figure listed in this report.

    · The number of H-1B petitions filed increased 15 percent from 267,654 in FY 2011 to 307,713 in FY 2012.

    · The number of H-1B petitions approved decreased 3 percent from 269,653 in FY 2011 to 262,569 in FY 2012.

    · Seventy-two percent of H-1B petitions approved in FY 2012 were for workers between the ages of 25 and 34.

    · Forty-six percent of H-1B petitions approved in FY 2012 were for workers with a bachelor’s degree, forty-one percent had a master’s degree, 8 percent had a doctorate, and 4 percent were for workers with a professional degree.

    · Sixty-one percent of H-1B petitions approved in FY 2012 were for workers in computer-related occupations.

    · The median salary of beneficiaries of approved petitions remained at $70,000 for both FYs 2011 and 2012.

    Read the Musillo Unkenholt Healthcare and Immigration Law Blog at or You can also visit us on Facebook and follow us on Twitter.
  4. Bring them home!

    by , 07-18-2013 at 06:00 AM (Matthew Kolken on Deportation And Removal)
    "The Obama administration has created a deportation machine resulting in the destruction of over 1.7 million lives, and the devastating separation of those families by the border. Those 1.7 million people are not lost and forgotten; rather, they are people who deserve to have the choice to return to their home in this country. While we fight to dismantle the system of continued deportations, we must also fight to bring our community home."


    With applications for legal admission in hand, and alongside other deported Dreamers, the undocumented youth activists will demand to be allowed to return home to the United States.

    Leaders currently in Mexico include Lizbeth Mateo of Los Angeles, CA and Lulu Martinez of Chicago, IL. Both have been living in the United States since before the age of 16, making them eligible for the DREAM Act and deferred action for childhood arrivals.

    The Obama Administration has created a deportation machine resulting in the destruction of over 1.7 million lives, and the devastating separation of those families by the border. Those 1.7 million people are not lost and forgotten; rather, they are people who deserve to have the choice to return to their home in this country.

    “Last year they went after my uncle and he was deported, said Mateo. “What our family went through is what millions have gone through and it needs to stop. This administration needs to know we won’t wait for congress to do the right thing.”

    The fight to keep families together does not end after deportation. The President has 1.7 million broken promises to deal with. He’s going to deal with them now.

    Bring them home now.
    Click here to help get the word out.

    Updated 07-18-2013 at 10:19 AM by MKolken

  5. BIA Rules DOMA is Dead in the Immigration Context.

    by , 07-17-2013 at 03:56 PM (Matthew Kolken on Deportation And Removal)
    The Board of Immigration Appeals has ruled in Matter of Oleg B. ZELENIAK, Beneficiary of a visa petition filed by Serge V. Polajenko, Petitioner 26 I&N Dec. 158 (BIA 2013), that Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.

    Click here for copy of the decision.

    Congratulations Bridget Cambria!!!!!

    Updated 07-17-2013 at 03:59 PM by MKolken

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