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Has the BIA found a Better Way to Deprive Children of Asylum Rights? By Roger Algase

Rating: 3 votes, 5.00 average.

Update: July 25, 10:00 pm

The Hill reports that on July 25, President Obama told Central American leaders that only a few of the more than 50,000 children from El Salvador, Guatemala and Honduras who have been seeking entry to the US would be able to apply for refugee status. He said:

"As I explained to my fellow presidents [of Guatemala, Honduras and El Salvador], under US law, we admit a certain number of refugees from all around the world based on some fairly narrow criteria."

The president continued:

"If that were the case it would be better for them to apply in-country rather than take a very dangerous journey up to Texas to make those same claims...But I think it's important to recognize that that would not necessarily accommodate a large number of additional migrants."

In other words, the president is telling the children to go back and apply at home, but don't expect to be let into the US unless they are among a very lucky few who would be allowed in.

With this attitude on the president's part, and faced with an opposition party whose basic attitude appears to be that no Central American children at all would be too many (as a Canadian immigration minister was reported to have said with regard to admitting Jewish refugees to his country during WW2), anyone who thinks that returning to Central America to apply for refugee status is a substitute for pursuing an asylum claim before an immigration judge in the US would be fooling himself or herself.

My original post follows.

There are now news reports to the effect that not only some "centrist" Democrats in Congress, but Hillary Clinton herself, may be jumping on the bandwagon of changing the TVPRA to give the president greater "flexibility" in dealing with the Central America border children. "Flexibility", in effect, is little more than a euphemism for gutting the protections of TVPRA Section 235, which prohibits returning children from non-contiguous countries without first allowing them an asylum hearing before an immigration judge.

My colleague Nolan Rappaport, a distinguished legal scholar with extensive experience in the Congressional legislative process regarding immigration, argues that depriving children of their right to an asylum hearing would not do them any significant harm, because few of them would be eligible for asylum anyway under strict BIA interpretations of the asylum law, especially the requirement that the fear of persecution in gang violence related cases has to be based on membership in a "social group".

He advocates a "better way" of turning them away from safe haven in the US and putting them in charge of the UN for refugee screening in "safe" areas in their own countries (which may or may not exist). Then, he argues, at least some of the children could later be admitted to the US as refugees. But is the assumption that few if any of these children will be granted asylum if given hearings in the US justified?

The BIA has held in numerous decisions that individuals who have or may be threatened with gang violence because of opposition to joining a gang, or having been a former gang member and then left the gang, are too amorphous to be considered as members of a "social group" for asylum purposes.

As a result, even some individuals who can show that they have in fact been threatened by gang members, or even been seriously injured by them, have been denied asylum for this reason.

Some Federal Circuit Courts of Appeal have upheld these decisions because of a doctrine that an agency's interpretation of the law its own area of "expertise" should be given deference.

But other circuits, notably the 3rd and 7th Circuits. have been highly critical of the BIA's narrow approach to this question. In my July 22nd post, I mentioned the recent BIA decision in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), in which the BIA reopened a gang-violence related case in which it had previously denied asylum and remanded ot to an immigration judge for further fact finding with strong encouragement to do so from the 3rd Circuit.

However, on the same day (February 7, 2014), the BIA decided a companion case, Matter of W-G-R-, 26 I&N Dec. 20 (BIA 2014), in which it stated that even former gang members failed the test of "particularity" for a social group, because former gang members could include "persons of age, sex or background".

In a February 2014 study by the Chicago-based National Immigrant Justice Center entitled "Particular Social Group Advisory: Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R-", the NIJC states that these decisions:

"...seek to rationalize a legal test that is simply irreconcilable with existing domestic and international asylum law".

The reasons for this statement will be discussed in a forthcoming post. The importance of this issue lies in the fact that the politicians in both parties who want to deny children the right to asylum hearings that they have under current law have been assuming that the children have no rights under our immigration laws so the sooner they can be returned to their gang-infested countries, the better for the US.

Nolan Rappaport, while sympathizing with and supporting humane treatment for the children, also mentions the W-G-R- decision as support for the proposition that the great majority of the border children have no right to asylum in the US. As the exhaustive NIJC analysis which I will be discussing shows in great detail, this conclusion is open to very serious question.

However, Nolan has also referred me to materials dealing with the 1990's Haitian boat people issue which may contradict the BIA's most recent pronouncement on this issue. I will discuss those in a future post as well.

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Updated 07-25-2014 at 09:00 PM by ImmigrationLawBlogs

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Comments

  1. Nolan Rappaport's Avatar
    If we assume that Roger is right about the vulnerability of current case law on gang-violence-based persecution claims to federal court reversal, the question becomes, "How long will it take?" When a circuit court reverses the Board's asylum precedents on gang-violence-based persecution claims, the Board is only bound by that decision in that court's circuit. The Board's precedents would still apply to all other circuits, and the immigration judges are bound by Board precedent. How does this help unaccompanied alien children who appear before an immigration judge in removal proceedings now? Perhaps, they can forum shop and try to persuade the immigration court to hold their hearings in a circuit that has taken a more liberal view of gang-violence-based persecution claims, such as the one Roger mentions; but that will not make success substantially more likely and I do not know if the immigration court will go along with forum shopping in any event.

    I am afraid that keeping the children here until they can have a hearing before an immigration judge will not end well for the children.
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