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Another Pillar of Asylum Law Comes Under Attack. By Roger Algase

Rating: 5 votes, 5.00 average.

In my July 29 post, I showed that an overly restrictive interpretation of one of the most often used grounds for claiming asylum in the United States - showing that fear of persecution is based on membership in a particular social group (PSG) - has been regularly used by the Board of Immigration Appeals (BIA) to deny asylum claims based on fear of gang violence in Central America over the past 30 years. As I also mentioned, the alleged difficulty of overturning these decisions is now being used by immigration opponents as an excuse for advocating a change in the current law (TVPRA) guaranteeing an asylum hearing before an immigration judge to unaccompanied children (UAC's) from every country in the world (except for Mexico and, for some reason, Canada) who arrive at the US border and can show a credible fear of persecution in their home countries at their initial screening by a DHS officer.

The argument for changing the law in order to turn UAC's away without a hearing is based on the theory that almost all of them would lose at their asylum hearings and ultimately be deported anyway for the above reason.

However, some immigration opponents are apparently not satisfied with attempting to change the law in order to take away the right to an automatic removal hearing for UAC children from countries such as Guatemala, Honduras and El Salvador, with their powerful gangs and high homicide rates, who pass the initial screening.

Even if the BIA or the federal appellate courts (which in some cases are showing more openness than the BIA to claims that refusal to join or remain in a gang is a valid basis for PSG membership - at least if the gang is located in East Africa rather than Central America - see my July 29 post), were to abandon the restrictive approach to the PSG issue, these same immigration opponents apparently want to make sure that fewer Central American children will pass the initial screening required by the TVPRA.

Accordingly, with some signs of support from the Obama administration itself, immigration opponents in the House are trying to weaken another pillar of asylum law - namely the "credible fear" doctrine. See POLITICO: Johnson said to favor asylum law change (July 30).

Evidently, House Judiciary Committee Chairman Bob Goodlatte (R-VA), whom some immigration supporters had hoped (without much basis) would turn out to be a Knight in Shining Armor riding to the rescue of immigration reform less than a year ago, is worried that even the BIA's long standing unreasonably narrow PSG standard (which my colleague Nolan Rappaport thinks may take many years to change - I respectfully disagree with him, as I will discuss in an upcoming post) will not be enough to stop as many Central American border children (UAC's) from being granted asylum as Goodlatte would like to see sent home.

POLITICO reports that Goodlatte and Rep. Jason Chaffetz (R-Utah) have introduced a bill that seeks to tighten the credible fear standard by requiring UAC's to show that they have a credible fear of persecution according to a preponderance of the evidence in the initial screening, not just before an immigration judge.

This would make it harder, if not impossible, for Central American border children to pass the initial screening test for asylum hearings.

POLITICO quotes Goodlatte as sayibng that 92 per cent of asylum applicant are clearing the initial screening hurdle and gaining the right to asylum hearings before an immigration judge. If his proposed change goes into effect, the number may rapidly drop toward zero, because immigration judges are trained to determine whether someone has meet this strict legal standard. DHS border screening officers have no such expertise.

Therefore, Goodlatte's proposal amounts to another way of abolishing the TVPRA's guarantee of a full asylum hearing to Central American border children who can show a credible fear of persecution.

The even bigger danger in Goodlatte's proposal is that it could spill over into the way credible fear is interpreted in all asylum cases, not just the ones involving Central American children seeking refuge from gang violence.

POLITICO quotes Eleanor Acer of Human Right First as saying:

"A statutory change to the credible fear standard would undermine this country's global commitment to the persecuted and put lives at risk..."

And the same report quotes Law Professor Bill Ong Hing of the University of San Francisco as follows:

"You don't want to make a mistake when it comes to asylum...To me it's really disappointing to talok about setting up in a way that you don't find credible fear in so many cases."

He added:

"I'm very disappointed in the Obama administration. They're buying into the rhetoric of the critics of the border [children] that these kids couldn't possibly have valid claims for asylum..."

Even for those who (unlike myself) believe that most of these these children will be ultimately unsuccessful in showing that they have a credible fear of persecution or that they are members of a PSG, letting them have their day in court as provided for in our current law is the best way to uphold the values of America's justice system and its commitment to protecting people from every part of the world who are in danger of persecution in their own countries.

These protections need to be made stronger, not weaker.

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Updated 07-31-2014 at 07:38 AM by ImmigrationLawBlogs

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  1. DFrancis's Avatar

    Take note, this is really getting painful Today? illegal aliens—YES! Illegal aliens are flaunting their undocumented status, demonstrating outside the White House and ICE was there doing and saying nothing? These people were demanding Amnesty and financial benefits from the American people. DEMANDING! WHAT HAS HAPPENED TO OUR LAWS? Grand Standing with signs who they are; that they are not suppose to even be in the United States and uniformed Park Police and immigration services telling them to move along. That the ICE authorities not detaining into custody these people and taking them away?

    The majority of Americans are uptight as strained piano wire about what Obama has threatened to do, if like a little child he doesn’t get his way. Is he going to open the gates wide to illegal immigrants as that nut case California Gov. Brown wants to provide?

    WHERE ARE THE ERUPTING VOICES OF THE AMERICAN PEOPLE? Can you help Save America? Obama continues to overstep his boundaries. He holds utter disregard for our nation, our Constitution, our own people. Every chance he gets he tramples our rights in the name of being "king" of the land. He has violated the separation of powers and repeatedly put himself above the law.

    Border Patrol: U.S. accepting them because crimes not done in U.S. from

    McALLEN, Texas – As the Obama administration struggles to define the current wave of unaccompanied minors as a tale of refugees escaping violence, government border officials are telling a frighteningly different story of the infiltration of criminal gang members and confessed murderers along with thousands of potential recruits.
    Some 70 percent of the youths – boys and girls alike – have been raped or otherwise sexually assaulted on their dangerous trip north to the Rio Grande, according to officials.
    Chris Cabrera, a Border Patrol agent for nearly 13 years and a vice president in the National Border Patrol Council Local 3307, spoke to WND and Rep. Steve Stockman, R-Texas, in an exclusive interview at the Rio Grande border in McAllen, Texas, Saturday.
    WND asked Cabrera what the Border Patrol and the Department of Homeland Security do when they find out an illegal immigrant teenager from Central America is a gang member or a murderer.
    “What do we do?” he answered. “Well, they haven’t committed a crime in the United States, so they’re good to go, and we send them north, even if they admit they have committed a murder.”

    The situation with the illegal alien’s invaders is out of control. What I see coming as a result alarming me beyond anything I've ever known in my 52 years.

    The US Border Patrol are telling us that the illegal aliens, including the children, are crossing the border claiming, "Obama will take care of us" as if it has been carefully rehearsed—taught before they even cross the border into the U.S from Mexico.

    They are immediately asking about their schooling and medical care. Someway they are coming prepared with names of family members that live here which get them a ticket into our country.

    Clearly, someone carefully orchestrated it and it makes me sick.

    Half of Americans are living paycheck-to-paycheck. A smaller majority don’t want to work and prefer to leech the financial blood from those who are out there, trying to feed there families. A GREATER MAJORITY ARE THE AMERICANS AND ILLEGAL OR LEGAL IMMIGRANTS WHO WILL VOTE FOR DEMOCRATS, AS THE ARE SPENDING AS THE DEMENTED? Millions are still out of a job; many still looking. Obamacare has turned out to be a pretense—it's outrageously expensive and unaffordable. Poverty and welfare are at an all-time high. Veteran’s benefits are in danger of being cut. Yet Obama wants to allow 30 million illegals to suck at the federal, state treasuries. It's all about votes for a dangerous man who wants a third term. Obama is the worst president in the history of the United States—and the most lethal. He has proven his loyalty to terrorists and illegals, demonstrated utter disdain for America and complete disrespect for our military. Help us alert America and rally support to remove Obama from office.

    Its unconstitutional and a humiliation with deadly consequences. Demand Congress stops the death sentence. Check this site that has the phone Numbers and Mailing Addresses of Members of Congress at: www.contactingthecongress/ to demand an end to illegal immigration and the dismantling of our military, which is our lifeblood against our enemies. This is the number for the central switchboard for Congress to address your grievances at 800—224-3121.

    We must Block amnesty for illegal aliens, which is entirely up to us—grassroots America—the little helpless citizens. You can also get alternative—NO SPIN-- news about issues at One-America cable TV News http:/ and You might also like to try (AliPac)
    Updated 07-31-2014 at 07:47 AM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    I do not respond to irrational comments from hate groups, including the Tea Party, or their supporters.

    Roger Algase
    Attorney at Law
    Updated 07-30-2014 at 02:43 PM by ImmigrationLawBlogs
  3. Nolan Rappaporot's Avatar
    Roger makes the following statement in today's blog, "Even for those who (unlike myself) believe that most of these these children will be ultimately unsuccessful in showing that they have a credible fear of persecution or that they are members of a PSG, letting them have their day in court as provided for in our current law is the best way to uphold the values of America's justice system and its commitment to protecting people from every part of the world who are in danger of persecution in their own countries."

    That might make the people fighting for the rights of these children feel good, but it won't stop a bullet if the gangs shoot at them when they are deported back to their homes in Central America. This situation reminds me of when the ACLU got a large number of institutionalized people released because they had a right to their freedom. The ACLU must have felt great when their law suit resulted in the release of those people. Their right to be free was finally respected. Wonderful. But most of them weren't capable of holding down jobs to support themselves and the ones who needed medications couldn't get them. They had their rights under the law, but most of them ended up homeless in abject poverty.
  4. ImmigrationLawBlogs's Avatar
    With all due respect to Nolan and his carefully thought out plan to have the children processed by the UN for refugee status outside the US and then admitted in that status (which the UN itself does not recommend as the best solution, even though it obviously has the most expertise in the area of UN refugee screening), arguing that kicking anyone out of the US, let alone innocent and vulnerable children, many under the age of 12, is best for them is a very tough row to hoe.

    I, for one, am far from convinced by Nolan's arguments. Nor has he advised which countries might accept the children for UN screening.

    I have one suggestion: I have read that North Korea is opening up a summer camp for children from all over the world (they hope). Maybe the Central American children could be processed there, after being thrown out of the US because Nolan thinks they might lose their asylum cases in our immigration courts if given the fair hearing and due process to which our law now entitles them.

    To be fair, Nolan is right in his view that our asylum law, as currently applied by the BIA, is far from perfect.

    But that doesn't mean that, as lawyers, we should run away from the task of getting these bad BIA decisions, based on an outmoded view from 30 years ago and three decades of confusing and inconsistent decisions on PSG, which have run into heavy criticism from at least some federal appeals courts, changed. This would be more in the children's best interests than keeping them on the run without being sure if they have any place to run to.

    Nolan is also confident that many of the children would be able to get back to the US as refugees sooner or later. I am not so sure that the Tea Party would be willing to allow that. No doubt, they would try to get the refugee laws changed, just as they are now trying to do with the asylum laws.

    But I also want to put in a good word for the Tea Party. At least they don't wear hoods or burn crosses.

    Roger Algase
    Attorney at Law
    Updated 07-31-2014 at 07:47 AM by ImmigrationLawBlogs
  5. Don Miller's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I do not respond to irrational comments from hate groups, including the Tea Party, or their supporters.

    Roger Algase
    Attorney at Law
    Oh Roger, you don't respond to anyone who disagrees with you.!
    I am increasingly reminded of Jean Raspail's amazingly prescient book "The Camp of the Saints"! Happening right now on our southern border (to use the term very loosely)! Sure, they're not from India, but they are indians, mostly, and they're not arriving on rusty tramp steamers but they are crowding onto rusty freight trains, and they are poor and uneducated and sickly and unskilled and prolific and there are indeed among them many with criminal inclinations...what amazing parallels with Raspail's book! And even more unsettling is the reaction within the United States! Almost exactly that described by Raspail to the French authorities and people: denial, confusion, self-delusion, false optimism, fatality, and overall pusillanimity. There could not be a more accurate description of the current situation in the U.S!
    Jean Raspail...who knew?
  6. ImmigrationLawBlogs's Avatar
    For the benefit of readers who may not have heard of him, Jean Raspail's 1970's novel, Camp of the Saints, has been described as white racist paranoia about France being "invaded" by millions of immigrants from India and other third world countries.

    The white racism fueling the anti-immigrant movement in America today is no different, as Don Miller's comment shows.

    According to Wikipedia, Raspail , who is now almost 90, was more recently sued by a Jewish group in France for expressing anti-semitic views. The lawsuit failed, perhaps because French courts may be showing the same respect for free speech that we have here in America, where even the most vile expressions of hate, such as that which the Tea Party and its supporters are promoting against Latino and other non-white immigrants, are Constitutionally protected.

    Roger Algase
    Updated 08-05-2014 at 08:52 PM by ImmigrationLawBlogs
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