Small But Important Victories for Asylum Seekers in the United States

So maybe I am preaching to the choir. Yet I cannot ignore the fact that two DREAMers (this term refers to undocumented students in the United States awaiting passage of the federal DREAM Act) made their grievances known about the U.S. asylum-granting system in the space of two days, albeit over separate cases.

Quaker posts here about how the Department of Homeland Security opposed asylum in the case of three Brentwood children who had been beaten, exploited and sexually abused by family members in their native Honduras. DHS and its nativist lapdogs like Mark Krikorian, executive director of the Center for [Nativist] Immigration Studies (from now on, we will endearingly refer to it as the CNIS), were set adamantly against this because up until now, asylum was only granted to applicants who showed past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group or political opinion.

“It’s unfortunately part of a trend where asylum is expanding to areas it was never meant for.”

Of course, Krikorian is going to be upset. For someone who believes that granting two people in love the right to stay together is ‘extremism’ you cannot expect anything less ignorant from the CNIS.

So, according to Homeland Security, these three children did not fall into the category of people fleeing persecution due to their membership in a “particular social group.” Accolades are in order for Judge Gabriel Videla for breaking from past trends and ruling that as “members of the family who were physically abandoned by their parents,” the children did constitute a social group. However, a long list of asylum seekers based on inter-family violence await certain rejection since this decision does not set any sort of precedent.

‘Damn Mexicans’ writes about Attorney General Mukasey blasting an Immigration Judge for denying asylum to a woman because “her genitalia already had been mutilated [so] she had no basis to fear future persecution if returned to her home country.” From the LA Times, Sept 23:

“To begin with, the board based its analysis on a false premise: that female genital mutilation is a ‘one-time’ act that cannot be repeated on the same women,” Mukasey wrote. “As several courts have recognized, female genital mutilation is indeed capable of repletion.”

He cited a case where an asylum applicant’s vaginal opening was sewn shut five times after being opened to allow for sexual intercourse and childbirth.

“The board was wrong to focus on whether the future harm to life or freedom that [the applicant] feared would take the ‘identical’ form,” he added.

But Mukasey’s order does not automatically grant U.S. residency to the woman. Instead, the appeals board must now reconsider its earlier ruling.

I would say I am shocked, appalled, infuriated by the drawbacks in our system but alas, knowing that some U.S. Immigration Judges make their decisions based on wikipedia searches, this sort of (il)logic does not surprise me. And it should surprise no one. Also, see this post here about how the United States is in violation of International Law due to its treatment of asylum seekers as criminals.

Such inconsistencies plague the current system of determining asylum that the decision to grant asylum has less to do with the facts of the case and more to do with which Immigration Judge ends up hearing your case.
I have previously written an Immigration Factsheet for asylum seekers for the National Lawyer’s Guild (NLG), so these are just relevant excerpts that can help the reader understand more about asylum law in the United States.

US Code Section 1158 contains laws governing asylum. Generally, to qualify for asylum, a person must have a well-founded fear of harm from government or group that government has no control over due to membership in a particular social group.

Certain factors in an application for asylum might cause a dismissal. An applicant must apply for asylum within 1 year of his or her last arrival in the U.S (8 U.S.C. § 1158). The DHS requires the applicant to mail the application to the applicant before the 1-year deadline. It is safest to mail it at least several weeks before the deadline. Under certain circumstances, an applicant may still apply for asylum even if it has been more than 1 year since last entry into the US. If he or she can show either the existence of changed circumstances that materially affect his or her eligibility for asylum or extraordinary circumstances that justify the delay in filing, the applicant may still be eligible for asylum (8 C.F.R. §208.4). These situations are rare, however.

A criminal record is another element that might stand in the way of a successful application for asylum. The government will deny asylum to anyone who has been convicted of an “aggravated felony” (8 U.S.C. § 1158). In such a case, the applicant should talk to a lawyer to see if he or she can still qualify for asylum. The immigration lawyer should communicate with the lawyer who helped with the criminal case. It is important that the applicant be as forthcoming about his or her criminal past as possible. The lawyer needs to know about every arrest in order to help make the best decision and, if he or she is unaware of an arrest, it can greatly hurt an asylum case.

Work permits – If an applicant has not received a decision after 150 days from the date of filing, he or she can apply for a work permit. Most applicants do not get any kind of work permit until after they have won asylum.

WHAT HAPPENS IF APPLICANT IS DENIED ASYLUM?

Most asylum cases are rejected because the applicant fails to adequately prove active government involvement in persecution and that the applicant would personally be targeted for persecution. If the asylum officer does not grant asylum, the applicant’s case is referred to an EOIR immigration court.

Oftentimes, approval of asylum depends more on the random immigration judge assigned by the clerk than on the merits of the case, according to a 2006 study called “Refugee Roulette” by Philip G. Schrag, a professor at Georgetown University Law Center. 30% of applicants win asylum in San Diego compared to the U.S. Average of 40%, while 54% of applicants win asylum in San Francisco immigration courts. According to the same study, female immigration judges grant asylum at a 44 percent higher rate than their male colleagues.

If an asylum-seeker’s claim is rejected by the immigration judges, it can be appealed to the Board of Immigration Appeals, whose members are also appointed by the Justice Department. If the claimant fails there, the case can be appealed to a U.S. federal appeals court.

The Attorney General has discretion to grant asylum to an alien “refugee.” 8 U.S.C. § 1158(b)(1)(A)

Even if an applicant cannot get asylum, s/he may qualify for “Withdrawal of Removal” or “The Convention Against Torture.” These other options do not provide all the benefits of asylum, such as U.S. citizenship, but lets the applicant remain in the United States legally and obtain a work permit.

Withholding of Removal – to qualify, the applicant must show that there is at least a 51% likelihood of suffering future persecution in the applicant’s country of origin, as compared to a likelihood of at least 10% in asylum cases. It can only be granted by an Immigration Judge, not by an Asylum Officer.

Relief under the Convention Against Torture (CAT) is the third form of relief an individual fearing persecution can seek. An applicant bears the burden of demonstrating that it is more likely than not that he or she will be tortured if removed to his or her country of origin. The Board of Immigration Appeals has found that torture “must be an extreme form of cruel and inhuman punishment” that “must cause severe pain or suffering” (Matter of J-E-, 23 I. & N. Dec. 291 (BIA 2002)). There are no bars to eligibility for relief under CAT. Therefore, since the treaty itself does not contain any bars to its mandate of non-return, aggravated felons can make claims for relief if they fear torture. Additionally, an applicant is not required to establish that her fear of torture is on account of membership in a particular social group.

Immigration regulations create two separate types of protection under CAT (8 C.F.R. §§ 208.16 and 208.17). The first type of protection is a new form of withholding of removal under CAT. Withholding under CAT prohibits the return of an individual to his or her home country. It can only be terminated if the individual’s case is reopened and DHS establishes that he or she is no longer likely to be tortured in his or her home country.

The second type of protection is called deferral of removal under CAT. Deferral of removal under CAT is a more temporary form of relief. Deferral of removal under CAT is appropriate for individuals who would likely be subject to torture, but who are ineligible for withholding of removal, such as persecutors, terrorists, and certain criminals. It can be terminated more quickly and easily than withholding of removal if the individual is no longer likely to be tortured if forced to return to his or her home country. Additionally, an individual granted deferral of removal under CAT, may be detained by the DHS if he or she is deemed to be a threat to the community.

Like withholding of removal, the benefits to CAT are limited. An individual who is successful under a CAT claim cannot be removed from the United States to the country from which he or she fled persecution, but can be removed to a third country if one is available. An individual granted CAT cannot adjust his or her status to legal permanent resident, but can obtain work authorization.

Keep in mind that all three–asylum, withholding and protection under CAT are extremely rare.