Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico

The Trump Administration is seeking to create and implement a safe third country agreement with Mexico. Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating both international and US asylum law. In particular, the US would be violating the international principle of non-refoulement, which provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” where Mexico has a proven track record of being anything but safe for asylum seekers. The US has also codified Article 33(1) of the Refugee Convention into Section 208(a)(2)(A) of the Immigration and Nationality Act (INA) which provides that it will not return an asylum seeker to his or her country of origin, but may, at the determination of the Attorney General, remove the asylum seeker to a “safe third country… where the [asylum seeker] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Although Mexican officials have not yet indicated whether they would sign a safe third country agreement with the US, asylum advocates should proactively seek to prevent such a devastating policy with a country that lacks adequate asylum protections.

As reported by Human Rights First and Amnesty International, 75 percent of asylum seekers apprehended and detained by the National Institute of Migration (INM), the Mexican immigration enforcement agency, were not informed of their right to seek asylum. Even if asylum seekers are able to make their claims, only 30% of the asylum proceedings are ever concluded, and even fewer are granted, leaving many bona fide asylum seekers stranded without a resolution. The treatment of unaccompanied minors’ asylum claims in Mexico are even more dismal. Of the 35,000 minors apprehended by the INM in the first half of 2016, only 138 were able to apply for asylum, of which only 77 were granted protection. Beyond the failing asylum system in Mexico, asylum seekers are also in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians.

A safe third country agreement with Mexico would violate the United States’ international obligations under the 1967 Optional Protocol to the Refugee Convention, to which we are a signatory, which adopts by incorporation the obligations outlined in the 1951 Refugee Convention, to which the US is not a signatory. Take the example of an asylum-seeker, Mrs. H, who is fleeing politically-motivated violence in Honduras. Her husband, Mr. H, was a vocal political activist who opposed the National Party and members of the Honduran government. Mr. H began to receive death threats due to his political beliefs and reported such threats to the authorities. The authorities, however, did nothing to protect Mr. H and his family. Not long thereafter, Mr. and Mrs. H are attacked as they leave their home. Mrs. H is severely wounded, but her husband, Mr. H, dies. As Mrs. H recovers in the hospital, she begins to receive death threats on account of her husband’s political beliefs. Fearing for her life, she flees Honduras, travels through Guatemala and Mexico, and presents herself at the US border claiming asylum. Given her extraordinary claims, Ms. H would most likely be granted asylum in the United States. However, under a safe third country agreement, if she travelled through Mexico to get to the US, the US would return Mrs. H to Mexico without first adjudicating her asylum claim. If Mexico in turn denies the asylum application (or worse, denies the asylum seeker access to its asylum procedures) where the US may have granted the application, and if the asylum seeker is thereafter refouled, the US is thus violating its international obligations and potentially under INA § 208(a)(2)(A) for indirectly refouling that individual.

The US currently has a safe third country agreement with Canada that has been similarly criticized, both at the initial signing and now with renewed fervor on account of Sessions’ evisceration of the US asylum system. The first challenge to the agreement was in 2007 in Canadian Council for Refugees, et al. v. Her Majesty the Queen, [2007] FC 1262 (Can. Ont.). The Court began by recalling that the US and Canada are both parties to the 1967 Optional Protocol to the UN Refugee Convention and thus both possessed the same international obligations with respect to the treatment of asylum seekers, including the principle of non-refoulement. The Court found, however, that the US was “not compliant with international conventions,” especially with respect to its one-year asylum filing deadline (which Canada does not have), and thus concluded that the US was not a safe third country for asylum seekers. Accordingly, the Court reasoned that by returning asylum seekers to the US without first adjudicating their asylum claims, which results in their subsequently denied asylum application in the US and refoulement to their country of origin, Canada was also in violation of its international obligations and under the Canada Charter of Rights and Freedoms. In other words, Canada was indirectly responsible for impermissible refoulement. Unfortunately, the decision was ultimately overturned by the Federal Court of Appeal, thus preserving the safe third country agreement.

There was another challenge to the US-Canada safe third country agreement at the Inter-American Commission on Human Rights (IACHR) in John Doe et al. v. Canada, Case 12.586, Inter-Am. Comm’n H.R., Report No. 24/11, OEA/Ser.L/V/II.141, doc. 29 (2011). The IACHR similarly found that Canada was in violation of its international obligations of non-refoulement by failing to adjudicate asylum claims of individuals who had travelled through the US. Lacking enforcement authority, the IACHR merely offered recommendations to Canada so that they remain compliant with their international obligations. Legal challenges to the agreement in Canada laid dormant until July 2017 when Amnesty International and the Canadian Council for Refugees again initiated litigation against the agreement, where they outlined the numerous ways the US asylum system failed to meet international standards, and identified how US asylum policy has continued to deteriorate under the Trump regime. This suit remains pending. If the US were to adopt a safe third country agreement with Mexico, the Canadian Council for Refugees would certainly want to amend their pleadings and raise the issue of an asylum seeker potentially being subject to two safe third country agreements, implicating Canada in chain refoulement.

As we have blogged about extensively, the US asylum system, especially under the Trump Administration, is certainly not the best asylum model out there. This article does not suggest that the US asylum framework is the be-all end-all, nor do we suggest that Mexico is a bad country. Nevertheless, a safe third country agreement with Mexico would cause the United States to be in further violation of our international, and arguably domestic, obligations of non-refoulement. Violence in Mexico has reached record levels and the US State Department has issued multiple travel advisories to various Mexican states. Further, as discussed above, Mexico is extremely dangerous for vulnerable populations such as asylum-seekers and migrants, especially women. Access to asylum procedures is astonishingly low in Mexico, and even if an individual is lucky enough to file their claim, it is still more likely than not that their claim will be denied.

It is unclear if the incoming Mexican president, Andres Manuel Lopez Obrador, will be more open to the agreement than the departing president, Enrique Peña Nieto. Under the backdrop of the NAFTA renegotiations, the US may seek to leverage their continued participation in NAFTA in return for a safe third country agreement with Mexico. Nevertheless, advocates should continue to speak out against this devastating policy ahead of any official negotiations. If the US and Mexico end up creating a safe third country agreement, advocates should vigorously contest the legality of this agreement in Court, as such an agreement will undoubtedly result in the impermissible return of bona fide asylum seekers to their country of origin.

Stop the Horrific Practice of Separating Children from Parents

The desperate sobbing of children who have been separated from their parents is horrific and shocking. As the children scream “Mami” and “Papa” over and over again, a Border Patrol agent booms above the crying: “Well, we have an orchestra here,” he jokes. “What’s missing is a conductor.”

The practice of separating families at the border is not only cruel and unconscionable, but it is in direct violation of the United States’ obligations under international and US law. As has been argued by the American Civil Liberties Union (ACLU) in its most recent lawsuit against the government, Ms. L v. ICE, this practice of forcibly separating families violates “the Constitution’s due process clause, federal law protecting asylum seekers, and of the government’s own directive to keep families intact.” The Texas Civil Rights Project, the Women’s Refugee Commission, the University of Texas School of Law Immigration Clinic, and Garcia & Garcia Attorneys at Law, P.L.L.C., have filed an Emergency Request for Precautionary Measures with the Inter-American Commission on Human Rights (“IACHR”), arguing that the United States is “violating internationally-recognized human rights and well-established Inter-American standards, including the rights to family, to seek asylum and protection, to minimum due process, among others.”

For those parents seeking asylum in particular, it is permissible under the Immigration and Nationality Act to apply for asylum even if you entered the US without inspection. Supporters of the zero-tolerance policy have decried that these asylum-seekers and migrants should “get in line” or “do it the right way” by applying at Ports of Entry (POEs). However, even when asylum-seekers present themselves at POEs, they are often prevented from making an asylum claim and are turned away. This is in direct violation of International Refugee law, where countries are required to refrain from “expel[ling] or return[ing]  (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Others ‘lucky’ enough to get through to credible fear interviews are systemically found to not possess such a fear and are swiftly removed from the United States despite being eligible for asylum. Attorney General Sessions has now made this even more difficult after he overturned Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and in a footnote gratuitously asserts that few claims based on domestic violence or gang based persecution would satisfy the legal standard to determine whether a foreign national has a credible fear of persecution. And now these individuals seeking asylum, both at the POEs and who have entered without inspection, are being violent separated from their families before they can even attempt to adjudicate their claims.

The Trump Administration understands that what they are doing is shameful, and has deployed every public relations stunt in the book to try and distract the public from what is really going on. From blaming Democrats and the Obama Administration for the existence of a supposed law that mandates this violent separation, to claiming that a separation policy does not exist, to then defending such a policy – it is difficult to keep up. No matter which way you paint it, though, the policy is disgraceful and unlawful, and the Trump Administration has the power to stop its enforcement.

There is no law that requires the separation of immigrant families. The Administration has made the explicit decision to prosecute parents who enter the United States without inspection and to separate them from their children in the process. The government has appeared to bunker down on INA § 275 and 8 USC § 1325, which allow for the prosecution of the misdemeanor violation of illegal entry. Under Session’s so-called zero-tolerance policy, every person who crosses the border illegally is now being prosecuted under INA § 275.  The rationale is that those being prosecuted must be separated from their children during the pendency of the trial. Despite supposedly only separating those families who enter without inspection, there are also a number of cases where immigrant families are being separated after lawfully presenting themselves at POEs. Indeed, in  Ms. L v. ICE, supra, the federal judge presiding over the case determined that the plaintiff-parents had asserted sufficient facts and legal basis to establish that separation from their children while they are contesting their removal and without a determination they are unfit or present a danger to their children violates due process under the Fifth Amendment.

This Administration has made the choice to immediately subject asylum-seekers to prosecution prior to adjudicating their asylum eligibility. The UN and human rights advocates have rightfully called this practice unlawful. But more than that, the combination of being punished for fleeing violence and being violently separated from one’s children takes an ineffable mental toll and prevents them from effectively adjudicating their asylum claims, with one recent story of a father taking his own life under the stress of this policy and others discussing the developmental consequences of this separation to children. Once an asylum-seeker finally gets to adjudicate their asylum claim, after weeks or months of separation from their children, they are often so broken down that they cannot effectively argue their claims. If they do not have access to counsel, their chances of obtaining relief – despite clear eligibility – are next to none.  What also makes this practice so egregious is that the underlying motive of the Trump administration is to use the children as political fodder so that Trump can get what he desires in an immigration bill, including his wall and a reduction in legal immigration.  The whole crisis has been manufactured by Trump himself and he has the power to stop it right now.   Indeed, the separation of children as young as eight months old is so horrific that it is important to start viewing them as crimes against humanity, punishable under an international tribunal, rather than a shift in policy.

If you’re like us, and believe that this separation is wrong, we urge you to put pressure on your Congressperson to propose/support emergency legislation to stop the Trump Administration from cruelly separating children from the parents. Call the congressional switchboard at (202) 224-3121. There’s a Senate bill (S. 3036 – Keep Families Together Act) and a House bill (H.R. 5950 – the HELP Separated Children Act), which you can ask your Senators and Representatives to support. If your member is conservative and not likely to support any of these bills, then at least have the member speak out in order to urge the President to reverse the policy.  This violent policy of separating families at the border is not in line with the law and is not in line with American values. The United States has historically taken in hundreds of thousands of refugees from Eastern Europe, the Soviet Union, Haiti, Cuba and Vietnam, among many other countries. We can easily take in people fleeing persecution and violence in Central America once they qualify for asylum under our laws.  The Trump Administration and its supporters ought to take a good, long look in the mirror and ask themselves whether they in good conscience believe that separating children from their families is in-line with those values.

Update: The solution to family separation is not family incarceration.

On June 20, 2018, President Trump issued an Executive Order misleadingly entitled “Affording Congress an Opportunity to Address Family Separation,” purportedly resolving the issue of the separation of immigrant families. The EO maintains support for the zero-tolerance policy at the border and mandates family detention during the pendency of proceedings for unlawful entry, as well as for the immigration proceedings themselves. This EO is in contravention of international norms and standards in regards to the detention of refugees and children. The EO is also in violation of the Flores settlement, which requires that the government not detain children for more than 20 days. Although the Flores settlement only applies to children, past practice (admittedly, inconsistent practice) has been to release the whole family after 20 days to ensure family unity. The EO directs the Attorney General to file suit in the Central District of California to modify the Flores settlement to allow for indefinite detention of children.

The struggle to end mass incarceration of families is not over, and the new EO should not be seen as a victory. Practitioners should continue to litigate these detention practices in the courts and allies should continue to advocate for the eradication of this egregious practice. Nor should President Trump gloat and claim victory. He along with his cabinet members  and advisors who masterminded a gulag for children, toddlers and infants – with the goal of using them  as political fodder – have inflicted irreparable damage on them and should ultimately pay the price.




Sessions Likely to End Asylum Eligibility for Victims of Domestic Violence: How Courts Can Resist

Violence against women is the most pervasive and underreported human rights violation in the world. Whether you live on the Upper East Side or in Gugulethu, South Africa, you likely know a woman or girl who has been the victim of sexual or gender-based violence. Maybe you are that woman or girl.[i]

International asylum frameworks have long grappled with how to address this gender-based persecution. After years of debating whether victims of domestic violence have a legitimate claim to asylum, the US Board of Immigration Appeals (BIA) finally recognized in 2014 that married women who are unable to leave their relationships may constitute a cognizable particular social group for the purposes of seeking asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); see also Matter of D-M-R- (BIA June 9, 2015) (clarifying that a victim of domestic violence need not be married to her abuser). Although some advocates argue the decision does not go far enough, the protections and opportunities that Matter of A-R-C-G– have provided to thousands of women cannot be understated. Despite these advancements, Attorney General Jeff Sessions has questioned whether such claims to asylum are legitimate by referring to himself a BIA case, Matter of A-B- (BIA Dec. 8, 2016), where the Board found that a victim of domestic violence was indeed eligible for asylum. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), Sessions may refer a case to himself for review, and has asked each party to submit briefs on “[w]hether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, I&N Dec. 227 (A.G. 2018).

As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under  Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. The applicant must also show that her persecution was on account of her membership in the social group, and that the government in her country of origin is unable or unwilling to afford her protection from such persecution.

In Matter of A-R-C-G-, the Board found that the lead respondent had met her burden in establishing eligibility for asylum, and held that “[d]epending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” 36 I&N Dec. at 388. In this case, the lead respondent was married to a man who regularly beat her, raped her, and on one occasion, burned her. She had contacted local authorities several times to escape her abuser, but was told that the police would not interfere with domestic matters. The respondent had even moved out, but her husband found her and threatened to kill her if she did return. Fearing for her life, and knowing that she could not be safe if she stayed in Guatemala, the respondent fled to the United States.

The Immigration Judge in Matter of A-R-C-G- found that the respondent’s abuse was the result of “criminal acts, not persecution,” and further found that the respondent was not eligible for asylum. On appeal, the BIA found that “married women in Guatemala who are unable to leave their relationship” is indeed a cognizable social group. First, the BIA asserted that the immutable characteristic in this matter was “gender,” and also found the marital status would satisfy the requirement where the woman is unable to leave the relationship. Second, the BIA found that the particular social group had been defined with particularity, where “married,” “women,” “who are unable to leave their relationship” have commonly accepted definitions in Guatemala, stating that it was particularly significant that the respondent had sought protection from the police but was denied protection due to her social group. Finally, the BIA found that the group was socially distinct in society, where Guatemala has a culture of “machismo and family violence,” where the respondent’s social group is easily perceived and recognized in Guatemalan society, and where Guatemala has created laws to protect the respondent’s social group, but has failed to successfully implement them. The BIA cautioned in their decision that particular social group analyses in cases that involve victims of domestic violence will depend heavily on the facts, including country conditions.

DHS conceded the nexus requirement by agreeing that the respondent had indeed suffered past persecution on account of her membership in a particular social group. The BIA noted that “the issue of nexus will depend on the facts and circumstances of an individual claim.” Id. at 395. The BIA then remanded to the Immigration Judge for determination of whether the Guatemalan government was “unable or unwilling” to stop the respondent’s abuser. On remand, the Immigration Judge granted asylum upon the stipulation of the parties (and thus did not provide a reasoned analysis as to the Guatemalan government’s inability or unwillingness to protect the respondent from her abuser).

Relying on the precedent in Matter of A-R-C-G-, the respondent in Matter of A-B- similarly contended that she was eligible for asylum based on her membership in a particular social group, namely “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Matter of A-B-, at 2. The Immigration Judge below found that the respondent had not met her burden in establishing eligibility for asylum, finding that her proposed particular social group was not cognizable, that even if the social group was cognizable, that she did not establish a nexus between the harm suffered and her membership in the social group, and finding that the respondent had not demonstrated that the El Salvadoran government was unable or unwilling to protect her from harm. Id. at 3. On appeal, the BIA found that the proposed social group was cognizable, where it was “substantially similar” to the proposed group in Matter of A-R-C-G- and further found that the respondent had met her burden in establishing particularly and social distinctness by way of a submitted country conditions report. Id. at 2. Moreover, the BIA found that the respondent had indeed shown a nexus between her abuse and her membership in the particular social group where the “record indicates that the ex-husband abused her from his position of perceived authority, as her ex-husband and the father of her children…” Id. at 3. The BIA also found that the respondent had sufficiently demonstrated that the El Salvadoran government was unable and unwilling to protect her from harm where although the respondent had previously obtained two orders of protection against her abuser, there were several occasions where local police authorities refused to intervene and afford the respondent protection. Moreover, the respondent’s brother-in-law, who also frequently threatened violence against her, was a police officer, and thus strengthened respondent’s claim that the government would not provide her with protection. The BIA held that the respondent had demonstrated past persecution on account of her membership in a cognizable particular social group, and sustained the respondent’s appeal, remanding for completion of background checks.

Despite the BIA’s findings, and decades of tireless efforts by advocates, Attorney General Sessions now refers the case to himself and has asked parties to submit briefs on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018). There may have been bad faith on the part of the Immigration Judge below who held up A-B-’s case on remand, then sent it back to the BIA eight months later by raising a “facially bogus legal issue,” only to have AG Sessions refer the case to himself and stripping the BIA of jurisdiction.

Sessions has made clear his animus against immigrants, especially those fleeing persecution and seeking asylum in the United States, along with their ‘dirty’ immigration lawyers. The referral of the A-B- case to himself is yet another instance of such xenophobia on full display, where he seeks to deny protection to some of the most vulnerable populations in the world. While we hope this is not the case, Sessions will likely reverse the BIA’s findings on the Matter of A-B- case and declare that victims of domestic violence are no longer eligible for asylum in the United States, thus uprooting Matter of A-R-C-G- and particular social group claims based on domestic violence. Indeed, attempting to reverse the ability of a victim of domestic violence to seek asylum goes beyond being anti-immigrant. It is a full-frontal attack on human rights and undermines international obligations to provide protection to people fleeing persecution.  The respondent in Matter of A-B- will thus need to appeal to a federal appellate court to overrule Sessions.

One can hope that if successful on appeal, Matter of A-B- has the potential to broaden asylum eligibility for victims of domestic violence by returning to the Acosta definition of particular social group, and clarify what Matter of A-R-C-G- left untouched, such as the nexus requirement and the inability or unwillingness of governments to provide victims protection from their abuses.

Returning to the Acosta definition of Particular Social Group

Before Matter of M-E-V-G- and Matter of W-G-R-’s additional particularity and social distinction requirements, Matter of Acosta dictated the proper particular social group analysis. The BIA in Matter of Acosta held,

“Persecution on account of membership in a particular social group” refers to persecution that is directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic. i.e., a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed

The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership.

19 I&N Dec. at 212, 233.

Applying the doctrine of ejusdem generis, the BIA reasoned that the particular social group category, like the other four enumerated grounds (race, religion, nationality, and political opinion), should be defined by immutable characters that cannot, or ought not to, be changed. Id. at 233.

While nothing is perfect, the Acosta particular social group analysis worked well for the next two decades. However, after the 2003 BIA purge of liberal-leaning judges, the asylum system experienced a dramatic shift in particular social group analysis. The BIA in Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), for example, added that in addition to demonstrating the shared immutable characteristic that defines the particular social group, an asylum applicant would also need to show that the group was “socially visible” in society. Matter of C-A-, 23 I&N Dec. at 951. Social visibility was later refined in Matter of M-E-V-G- and W-G-R-, which clarified that the group needs to be “socially distinct” as to be perceived by society, and not necessarily “ocularly” visible. Matter of W-G-R-, 26 I&N Dec. at 216.

On appeal, Matter of A-B- ought to advocate for the return of the pure Acosta particular social group analysis and rejection of the Matter of C-A- social visibility requirement. Indeed, some circuits have rejected this requirement. In Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009), the Seventh Circuit declined Chevron deference to the BIA’s denial of an asylum case and rejected the social visibility requirement, finding that it “makes no sense.” Similarly in Valdiviezo-Galdamez v. Holder, 663 F.3d 582 (3d Cir. 2011), the Third Circuit found that the social visibility requirement had no place in particular social group analysis, reasoning that

[i]n the wake of Acosta, the BIA recognized a number of groups as “particular social groups” where there was no indication that the group’s members possessed “characteristics that were highly visible and recognizable by others in the country in question” or possessed characteristics that were otherwise “socially visible” or recognizable. Indeed, we are hard-pressed to understand how the “social visibility” requirement was satisfied in prior cases using the Acosta standard. By way of examples noted above, the BIA has found each of the following groups to constitute a “particular social group” for purposes of refugee status: women who are opposed to female genital mutilation (Matter of Kasinga), homosexuals required to register in Cuba, (Matter of Toboso-Alfonso), and former members of the El Salvador national police (Matter of Fuentes). Yet, neither anything in the Board’s opinions in those cases nor a general understanding of any of those groups, suggests that the members of the groups are “socially visible.” The members of each of these groups have characteristics which are completely internal to the individual and cannot be observed or known by other members of the society in question (or even other members of the group) unless and until the individual member chooses to make that characteristic known.

Although the BIA has since clarified in M-E-V-G- and W-G-R- that social distinction does not require ocular visibility, advocates have found this clarification disingenuous and that it often contradicts the particularity requirement.

Clarifying the Nexus Requirement

As explained above, DHS conceded the nexus requirement in Matter of A-R-C-G- by agreeing that the respondent had indeed suffered past persecution on account of her membership in a particular social group. 26 I&N Dec. at 395. The BIA noted that “the issue of nexus will depend on the facts and circumstances of an individual claim.” Id.

In the recent case, Matter of L-E-A–, 27 I&N Dec. 40 (BIA 2017), the BIA denied asylum to a respondent for failing to meet the nexus requirement. As we have previously blogged, the respondent here was a native and citizen of Mexico whose father owned a general store in Mexico City. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to grab him and put him in their car, but he was able to get away. The respondent left for the border and successfully crossed into the United States. The BIA reasoned that the respondent was not entitled to relief because even if the persecutor had harmed the respondent, it was done so as a means to an end, i.e. to sell drugs. In other words, the persecution would not have been due to the respondent’s membership in a particular social group and animus towards the family, but rather because he was interfering in their drug trade.

The respondent in Matter of A-B- ought to distinguish the finding in Matter of L-E-A- preemptively on appeal, and seek to definitively establish what the nexus requirement ought to be in domestic violence cases. In particular, they will want to avoid an L-E-A-type finding which would reason that the persecution was not due to the woman’s membership in a particular social group, but rather because the persecutor was violent. This was the conclusion of the BIA in Matter of R-A-, 22 I&N 906 (BIA 1999), a decision pre-dating A-R-C-G-, which denied asylum to a victim of domestic violence. This erroneous finding continues to be encountered today, where Immigration Judges continue to find that it is an abuser’s jealousy or own violent behaviors that motivated the harm, not the victim’s membership in a particular social group. As pointed out by Blaine Bookey, “this rationale defies logic: an abuser’s ‘jealousy’ [or violence] is inherently linked to a woman’s gender and status in a relationship as the property of her partner.”

Clarification on this issue is imperative for uniform adjudication of domestic violence asylum cases. The Court handling the Matter of A-B- appeal may look at how other countries have interpreted the nexus requirement under international law. In New Zealand, for example, the Refugee Status Appeals Authority found,

[T]he words “for reasons of” require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution.  It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution.  The persecution must be feared for reason of the person’s membership or perceived membership of the particular social group…

[T]he nexus between the Convention reason and the persecution can be provided either by the serious harm limb or by the failure of the state protection limb.  This means that if a refugee claimant is at real risk of serious harm at the hands of a non-state agent (e.g. husband, partner or other non-state agent) for reasons unrelated to any of the Convention grounds, but the failure of state protection is for reason of a Convention ground, the nexus requirement is satisfied.  Conversely, if the risk of harm by the non-state agent is Convention related, but the failure of state protection is not, the nexus requirement is still satisfied. In either case the persecution is for reason of the admitted Convention reason. This is because “persecution” is a construct of two separate but essential elements, namely risk of serious harm and failure of protection.

(emphasis added).

The United Kingdom came to a similar understanding of the nexus requirement in the seminal case, Islam and Shah v. Secretary of State for the Home Department, [1999] 2 A.C. 629 (H.L.), finding that the requirement is satisfied where the applicant can show that the harm was motivated by her membership in a particular social group, or by showing that the state failed to provide her with protection from that harm due to her membership in that particular social group. The US Courts have an opportunity to expand asylum eligibility for victims of domestic violence by adopting a similar understanding of the nexus requirement, where an applicant can satisfy the nexus requirement via the abuser’s conduct or by the state’s failure to provide protection from this conduct due to her membership in a particular social group.

Clarifying the State Protection Analysis

State protection, or the lack thereof, is critical in successfully arguing particular social group cases when the persecution is committed by private actors. However, Matter of A-R-C-G- did not provide definitive guidance for assessing the adequacy of state protection. As explained, the BIA remanded the case back to the Immigration Judge for determination of whether the Guatemalan government was “unable or unwilling” to stop the respondent’s abuser. On remand, the Immigration Judge granted asylum at stipulation of the parties and thus did not provide a reasoned analysis as to the Guatemalan government’s inability or unwillingness to protect the respondent from her abuser.

On appeal, Matter of A-B- can seek to clarify how adjudicators ought to analyze the lack of state protection for victims of domestic violence. Advocates have reported inconsistent adjudication in state protection analyses, where some Immigration Judges fail to take country conditions into consideration or fail to understand that although a woman obtained orders of protection against her abuser that the state nevertheless failed to protect her from future abuse when the partner violated the order. Accordingly, uniform guidance is warranted to allow for seamless and consistent adjudication, such as the consideration of country conditions evidence, testimony from the applicant about whether she reasonably could have sought protection in her home country, and evidence of lackluster implementation of domestic violence laws at the state and local levels.

AG Sessions will undoubtedly deny the applicant’s asylum in Matter of A-B- and seek to radically change the adjudication of asylum cases based on domestic violence, and perhaps all particular social group cases based on private criminal activity. However, Matter of A-B-, on appeal, can not only overcome Sessions’ erroneous reading of the law, but can help to expand the eligibility of asylum for victims of domestic violence and clarify those issues which were left untouched by Matter of A-R-C-G-. Critically, the respondent in Matter of A-B- can raise the question of where the Courts wish to fall morally. Do we want to be a country that denies asylum to victims of domestic violence whose countries do little to nothing to protect them? Do we want to stand in stark contrast to nations such as Canada, which has long recognized eligibility for victims of domestic violence, or the United Kingdom, which has similarly recognized such eligibility and does not impose stringent cohesive requirements in their particular social group analyses?  The eventual appeal of Matter of A-B- will grant the Courts another opportunity to resist the anti-immigrant policies of this administration that have undermined the notion of America as being the beacon of hope for the persecuted.



[i] It must be noted that men and boys are also severely affected by sexual violence. Women and girls, however, constitute the vast majority of victims worldwide and are the population of concern contemplated in Matter of A-R-C-G-, and are thus the population discussed in this article.

The Ethical Role of a Lawyer Under a Trump Administration

Ever since Donald Trump won the election, many immigrants have justifiably become fearful. During his election campaign, Trump engaged in harsh rhetoric against immigrants. He said he would build a wall and deport 2 to 3 million immigrants with criminal records. Trump also promised that he would rescind President Obama’s deferred action program for young people, known as Deferred Action for Childhood Arrivals (DACA), who arrived in the United States prior to the age of 16 and are out of status. There are also proposals of banning immigrants from certain countries or areas, as well as engaging in extreme vetting of people from Muslim countries as well as reviving the registration program.

The role of the immigration lawyer has become ever more important since Trump winning the election, and the prospects for increased immigration enforcement after January 20, 2017 when Trump is President. While Trump has softened some of his harsh rhetoric since the election, many of his advisors are in favor of strong enforcement such as Jeff Sessions who will be the Attorney General and other immigration hardliners such as Kris Kobach and Stephen Miller. Hence, the fear is palpable, and immigration lawyers have been inundated with calls from worried clients.

Undocumented immigrants fearful of a new enforcement machine will rely on the immigration lawyer to advise them on how they can remain in the country, especially if they have US citizen children. In the event that DACA is rescinded, although there is an ameliorative legislative proposal whose outcome is uncertain, DACA recipients may want to know whether they can change their address, which would be different from the address that was provided in the application. Similarly, even lawful permanent residents with a criminal records and who are vulnerable to deportation may ask the same question of the lawyer. Employers will want to know whether they can continue to hire a DACA employee if the program will be rescinded. A DACA employee will want to know whether she can continue working for the employer if the employer does not realize that the work authorization has expired.

What are the lawyer’s ethical obligations when advising a client fearful of a Trump presidency? A lawyer is under a duty to vigorously represent the client. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 to Rule 1.3 provides, “A lawyer should …take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” On the other hand, a lawyer can only represent her client within the bounds of the law. Under Model Rule 1.2(d), “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The key issue is whether counseling an unauthorized immigrant to remain in the U.S., even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules.

While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither “criminal” nor “fraudulent” conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA §275, it is no longer a continuing criminal violation to remain in the U.S. after the EWI. Although being unlawfully present in the U.S. may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation in our immigration system where an undocumented noncitizen can eternally hope to gain legal status (such as if a US citizen child turns 21 or if the individual is placed in removal and obtains cancellation of removal), a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the U.S.

Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the U.S., in certain circumstances, does constitute criminal conduct. For instance, failure to depart after a removal order pursuant to INA 237 (a) within 90 days under INA §243 renders such conduct a criminal felony. Even here there is an exception at INA §243(a)(2), which provides: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” Moreover, there are provisions that allow a person who received a final removal order many years ago to reopen if the government consents to such reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

The ethical lawyer must also be a competent lawyer who is capable of analyzing all the nuances and contours of statutory and regulatory provisions. Even if the DACA program is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. Thus, a lawyer can ethically advise that an unexpired EAD still authorizes the DACA recipient to work in the US, and for the employer to continue to employ this person. In the event that a DACA client’s employment authorization has expired, but the employer is not being represented by the same lawyer as the DACA client, this lawyer is under no obligation to alert the employer if it did not notice the expiration of the employment authorization. The employer may be subject to employer sanctions for continuing to employ an unauthorized worker while the DACA client is in any event amenable to deportation whether he is working or not.

Lawyers should also be exploring for alternative opportunities for DACA recipients under immigration law. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen.  Alternatively, they can take advantage of the provisional waiver rule, which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate.  These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

A lawful permanent resident who may have a criminal conviction cannot be immediately removed from the United States. He is first subject to removal hearing and must be served with a Notice to Appear. Not all criminal conduct results in removal. Even if a criminal conviction is considered a crime involving moral turpitude or an aggravated felony, it should be carefully considered if such a characterization can be contested under the categorical approach. This approach, best exemplified in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276 (2013), requires identification of the minimum prosecuted conduct that violates the criminal statute rather than the conduct of the respondent in removal proceedings.

Permanent residents are in a rush to file for naturalization, but the lawyer must carefully review the client’s history to ensure that nothing comes up during the naturalization process that could trigger some ground of removability, such as an improperly obtained green card or a criminal conviction. If the client still wants to take the risk of applying for naturalization, the lawyer must also determine if there are grounds for a waiver in removal proceedings, and should also advise that it is likely that discretionary waivers may be less readily granted within a bureaucracy that is oriented towards enforcement rather than grating immigration benefits.

It may be an exercise in futility for the lawyer to advise a client to move residence so as to avoid detection, even when the client is not being actively pursued and there is no outstanding warrant. If the DHS wishes to initiate removal proceedings, it can do so by serving the Notice to Appear by mail. It would be better if the undocumented immigrant received the NTA at the last known address that the government has rather than not receiving such an NTA and being subjected to an in absentia removal order. While an in absentia order can be reopened for lack of notice, it is time consuming, stressful and the results are uncertain. In any event, an AR-11 has to be filed whenever a person changes address. If a person with a removal order reports that she is being pursued by ICE agents, it would be ethically problematic for the lawyer to advise this person to evade ICE agents by changing address. Remaining in the US after a removal order is a felony under INA 243 and a lawyer should not be advising a client to engage in criminal conduct, although a lawyer could, if applicable, advise such a client on ways to overcome the removal order or to seek a stay of removal or apply for other prosecutorial discretion remedies such as an order of supervision. It would be clearly unethical for a lawyer to advise a client who is facing ongoing removal proceedings to not honor hearing dates as it would lead to a removal order in absentia, and the lawyer will be held responsible for providing ineffective assistance to her client.

The immigration lawyer must also be mindful of potential criminal penalties that can be applied for providing advice to a person who is unauthorized to remain in the United States. There exists a relatively untested provision under INA 274(a)(1)(A)(iv) which criminally penalizes any person who:

“encourages or induces an alien to come to, enter, or reside in the United States in knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law”

This provision, which involves encouraging someone to reside in the US in violation of law, is a companion to other related criminal provisions such as “brings to” or “smuggling” (INA 274(a)(1)(A)(i)), “transportation” (INA 274(a)(1)(A)(ii)), and “harboring” (INA 274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete and Congress intended to cover distinct groups of wrongdoers, see US v. Lopez, 590 F.3d 1238 (11th Cir. 2009) the “encouraging” provision is more broad based and could potentially apply to a person who encourages an undocumented person who is already residing in the United States to do so in violation of the law. In U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992), a lawyer was convicted under a predecessor of this provision for representing persons at the former INS who were sold false social security and employment documents by a co-conspirator. Although these facts in U.S. v. Oloyede are rather egregious and would not usually apply to ethical lawyers, the following extract from the Fourth Circuit decision is worth noting:

Appellants maintain that Section 1324(a)(1)(D) is solely directed to acts bringing aliens into the country. However, the plain language states, “knowing that [the illegal alien’s] residence is or will be in violation of the law.” (Emphasis supplied). Because the use of the verb “is” clearly connotes the present status of the illegal aliens’ residence in this case within the United States, it can only be understood to apply expressly to actions directed towards illegal aliens already in this country.

To the best of this author’s knowledge, the “encouraging” provision has never been applied to a lawyer providing routine advice to an unauthorized immigrant who desires to continue to remain in the United States in hope for a remedy in the future, such as a US citizen child turning 21 in a few years, that would enable her to adjust status in the United States or in the hope that the law may change to his benefit. However, it is important to know that such a provision of this sort does exist and could be applied more broadly by an administration that has an enforcement mindset. In the event of overzealous prosecution, a lawyer who carefully remains within the confines of ABA Model Rule 1.2(d) would have a good defense. Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client who may be undocumented but who has potential relief in the future:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

Finally, when immigrants are frightened and vulnerable, they will seek desperate measures such as applying for political asylum. The filing of a political asylum application enables the individual to remain in the United States and even apply for work authorization if the application has been pending for 150 days or more. If there is a meritorious claim for asylum, a lawyer ought to pursue it on behalf of the client, after the client has been informed, and provided consent, about the risks. There is a possibility that the claim, if not granted at the affirmative level, could be referred before an Immigration Judge in removal proceedings. If the client is unable to win before an Immigration Judge, he or she would end up with a final removal order. If the asylum claim is filed after one year, and the exceptions to filing after one year cannot be met, there is an even greater chance that the application will be referred into removal proceedings. For a claim to be meritorious the lawyer must ascertain whether the client can provide a detailed statement regarding his claim to asylum and there is a sufficient nexus on one of the protected grounds. Even if there is a precedent decision against a particular ground for an asylum claim, the lawyer must ask whether there are good faith grounds to seek a reversal of the adverse precedent decision.

The standard for what constitutes a meritorious claim is provided in ABA Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Thus, even if the ultimate objective of filing an asylum application is to ultimately seek cancellation of removal, the asylum claim must still be meritorious. It behooves the ethical practitioner to refer to recent AILA resources, namely, Ethical Considerations Related to Affirmatively Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident and Nine Ethical Questions to Consider before Filing Asylum Claims to Pursue COR.

Last and not the least, however sympathetic the circumstances may be, the ethical lawyer should never assist in filing an application knowing that it  contains a false statement of fact or law. Although there are clear rules, ABA Model Rule 3.3 and 8 CFR 1003.103(c), that expressly prohibit such conduct, the lawyer could also be implicated under federal criminal provisions such as 18 USC 1001, 18 USC 371 and 18 USC 1546.

Board of Immigration Appeals Provides Safeguards for Asylum Applicant With Mental Competency Issues

The Board of Immigration Appeal’s decision in Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015) is a milestone decision in protecting an asylum applicant who presented competency issues that were not appropriately assessed by the Immigration Judge. It also untangles the ethical conundrum that a lawyer has when the client is unable to testify credibly due to a cognitive disability.

The respondent in Matter of J-R-R-A- was a native and citizen of Honduras, who claimed that he would be harmed upon his return to Honduras by a man who had murdered his brother 15 years ago. His testimony was characterized as confusing, disjointed and self-serving. He also laughed inappropriately during the hearing. Although the Immigration Judge observed that the respondent’s behavior and testimony were unusual, the BIA found that the respondent’s competency should have been assessed under Matter of M-A-M-,  25 I&N Dec. 474 (BIA 2011). In the landmark Matter of M-A-M- decision, the BIA held that for a respondent to be competent to participate in an immigration proceeding, he or she must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by the law. As the respondent demonstrated various indicia of incompetence in Matter of J-R-R-A-, the BIA held that the IJ should have taken measures to determine whether the respondent was competent to participate in these proceedings in accordance with the guidelines in Matter of M-A-M-, and remanded the case back to the IJ.

The BIA could have stopped there and it would have still been a good decision, but the BIA went further and acknowledged that the respondent’s testimony was not credible due to the respondent’s diminished capacity, which prevented him from obtaining asylum. The IJ had denied the asylum claim by curtly opining that the respondent’s cognitive difficulties are “not a license to give incredible testimony.” A respondent presenting an asylum claim must establish a well-founded fear of persecution by demonstrating both a genuine subjective fear of persecution and by also  presenting evidence establishing objectively that such a fear is reasonable. See INS.v. Cardoza-Fonseca, 480 U.S. 421 (1987). In light of such a standard, an asylum claimant must present credible testimony in order to establish his or her subjective fear of persecution, supported by objective evidence to establish that the fear is reasonable. A respondent with diminished capacity may not be capable of presenting credible testimony, and as in the case of the respondent in Matter of J-R-R-A-, may be at grave risk of being denied asylum even if he or she has a genuine fear of persecution.

One can also draw important lessons from this decision for the lawyer who represents a client with diminished capacity. A lawyer under the ethical rules of professional conduct cannot “offer evidence that the lawyer knows to be false.” SeeABA Model Rule 3.3(a)(3). Thus, when a lawyer observes a client presenting testimony knowing that it is false, the lawyer is under an ethical obligation to not have the client offer it. If the client has already offered evidence that the lawyer knows is false, under ABA Model Rule 3.3(b), the lawyer is under an ethical duty to take reasonable remedial measures to rectify the fraudulent conduct, and if necessary, disclose it to the tribunal.   ABA Model Rule 1.14 also instructs a lawyer to maintain a normal lawyer-client relationship as far as possible with a client who presents competency issues, and thus all the ethical rules that affect the lawyer-client relationship are applicable even when a lawyer represents a client with diminished capacity, including the lawyer’s duty of candor to the tribunal. Still, Rule 1.14 allows a lawyer to take reasonably protective action when a client with diminished capacity is at risk of harm by either consulting with individuals or entities, and in appropriate cases, seek the appointment of a guardian or guardian ad litem.

The BIA in Matter of J-R-R-A– implicitly recognized the lawyer’s ethical conundrum regarding her duty of candor to the tribunal, but held that a client with diminished capacity should be allowed to provide testimony that may not be believable so long as there is “no deliberate fabrication involved.” In this way, the lawyer may allow the client  to meet the subjective fear prong under the asylum standard even if the testimony is not true, and the IJ should then focus on whether the respondent met his burden of proof based on the objective evidence in the record.  The BIA commendably recognized that “[t]his safeguard will enhance the fairness of the proceedings by foreclosing the possibility that a claim is denied solely on testimony that is unreliable on account of the applicant’s competency issues, rather than any deliberate fabrication.”

When I last blogged on mental competency issues in immigration practice, I noted that this area was a work in progress and there was much work that needs to be done to develop standards and provide clear guidance. Matter of J-R-R-A-  goes a long way in filling this lacuna by recognizing the vulnerability of an asylum claimant with competency issues, and also reconciling the lawyer’s ethical conflict regarding not offering false evidence to a tribunal.  I also commend readers to the ABA’s recent excellent publication entitled Representing Detained Immigration Respondents of Diminished Capacity: Ethical Challenges and Best Practices. Representing clients with mental competency issues in immigration matters presents great challenges as well as amazing rewards. Such clients are indeed the most vulnerable, especially when presenting complex asylum claims in immigration court. The lawyer plays a vital role in ensuring that the client is protected and is provided with the necessary safeguards, and can also gain tremendous satisfaction in being able to assist such a client navigate through the labyrinthine immigration system and emerging victorious.

At a time when politicians in the western world, swayed by public opinion, are showing increasing hostility toward asylum seekers fleeing persecution, and making it harder for them to assert claims that are accorded to them under law, we can only hope that decisions such as Matter of J-R-R-A-  break the mold  and provide necessary safeguards, especially when asylum claimants have diminished capacity. While this decision involved an adult with diminished capacity, minors inherently have diminished capacity, and should be equally protected under Matter of J-R-R-A- especially when they have undertaken hazardous journeys fleeing persecution, and some have also  died tragically in pursuit of freedom. Although only an administrative decision, Matter of J-R-R-A- is a shining example of how law ought to develop and evolve in safeguarding the rights of a vulnerable population fleeing persecution, notwithstanding the political attitudes of the day.


The overreaction surrounding  57, 000 unaccompanied children who have come to the United States, with a population of 300 million, is not befitting of  a great nation of immigrants. Indeed, some of the reaction against these children has been nothing short of disgraceful. The waiving of the American flag against busloads of dazed and frightened children by residents of Murrieta in California did a great disservice to the ideals symbolized by this flag. The summoning of the Texas National Guard to the border against these children, unschooled in the complexities of immigration law,  is also unwarranted. Are they going to shoot at these kids?  It is further worth noting  that developing countries host 80% of the world’s displaced population, while most of the anti-refugee sentiment is heard loudest in industrialized countries.

To also characterize the flow of these children to our borders as illegal migration is a canard. People escaping harm in their countries are able to seek the protection of the United States through the asylum process under the rule of law.  As a signatory to the United Nations Refugee Convention, the United Nations Convention Against Torture and other international instruments, the United States cannot ignore expressions of fear of harm and turn these children and their families away. Section 208 of the Immigration and Nationality Act (INA), which Congress enacted in accordance with the obligations of the United States under the Refugee Convention, allows children fleeing harm to apply for asylum.   These children are not evading the border guards; rather they approach them and could hardly be charged under INA section 275 for an improper entry. Those who argue that these children have been brought here by smugglers and coyotes may have a point, but most people use all sorts of assistance while fleeing desperately persecution, and this should not bar them from seeking asylum under INA section 208. According to Commissioner Gil Kerlikowske, these mothers and children often run towards U.S. agents, turning themselves in and seeking detainment.

There is an incident in this nation’s history that is considered a grave blemish, which should never be repeated again.  In May 1939, the St. Louis set sail for Havana, Cuba carrying mostly Jewish refugees escaping the Third Reich in Nazi Germany. Most of them planned to immigrate to the United States as they were on the waiting list for admission, and had landing certificates permitting them entry into Cuba. When Cuba refused to honor the landing certificates, the ship sailed towards Florida and the captain appealed for help. The U.S. Coast Guard refused to allow the ship to dock in Florida and also prevented anyone from jumping  for freedom into the water. When the St. Louis turned back to Europe, Belgium, the Netherlands, England and France admitted the passengers. However, within months, the Germans invaded Western Europe,  and  hundreds of these passengers became victims to the Nazi’s “Final Solution.”

While it is difficult to compare any other event to the horror of the Holocaust,  a child who may be fleeing gang violence and certain death in San Pedro Sula,  Honduras, known as the murder capital of the world, should not be turned back by the United States. The poignant story of Alejandro, only 8 years old, making it all alone to the United States in search of his mother,  and also fleeing gang violence, should prompt us to find compassionate ways to find a solution rather than spit on these children. The Trafficking Victims Protection Reauthorization Act of 2008 (TVRPA) applies to all unaccompanied minors under the age of 18. It would be wrong for President Obama and the Congress to modify the TVRPA, and thus diminish the child’s ability to apply for asylum. Under the TVRPA, for unaccompanied minors coming from countries other than Mexico and Canada, the child must be turned to the Office of Refugee Resettlement (ORR) of the Department of Health and Human Services within 72 hours. ORR has more expertise than border agents to help children make their asylum claims in a humane setting.   If the government wishes to remove the child, the child must still be provided a full and fair removal hearing before an Immigration Judge under INA section 240 where he or she can assert all rights available under law, including asylum and related relief, the trafficking visa and special immigrant juvenile status. The TVRPA also incorporates a policy in favor of releasing the child or placing the child in the least restrictive and most humane detention setting as possible. While unaccompanied children from Mexico and Canada do not get the same initial protections, they too will be covered under TVRPA if the answer to any of the following three questions is “No”: 1) whether the child is unlikely to be a victim of trafficking; 2) whether the child has no fear of returning to his or her country of origin; and 3) whether the child has the ability to make to make an independent decision to withdraw his or her application for admission to the United States.

Although the protections in the TVRPA do not apply to children who are accompanied, they too along with their parents may apply for asylum after passing a credible fear test and even if they face expedited removal. Still, after the increased migration from the Central American countries, there are reports of claimants not being able to adequately express their fear of persecution at the Artesia detention facility in New Mexico. According to a press release of the American Immigration Lawyer Association,  “[w]omen are being asked to share intimate details about past persecution and violence right in front of their children because DHS has not created a safe and separate interview space,” said Karen Lucas, AILA Legislative Associate. Congress now wishes to lower the standards in the TVRPA, and if the HUMANE Act introduced by Sen. Cornyn and Rep. Cuellar got passed, vulnerable children will be forced back to the same dangerous conditions from which they recently fled without proper screening for ascertaining the harm or the sexual abuse they may have faced and will face. Furthermore, under the HUMANE Act, victims may be further traumatized when questioned by officers who lack training and sensitivity, especially with respect to sexual assault interviewing techniques. Clearly, the best interest of the child is paramount when addressing this humanitarian crisis, and asylum standards should not be compromised for the sake of political expediency. Lowering safeguards and sending back children under the specious ground that they would bring diseases to the United States is repulsive. Under such perverse reasoning, lice infested concentration camp survivors may never be able to seek asylum in another country.  Fear of opening the floodgates is also not a reason for sending back people fearing harm without hearing their claim. Each asylum case must be individually judged on its own merits under the applicable law.

Rather than diminish  the ability of minors to seek asylum, the United States must instead provide more funding for better access to courts and lawyers, where they can meaningfully make claims for asylum and other relief. As the Supreme Court famously stated in a case regarding the appointment of counsel in juvenile delinquency proceedings, “The child requires the guiding hand of counsel at every step of the proceeding against him.” In re Gault, 387 U.S. 1, 37 (1967) (quoting Powell v. State of Alabama, 287 U.S. 45, 69 (1932)). If after the child has meaningfully asserted all claims for relief, and been turned down after exhausting all appeal options, he or she may be removed from the United States in a humane manner. Alternatively, the child can also be the subject of prosecutorial discretion if he or she meets the criteria under the Morton June 2011 memo. All children deserve protection, and Congress should be focused on strengthening protections rather than weakening them through the oxymoronic HUMANE Act. The recent announcement by the United States to consider refugee claims of children in their own countries is salutary, but that should still not diminish their ability to seek asylum here.

The United States, as the world’s sole superpower and the lumbering giant in the backyard of countries of Central America, ought to step up and take more responsibility. It is no coincidence that the gang related violence in Central America, resulting in harm to the children fleeing,  stems from  the insatiable demand for illicit drugs in the United States.  Moreover, the love that bonds a parent to the child and vice verca pervades through all countries and cultures. With so many people living in the United States in an undocumented capacity and under a broken immigration system, many of these children, who are vulnerable to gang violence and poverty,  would be united with parents in a more legal and orderly process if we had immigration reform.  The recent calls from GOP leaders to abolish the Deferred Action for Childhood Arrivals (DACA) program is ill-conceived and will backfire against the party in future Presidential elections. DACA has nothing to do with the flood of unaccompanied child migrants to the United States.  What we need is sensible immigration reform, so that the undocumented leading productive lives in this country can legalize and have their children, vulnerable to gang violence,  join them in a legal manner. If Congress continues to obstruct immigration reform, President Obama should have the guts – and he has the authority to do so under the INA – to improve the immigration system through bold administrative fixes.  It is also equally, if more important, to preserve the asylum protections so that people, especially children,  fleeing harm are never turned away like those on the St. Louis.


By David A. Isaacson

On September 7, 2012, the Court of Appeals for the Second Circuit issued a precedential opinion in Ruqiang Yu v. Holder, No. 11-2546-ag, reaffirming that opposition to corruption may under some circumstances qualify as a political opinion upon which a grant of asylum can be based under U.S. immigration law.  According to Ruqiang Yu, this may be the case even if an asylum applicant has failed to prove that similar corruption exists elsewhere in his or her native country beyond the specific context in which he or she opposed it.

Ruqiang Yu was initially denied asylum by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) despite their acceptance of his testimony that he had been mistreated after opposing corruption at the state-owned factory where he worked in China.  As the Court described the facts: 

The IJ found that Yu credibly testified that, while an employee and a team leader at a state-run airplane factory in Shanghai, his employer corruptly refused to pay the wages of workers on his team and that, when Yu’s efforts to aid the workers and to bring the corruption to the attention of government officials was discovered, he was jailed and later fired.
Ruqiang Yu, slip op. at 2.  Despite these findings, the BIA “concluded that Yu failed to establish that his actions ‘constitute[d] a political challenge directed against a governing institution’ since he was objecting to ‘aberrational’ corruption by individuals.” 5.  “Yu’s actions, the BIA reasoned, were “a personal dispute against his individual employers for misusing funds he believed should have gone toward the unpaid wages of the laborers on whose behalf he sought to intervene.”  Id.
The BIA and the IJ in Ruqiang Yu appear to have acknowledged that under Second Circuit case law, “opposition to government corruption may constitute a political opinion, and retaliation against someone for expressing that opinion may amount to political persecution.”  Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010).  As the Second Circuit had said in case law to which it appears that the BIA was referring in its decision when it set out the criteria that Mr. Yu purportedly had not met:
In considering whether opposition to corruption constitutes a political opinion, “[t]he important questions … are whether the applicant’s actions were ‘directed toward a governing institution, or only against individuals whose corruptionwas aberrational,’ ” and “whether the persecutor was attempting to suppress a challenge to the governing institution, as opposed to isolated, aberrational acts of greed or malfeasance.”
Before the Second Circuit’s decision in Ruqiang Yu, but after the Second Circuit’s decisions in Castroand Yueqing Zhang, the BIA had also recognized in a published opinion that “in some circumstances, opposition to state corruption may provide evidence of an alien’s political opinion or give a persecutor reason to impute such beliefs to an alien.”  Matter of N-M-, 25 I&N Dec. 526Matter of N-M-, 25 I&N Dec. 526, 528 (BIA 2011).  In Matter of N-M-, the BIA cited the Second Circuit’s Zhang decision, but found that at least with regard to asylum applications subject to the REAL ID Act because they were filed after May 11, 2005, more than retaliation for opposing acts of corruption linked in some way to a political system was required:
Since the passage of the REAL ID Act, a showing of retaliatory harm for exposing acts of corruption, coupled with evidence that the corruption is in some way linked to a political system, would appear insufficient to demonstrate that a victim’s anticorruption beliefs are “one central reason” for retaliation against him. Instead, an alien must persuade the trier of fact not just that the alleged persecutor was motivated in some measure by the alien’s actual or imputed political belief, but that the protected trait was “one central reason” for the persecution.
Matter of N-M-, 25 I&N Dec. at 532.  

The BIA in Matter of N-M- described three factors that an IJ could use to determine whether actual or imputed political opinion was a central reason for retaliation against one who had expressed an anticorruption belief.  The first is “whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs”   such as whether the “alien denounced corruption in public or at work, published articles criticizing governmental corruption, or organized fellow victims of government extortion against this behavior.”  Matter of N-M-, 25 I&N Dec. at 532.  The second factor is “any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs,” such as “statements indicating that the persecutor viewed the alien as a political threat or subversive and was motivated as such.”  Id.  The third factor described by BIA in Matter of N-M-, citing the Second Circuit’s decision in Castro, looks to whether corruption was pervasive in an asylum applicant’s country:

An Immigration Judge should also consider evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials. Where the alien threatens to expose the corrupt acts of rogue officials acting without the support of the governing regime, it seems less likely that the act would be perceived as politically motivated or politically threatening. However, if corruption is entrenched in the ruling party, a challenge to the corrupt practices of this party may be more likely to represent a challenge to the political position of the ruling party, and not just the financial standing or reputation of a small group of corrupt officials. See Castro v. Holder, 597 F.3d 93, 104 (2d Cir. 2010) . . . .  Whether the governing regime, and not just the corrupt individuals, retaliates against an alien for expressing anticorruption beliefs is relevant to this inquiry.
Matter of N-M-, 25 I&N Dec. at 533.
The Second Circuit in Ruqiang Yu concluded that the BIA had applied an erroneous legal standard in determining whether the corruption opposed by an asylum applicant was “aberrational” for purposes of the test that the Second Circuit itself had set out in Yuequing Zhang and Castro.  As the Second Circuit reminded the BIA: “Because the form and nature of political opposition can vary widely, the assessment of when opposition to corruption becomes an expression of a political opinion involves a context-specific, case-by-case determination.”  Ruqiang Yu, slip op. at 7.  For several reasons, the Second Circuit did not find the BIA to have performed such a determination properly in Yu’s case:
First, we note that the BIA’s factual conclusion that Yu opposed “aberrational” corruption is not supported by the record. Conduct is “aberrational” if it is “a deviation or departure from what is normal, usual, or expected” or something that is “abnormal, diverging from the norm.” Oxford English Dictionary (June 2012, online ed.) (defining “aberration”). Yu’s application indicated that “quite a few . . . workers in other groups did not get paid for a few months,” and that he personally escorted ten of them to confront factory officials. These facts indicate that the non-payment of wages was apparently recurring, not aberrational.
Second, the appropriate inquiry does not focus simply on the number of corrupt acts, but on an assessment of the overall climate and context in which the opposition takes place. Where opposition to corruption transcends self-protection and represents a challenge to state-sanctioned modes of official behavior, a petitioner may be eligible for asylum. . . .
The fact that the protests organized by Yu challenged corruption at a single workplace does not render the corruption categorically aberrational without regard to the nature of Yu’s conduct.  In several ways, Yu’s conduct is typical of political protest (and may have been perceived as such by the authorities). Thus, the record indicates that Yu had no personal, financial motive to oppose the corruption, undertook to vindicate the rights of numerous other persons as against an institution of the state (a state-owned factory), and suffered retaliation by an organ of the state – the police.
Id. at 7-8. 
The single-workplace issue, the Second Circuit noted, was “sharply presented” because Yu had “failed to present . . . evidence of more broad-based corruption at state-owned factories in his native land.”  Id. at 8 n.2.  Nonetheless, the IJ and BIA erred by not “assess[ing] Yu’s claim in its full factual context” to determine whether Yu’s activities were “a challenge to the legitimacy of the government’s entrenched modes of conduct”, or whether the authorities had imputed a political opinion to him (which could be a basis for an asylum claim even if he did not hold such an opinion).  Id. at 8-10. 
One should not lose sight even after Ruqiang Yu of the importance of submitting evidence of systemic, country-wide corruption in an asylum applicant’s home country, if possible.  This author recently represented a client whose application for asylum was granted by the New York Asylum Office based on past persecution and a fear of future persecution relating to his opposition to corruption at a Russian state-owned enterprise (and who has agreed that this limited information about his case can be made public).  In that case, we submitted voluminous evidence of widespread corruption in Russia.  We would do the same today: even within the Second Circuit and even after Ruqiang Yu, it is still highly advisable if at all possible to submit such background evidence regarding the prevalence of corruption in the country of feared persecution, because it will assist greatly in showing that the applicant’s claim relates to “a challenge to the governing institution” under Yueqing Zhang and Castro.  Outside the Second Circuit, evidence of pervasive corruption throughout the country of feared persecution is even more important, under the BIA’s reasoning in Matter of N-M-.  

However, Ruqiang Yu teaches that at least within the Second Circuit (and perhaps elsewhere if the BIA or other Courts of Appeals accept the Second Circuit’s reasoning), some claims of asylum based on opposition to corruption may be viable even if evidence regarding country-wide corruption is for some reason unavailable.  In cases where reliable background evidence regarding the corruption in a particular country or region simply cannot be obtained despite vigorous efforts, applicants and attorneys need not despair.